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Interesting and Useful Cases in Torts and Insurance

October and November 2017 in the Fourth Circuit Court of Appeals

May 3, 2018

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 summaries of the cases selected for October and November 2017.

Taja Investments, LLC v. Peerless Ins. Co.

No. 16-1854 (4th Oct. 11, 2017) (Unpublished) INSURANCE: Real estate investment company instructed subcontractor not to excavate basement by sections, underpinning each finished section as it went, and but to instead excavate the entire basement at once during remodel. Eastern wall collapsed. Summary judgment for insurer affirmed. The exclusion for damages caused by defects in the insured’s own workmanship/construction applied. The loss directly resulted from the workmanship and was not an ensuing loss.

View case here.

Pieper v. United States of America

No. 16-2035 (4th Oct. 20, 2017) (Unpublished) FEDERAL TORT CLAIMS ACT: Residents of Frederick, Maryland sued for bodily injury and death caused by exposure to chemicals disposed at Fort Detrick, home of the biological warfare command from 1955 to 1969.  Summary judgment for the United States affirmed. How to handle disposal of chemicals and the later cleanup of groundwater both fell within the discretionary judgment exception to the waiver of sovereign immunity in the Federal Tort Claims Act. The exception requires a two-step analysis. First, the alleged tortious conduct must include an element of choice or judgment—meaning no applicable statute, regulation or policy specifically prescribed a course of action. Even if this prong is met, the government actor (here the Army) may still be liable if the choices are not based on considerations of public policy or susceptible to policy analysis. The court found both prongs met and affirmed summary judgment for the Army.

View case here.

Bagheri v. Bailey 

No. 16-1712 (4th Oct. 25, 2017) (Unpublished) MEDICAL MALPRACTICE: Decedent presented at ER with severe cough and a red, infected toe. He died 17 days later of a pulmonary thromboembolism (blood clot in lung). Jury verdict for $2,750,000 for failure to diagnose. The court found exposure to TV clips and Facebook article about defendant doctor’s license suspension due to opiate prescribing practices as well as cross-examination on that point harmless error. Curative instructions plus exposure to media stories being “brief and inconsequential” made it unlikely to prejudice jury. Although ER doctor recommended getting a CT scan and decedent did not, jury instruction regarding contributory negligence was sufficient. Verdict affirmed.

View case here.

Clutter-Johnson v. United States of America 

No. 17-1417 (4th Nov. 1, 2017) (Unpublished) FEDERAL TORT CLAIMS ACT/MEDICAL MALPRACTICE: Plaintiff became pregnant with twins after doctors implanted intrauterine device (IUD). Summary judgment based on statute of limitations affirmed. The claim accrued when Plaintiff learned she was pregnant. She failed to submit a written claim to the federal agency within two years of knowing the existence and cause of her injury—that she became pregnant while she had an IUD—as required by statute.

View case here.

OpenRisk, LLC v. Microstrategy Services Corp 

No. 16-1906 (4th Nov. 13, 2017) (Published)
CONSPIRACY/TORTIOUS INTERFERENCE: Microstrategy provided cloud services to start up OpenRisk. OpenRisk suffered economic hardship and three of its employees began a competing enterprise to commercialize OpenRisk’s property. OpenRisk failed to make contractual payments to Microstrategy and Microstrategy copied OpenRisk’s data, deleted it from OpenRisk’s servers and provided services to the former employees. Summary judgement for defendant based on federal preemption affirmed. Copyright preempts all state liabilities for copying and transferring OpenRisk’s data. The only non-preempted claims, tortious interference with the former employees non-compete contracts and conspiracy, failed for lack of proof that Microstrategy induced the former employees to breach their contracts or reached any agreement to harm OpenRisk.

View case here.

Hensley v. Price 

No. 16-1294 (4th Nov. 17, 2017) (Published) CIVIL RIGHTS: Plaintiff’s decedent carried a handgun onto his front porch and argued with his daughters then walked into his front yard with the gun in hand while two Sherriff’s deputies watched from their cars. In the light most favorable to the plaintiff, evidence showed decedent never pointed the gun at the deputies, never threatened the deputies, and the deputies never ordered him to stop or drop the gun. Deputies exited their cars and shot him to death. Interlocutory appeal form denial of summary judgment on qualified immunity grounds affirmed, case remanded for trial. The court found that the death qualified as an illegal seizure under the Fourth Amendment and triable issue of fact existed.

View case here.

Brown v. Elliott 

No. 16-2218 (4th Nov. 21, 2017) (Published) CIVIL RIGHTS: An informant tipped off Kershaw County deputies that Plaintiff’s decedent would be traveling in a certain area in a pickup truck after purchasing a large amount of cocaine and stated he usually carried a gun. The pickup truck appeared, crossed the middle line while speeding and deputies initiated a traffic stop. As deputies stepped up to the vehicle, the decedent from the passenger’s seat jumped toward the driver pressed on the gas petal and shifted into drive. One deputy attempted to grab him. The other, fearing serious harm from the moving vehicle and the decedent, fired into the cab, killing the decedent. The District Court granted summary judgment as to the Section 1983 Fourth Amendment unreasonable seizure claim, fined the defendants for discovery abuse for failure to identify that one of the patrol cars did have a video camera and explain why no videos existed and remanded state law claims to state court. Fourth Circuit affirmed all holdings.

View case here.

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