South Carolina Lawyers Weekly Columbia, SC

Transcription

h t t p : / / w w w. s c l a w y e r s w e e k l y. c o m
Vol. 7, No. 27
Cite This Page: 07SCLW0461
Man couldn’t recover against
sister for pet raccoon attack
Defendant had no duty to warn about animal
Comp claimant
couldn’t pick
doctor, make
employer pay
An Aiken County forklift
driver who was injured on the job
could not pick
her own doctor
See opinion
and make her
digest for
employer pay
McKinney v.
the bill, despite
Kimberly-Clark
her argument
Corp. on
that a 2002 appage 13.
peals
court
opinion justified it, the Court of Appeals has
ruled.
In its Feb. 25 decision, the ap
See DOCTOR on PAGE 14
Justice Thomas
goes more
than 2 years
without asking
any questions
during oral
arguments
See page 5
had been a household pet — it had
its own chair in the house and even
bathed with humans — had been
moved to an outside pen in the
weeks before the incident. That
was because the defendants
thought the animal was becoming
too wild to stay inside but was too
tame to return to nature, she said.
“My client should have been
warned of all of the facts, including that the raccoon had escaped
from and returned to the enclosure, and why the animal had bitten his sister. Had he known, we
See RACCOON on PAGE 14
$7.00 per copy
Columbia, S.C.
U.S. SUPREME COURT
Ruling in case with S.C. roots
opens door to 401(k) lawsuits
BY GREGORY FROOM
© Wrangler | Dreamstime.com
A Midlands man who was bitten twice by his sister’s pet raccoon cannot recover damages,
even though he claimed she
should have warned him about the
animal’s violent streak, the appeals
court has ruled.
The plaintiff tried to catch the
animal in his
sister’s house
See opinion
while she was
digest for
at the emerSingleton v.
gency room
Sherer and
with a severed
Underwood
artery
and
on page 12.
nerve that she
sustained when
the raccoon unexpectedly bit her
earlier that day.
The plaintiff was bitten later
when he tried to grab the agitated
animal by himself, despite warnings from his father to wait until
he arrived. The plaintiff claimed
his sister and the co-owner of the
house breached their duty to warn
him about what he said was a latent danger.
“He had no understanding
when he went to the home as to
what had prompted the raccoon to
bite his sister,” said the plaintiff’s
attorney, Darra James Coleman of
Columbia.
She said the raccoon, which
March 3, 2008
Despite statutory language
barring suits for individual
damages, an employee of a
South Carolina-based management consulting firm could recover losses under ERISA after
the firm failed to make requested changes to his 401(k)
allocations, the U.S. Supreme
Court has ruled.
“You cannot overstate the
importance
of this opinSee opinion
ion for folks
digest for
401(k)
with
LaRue v. Deplans and
Wolff, Boberg
any sort of
& Associates,
retirement
Inc. on page 6.
plan,” said
Robert E.
Hoskins of Greenville, one of
the lawyers who represented
the plaintiff.
The high court reversed rulings from the Fourth Circuit
and the U.S. District Court in
South Carolina, both of which
tossed the plaintiff’s suit because his breach-of-fiduciary-
SOUTH CAROLINA LAWYERS WEEKLY
WEB POLL RESULTS
The Bar’s House of Delegates recently debated
whether government and other attorneys should lose
their current exemptions from taking Rule 608 indigent
appointments. Do you think it’s a good idea?
Yes. They should share the
burden with the rest of us in
private practice.
48%
No. They have too many conflicts and they already provide 37%
public service every day.
Yes. But only as a ploy to get the
General Assembly to provide fund- 15%
ing for everyone’s appointments.
“You cannot
overstate the
importance of this
opinion for folks
with 401(k) plans
and any sort
of retirement plan”
Editor
Poll results as of 2-27-08
This poll is not scientific and reflects the opinions of only those
Internet users who have chosen to participate.
Robert E. Hoskins,
represented plaintiff
duty claims were specific to his
account, instead of encompassing
the entire plan.
In a Feb. 20 decision, the justices said that the lower courts’ rulings were based on prior cases and
statutory language entrenched in an
antiquated view of retirement
plans. The precedent focused on
protection of the plan’s integrity,
instead of the individual’s interests,
according to the decision.
Now that most employees
have defined-contribution plans,
such as 401(k)s, instead of defined-benefit plans, individual
account-holders should be able
to recover losses to their cut of
the plan’s assets when there’s a
fiduciary breach, according to
the decision.
“It’s still about the integrity
See 401(K) on PAGE 16
SCWLA head aims to partner
with female lawyers in region
BY DIANA SMITH
Staff Writer
Establishing
partnerships
among women lawyers associations in the Southeast and supporting young female attorneys as they
begin their careers are two primary
goals for the South Carolina
Women Lawyers Association this
year, according to the group’s
president.
“Those two goals really go
hand in hand,” said Liz Crum,
who is serving as SCWLA president for 2008. “We want to provide an opportunity for collegiality
among women lawyers by establishing a regional referral system
whereby women attorneys have
Crum
See SCWLA on PAGE 16
New SCWLA president
The Week’s Opinions ... Begin on page 6
Fraud
Illegal immigration
proposal draws criticism
from Latino group
See page 4
A man who sued a homeseller and an exterminator for failure to disclose moisture damage at
the home cannot maintain his action since the
statute of limitations bars his claim, the Court
of Appeals ruled.
Watters v. Terminix Service, Inc.
See opinion digest, page 12.
Insurance
An insurer made a meaningful offer of UIM coverage since the insurerʼs notification process was
commercially reasonable and it intelligibly advised
the appellant of the nature of UIM coverage, the
Court of Appeals ruled.
Atkins v. Horace Mann Ins. Co.
See opinion digest, page 11.
CLE Calendar
South Carolina Lawyers Weekly, March 3, 2008 — Subscribe Today: 1-800-451-9998
Page 2
contact: [email protected]
March 4, 2008
The Fundamentals of Fiduciary
Income Taxation
Sponsor: S.C. Bar — CLE Division
Location: Teleseminar
MCLE credit hours: 1
Contact: 800-694-9747
March 11, 2008
LLC Distributors And Liquidators
Contact: 800-694-9747
March 12, 2008
Special Needs Trusts In South
Carolina: Who, What, When, Where
And Why
Sponsor: Lorman Education Services
Location: Columbia
MCLE credit hours: 6.67
Contact: 866-352-9539
Immigration Law And Employer
Compliance
Location: Mount Pleasant
MCLE credit hours: 6.67
Contact: 866-352-9539
March 13, 2008
Hotel Development Projects And
Agreements: A Practical Guide To A
Growth Area
Contact: 800-694-9747
March 18, 2008
Real Estate: A Primer On Insurance
Contact: 800-694-9747
Water Considerations In Land
Development
Location: Mount Pleasant
Contact: 866-352-9539
March 25, 2008
Trust Investments: A Guide To
Standards And Potential Liability
Contact: 800-694-9747
In This Issue Of SCLW:
1 section, 16 pages
Opinions:
U.S. Supreme Court ..........6
U.S. 4th Circuit Court.........6
S.C. Supreme Court ..........7
S.C. Court of Appeals ........9
March 28, 2008
Advanced Workersʼ Compensation
Sponsor: NBI
Location: Columbia
Contact: 800-930-6182
March 31, 2008
Your Family Law Practice In The 21st
Century
Sponsor: NBI
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Contact: 800-930-6182
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Lawyers Weekly
Columbia, S.C.
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Lawyers In The News
Briefly…
Tigerron A. “Tiger” Wells has joined the
Columbia office of Haynsworth Sinkler
Boyd as an associate. He is a member of the business
& consumer products
industry
group and represents the firm’s
clients in business
matters, including
litigation, corporate advice and
counsel and general contract review.
Wells is a
Wells
member of the
South Carolina
Bar, American Bar Association and Columbia Lawyers Association. The University of
Virginia School of Law graduate serves as
vice president for Columbia Young Professionals and was a founding member of the U.
Va. committee for progress on race.
