Torts, Insurance and Products Blog
Editor: Cheryl Shoun
South Carolina's Support of Arbitration Continues to Grow
Previously, in order to have an enforceable arbitration agreement in South Carolina, the arbitration language had to appear on the pages of the contract in bold, UPPER CASE and underlined print. Now, arbitration agreements are presumed valid and a party resisting the remedy has the burden of proof otherwise.
Mediation, Confidentiality and Set-Off: Take Two
In the recent Huck opinion, the court reiterated that the language of a court rule is construed pursuant to the same basic rule governing interpretation of a statute; its words must be given their plain, ordinary meaning without any forced interpretation to expand or contract the statute’s operation.
Trade Creditor Lacks Standing to Sue Judgment Debtor’s Insurer for Deceptive Trade Practices
On February 20, 2018, the North Carolina Court of Appeals upheld a ruling of the North Carolina Business Court that provided further clarification on whether a judgment creditor may sue the debtor’s insurer for deceptive trade practices. USA Trouser, S.A. de C.V. v. Williams.
Federal Declaratory Judgment Act: What is Required for Standing?
To establish federal jurisdiction in a declaratory judgment action, two conditions must be satisfied. First, is the constitutional inquiry - the case must be a ‘case or controversy’ pursuant to Article III of the US Constitution. Second is the prudential inquiry – declaratory relief must be appropriate. Relief pursuant to the Declaratory Judgment Act also requires the establishment of standing under the statute.
When Does the Time to Appeal Begin? Check your email.
Rule 203(b)(1), South Carolina Appellate Court Rules (SCACR), requires notice of appeal be served within thirty days after receiving written notice of entry of an order or judgment. While the notice of appeal must be served upon parties, there is no such requirement as to the written notice of entry of a judgment.
Unlicensed Lawyers and Undue Influence – Setting Aside Deed Rejected
In a recent unpublished opinion, 2018 WL 679484, the South Carolina Court of Appeals addressed the circumstances under which a deed prepared by an unlicensed attorney would be voided in a challenge that also involved claims of undue influence in the execution of the deed. Briefly, the decedent (“Mother”) executed a deed to her home in favor of her daughter (“Daughter”), granting Daughter a remainder interest in the home, while reserving a life estate for Mother. However, Daughter died first, and Daughter’s interest in the home devolved to her heirs (“Heirs”).
Will the “Real” Representative Please Stand - Litigation in Estate Proceedings
Last month, the Supreme Court of South Carolina, in Fisher v. Huckabee, 2018 WL 1076808 (Feb. 28, 2018), addressed the question of who may bring a suit on behalf of a deceased individual if the personal representative has a conflict. Briefly, the decedent asked the defendants to care for her in her last years. In exchange for such care, the decedent promised to make each of the caregivers residuary beneficiaries under her will.
The Evolution of Ripeness Affords Additional Opportunities for Declaratory Judgment Actions
In Colony Insurance Company v. Hucks Pool Company, Inc., et al. (February 15, 2018), based only upon a demand letter to Hucks from a claimant, Colony filed a declaratory judgment action that sought a determination whether it had the duty to defend and indemnify under a policy issued to Hucks. Hucks moved to dismiss the action, alleging the matter was not ripe because no complaint had been filed.
Late Notice Under Claims-Made Policy Torpedos Claim
A recent ruling by a North Carolina federal district court highlights the different treatment the courts give to the late notice defense under a claims-made liability insurance policy versus an occurrence-based policy. The insurer has a clearer opportunity under claims-made policies to defeat coverage when the insured’s notice of a claim is late. The United States District Court for the Eastern District of North Carolina in the case of John Hiester Chrysler Jeep LLC v. Greenwich Ins. Co., 2017 WL 6210897 (E.D.N.C. December 8, 2017), rejected the policyholder’s argument that prejudice must be shown by the insurer under a claims-made policy before coverage can be avoided due to late notice.
Read full article here.
IRAs and 401(k)s Are Safe From Judgments – For Now
In a recent decision, the South Carolina Court of Appeals considered whether post-judgment contributions to an IRA, 401(k) plan, and a College 529 Plan are exempt from execution.Briefly, the judgment debtor confessed judgments in favor of the bank totaling approximately $113,000. When the judgments remained unpaid, the bank initiated supplemental proceedings under South Carolina Code Section 15-39-310 et seq.
Not Every Refusal to Provide Coverage Equals Bad Faith
A complicated and interesting factual history, along with a number of actions, including an earlier one for declaratory judgment, resulted in a thoughtful and reasoned opinion of the United States District Court for South Carolina. Agape Senior Primary Care, Inc. v. Evanston Insurance Company 2018 WL 490386 (January 19, 2018).
