February 4, 2021
Periodically, Nexsen Pruet member 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 areas of tort & insurance law.
Below are the torts and insurance cases of interest selected for December 2020.
Krembel v. United States of America
No. 19-6774 (4th Cir. Dec. 1, 2020) (Unpublished) FEDERAL TORT CLAIMS ACT Trial court granted summary judgment for defendants. Physicians providing prisoner medical care at Buntner Federal Correctional Institute did so under an independent contractor agreement with the Government. If an independent contractor committed the alleged tort, the United States has not waived its sovereign immunity under the Federal Tort Claims Act. The case should have been dismissed for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) to avoid any procedural impact on the potential claim against the independent contractor. Decision below modified to a Rule 12(b)(1) dismissal without prejudice.
Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC
No. 16-2185 (4th Cir. Dec. 7, 2020) (Published) TELEPHONE CONSUMER PROTECTION ACT (TCPA), CLASS ACTION. PDR Network send a facsimile to Carlton & Harris offering a free ebook of the Physician’s Desk Reference. The District Court decided that a fax must offer for sale or lease or other commercial purpose to violate the TCPA after conducting a Chevron deference analysis and finding it did not need to give deference to a Federal Communications Commission (FCC) regulation that stated unsolicited fax offers of free goods or services violate the TCPA. The District Court dismissed the case finding a fax offer of a free ebook had no commercial purpose. An earlier appeal went to the U.S. Supreme Court and it remanded to the Fourth Circuit. The Fourth Circuit determined that the FCC Rule was interpretive, not legislative, and, therefore, the courts were not required to apply it under the Hobbs Act. 28 U.S.C.A. § 2342(1). Further, the District Court should not have conducted a Chevron deference analysis because that level of deference only applies to a rule carrying the force of law—a legislative regulation. Gonzales v. Oregon, 546 U.S. 243, 255 (2006). A nonbinding interpretive rule of an agency responsible for enforcing may still receive deference from the courts, but the proper framework for analysis is set out in Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Under that analysis, the weight that courts afford an agency’s interpretation “depend[s] upon the thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.” Skidmore, 323 U.S. at 140. An interpretive rule is entitled to respect only if it has the power to persuade. The Fourth Circuit remanded to the District Court to perform a Skidmore deference analysis of the rule and then reconsider the motion to dismiss.
Ayala v. United States of America
No. 19-1862 (4th Cir. Dec. 2, 2020) (Published) FEDERAL TORT CLAIMS ACT, DISCRETIONARY FUNCTION EXCEPTION, IMMIGRATION. Plaintiff born in El Salvador in 1978 came to the U.S. as a young child. His parents divorced in 1983 without a decree of custody and he lived with his father who became a citizen in 1995. In 2004, when he traveled to/from El Salvador to visit family, CBP agents arrested him and claimed he was not a U.S. Citizen because his father did not have written evidence of legal custody. A removal order was entered and he was deported. He returned to the U.S. shortly thereafter. IN 2015 ICE arrested him. His lawyer presented evidence of citizenship and Ice released him after seven months of imprisonment and issued a certificate of citizenship effective June 8, 1995. He sued for assault and battery, false arrest/imprisonment, intentional infliction of emotional distress, and negligence. The District Court dismissed some claims and granted summary judgment for others based on the discretionary function exception to the waiver of sovereign immunity contained in the Federal Tort Claims Act. The Fourth Circuit affirmed finding that law enforcement decisions to investigate, prosecute, and detain under immigration laws clearly fell within the discretionary function exemption. As waivers of sovereign immunity are acts of grace not fundamental rights, they are strictly construed. Affirmed.
McMichael v. James Island Charter School
No. 19-1880 (4th Cir. Dec. 31, 2020) (Unpublished) DRIVER’S PRIVACY PROTECTION ACT, DEFAMATION, INVASION OF PRIVACY. The Charter School eliminated its finance department for budgetary reasons and terminated one of the plaintiffs. The principal requested continued security to prevent retaliation by former employees and the officer in charge obtained pictures of the former employee and her husband from the SC DMV driver’s license database so officers could recognize them if they returned to campus uninvited. Other employees saw the pictures in the security office and the plaintiffs’ sued for violation of the Federal Driver’s Privacy Protection Act (FDPPA) as well as defamation and invasion of privacy under South Carolina law. The District Court granted summary judgment on all claims. The Fourth Circuit affirmed. The FDPPA allows a person engaged in a law enforcement purpose to obtain the DMV photos and the exception applied to protection of the school campus as a matter of law. Further merely having the photos to identify a possible unauthorized visitor on campus (only students and employees are allowed without an invitation) did not constitute defamation nor did terminating one plaintiff when the termination letter simply stated the position was eliminated due to budgetary issues. Plaintiffs claim for invasion of privacy relied upon the wrongful publicizing of private affairs form of the tort. As a matter of law, keeping the pictures with a security packet in the security office used by officers on duty cannot amount to publicizing the photos. Just because a few other employees saw the photos in the security office cannot rise to the level of publicity required. Publicity involves disclosure to the public, not an individual or small group. Summary judgment for defendants on all claims, affirmed.