Attorney Chris Spradley, a partner in
the law firm of Moore, Taylor &
Thomas, has been retained as an attorney
for Saluda County. Spradley, a native of
Batesburg, manages the firm’s Saluda office. As county attorney, Spradley and
the law firm will represent Saluda
County on all legal matters, attend all
County Council meetings and draft ordinances as directed by council or county
director.
Nexsen Pruet has announced that
William A. “Al” Pollard, a former member
of the firm, has withdrawn following a long
illness.
Marguerite S.
Willis, a partner in
the Columbia office of Nexsen
Pruet, has been reelected to the
board of directors
of the South Carolina
Women
Lawyers Association. Her term will
last through 2010.
Willis is a litigator who concenWillis
trates her practice
in antitrust and
complex litigation matters. She is admitted to
practice in South Carolina, Florida, North Carolina and the District of Columbia. She is a
past-president of the Women’s Bar Association of the District of Columbia and she is currently a trustee for the College of Columbia.
Fred Suggs, a shareholder in the
Greenville office of Ogletree, Deakins, Nash,
Smoak & Stewart, will begin his term as president-elect of the South Carolina Bar in May.
Suggs has been a member of the Bar since
1976 and has previously served in a
variety of leadership positions, including chairman
of the House of
Delegates, secretary of the State
Bar and treasurer
of the State Bar.
Suggs is a certified specialist in
labor and employment law. He has
extensive experiSuggs
ence
advising
Aiken Standard
The Independent-Mail
The Post and Courier
Morning News
The Beaufort Gazette
The State
The Greenville News
The Index-Journal
The Times and Democrat
The Herald
The Item
Union Daily Times
The Island Packet
Daily Journal/ Messenger
clients on preventive measures to avoid formal charges and lawsuits, handling union
campaigns, negotiating collective bargaining
agreements, representing clients before the
National Labor Relations Board and the
United States Courts of Appeals, and handling discrimination cases before administrative agencies and
in state and federal
trial and appellate
courts.
Steven
D.
Allen, an attorney
with roots in the
aviation industry,
has joined Nelson
Mullins Riley &
Scarborough as an
associate in its
Charleston office.
Allen has exAllen
tensive experience
in corporate, litigation, SEC regulations,
commercial and government contracts, trademark, mergers and acquisitions, employment,
and real estate law and issues, particularly as
they relate to the emerging air taxi and very
light jet industries.
Before his work at Eclipse Aviation, Allen
worked as the sole legal counsel and deputy
division manager in the space and aeronautics technology division of a defense contractor. He also has been associated with a
Dallas, Texas, law firm and has management
experience from prior work at Intel Corp. and
the Air Force Research Lab.
Thomas S. Tisdale, a partner in Nexsen
Pruet’s Charleston office, has been elected to
the board of trustees of the Southern Education
Foundation, an organization focusing on fairness and excellence in education in the South.
Tisdale practices in the litigation and appel-
Page 3
late groups at
Nexsen Pruet. He
has been listed in
Chambers USA:
America’s Leading
Business Lawyers
in litigation and in
Best Lawyers in
America for business litigation and
First Amendment
law. He is a former
president of the
South Carolina Bar
Tisdale
and has also served
as the organization’s secretary, treasurer and circuit vice president. He was also a member of the Bar’s Board
of Governors and was recently elected president of the South Carolina Historical Society.
Attorney Stuart Lee is a new shareholder
at Rogers Townsend & Thomas. Lee concentrates his practice in negotiating commercial
contracts,
commercial and
residential real estate transactions,
borrower
and
lender representation in commercial
real estate financing, mixed use developments,
internal ownership
documentation
and business formations. He has
Lee
organized
and
handled
multistate commercial real estate transactions, assisted in shopping center acquisitions and
represented a client for the property sale of a
major university’s sports facility.
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Editor’s note: Stories on this page
are compiled from AP and staff reports.
Commission to assess
problems areas
in access to justice
COLUMBIA — The S.C. Access to
Justice Commission will hold eight public
hearings to discuss access to justice barriers in South Carolina, according to a
State Bar press release.
Information gathered from the hearings
will be used to conduct a needs-assessment regarding civil legal representation
for people of low income or modest means
in South Carolina.
Seven hearings will be held during the
spring in county courthouses throughout
the state, and the final hearing will be
held with all justices present at the S.C.
Supreme Court in the fall.
The hearing panel will consist of commissioners, Congressional representatives,
local legislators, local judges and city
and county representatives. The speakers will address a number of issues
including language barriers, attorney fees,
court costs, lack of transportation to
courthouses, illiteracy, lack of notice, lack
of disability accessibility, lack of sign
language interpreters for the deaf, cognitive impairments, income just above
poverty guidelines yet still prohibitive of
obtaining legal services, and others.
South Carolina is the 27th state to
establish an Access to Justice Commission.
These hearings will allow commissioners
to identify the barriers to justice experienced by individuals of low income and
modest means and determine which areas
to address.
The S.C. Supreme Court established the
Access to Justice Commission in January
2007 in an effort expand access to civil
legal representation for people of low
income or modest means in South Carolina.
Former judge
reprimanded for using
account for expenses
COLUMBIA — The state Supreme
Court has reprimanded a retired South
Carolina judge for borSee opinion
rowing more than $20,000
digest for
from an office bank
In the Matter
account.
of Evans
The court said Feb. 25
on page 7.
that former Master-InEquity Linwood Evans Jr.
borrowed the money over a two-year
period.
The case is In the Matter of Evans
(South Carolina Lawyers Weekly No. 010031-08, 4 pages).
The court says Evans used some of the
money for personal expenses and also
made loans. He has not paid back about
$3,000.
Evans resigned last year after he was
suspended while one of his employees was
investigated.
Shirley Holloman was later indicted on
charges she embezzled more than $637,000
from the office account.
Ex-county councilman
wins libel suit against
former state senator
SUMMERVILLE — A judge has
ruled that a political mailing suggesting
an incumbent cast a vote that would
benefit him financially amounted to libel.
Former Dorchester County Council
Chairman Skip Elliott told the Charleston
Post and Courier that he feels vindicated
by the ruling by Circuit Judge James
Williams.
Williams ordered former state Sen. Bill
Branton to pay Elliott $15,000 in the libel
lawsuit.
Around The State
Illegal immigration proposal draws
criticism from Latino group
COLUMBIA (AP)— Like so many
Mexicans, Silvestre Martinez crossed illegally into the United States, searching for
a better life for her husband and nowteenage son. After a 15-day journey that
included a trek through the desert, Martinez and her family found South Carolina.
Now, three years later, she’s facing
state legislation that she fears could force
her and her family back to their native
country.
Martinez was one of several immigrants to show up at the Statehouse last
month to urge legislators to take another
look at proposals that would require businesses to check their employees’legal status and allow fired employees who are
replaced by illegal workers to sue.
“All I want to do is work,” said Martinez, 35, who spoke through an interpreter.
She earns $200 a week packing candles in Charleston. Her husband brings
home $300 weekly from a construction
job. The money is far more than Martinez
could make in Puebla, Mexico, where
jobs are scarce.
“They’re not from Mars,” said Diana
Salazar, president of the Latino Association of Charleston, which organized the
event.
“They’re not the cause of terrorism,”
said Salazar, a third-generation immigrant
from Mexico. “They’re not criminals.
They just want to keep their families
united.”
Salazar warned legislators their proposals would hurt the state’s economy,
which she said relies on the cheap labor
and long hours from undocumented
workers.
The legislation also would make it a
felony to harbor or transport illegal immigrants.
The House and Senate have agreed to
different versions of the bill. The House
agreed to require businesses with public
contracts to check their employees; the
Branton has denied he was behind the
mailing that implied Elliott voted to rezone
property he owned to improve its value.
But Branton did not respond to Elliott’s
lawsuit, so the judge ruled for Elliott.
The mailing was sent two weeks before
the Republican primary for Elliott’s seat.
Elliott, who lost by four votes to Jamie
Feltner in a runoff, blamed the loss on
the mailing. Elliott said the property referenced in the mailing was owned by his
father and that he did not participate when
the County Council voted on the rezoning.