Statutory Construction is Powerful - The Court Interprets “Due Date” Under a Premium Service Agreement
The tools of statutory construction are powerful. In interpreting statutory language, words are generally given their common and ordinary meaning. The cardinal rule is to ascertain and effectuate the intention of the legislature while considering the language of the statute as a whole.
John Doe Removals to Federal Court – Not so Fast!
In a recent decision of Brown v. Doe, 2018 WL 316714, the U.S. District Court for the District of South Carolina remanded a John Doe action to the state court. Briefly, Plaintiff, who was driving her employer’s vehicle, was rear-ended while stopped in traffic. The accident occurred in North Carolina, and the unknown driver fled the scene. No one could identify the driver or even the license plate of the at-fault vehicle. Plaintiff, a South Carolina resident, brought this “John Doe” action in South Carolina state court.
South Carolina's Statute of Repose - A look by the United States District Court
S.C Code §15-3-640, provides, in pertinent part:
No actions to recover damages based upon or arising out of the defective or unsafe condition of an improvement to real property may be brought more than eight years after substantial completion of the improvement…. This statute, commonly referred to as South Carolina’s statute of repose, also provides that a certificate of occupancy is proof of substantial completion of a project, unless the parties otherwise agree, in writing.
Legal Malpractice – a Cautionary Carol
Sometime prior to 2009, a lawyer closed his law practice in South Carolina and moved to another state. Unfortunately, his ghost remains in South Carolina, providing cautionary tales this Christmas season for all lawyers. Based on the trial court’s order affirmed in Herring v. Bagnell, 2017 WL 6032651, Lawyer’s “egregious” treatment of his Client has affected his client, Lawyer’s remaining law partner, and the administration of justice in general. His conduct reminds us all, during this holiday season, of several basic lessons in practicing law.
Who Is Insured, What Is Insured and Why Makes a Difference
What do the Moody Blues and an insurance policy have in common? It boils down to this: Say what you mean and mean what you say. The District Court of South Carolina recently reminded us of the importance of the terms of an insurance policy; it means what it says. Trustgard Insurance Company v. Michael Brown, individually and d/b/a Triple S Transport, et al.
Alleged Statutory Violations Precluded Coverage Under Business Liability Policy
In a November 2017 decision out of the United States District Court for the Western District of North Carolina, the Court held that an insurer has no duty to defend or indemnify its insured when the policy’s statutory violation exclusions precluded coverage for the underlying actions. Hartford Casualty Insurance Co. v. Ted A. Greve & Associates, P.A., et al.
An Insurance Contract is Still a Contract - And How That Impacts Voluntary PIP Coverage
In two recent opinions, the SC Court of Appeals reminded readers that parties are free to contract as they see fit, as long as the contract provisions at issue are not contrary to public policy or a statutory prohibition. It is sometimes easy to forget those basic rules apply to policies of insurance as well as other contracts, and include an insurer’s right to limit liability and impose restrictions on their responsibilities.
Application of the Twenty-Year Statute of Limitations S.C.Code Ann. §15-3-520(a) - SC Mortgage Not Required
Most breach of contract claims in S.C. are governed by a three-year statute of limitations. S.C. Code Ann. § 15-3-530(1). A specific exception, however, is found in S.C. Code Ann §15-3-520(a) that provides for a twenty-year statute of limitations in actions on written contracts secured by a mortgage.
Opioid Litigation Over Insurance Coverage – Coming to a Jurisdiction Near You
A very recent appellate ruling in California provides a roadmap for opioid litigation over insurance coverage that is about to ramp up all over country. In Travelers Prop. Cas. Co. of Am. v. Actavis, Inc. et al, 2017 WL 5119167 (Cal. App. 4th Dist. Nov. 6, 2017), the California court held that Travelers has no duty to defend the pharmaceutical manufacturer and distributor Actavis, Inc. and its affiliates (collectively “Actavis”) in lawsuits filed against them by the City of Chicago and two counties in California.
Aiding & Abetting Fiduciary Breach - What is “Knowing Participation” by South Carolina Professionals?
The South Carolina Supreme Court recently clarified liability for aiding and abetting a breach of fiduciary duty. In Bennett v. Carter, 2017 WL 5163467, the Supreme Court reversed summary judgment on a claim against lawyers and accountants for aiding and abetting breach of fiduciary duty involving two trusts. Briefly, Mother was the sole lifetime beneficiary of two trusts created by her deceased husband. The residual beneficiaries of the two trusts were her sons and her daughters. The sons were also co-trustees of the two trusts from 1999 to 2006.
