Court of Appeals Rules in Favor of Claimant Despite Extreme Failure to Prosecute

You snooze, you lose? It is a generally accepted premise in litigation. When plaintiffs drag their feet and fail to prosecute their case – workers’ compensation or any other – they may be subject to severe sanctions such as dismissal of their case.

However, according to the North Carolina Court of Appeals, dismissal is not always a foregone conclusion, even in cases involving egregious delays. In Lauzier v. Stanly Martin, after claimant delayed litigation for a full year without justification, the Full Industrial Commission sanctioned her by dismissing the case. However, on May 5, 2020, the Court of Appeals reversed the Commission, holding the Commission had abused its discretion because defendants had not shown that the delays had prejudiced them or that sanctions short of dismissal would suffice.  

Significant, Unexplained Delays

Claimant’s failure to prosecute her workers’ compensation case was extreme. After filing a hearing request to contest the denial of the case, she failed to respond to defendants’ interrogatories and requests for production or motion to compel. A week before the scheduled hearing, she underwent back surgery. The case was removed from the hearing docket. Claimant, through counsel, finally served barebones discovery responses but did not respond to defense counsel’s allegations that the responses were insufficient.

When a full year passed with no further activity from claimant, defendants moved to dismiss the claim. Claimant appeared at the dismissal hearing, but the opinion does not reveal that she provided any compelling evidence to explain her delays.   

Prejudice to Defendants

Under Rule 616(b) of the Industrial Commission Rules,

Upon notice and opportunity to be heard, any claim may be dismissed with or without prejudice by the Commission on its own motion or by motion of any party if the Commission finds that the party failed to prosecute or to comply with the rules in this Subchapter or any Order of the Commission.

When considering whether a sanction should rise to the level of dismissal, the Commission must consider three things: 1) whether the plaintiff acted in a manner which deliberately or unreasonably delay the matter, 2) the amount of prejudice, if any, to the defendant caused by the plaintiff’s failure to prosecute, and 3) the reason, if one exists, that sanctions short of dismissal would not suffice. In Lauzier, defendants argued the delay caused them to incur high legal costs and lose the right to direct medical care. The Commission agreed, finding as fact that claimant’s delays caused defendants material prejudice and substantial monetary expense. However, the Court of Appeals held that the Commission should have required defendants to supplement their arguments by providing hard, supporting evidence of cost and prejudice.   

Practice Tips

Unfortunately, this case may cause the Industrial Commission, in the future, to hesitate before dismissing cases for failure to prosecute. When claimants fall off the grid, defendants’ best course of action may be to file their own Form 33 Request for Hearing rather than risking a long period of inactivity. If defendants choose to wait it out, they should clearly document all the ways they were prejudiced by the delays.

The workers’ compensation attorneys at Anders Newton are available to answer any questions about unreasonable delays in prosecution of workers’ compensation claims. Contact us at 919-516-8400.


Disclaimer: The information on the blog is provided for informational purposes only and does not constitute legal advice. Cases referenced do not represent the law firm’s entire record. Each case is unique and must be evaluated on its own merits. The outcome of a particular case cannot be based on past results.

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