The flier was labeled as paid for by
Citizens for Change, an unregistered name
for which nobody claimed responsibility.
Elliott said Branton, a former state
senator from Summerville, was responsible
for the mailing and sued him for libel in
September 2006.
Elliott says he will pursue the verdict, but
that “it wasn’t about the money.”
“We knew from day one this wasn’t
going to be a financially significant case,”
Elliott’s attorney Curtis Bostic said. “It
was really just about bringing out the truth.
Anytime you impugn somebody’s reputation, it’s significant and should be taken
seriously.”
Supreme Court: No
new trial for ex-con
book author
COLUMBIA — The South Carolina
Supreme Court has rejected a new trial
for a man sentenced to death for killing his
girlfriend and assaulting her teenage daughter three years ago.
AP Photo/The State, Erik Campos
Page 4
Diana Salazar, center, president of the Latino Association of Charleston, discusses her groupʼs position on immigration reform during a news conference in
the Statehouse lobby on Feb. 19 in Columbia.
Senate extends the mandate to private businesses, though critics say it leaves a large
loophole in what’s allowed as documentation. The two bodies will likely have to work
out the differences in a conference committee.
Legislative leaders have said they hope
the bill will lead to fewer illegal workers in
South Carolina. They, along with Gov. Mark
Sanford, are worried illegals from other
states with more strict immigration laws will
flock to South Carolina.
Critics have said the bill won’t accomplish much, in part because immigration is a
federal issue.
“If you want to know who we are, give
us drivers’ licenses, and we’ll give you information,” said Latino association treasurer
Alejandro Dominguez, 39, who came to the
U.S. from Mexico in 1986 and became a citizen in 2000.
Initially a tomato picker, Dominguez
Attorneys for Stephen Stanko, 40,
argued last year that he didn’t get a fair
trial because the judge wouldn’t let lawyers
ask potential jurors what they thought of
an insanity defense.
The case is State v. Stanko (South
Carolina Lawyers Weekly No. 010-03408, 9 pages).
In the 4-1 decision, Chief Justice Jean
Hoefer Toal wrote that the jury selection
process was fair.
“The qualified jurors were impartial,
unbiased and capable of following the
law,” Chief Justice Toal
wrote.
See opinion
In 2006, Stanko was
digest for
State v.
sentenced to death for
Stanko
killing his 43-year-old liveon page 8.
in girlfriend Laura Ling
and assaulting and leaving
for dead her then 15-year-old daughter.
The Associated Press typically does
not identify victims of sexual assault, but
last year Ling’s daughter, Christina, asked
to be identified. She told the AP then she
hoped her story would help other assault
victims.
Stanko eluded police for four days
during a manhunt in April 2005 that
attracted national attention. He was eventually apprehended outside a restaurant in
Augusta, Ga.
At trial, Stanko’s attorneys argued that
his life should be spared because he has a
brain defect and couldn’t tell right from
wrong.
Defense attorney Joe Savitz said he
was disappointed with the ruling. Savitz
said he agreed with Justice Costa
Pleicones, who wrote in a dissenting
opinion that Stanko’s attorneys should have
now works construction, mostly remodeling kitchens in Charleston, and is worried his undocumented friends and family
will have to leave the country.
Dominguez said illegal workers often
are paid less than the salaries they’re
promised or nothing at all. “Many people
are getting rich off immigrants’work,” he
said.
The Washington-based Federation of
American Immigration Reform disagrees
that immigration reform would hurt the
economy. Spokesman Ira Mehlman said
illegal workers are doing the jobs Americans used to do, but businesses now offer
such low wages and poor working conditions, they can claim they can’t find
local workers.
“These are jobs for the most part
Americans are happy to do. They just
want to earn a living wage,” Mehlman
said.
been able “to probe jurors’ bias” of an
insanity defense.
Savitz said he will appeal to the U.S.
Supreme Court.
“People that don’t think insanity is a
defense aren’t qualified to sit on the jury,”
Savitz said. “We don’t know if we got 12
jurors who just don’t think insanity is a
defense, thought he was insane but thought
that was all the more reason to give him
the death penalty.”
Stanko was released from a South
Carolina prison in July 2004 after serving
more than eight years of a 10-year sentence for kidnapping. While there, he cowrote “Living in Prison: A History of the
Correctional System,” with the help of
professors at East Tennessee State
University.
School district OKs
settlement in former
teacher’s abuse case
BEAUFORT — Beaufort County educators have agreed to pay $300,000 to
settle a lawsuit from a student who
claimed he was sexually abused by a
former music teacher.
The Beaufort Gazette reports that the
county’s Board of Education approved the
settlement late last month.
Philip Underwood-Sheppard was sentenced to 25 years in prison in 2003 for
molesting at least nine students. Some
of the assaults took place in his office.
The district has already agreed to pay
$4.6 million to six victims. A former district insurer settled a seventh case.
Around The Nation
Page 5
Justice Thomas goes more than 2 years
without asking question during arguments
Editor’s note: Stories on this page
are compiled from AP and staff reports.
Justices wrestle with
Michigan lawsuits
against Pfizer
WASHINGTON — The Supreme
Court on Feb. 25 wrestled with a
Michigan law that shields pharmaceutical companies from products liability
lawsuits, unless they committed fraud
to get their drug approved.
At issue is whether that fraud exception, which allows lawsuits to proceed,
is preempted by federal regulation of
pharmaceuticals.
Carter Phillips, a lawyer for Pfizer
Inc., told the justices that it should be.
“There is a very unique federal interest” in the Food and Drug
Administration’s regulation of pharmaceuticals, he said. “There is no legitimate state interest here.”
The dispute stems from several suits
against Warner-Lambert over its diabetes
drug Rezulin. Warner-Lambert is now
owned by Pfizer.
Court: Widow can’t
pursue claim judge
was worked to death
HARTFORD, Conn. — The widow
of a Superior Court judge cannot pursue
a lawsuit claiming the state worked her
husband to death, the Connecticut
Supreme Court ruled.
The high court struck down a special
act of the legislature, passed in 1994,
that would have allowed Joan Kinney
to pursue a lawsuit despite failing to
meet a legal deadline.
Kinney claims her husband, former
Superior Court Judge Frank J. Kinney
Jr., died of a heart attack in 1986
because of job-related stress.
A t t h e t i m e , t h e 5 3 - y e a r- o l d
Kinney was the presiding criminal
and administrative judge for New
Haven, Conn., the chief administrative judge for the state court system’s
criminal division and chairman of the
Commission to Study Alternative
Sentences.
The high court ruled that the special
legislative act was unconstitutional
because it benefited only Kinney.
Editor’s note: The following stories were among those featured in the South Carolina
Lawyers Weekly daily e-mail alert from Feb. 20 to Feb. 26. If you are a subscriber who doesn’t yet receive the free alert, sign up today at www.sclawyersweekly.com.
Hundreds gather to honor hero in civil rights struggle
S.C. civil rights luminary Isaac W. “Ike” Williams was laid to rest Feb. 19 in Columbia,
after being saluted by dignitary and common man alike as a true “servant leader.”
The State
Attorneys attack deputy’s credibility in explosives case
A federal judge must now decide whether the actions and racist banter of South Carolina
deputies are enough to dismiss crucial evidence being used against two Egyptian students
arrested with explosives material.
The Associated Press
Solicitor won’t file charges in Greer jail death
No criminal charges will be filed as a result of the death of Harry Lee Tate Jr. in the Greer
jail in May, 13th Circuit Solicitor Robert M. Ariail said.
Greenville News
Justice Thomas
AP File Photo/Charles Dharapak
WASHINGTON (AP) — Two years
and 144 cases have passed since Supreme
Court Justice Clarence Thomas last spoke
up at oral arguments. It is a period of unbroken silence that contrasts with the rest
of the court’s unceasing inquiries.
Hardly a case goes by, including two
appeals that were argued Feb. 25, without eight justices peppering lawyers with
questions.
Left, right and center, the justices ask
and they ask and they ask. Sometimes
they debate each other, leaving the lawyer
at the podium helpless to jump in. “I think
you’re handling these questions very
well,” Chief Justice John Roberts quipped
to a lawyer recently in the midst of one
such exchange.
