CHARLESTON – The state Intermediate Court of Appeals has affirmed a lower court decision in favor of an attorney and law firm accused of legal malpractice.
A Kanawha Circuit Court judge had granted summary judgment in favor of Patrick K. Maroney and Maroney Williams Weaver & Pancake, finding plaintiff Donald C. Nichols’ complaint did not adequately plead a claim for breach of contract and that his negligence claim was barred by the statute of limitations.
In a 32-page ruling written by Judge Thomas Scarr, the ICA affirmed that decision.
According to the opinion, Nichols allegedly was exposed to benzene on a number of job assignments during his 39-year career at FMC. Then, 13 years after he retired, he was diagnosed with multiple myeloma. In January 2014, he applied for workers’ compensation. That claim was denied because there was no definitive opinion by a medical professional saying his multiple myeloma had been caused by chemical exposure in the workplace.
On March 28, 2014, Nichols hired Maroney and his law firm to represent him in his workers’ comp claim. The firm was not hired to represent Nichols in any tort claims. He hired another law firm to sue FMC and various suppliers in a case filed in Marshall County in 2015.
On June 15, 2017, the Workers’ Compensation Office of Judges affirmed the denial of benefits. No appeal was filed on this decision.
Nichols says the language of the letter constituted fraudulent concealment on the part of his counsel, thereby tolling his statute of limitations because it did not indicate that Nichols might have a potential malpractice claims against Maroney and his firm.
On June 25, 2020, Nichols filed a legal malpractice complaint in Kanawha Circuit Court against Maroney and his firm for breach of contract and negligence.
“The complaint did not refer to any specific language of the retainer agreement that was allegedly breached by the defendants,” the ICA opinion states. “According to the complaint, Mr. Nichols incurred approximately $800,000 of health care expenses that he contends would have been covered by workers’ compensation had his claim been accepted. He also asserted that his separate personal injury action against FMC was compromised by the adverse ruling in the workers’ compensation proceeding.”
In response, Maroney and his firm filed an answer seeking to dismiss the claim because it was time barred for having been filed more than two years after the Office of Judges affirmed the denial of Nichols’ workers’ comp claim.
On April 20, 2022, Maroney and the firm filed a motion for summary judgment. On September 9, 2022, the lower court granted the motion for summary judgment and dismissed the case. Nichols appealed that order to the ICA.
In the opinion, Scarr writes that Nichols’ complaint did not adequately plead a claim for breach of contract and that the lower court correctly held that a genuine issue of material fact did not exist as to whether the negligence claim was time barred. He also wrote that the lower court did not abuse its discretion in granting summary judgment without allowing the plaintiff to conduct additional discovery.
Nichols was represented in the ICA petition by Matthew B. Hansberry of Hansberry & Wagon in Bridgeport, while Maroney and his firm were represented by Clayton T. Harkins and Kevin A. Nelson of Dinsmore & Shohl’s Charleston office.
West Virginia Intermediate Court of Appeals case number 22-ICA-168 (Kanawha Circuit court case number 20-C-518)