Curry v. Miller

Larry Curry appealed the dismissal of his lawsuit against Gable Miller, Jr., and Auto Owners Insurance Company ("Auto Owners") on the ground of failure to prosecute. In 2014, Curry was injured when the vehicle in which he was driving was struck from the rear by a vehicle being driven by Miller. Curry retained attorney Russell Johnson to represent him in the matter. Johnson, on Curry's behalf, filed a personal-injury action against Miller. Johnson’s claim against Auto Owners sought uninsured/underinsured-motorist benefits. In 2017, the trial court set the case for a bench trial. At some point Curry's relationship with Johnson began to deteriorate, and Curry terminated Johnson's employment. On April 3, 2017, the trial court granted Johnson's motion to withdraw. On the same day, Johnson filed with the trial court a lien for attorney fees and expenses. Johnson stated in the lien that, during his representation of Curry, Miller had made an offer to settle Curry's claims for $17,000; that Curry had accepted the offer to settle but had refused to sign the necessary releases; and that Johnson had filed the personal-injury action on Curry's behalf to prevent Curry's claims from being barred by the statute of limitations. The trial court entered an order stating that the status conference had been held on April 11, 2017; that defense counsel had attended the conference; that Curry failed to appear at the conference; and that Curry was to notify the court within 30 days of his intention either to proceed pro se or to retain counsel. The order further stated that failure to comply with the order could result in sanctions, including dismissal of the lawsuit. On the same day, the trial court rescheduled the bench trial. On May 19, 2017, Miller and Auto Owners moved to dismiss Curry's claims for failure to prosecute, asserting that Curry had not attended the April 11, 2017, status conference and had not complied with the trial court's subsequent orders. The trial court deferred ruling on the defendants' motion to dismiss for one week to give Curry ample opportunity to respond. Curry failed to respond, and the trial court entered an order dismissing, with prejudice, Curry's lawsuit against the defendants. The Alabama Supreme Court affirmed this outcome, finding Curry simply offered the trial court no plausible explanation as to why, out of all the documents mailed to him at his address, he would have received only one of those documents: defense counsel's motion to dismiss the action for want of prosecution. The trial court had before it sufficient evidence to reject Curry's assertion that he did know that a lawsuit had been filed on his behalf. Accordingly, the trial court did not exceed its discretion in concluding that Curry's failure to prosecute his lawsuit was "willful" for purposes of Rule a 41(b) involuntary dismissal. View "Curry v. Miller" on Justia Law