Leaning back in his leather chair, often
looking up at the ceiling, Thomas takes it
all in, but he never joins in.
Last week, it was no different.
Thomas said nothing.
He occasionally leans to his right to share
a comment or a laugh with Justice Stephen
Breyer. Less often, he talks to Justice Anthony Kennedy, to his immediate left.
E-MAIL ALERT ROUNDUP
Miss. court reinstates
wrongful death case
against doctor
JACKSON, Miss. — A Cleveland,
Miss., doctor gave up his immunity
defense in a wrongful death case after
spending five years of a Bolivar County
trial court’s time with motions and discovery, the Mississippi Supreme Court
has ruled.
The Supreme Court ordered the case
to trial late last month.
Helen Grimes sued Dr. James
Warrington Jr. in 2001 for medical malpractice in the death of her husband,
John Grimes. John Grimes was treated
by Warrington in August 2000 for pain
in his right side and stomach, according to the court record. Warrington prescribed medication for inflammation and
pain.
John Grimes underwent surgery days
later after being diagnosed with a perforated gallbladder and other problems.
He died while still at Bolivar Medical
Center.
In his reply to the lawsuit,
Warrington claimed he was an employee
of Cleveland Medical Alliance clinic, a
subsidiary of Greenwood-Leflore
Hospital, and was entitled to protection
from lawsuits under the Mississippi Tort
Claims Act. However, he did not at that
time ask that the lawsuit be dismissed
for that reason.
Wyo. Supreme Court
bars claims
from family
of murdered nurse
CHEYENNE, Wyo. — The husband
of a nurse killed in 2004 at the
Wyoming Honor Farm can’t pursue
wrongful death claims against the state,
the state Supreme Court has ruled.
In a ruling issued late last month, the
Supreme Court held that the Corrections
Department has immunity against the
claims in the lawsuit filed by Leonard
“Lee” Watts, husband of murdered
prison nurse Tammy Sue Watts.
Tammy Sue Watts, 39, was strangled
and struck on the head in April 2004.
Her body was found in a dental examination room within a nurse’s office at
the Honor Farm.
Payday lenders might be reined in
Borrowers could have only one payday loan at a time worth $500 or less under state legislation aimed at tightening restrictions on an industry some say traps clients in a cycle of debt.
The Associated Press
Federal magistrate won’t be reappointed
A federal magistrate accused of making disparaging comments about women and Asians appears to have been passed
over for reappointment, and the reasons remain unclear.
Charleston Post and Courier
Former assistant solicitor’s
law license suspended
Former 9th Circuit Assistant Solicitor William Grayson
Ervin’s law license was suspended by the S.C. Supreme Court.
The action came after Ervin, 29, was charged with pointing and
presenting a firearm on the Arthur Ravenel Jr. Bridge.
Charleston Post and Courier
Inmate Floyd DeWayne Grady was
convicted in May 2006 of first-degree
murder and attempted sexual assault in
Watts’ death. Jurors decided against
imposing the death penalty against him.
At the time of Watts’ murder, Grady
was serving time at the Honor Farm for
a 1995 rape conviction.
Panel says Wichita
judge should
be censured
for yelling at jurors
WICHITA, Kan. — A Sedgwick
County, Kan., judge violated courtroom
standards when she lost her temper with
prospective jurors before a 2004 murder
trial, the state’s Commission on Judicial
Qualifications says.
The seven-member panel recommended that the Kansas Supreme Court
censure Sedgwick County District Judge
Rebecca Pilshaw. The high court can
follow that recommendation or decide
its own discipline, including suspension
or removal from the bench.
The last time the commission sent
the court a disciplinary case was in
2005. In that case, the justices followed
the panel’s recommendation to remove
Saline County District Judge George
Robertson for viewing Internet pornography on his office computer.
An attorney for Pilshaw, Steve
Joseph, said he recommended she
contest the commission’s finding.
“Judges yell all the time at lawyers. I’ve
had judges yell at me,” Joseph said.
“What we’re saying is, in this case, she
acted appropriately.”
Virginia Bar president
considers attorney
trust audits
NORFOLK, Va. — Lawyers use trust
accounts to temporarily hold real estate
proceeds or retainers until they are disbursed to a third party or, once a fee is
© Photographer: Daniel Gilbey
Agency: Dreamstime.com
earned, to the lawyer.
It is a severe violation of professional
conduct for a lawyer to mingle trust
account money with personal funds or
operating money. But it does happen.
A Virginia Beach, Va., attorney, for
instance, had his license revoked after he
wrote 72 checks that he couldn’t cover
from 2002 to 2005, according to the State
Bar. The checks totaled $3.3 million.
Citing that case, the president of the
Virginia State Bar said he will propose
initiating random audits of lawyer trust
accounts. Howard W. Martin Jr. said he
will make the proposal to the Bar’s
executive committee this month.
“I personally think it would be a
good idea to do it,” said Martin, a
Norfolk lawyer.
The American Bar Association recommends that every state conduct
random audits to protect the public.
Health insurer must
pay $9M for dropping
breast cancer patient
in middle of treatment
LOS ANGELES — A woman who
had her medical coverage canceled as
she was undergoing treatment for breast
cancer has been awarded more than $9
million in a case against one of
California’s largest health insurers.
Patsy Bates, 52, a hairdresser from
Lakewood, Calif., had been left with
more than $129,000 in unpaid medical
bills when Health Net Inc. canceled her
policy in 2004.
On Feb. 22, arbitration judge Sam
Cianchetti ordered Health Net to repay
that amount while providing $8.4 million
in punitive damages and $750,000 for
emotional distress.
“It’s hard to imagine a situation more
trying than the one Bates has had to
endure,” Cianchetti wrote in the decision. “The rug was pulled out from
underneath, and that occurred at a time
when she is diagnosed with breast
cancer, one of the leading causes of
death for women.”
Page 6
U.S. Supreme Court
Employment
401(k) Plan Participant – ERISA –
Fiduciary Duty – Individual
Account
A participant in a defined-contribution pension plan can sue a fiduciary
whose alleged misconduct impaired the
value of plan assets in the participant’s
individual account since, although §
502(a)(2) does not provide a remedy
for individual injuries distinct from plan
injuries, that provision does authorize
recovery for fiduciary breaches that
impair the value of plan assets in a participant’s individual account, the U.S.
Supreme Court ruled in LaRue v.
DeWolff, Boberg & Associates, Inc.
(Lawyers Weekly No. 003-001-08) (8
pages).
Background
In 2004, the petitioner sued his
former employer, DeWolff, Boberg &
Associates, and the ERISA-regulated
401(k) retirement savings plan administered by DeWolff. The plan permits
participants to direct the investment of
their contributions in accordance with
specified procedures and requirements.
The petitioner alleged that in 2001 and
2002 he directed DeWolff to make
certain changes to the investments in
his individual account, but DeWolff
never carried out these directions. The
petitioner claimed that this omission
“depleted” his interest in the plan by
approximately $150,000, and amounted
to a breach of fiduciary duty under
ERISA.
The respondents filed a motion for
judgment on the pleadings, arguing that
the complaint was essentially a claim
for monetary relief that is not recoverable under §502(a)(3). The District
Court concluded, however, that since
the respondents did not possess any disputed funds that rightly belonged to the
petitioner, he was seeking damages
rather than equitable relief available
under §502(a)(3). Assuming, arguendo,
that the respondents had beached a fiduciary duty, the District Court nonetheless granted their motion.
On appeal, the petitioner argued that
he had a cognizable claim for relief
under §§ 502(a)(2) and 502(a)(3) of
ERISA. The Court of Appeals stated
that the petitioner had raised his
§502(a)(2) argument for the first time
on appeal, but nevertheless rejected it
on the merits. We granted certiorari to
review the 4th Circuit’s decision.