Bad Faith – Another Angle
In August 2011, Jeffrey Vanderhall was riding his bicycle when he was hit by a car and seriously injured. It is now six years, three courts and two bad faith attempts later... To describe the procedural history of this case as anything but torturous would be generous.
UIM Coverage - A Brief Look at Meaningful Offers and a Discovery Lesson
An automobile insurance carrier in South Carolina must offer underinsured motorist coverage (UIM), at the option of the insured, up to the limits of the insured liability coverage. If the insurer fails to make a meaningful offer of this coverage, the policy will be reformed, as a matter of law, to provide it. An insurer may establish a meaningful offer in two ways: the statutory presumption pursuant to S.C. Code §38-77-350(B) and the Wannamaker test.
Rule 68 Offers of Judgment: Proceed With Caution
If there is any occasion in civil litigation that calls for caution by counsel, it is the drafting of a Rule 68 offer of judgment, so warns the Fourth Circuit. Consistent with the general rule of contract construction, responsibility for clarity and precision in a Rule 68 offer is that of the offeror. That concept, along with a few twists and turns unique to a SCUTPA claim, was recently visited by our District Court in Bradley Johnson, as a general guardian, for and on behalf of S.J., a minor and individually on behalf of S.J. v. Hyatt Hotels Corporation, et al.
South Carolina Unfair Trade Practices Act - Attorney’s Fees Do Not Constitute Actual Damages
To prevail in a claim for violation of the South Carolina Unfair Trade Practices Act (SCUTPA), a claimant must establish 1) the opposing party engaged in an unlawful trade practice, 2) the claimant suffered actual, ascertainable damages as a result of the opposing party’s use of the unlawful trade practice and 3) the unlawful trade practice had an adverse impact on the public interest.
Interesting and Useful Cases in Torts and Insurance - July 2017 in the Fourth Circuit Court of Appeals
Each month, Nexsen Pruet attorney Marc Manos, a member of the SC Bar Torts and Insurance Practice Section Council, sheds light on a few recent cases from the Fourth Circuit Court of Appeals, focused in the area of Torts & Insurance.Below are noted cases from July 2017.
Read full article here.
Insurer Violated Lien Statute and Committed Deceptive Trade Practice When Settling With Pro Se Claimant
The North Carolina Court of Appeals recently held that when an insurer settles with a pro seclaimant and issues a settlement check, the insurer must pay all valid medical provider liens before making any payments to the claimant (pursuant to N.C. Gen. Stat. §§ 44-49 and 44-50). Nash Hosps., Inc. v. State Farm Mut. Automobile Ins. Co.
Products Liability? Prove It
Under South Carolina law, a products liability case may be founded in several theories, including warranty. Regardless of the chosen theory, however, a plaintiff must establish (1) he was injured by the product; (2) at the time of the accident the product was in essentially the same condition as when it left the hands of defendant; and, (3) the injury occurred because the product was in a defective condition unreasonably dangerous to the user.
Interesting and Useful Cases in Torts and Insurance - June 2017 in the Fourth Circuit Court of Appeals
Nexsen Pruet attorney Marc Manos, a member of the SC Bar Torts and Insurance Practice Section Council, sheds light on a few recent cases from the Fourth Circuit Court of Appeals, focused in the area of Torts & Insurance.Below are the selected cases for June 2017.
All that Glimmers is Not [Insurance Agency] Gold
Diversity jurisdiction requires complete diversity among plaintiffs and defendants. While it is difficult for a defendant to remove a case with a nondiverse defendant, removal can be accomplished through the doctrine of fraudulent joinder. Fraudulent joinder may be established if the removing party demonstrates the plaintiff engaged in outright fraud in pleading jurisdictional facts.
Can Insurers Take Their Time? Fourth Circuit Finds No Bad Faith for Delay in Investigating Construction Defect Claim
Construction defect claims often include coverage disputes spiced with allegations of bad faith designed to turn up the heat on the insurer. The Fourth Circuit, in its review of one such recent North Carolina case, held while the insured prevailed on its contract claim, there was no bad faith. Delay, without other, aggravating factors is not enough to establish the malice or reckless indifference to consequences necessary to reach the level of bad faith.
Every Dog Bite has its Day (in Federal Court)
In Lighthouse Property Insurance Corp. v. Rogers, 2017 WL 3634593, the United States District Court for the District of South Carolina considered a motion to dismiss for lack of subject matter jurisdiction in an action founded on diversity jurisdiction. Briefly, an injured minor sued the insured defendant in state court for claims arising out of a dog bite to the minor’s face.
