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Nexsen Pruet TIPS

Torts, Insurance and Products Blog

Editor: Cheryl Shoun


 
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.

Read full article here.

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.

Read full article here.

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.

Read full article here.

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.

Read full article here.

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. 

Read full article here.

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.

Read full article here.

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.

Read full article here.

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. 

Read full article here.

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.

Read full article here.

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. 

Read full article here.

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.

Read full article here.

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.

Read full article here.

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.  

Read full article here.

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.

Read full article here.

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.

Read full article here.

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 
mediation proceeding.

Read full article here.

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.

Read full article here.

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).

Read full article here.

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.

Read full article here.


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.

Read full article here.


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. 

 Read full article here.

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.

Read full article here.

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.

Read full article here.

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. 

Read full article here.

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. 

Read full article here.

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.

Read full article here.

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.

Read full article here.

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.

Read full article here.

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.

Read full article here.

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.

Read full article here.

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.

Read full article here.

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.

Read full article here.

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. 

Read full article here.

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?

Read full article here.


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.

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