Discussion
Section 502(a)(2) provides for suits
to enforce the liability-creating provisions of § 409, concerning breaches of
fiduciary duties that harm plans. The
Court of Appeals cited language from
our opinion in Massachusetts Mut. Life
Ins. Co. v. Russell, 473 U.S. 134
(1985), suggesting that that these provisions “protect the entire plan, rather
than the rights of an individual beneficiary.” It then characterized the remedy
sought by the petitioner as “personal”
because he “desires recovery to be paid
into his plan account, an instrument that
exists specifically for his benefit.” The
Court of Appeals also rejected the petitioner’s argument that the make-whole
relief he sought was “equitable” within
the meaning of §502(a)(3).
Although our grant of certiorari
encompassed the §502(a)(3) issue, we
do not address it because we conclude
that the Court of Appeals misread
§502(a)(2). As we explained in Russell,
and in more detail in our later opinion
in Varity Corp. v. Howe, 516 U.S. 489
(1996), §502(a) of ERISA identifies six
types of civil actions that may be
brought by various parties. The second,
which is at issue in this case, authorizes
the Secretary of Labor as well as plan
The Weekʼs Opinions
participants, beneficiaries and fiduciaries, to bring actions on behalf of a plan
to recover for violations of the obligations defined in §409(a).
The principal statutory duties
imposed on fiduciaries by that section
“relate to the proper management,
administration and investment of fund
assets,” with an eye toward ensuring
that “the benefits authorized by the
plan” are ultimately paid to participants and beneficiaries. The misconduct alleged by the petitioner in this
case falls squarely within that category. The misconduct alleged in
Russell, by contrast, fell outside this
category. The plaintiff in Russell
received all of the benefits to which
she was contractually entitled, but
sought consequential damages arising
from a delay in the processing of her
claim.
In holding that § 502(a)(2) does not
provide a remedy for this type of injury,
we stressed that the text of § 409(a)
characterizes the relevant fiduciary relationship as one “with respect to a plan,”
and repeatedly identifies the “plan” as
the victim of any fiduciary breach and
the recipient of any relief.
Russell’s emphasis on protecting the
“entire plan” from fiduciary misconduct
reflects the former landscape of
employee benefit plans. That landscape
has changed. Defined-contribution plans
dominate the retirement plan scene
today. Unlike the defined-contribution
plan in this case, the disability plan at
issue in Russell did not have individual
accounts; it paid a fixed benefit based
on a percentage of the employee’s
salary. The “entire plan” language in
Russell speaks to the impact of § 409
on plans that pay defined benefits.
Misconduct by the administrators of a
defined benefit plan will not affect an
individual’s entitlement to a defined
benefit unless it creates or enhances the
risk of default by the entire plan.
For defined contribution plans,
however, fiduciary misconduct need not
threaten the solvency of the entire plan
to reduce benefits below the amount
that participants would otherwise
receive. Whether a fiduciary breach
diminishes plan assets payable to all
participants and beneficiaries, or only
to persons tied to particular individual
accounts, it creates the kind of harms
that concerned the draftsmen of § 409.
Consequently, our references to the
“entire plan” in Russell, which accurately reflect the operation of § 409 in
the defined benefit context, are beside
the point in the defined contribution
context.
Other sections of ERISA confirm
that the “entire plan” language from
Russell, which appears nowhere in §
409 or § 502(a)(2), does not apply to
defined contribution plans. Most significant is § 404(c), which exempts
fiduciaries from liability for losses
caused by participants’ exercise of
control over assets in their individual
accounts. This provision would serve
no real purpose if, as the respondents
argue, fiduciaries never had any liability for losses in an individual account.
We therefore hold that although §
502(a)(2) does not provide a remedy
for individual injuries distinct from plan
injuries, that provision does authorize
recovery for fiduciary breaches that
impair the value of plan assets in a participant’s individual account.
Accordingly, the judgment of the
Court of Appeals is vacated, and the
case is remanded for further proceedings consistent with this opinion.
LaRue v. DeWolff, Boberg &
Associates, Inc. (Lawyers Weekly No.
003-001-08) (8 pages) (Stevens, J.)
(Roberts, J., concurring in part and
concurring in the judgment) (Thomas,
J., concurring in the judgment) (U.S.
Supreme Court) Appealed from the U.S.
Court of Appeals for the 4th Circuit
(No. 06-856) (Feb. 20, 2008).
U.S. Court of Appeals
4th Circuit
Immigration
Birth Control Policy – Asylum
Standard – Chinese Woman
In Lin v. Mukasey (Lawyers Weekly
No. 001-040-08) (23 pages), the 4th
Circuit vacates and remands a decision
of the Board of Immigration Appeals
denying an application for asylum and
withholding of removal of a female
citizen of the People’s Republic of China
who asserts she suffered forced insertion of an IUD birth control device and
persecution for her continued wish to
have a child; the woman’s case is
remanded, along with her claim for protection under the United Nations
Convention Against Torture, based on
her fear of reprisal because she came to
the U.S. with the assistance of a “snakehead” smuggler.
The BIA expressly declined to address
the IJ’s determination that the woman’s
testimony was incredible. We have not
yet had occasion to answer the question
of how we should evaluate the petitioner’s testimony in such circumstances.
In similar situations, our sister circuits
have presumed the petitioner to be credible and have reviewed only whether the
petitioner satisfied the burden of proof.
We agree with the approach of our sister
circuits and adopt it in this case. We
therefore presume that the testimony of
the petitioner, the only witness at her
removal hearing, was credible.
The BIA has yet to provide a published, precedential opinion addressing
whether, and under what circumstances,
the forced insertion and continued usage
of an IUD constitutes persecution. It thus
has not afforded the bench, the bar and
potential asylum applicants guidance concerning whether and how they might
approach the issue.
Here, the BIA determined that the
temporary nature of the IUD insertion
removes it from the defined and permanent actions described as persecutory
within the definition of “refugee” in §
101(a)(42)(A) of the Immigration and
Naturalization Act. This cursory statement, however, does not provide us
enough information to conduct a meaningful review of the BIA’s conclusion
that the petitioner has not suffered past
persecution. It is unclear from the BIA’s
stark invocation of the word “temporary” how the BIA factored the “temporary” nature of IUD insertion and
usage into the overall persecution calculus, i.e., whether forced IUD insertion
and continued usage is never persecution or whether it is not persecution only
because it did not deprive the petitioner
of a significant portion of her reproductive life.
We cannot review the BIA’s decision
because the BIA has given us nothing
to review. We would run the risk of violating fundamental separation-of-powers
principles if we attempted to divine the
BIA’s thoughts on this matter and tried
to build a legal conclusion in a veritable
vacuum where BIA interpretation should
always first exist. Our better judgment
keeps us from such overreaching here.
We vacate the BIA’s denial of asylum
to the petitioner and remand for proceedings consistent with this decision.
The BIA dismissed the petitioner’s withholding of removal claim solely because
it found she failed to meet the lower
burden of proof for asylum. Because of
our conclusion as to the petitioner’s
asylum claim, we must also vacate the
BIA’s decision dismissing her withholding of removal claim and remand that
claim as well.
The petitioner also asserts she was
denied due process when the IJ refused
to allow her to testify about the IUD
insertion procedure. In an earlier case,
we left open the possibility that we
might have found that IUD insertion
constituted persecution if the record contained evidence of forcible mistreatment
or physical abuse during an IUD insertion. In its decision, the BIA did not
address the due process claim. Because
it is committed to the BIA to resolve in
the first instance issues relating to
asylum requests, we decline to decide
the due process claim and leave it for
the BIA to address, if necessary, on
remand.
Finally, the petitioner contends the
BIA erred in dismissing her CAT claim
based on her fear that she will be jailed
and tortured upon return to China
because she came to the U.S. with the
help of a “snakehead” smuggler. The
petitioner concedes her CAT claim is not
related to China’s coercive population
control policy. The BIA dismissed the
CAT claim because the petitioner failed
to carry her burden of proof with respect
to her asylum claim. We have noted,
however, that CAT has a standard independent from the standard for determining an asylum claim. Remand is
necessary here because the BIA failed
to apply the correct legal standard to the
CAT claim when it treated the petitioner’s failure to meet the lower statutory burden of proof required for asylum
as determinative of the CAT claim. We
remand the CAT claim so the BIA may
apply the appropriate legal standard.
