CLARKSBURG — A Canadian corporation is asking to be dismissed from a lawsuit alleging a workplace injury.
Urban Machinery Corporation argues that the complaint fails to state a cause of action upon which relief may be granted against the corporation.
"Although this Defendant denies any wrongdoing or fault, should a finding of liability and damages be made, this Defendant is entitled to an offset for any and all amounts received or receivable to Plaintiff or others, pursuant to the West Virginia Workers' Compensation Act," the May 10 answer states.
Urban Machinery contends that because the plaintiff has not been issued a final award of whole person impairment of 13% or greater for his purported compensable injuries, his claims should be dismissed pursuant to the West Virginia code.
"If there is any actionable liability of this Defendant, which liability is specifically denied, such liability should be compared to the fault of the Plaintiff and the other parties and actors involved in the matters alleged in the Complaint," the answer states. "This Defendant alleges that any award made to Plaintiff in this action must be proportionately allocated among Plaintiff, parties or actors found to be culpable in accordance with the percentage of any negligence or fault attributed to said Plaintiff, this Defendant, parties, and actors."
An investigation is currently ongoing, Urban Machinery alleged in the answer.
Michael W. McDonald filed the lawsuit against Urban Machinery and Cornerstone Building Brands in November in U.S. District Court for the Northern District of West Virginia.
McDonald was employed by Cornerstone as the operator of an Urban Machinery Welder and on Nov. 10, 2019, McDonald was retrieving a finished part when the welder's parts, without warning, converged toward each other while the plaintiff was still inside the machine and he was caught in the moveable arms of the machine.
"Plaintiff was caught in the moveable arms of the machine and suffered serious, permanent, and disabling crushing injuries to his chest, ribs, shoulder, arm, and neck," the complaint states. "Plaintiff was wedged between the machine’s fixtures on each side of his shoulders essentially sandwiched."
McDonald claims the machine bear-hugged him almost instantly without any time to react and squeezed him for approximately 30 seconds before releasing him.
The incident was reported to OSHA, according to the suit.
McDonald claims the defendants were negligent and caused his injuries.
McDonald is seeking compensatory and punitive damages with pre- and post-judgment interest. He is represented by J. Ryan Stewart of Bailey Javins & Carter in Charleston.
Urban Machinery is represented by Anders W. Lindberg and Rodney L. Baker of Steptoe & Johnson of Huntington.
U.S. District Court for the Northern District of West Virginia case number 1:21-cv-00139