Ripeness: A Question of Subject Matter Jurisdiction
Allied World Surplus Lines Insurance Company v. Blue Cross and Blue Shield of South Carolina. Addressing a contractual requirement to exhaust Alternative Dispute Resolution (ADR) prior to commencing litigation, the United States District Court for the District of South Carolina chose to forge its own path, rejecting reasoning adopted by other courts in this Circuit relative to a Rule 12(b)(1)motion.
UIM Claims – Still No Bad Faith for Refusal to Settle, But….
South Carolina has never recognized a bad faith cause of action based upon the failure of an underinsured (UIM) carrier to settle a UIM claim. Maintaining the established precedent, the United States District Court recently refused to recognize bad faith based on a UIM carrier’s refusal of its insured’s settlement offer.
Another Assault – Another Exclusion
2017 is steadily becoming the year of the assault in South Carolina. Founders Insurance Company v. John Hamilton a/k/a Jim Hamilton, individually and d/b/a Aces High Club, Aces High Club and Kenneth Weatherford, 2017 WL 3415074, (August 9, 2017) offers us yet another look at a policy exclusion for an assault and/or battery.
Harleysville Revisited - What We Know Now
In January, the SC Supreme Court issued its original opinion in Harleysville Group Insurance, a Pennsylvania Corporation v. Heritage Communities, Inc, a South Carolina Corporation; Heritage Magnolia North, Inc., et al. and Harleysville Group Insurance, a Pennsylvania Corporation v. Heritage Communities, Inc., a South Carolina Corporation; Heritage Riverwalk, a South Carolina Corporation, et al., 2017 WL 105021 (Jan. 11, 2017). Hailed by some as one of the most important coverage opinions issued, Harleysville left many reeling.
Torts & Insurance Cases from the 4th Circuit Court of Appeals - May 2017
Each month, Nexsen Pruet attorney Marc Manos, a member of the SC Bar Torts and Insurance Practice Section Council, sheds light on a few recent cases from the Fourth Circuit Court of Appeals, focused in the area of Torts & Insurance.Below are noted cases from May 2017.
MEDIATION: Where the Confidentiality Ends
There is little room for argument; the information and documents exchanged during mediation are confidential. Rule 8 of the South Carolina Alternative Dispute Resolution Rules provides, in part:
Communications during a mediation settlement conference
shall be confidential…To that end, the parties and any other
person present shall not rely on, or introduce as evidence …
any oral or written communications having occurred in a
Bad Faith: District Court Remands Case Involving In-house Adjuster
Recently, the United States District Court in South Carolina closed the door on removal of insurance bad faith actions where the in-house, non-diverse, claims adjuster is a co-defendant. In Aung v. GEICO, C.A. No.: 9:17-CV-856-PMD, 2017 WL 2416475 (S.C.D. June 5, 2017), the district court ruled on a motion to remand filed by the plaintiff.
Not too hot, not too cold: US District Court for SC Adopts Moderate Approach for Counterclaims in Response to Amended Complaints
Addressing a procedural matter of first impression, the United States District Court for South Carolina adopted the moderate approach in response to the question of whether a party requires leave of court to amend counterclaims in response to an amended complaint. Poly-Med, Inc. v. Novus Scientific PTE LTD., 2017 WL 2874715 (D.S.C. July 6, 2017).
Torts & Insurance Cases from the 4th Circuit Court of Appeals - April 2017
Nexsen Pruet attorney Marc Manos, a member of the SC Bar Torts and Insurance Practice Section Council, sheds light on a few recent cases from the Fourth Circuit Court of Appeals, focused in the area of Torts & Insurance.
Equitable Estoppel Halts Insurer’s Success In Bad Faith Claim
Demonstrating that equitable estoppel can create genuine obstacles for insurers, the court in the Middle District of North Carolina denied a carrier relief to which it would have otherwise been entitled based upon the carrier’s prior conduct.
Is Recent Legislation a Prediction of Statutory Dram Shop Liability?
There is no question; drunk drivers are a danger to everyone on the road – including themselves. Recognizing that, many states have enacted dram shop laws; laws that hold restaurants or bars that overserve patrons and then allow them to drive strictly liable for injuries to third parties. A majority of states require establishments serving alcohol to have insurance that provides coverage to third parties injured by an intoxicated patron.
When an Assault Really Is an Assault...
Jesse Bass was a guest at Henry’s Sports Bar in December 2012, when the bouncer struck him in the head with such force that he was knocked unconscious and suffered serious brain injury. Bass brought an action against Henry’s, the bouncer and the independent security firm, which employed the bouncer. The security firm resolved the claim and the bouncer failed to respond leaving the remaining claim against Henry’s.