Petition for review granted; vacated
and remanded.
Dissent
(Traxler, J., dissenting): I would deny
the petition for review of the BIA’s
denial of the petitioner’s claims for
asylum, withholding of removal and
relief under the CAT. The BIA’s eligibility determination is conclusive unless
manifestly contrary to law. Because the
BIA’s decision, in my opinion, is not
manifestly contrary to law, I respectfully
dissent.
Lin v. Mukasey (Lawyers Weekly No.
001-040-08) (23 pages) (Williams, J.)
(Traxler, J., dissenting) (4th Circuit) On
Petition for Review; Yee Ling Poon for
petitioner; Mona M. Yousif for respondent (No. 06-1456) (Feb. 20, 2008).
Criminal
Sentence – Drug Trafficking –
Conspiracy
A defendant convicted of conspiracy to
distribute methamphetamine has his sentence of 188 months, a sentence at the
bottom of the sentencing guidelines range,
upheld on appeal; the defendant’s selective quotation of the district judge’s
remarks at sentencing does not support his
contention that the district judge believed
he lacked authority to sentence the defendant below the guidelines range, the 4th
Circuit ruled in U.S. v. Go (Lawyers
Weekly No. 001-041-08) (7 pages).
The defendant contends the District
Court did not believe it could lawfully
impose a sentence outside the advisory
guidelines range and/or a variance sentence without committing reversible error.
It is clear from the sentencing record
that the District Court was not under the
misapprehension that it could not impose
a sentence outside the advisory guideline range. Thus, we disagree with the
defendant’s contrary contention.
The defendant also argues unpersuasively that even if the District Court
understood its authority to impose a variance sentence, his sentence was unreasonable. After correctly calculating the
guidelines range, the District Court considered the 18 U.S.C. § 3553(a) factors
and gave due consideration to whether
there were any circumstances in the
defendant’s case that would warrant
imposing a sentence at the very bottom
of the range. As we have held before, a
sentence imposed within the guidelines
Continued on PAGE 7
U.S. Court of Appeals
4th Circuit
(continued)
sentencing range is presumptively reasonable. We find the District Court’s
decision to sentence the defendant to
188 months is reasonable.
We affirm the sentence imposed.
U.S. v. Go (Lawyers Weekly No. 001041-08) (7 pages) (Gregory, J.) (4th
Circuit) Appealed from the U.S. District
Court for the District of Virginia at
Alexandria, Lee, J., Timothy J. Sullivan
for appellant; Eric J. Heimann for
appellee (No. 06-4763) (Feb. 22, 2008).
Criminal
Habeas Corpus – Ineffective
Assistance – Reversal Of Writ
In Lawrence v. Branker (Lawyers
Weekly No. 001-042-08) (23 pages), the
4th Circuit reverses a District Court’s
issuance of a writ of habeas corpus to a
North Carolina death-row defendant
based on his appellate lawyer’s alleged
ineffective assistance of counsel in
failing to appeal the submission of the
petitioner’s burglary conviction as an
aggravating factor supporting a death
sentence; we conclude the state court
reasonably applied Strickland v.
Washington in rejecting the petitioner’s
claim that his appellate counsel was ineffective on this point.
The District Court reasoned that,
because the predicate felony underlying
the burglary conviction was the firstdegree murder, submission of the bur-
glary conviction as an aggravating circumstance amounted to aggravation of
the first-degree murder based on the
murder itself. For this reason, the District
Court concluded the burglary aggravator did not sufficiently narrow the class
of death-eligible defendants, which is
required under the Supreme Court decision in Lowenfield v. Phelps, 484 U.S.
231 (1988), for a death sentence to pass
muster under the Eighth and 14th
Amendments. The court concluded that
the petitioner’s appellate counsel was
ineffective for failing to raise the issue
on direct appeal.
The state argues that the District
Court erred in issuing the habeas writ
to the petitioner because the state postconviction review court’s denial of the
petitioner’s claim was not an objectively
unreasonable application of Strickland.
Under Strickland, appellate counsel was
only ineffective if his failure to challenge the submission of the burglary
conviction as an aggravating circumstance fell below an objective standard
of reasonableness and, but for that
failure, the petitioner would have prevailed in his appeal.
We are not as convinced as the District
Court that submission of the burglary
aggravator was error. Pertinent precedent
would have led a reasonable attorney in
North Carolina to believe the petitioner’s
ineffective assistance claim bore little –
perhaps no – chance of success on appeal.
Even if there was some error in the submission of the burglary aggravator at the
sentencing phase of the defendant’s trial,
it was not an obvious error (at least it is
not obvious to us) and we do not find
that the petitioner’s appellate counsel performed deficiently in failing to appeal this
hypothetical error. We conclude that under
Strickland, the petitioner’s appellate
counsel was not ineffective for failing to
raise the burglary-aggravator issue on
appeal.
We are persuaded that the petitioner’s
appellate counsel rendered him effective
assistance, but even if we indulge the
contrary thought, we nevertheless are
convinced that the state post-conviction
court’s denial of his Strickland claim on
the merits was neither unreasonable nor
contrary to established federal law. The
District Court’s conclusion that submission of the burglary aggravator was
clearly unconstitutional is incorrect. We
reverse the District Court’s grant of a
writ of habeas corpus on the ineffective
assistance claim.
We also reject the petitioner’s claims
that his trial counsel was ineffective
for conceding his guilt to kidnapping
and rape without his consent, and that
his due process rights were violated by
the state court in denying his motion
for post-conviction relief. We are satisfied that the ineffective assistance
claim was procedurally defaulted, and
we agree with the state court and
District Court the claim is meritless.
Further, we agree with the District
Court that the petitioner’s due process
claims are not cognizable on federal
habeas review.
Affirmed in part, reversed in part.
Lawrence v. Branker (Lawyers Weekly
No. 001-042-08) (23 pages) (Williams,
J.) (4th Circuit) Appealed from the U.S.
District Court for the District of North
Carolina at Raleigh, Boyle, J.; Sandra
Wallace-Smith for appellant; Bruce T.
Cunningham Jr. for appellee (No. 07-2)
(Feb. 22, 2008).
Page 7
S.C. Supreme Court
Judicial Disciplinary Matter
Official Funds – Loans
A master-in-equity who used official
funds for purposes other than that for
which they were intended is publicly reprimanded for his misconduct, the
Supreme Court ruled in In the Matter of
Evans (Lawyers Weekly No. 010-03108) (4 pages).
Background
The respondent served as a masterin-equity and maintained an official
master-in-equity bank account. On or
about Jan. 14, 2000, he issued a check to
himself from his master-in-equity account
in the amount of $10,000. The check
was used with other funds to purchase
a cashier’s check in the amount of
$25,000, payable to Peterbilt of
Mississippi, dated Jan. 14, 2000, on
behalf of the respondent’s friend. On or
about Feb. 8, 2000, the friend wrote a
check for $10,000 to the respondent. The
respondent deposited this check into his
attorney escrow IOLTA account on or
about the same day. The same day, he
wrote a check from his attorney escrow
account in the amount of $10,000 to
another individual.
The respondent represents that, shortly
thereafter, he returned the $10,000 from
his escrow account to his master-in-equity
account. ODC has verified a deposit in
that amount into the respondent’s masterin-equity account. The respondent asserts
the $10,000 came from legal fees in his
Continued on PAGE 8
Page 8
S.C. Supreme Court
(continued)
escrow account. ODC is unable to
confirm or dispute the respondent’s assertion. The respondent admits he used his
official master-in-equity funds for purposes other than that for which they were
intended. The funds have been replaced.
In September 1998, the respondent
loaned $4,000 from his official master-inequity account to another individual.
When the individual repaid the funds
with interest, the respondent returned
them to the master-in-equity account.
Later, he made a second loan of approximately $3,500 from the master-in-equity
account to the same individual. The funds
for the second loan were repaid with
interest.
Thereafter, in January 2002, an
“advance” in the amount of $3,000 was
made to the same individual. The respondent acknowledges approximately $3,000
plus interest is still outstanding and owed
to the master-in-equity account. He
further acknowledges that lending or
advancing funds to this individual constituted the use of official master-inequity funds for purposes other than that
for which they were intended.
