CHARLESTON — The West Virginia Supreme Court of Appeals ruled that a circuit court rightfully denied a motion to dismiss or compel arbitration in a case involving a delivery service.
Yesterday Delivery Service Inc. and Norman Ryder Jr. appealed an order by Kanawha Circuit Court entered Jan. 28, 2019, denying their motion to dismiss the complaint or stay proceedings and compel arbitration.
Daniel Weiss filed a complaint in Kanawha Circuit Court in October 2010, asserting that Yesterday Delivery Service Inc. and Ryder, its owner, violated the West Virginia Wage Payment and Collection Act and breached a contract governing Weiss’ work as a long-haul truck driver.
The agreement between Weiss and Yesterday Delivery contained an arbitration provision that required a party to make a written demand for arbitration within 90 days of a claimed breach or otherwise suffer "an absolute bar to the institution of any proceedings and a waiver of the claimed breach."
In December 2013, after at least two continuances and approximately five months before the scheduled trial, Yesterday Delivery and Ryder filed a motion to compel arbitration.
Weiss died in 2016 and his wife, Barbara Weiss, the executrix of his estate, took over the case for her husband. In January 2019, Yesterday Delivery and Ryder filed a petition for writ of mandamus with the West Virginia Supreme Court, seeking to compel a ruling from the circuit court regarding the motion to compel arbitration. In the meantime, the circuit court denied the motion to compel arbitration, finding that the right to arbitration was waived by the "'inordinate time that passed between the filing of the complaint and the filing of the motion to compel arbitration," the decision states.
The Supreme Court found that Ryder and Yesterday should have alerted the court earlier about the arbitration clause. It agreed that three years is too long to fail to alert a trial court of an issue so critically affecting litigation.
"Accordingly, we find that the circuit court did not err in applying waiver and denying the motion to compel," the decision stated.
West Virginia Supreme Court of Appeals case number: 19-0164