Comparative Negligence and Crashworthiness Collide at the South Carolina Supreme Court
The South Carolina Supreme Court recently held that the comparative negligence of a plaintiff, in causing a vehicular collision, is not a defense to product liability crashworthiness claims brought under the theories of strict liability and implied warranty. Donze v. General Motors, LLC.
Waiver of Attorney-Client Privilege in Bad Faith Litigation
The United States District Court has confirmed in a recent decision that in most circumstances, the attorney-client privilege will be waived in bad faith litigation in South Carolina. In Contravest, Inc. v. Mt. Hawley Ins. Co., the district court was asked to determine whether the insurance company in a bad faith action had waived the attorney-client privilege relative to certain documents and materials sought in discovery. The district court found that it did waive the privilege.
Defamation – When the Facts Really Are the Facts
Historically, South Carolina has followed the general rule that truth is a complete defense to a claim of defamation. An insinuation, however, drawn from a truthful statement, may be an exception to that general rule, and consequently serve as the basis for a claim of defamation.
Attention Contractors: The Right to Cure Act may still be alive!
Perhaps you forgot about it, or maybe you just gave up on it; regardless, you will be happy to hear that the Right to Cure Act just may be alive.
In an Order dismissing Plaintiffs’ claims, entered in the Charleston County Court of Common Pleas, former South Carolina Supreme Court Chief Justice Jean Hoefer Toal, breathed new life into the Act.
UM, Wait a second! – Rekindled Exposure for Bad Faith Uninsured Motorist Claims in South Carolina
Recently, the United States District Court held a plaintiff can maintain a claim for bad faith handling of Uninsured Motorists Coverage (“UM”) in the District of South Carolina. In Tucker v. Peerless Insurance Company, the plaintiff insured sued his personal UM Carrier for bad faith refusal to pay UM benefits. The district court denied the Carrier’s motion to dismiss and allowed the bad faith UM claim proceed.
Fourth Circuit Upholds 1-year Statute of Limitations on Flood Insurance Claims
In Woodson v. Allstate Insurance Co., the United States Court of Appeals for the Fourth Circuit recently upheld a one-year statute of limitations in flood insurance claims. Briefly, Hurricane Irene flooded the home of plaintiffs Gary and Rebecca Woodson in 2011. Allstate had issued the Woodsons a flood insurance policy under the National Flood Insurance Program.
When an Assault is not an Assault
Covered Up: SC District Court Denies Exclusion for Alleged Nightclub Assault and Battery
In a recent United States District Court decision, the court denied the insurer’s motion for summary judgment as to its duty to defend and indemnify for an alleged assault and battery. The facts of Certain Underwriters at Lloyd’s London v. Butler are typical and straightforward.
Is your Motor Vehicle Loan Safe? Insurance policies may not protect the credit union's lien
Today’s insurance world is a complicated scene. Insureds have more choice than ever for insurance coverage. If a federal credit union has a lien on a motor vehicle in South Carolina, you may be unprotected against the borrower’s malfeasance.
In South Carolina, the innocent insured/lienholder is not necessarily protected from intentional loss caused by another insured.
Torts & Insurance Cases from the 4th Circuit Court of Appeals - March 2017
Nexsen Pruet attorney Marc Manos, a member of the SC Bar Torts and Insurance Practice Section Council, sheds light on a few recent cases from the Fourth Circuit Court of Appeals, focused in the area of Torts & Insurance. Linked below are noted cases from March 2017.
City Slickers & Airplane Litigation: Fight or Flight
Sometimes venue challenges are successful. Sometimes the convenience of the lawyers is not the standard for judging the proper venue for a lawsuit. In Theobald v. Piper Aircraft, Florida’s Third District Court of Appeal affirmed a trial court’s order transferring the venue of an aviation death case from Miami to the defendants’ county of residence.
BEWARE: Certain Acts of Community Management Companies Constitute the Unauthorized Practice of Law in South Carolina
In an opinion expected to affect community management companies and owners’ associations throughout the State, the South Carolina Supreme Court has provided clarification as to what it deems to constitute the unauthorized practice of law, particularly as it relates to the management of various owners’ associations.
Consideration of Force Majeure in Construction Contracts
Before entering into a construction contract, consider how force majeure events are evolving in today’s world. Have you looked at the risk of climate change causing more frequent unusual or severe weather? What about the risk of an act of terrorism?
Nexsen Pruet's Torts, Insurance and Products Law Group provides this Blog as a courtesy to business and individuals across the Carolinas. It is for informational purposes only, not legal advice. If you have questions, please contact the TIPS practice group leader, Jim Bryan.