Discussion
By his misconduct, the respondent has
violated the following Canons of the
Code of Judicial Conduct, Rule 501,
SCACR: Canon 1; Canon 2; Canon
4(A)(2) and Canon 4(D)(1). He admits
his misconduct constitutes grounds for
discipline under the following provisions
of the Rules for Judicial Disciplinary
Enforcement, Rule 502, SCACR: Rule
7(a)(1); Rule 7(a)(4) and Rule 7(a)(9).
We accept the agreement for discipline
by consent and issue a public reprimand.
The respondent shall neither seek nor
accept any judicial office in this state
without the express written permission
of the court after due notice in writing to
ODC.
In the Matter of Evans (Lawyers
Weekly No. 010-031-08) (4 pages) (Per
Curiam) (SCSC) Lesley M. Coggiola and
James G. Bogle Jr. for the Office of
Disciplinary Counsel; G. Murrell Smith
Jr. for respondent (No. 26439) (Feb. 25,
2008).
Attorney Disciplinary Matter
Driverʼs License – Fraud – Fatherʼs
Identity
An attorney who obtained a driver’s
license that bore his photograph but used
his deceased father’s identifying information is suspended from the practice
of law for 9 months, the Supreme Court
ruled in In the Matter of DePew
pages).
Background
On Jan. 14, 2002, the respondent
applied for and obtained a driver’s
license from the Department of Motor
Vehicles using the name and other identifying information of his deceased father
but bearing his own photograph. A report
generated by the Department of Motor
Vehicles Document Review and Fraud
Detection Unit revealed the fraudulent
license when it determined that the credentials used to obtain the license were
that of a deceased person. The information was forwarded to the South Carolina
Law Enforcement Division which
charged the respondent with fraudulent
application for a license under S.C. Code
Ann. § 56-1-510(5) (2006). On June 13,
2007, the respondent entered a plea of
nolo contendere in the Orangeburg
County Summary Court.
Discussion
The respondent admits that by his
misconduct he has violated the following
provisions of the Rules of Professional
Conduct, Rule 407, SCACR: Rule 8.4(b)
and Rule 8.4(d). In addition, he admits
his misconduct constitutes a violation of
Rule 7, RLDE, of Rule 413, SCACR,
specifically Rule 7(a)(1) and Rule 7(a)(5).
We accept the agreement for discipline
by consent and definitely suspend the
respondent from the practice of law for
9 months.
In the Matter of DePew (Lawyers
Ericka M. Williams for the Office of
Disciplinary Counsel; John P. Freeman
for respondent (No. 26440) (Feb. 25,
2008).
Attorney Disciplinary Matter
Power Of Attorney –
Misappropriation Of Funds –
Attorney-In-Fact
Editor’s note: The subject of this disciplinary matter, James M. Williams III, is
a different attorney from James Louis
Williams of Seneca. Lawyers Weekly
wishes to emphasize that James Louis
Williams has a clean disciplinary record
and has not been disbarred.
An attorney who misappropriated
more than $400,000 from a client’s personal assets for his own use and benefit
by executing various documents as the
client’s attorney-in-fact is disbarred from
the practice of law in this state, the
Supreme Court ruled in In the Matter of
Williams (Lawyers Weekly No. 010-03308) (4 pages).
Background
Since the late 1980s, the respondent
represented the client and his wife on a
variety of legal matters. Presently, the
client is an elderly man residing in a
retirement community. The client’s wife
resided in the same facility until her
death in November 2002. The respondent drafted durable powers of attorney
for the client and his wife. In each of
the documents, the respondent was
named attorney-in-fact. The durable
powers of attorney drafted by the
respondent contained a provision that
the respondent, as attorney-in-fact, had
authority to “deal with attorney in attorney’s individual, or any fiduciary capacity in buying and selling assets, and
lending and borrowing money, and in
all other transactions irrespective of the
occupancy by the same person of dual
positions.”
The respondent’s representation of the
client and his wife in the preparation and
execution of the durable powers of attorney and the naming of the respondent
as attorney-in-fact presented a conflict
of interest. The respondent did not advise
the client and his wife of this conflict
of interest.
The respondent admits misappropriating more than $400,000 from the client’s
personal assets for his own use and
benefit by executing documents, checks,
etc., as the client’s attorney-in-fact.
Further, he borrowed money from the
client without obtaining his informed
consent to the conflict of interest the
transactions presented. He failed to
reduce the terms of the client’s loans to
the respondent to writing in the form and
with the substance required by the Rules
of Professional Conduct.
The client initiated a civil action
against the respondent. The respondent
settled the suit, in part by agreeing to
pay restitution. He pled guilty to one
count of exploitation of a vulnerable
adult and was sentenced to 18 months
under house arrest.
Discussion
The respondent admits that, by his
misconduct, he has violated the following provisions of the Rules of
Professional Conduct, Rule 407, SCACR:
Rule 1.8(a); Rule 1.15; Rule 8.4(b); Rule
8.4(c); Rule 8.4(d) and Rule 8.4(e). He
further admits his misconduct is grounds
for discipline under Rule 7, RLDE, of
Rule 413, SCACR, specifically Rule
7(a)(5) and Rule 7(a)(6). We accept the
agreement for discipline by consent and
disbar the respondent.
In the Matter of Williams (Lawyers
Barbara M. Seymour for the Office of
Disciplinary Counsel; Larry C. Brandt
2008).
Criminal
Murder – Insanity Defense – Voir
Dire
The trial court properly refused to
allow the appellant to question potential
jurors about their feelings on his insanity defense during voir dire since there
was no indication that the trial was rendered “fundamentally unfair” by the
court’s limitation of voir dire, the
Supreme Court ruled in State v. Stanko
pages).
Background
The state alleged the appellant strangled his girlfriend and attempted to
murder her daughter by slitting her throat
in the course of a robbery and sexual
assault of the two women. At trial, the
appellant did not deny committing the
crimes, but alleged that he was insane.
During voir dire, the appellant
attempted to question a potential juror
as to her views on the insanity defense.
The state immediately objected to this
line of questioning. The trial judge sustained the objection and ruled that the
appellant could ask potential jurors
whether they could consider affirmative
defenses “and list them all,” but could
not ask jurors whether they would consider the specific affirmative defense of
insanity. After the parties discussed the
issue, the appellant indicated he was
“abandoning” asking potential jurors
questions specifically regarding the insanity defense.
After the state presented its case in
chief, the appellant presented expert witnesses in order to prove his insanity
defense. The experts testified that medical
examinations of the appellant’s brain
revealed a frontal lobe abnormality. Three
of the appellant’s experts testified that
the frontal lobe abnormality impaired his
ability to control his impulses and exercise proper judgment. One of the appellant’s experts testified that he was unable
to distinguish between right and wrong as
required under South Carolina law.
In rebuttal, the state presented experts
who testified that the appellant was able
to distinguish between right and wrong
and, therefore, could be held criminally
responsible for his actions. The trial court
submitted a jury charge on the insanity
defense and instructed the jury that, in
order to be found not guilty by reason of
insanity, the appellant had to show by a
preponderance of the evidence that he
had a mental disease or defect that made
him unable to distinguish right from
wrong. At the conclusion of the guilt
phase, the jury declined to find the appellant not guilty by reason of insanity and
returned a guilty verdict as to all counts.
The jury recommended the appellant be
sentenced to death. This appeal followed.
Discussion
Our review of the entire voir dire
process shows the qualified jurors were
impartial, unbiased, and capable of following the law. Prior to trial, potential
jurors completed a questionnaire indicating whether they were the type of
person who: (1) would automatically
impose the death penalty; (2) would
never impose the death penalty; or (3)
would listen to the evidence and apply
the law in deciding whether to impose
the death penalty. The trial court excused
any individual who indicated that he fell
into the first or second category. The
trial court asked the potential jurors if
anyone had bias or prejudice regarding
Continued on PAGE 9
PERSUASIVE
AUTHORITY
Editor’s note: This summary of
recent federal appellate decisions was
compiled from wire reports.
First Circuit
Immigration – Removal
Case: Acevedo-Aguilar v. Mukasey.
Heard on petition for review of a
Board of Immigration Appeals order.
Holding: Where the Board of
Immigration Appeals upheld an
immigration judge’s decision that a
plaintiff citizen of Mexico was
ineligible for cancellation of removal,
the board’s ruling must be affirmed,
as it was supported by evidence that
the plaintiff had not been continuously
present in the United States for the
requisite 10 years prior to his
application for cancellation. Petition
for review denied.
Sixth Circuit
Appeals – Jurisdiction – Failure To
File Objections
Case: Amadasu v. Mercy Francisan
Hospital. On appeal from the United
States District Court for the Southern
District of Ohio.
Holding: Where plaintiff, a pro se
litigant, failed to file objections to a
magistrate judge’s recommendation
to dismiss his medical malpractice
case because required expert
testimony was lacking, and because
plaintiff had not cooperated with
discovery, plaintiff cannot have free
transcripts of the proceeding below
because he has not raised a
substantial issue on appeal. On the
other hand, we reject defendant’s
argument that there is no appellate
jurisdiction because plaintiff did not
c h a l l e n g e t h e m a g i s t r a t e j u d g e ’s
report. However, the court clerk is
directed not to accept further
pleadings from plaintiff with approval
from a panel of this court.
Eighth Circuit
Breach Of Contract – Hospital
Bylaws – Immunity Provision
Case: Blume v. Marian Health
Center. Appealed from U.S. District
Court, Northern District of Iowa.
Holding: Where a doctor claimed
that a hospital breached its contract
with him when it terminated his
privileges without a hearing, the
District Court erred in holding that the
hospital’s bylaws did not entitle the
hospital to immunity from the suit.
Judgment is reversed.
Employer – Employee – Sexual
Harassment – Hostile Environment
– Constructive Discharge
Case: Anda v. Wickes Furniture
Company, Inc. Appealed from U.S.
District Court, District of Minnesota.
Holding: Where a furniture
saleswoman, who brought a sexual
harassment claim based on hostile
environment and constructive discharge,
reported comments that were isolated,
only two of which were sexual in
nature, the comments did not rise to
the level of sexual harassment. Even
if they did, the employer took prompt
remedial action, so the District Court
properly found that the saleswoman
did not establish a prima facie case of
hostile work environment, and
summary judgment for the employer
on the constructive discharge claim is
also affirmed because the saleswoman
did not provide evidence that the
employer intended to force her to quit.
Judgment is affirmed.
S.C. Supreme Court
(continued)
the case and dismissed those who stated
they could not remain fair or unbiased.
Additionally, the trial court confirmed
that each qualified juror would apply the
law as charged, even if they disagreed
with it, which necessarily includes the
law of the insanity defense. Finally, the
trial court permitted the appellant to ask
potential jurors whether they would be
able to apply the law in favor of the
appellant if the facts provided for a
defense. The appellant presented no evidence showing the limitation of questioning impacted his right to a fair and
impartial jury and failed to present evidence that the jury was biased or incapable of following instructions on the
law. Accordingly, under the facts of this
case, there is no indication that the appellant’s trial was rendered “fundamentally
unfair” by the trial court’s limit of voir
dire.
In conclusion, contrary to the dissent’s
view, our holding in no way imposes an
absolute ban on questioning jurors about
their views on the insanity defense.
Rather, we hold that the trial court’s
ruling limiting the scope of voir dire did
not deprive the appellant of a fair trial.
We affirm the appellant’s convictions and
sentence.
Dissent
(Pleicones, J., dissenting): I respectfully dissent. In my opinion, a capital
defendant who will interpose a diminished capacity or insanity defense is entitled to voir dire the jurors whether they
entertain any bias against such a defense.
Having been denied the opportunity to
probe potential jurors’ bias, I would not
require that the appellant demonstrate its
existence in order to obtain relief. I
would reverse the appellant’s convictions
and sentences, and remand for a new
trial.
State v. Stanko (Lawyers Weekly No.
010-034-08) (9 pages) (Toal, C.J.)
(Pleicones, J., dissenting) (SCSC)
Appealed from the Georgetown County
Circuit Court, Jefferson, J.; Joseph L.
Savitz and Katherine H. Hudgins for
appellant; Henry D. McMaster, John W.
McIntosh, Donald J. Zelenka, J. Anthony
Mabry and J. Gregory Hembree for
respondent (No. 26442) (Feb. 25, 2008).
Contract
Defective Construction – Synthetic
Stucco – Strict Liability – General
Contractor
A builder is not strictly liable to a
homeowner for defects relating to synthetic stucco since a general contractor
building a home is performing a service
and not selling a product, the Supreme
Court ruled in Fields v. J. Haynes
Waters Builders, Inc. (Lawyers Weekly
No. 010-035-08) (21 pages).
Background
This case arises out of the allegedly
defective construction of a residence purchased by the Fields in 1999. The Fields
are not the original owners of the home
in question, but purchased the home from
the owners who built the home some 8
years earlier. At the time the Fields purchased the home, the exterior of the
home was clad with a synthetic stucco
material commonly known as an exterior insulation and finish system or EIFS
Roughly 2 years after purchasing the
home, the Fields became aware of potential moisture-intrusion problems associated with EIFS-clad homes. The Fields
contacted a law firm, and the law firm
put the Fields in contact with inspectors
and investigators who determined that
the EIFS on the Fields’ home was allowing moisture to enter the home which
was causing significant damage to the
structure.
The Fields sued the respondent builder
of the home, the manufacturer of the
EIFS used on the home and the subcontractors who installed the EIFS By
the time of trial, the builder was the only
remaining defendant. Although the Fields
asserted eight causes of action in their
complaint, the Fields tried the case on
causes of action for negligence, breach of
express warranties, breach of the implied
warranty of workmanlike service and
strict liability. At the close of the Fields’
case in chief, the trial court granted the
builder a directed verdict as to the Fields’
express warranty and strict liability
claims. The case proceeded to verdict on
the claims for negligence and breach of
the implied warranty of workmanlike
service, and the jury returned a verdict in
favor of the Fields. The jury awarded
$6,000 in damages, and the Fields
appealed. We certified the case from the
Court of Appeals pursuant to Rule
204(b), SCACR.
Discussion
S.C. Code Ann. § 15-73-10 (2005)
provides that “one who sells any product
in a defective condition is subject to
liability for physical harm caused to the
ultimate user or consumer, or to his
property, if the seller is in the business
of selling such a product.” In South
Carolina, it is firmly established that
the strict liability statute applies only
to sales of products and not to the provision of services. For this reason, the
relevant question in this case is whether
a contractor provides a product or services.
In determining whether certain types
of vendors or professionals offer services or products within the meaning of
the strict liability statute, this court has
focused on the character of the underlying transaction, the law regarding similar
transactions in other jurisdictions and the
policy arguments in favor of imposing
strict liability in a given situation.
In our view, a general contractor
building a home performs a service and
does not sell a product. Professors
Prosser and Keeton, in Prosser and
Keeton on the Law of Torts § 104A (5th
ed. 1984), have recognized that “the
transaction of the building contractor has
generally been regarded as a transaction
involving the rendition of a service,” and
that for these reasons, strict liability is
generally inapplicable to a general contractor. The professors note that this is
true “even though the result of the [contractor’s] service is to supply a structure
or building to the owner.”
The Fields have not provided any persuasive authority from a foreign jurisdiction interpreting a strict liability statute
or similar common law rule to cover a
general contractor who builds a home.
That the application of the strict liability
statute to a contractor is unnecessary is
exhibited by returning to an examination
of this court’s jurisprudence regarding
the implied warranties that attach to the
construction and sale of a home.
As Rutledge v. Dodenhoff, 254 S.C.
407, 175 S.E.2d 792 (1970), Lane v.
Trenholm Bldg. Co., 267 S.C. 497, 229
S.E.2d 728 (1976), and Kennedy v.
Columbia Lumber & Mfg. Co., Inc., 299
S.C. 335, 384 S.E.2d 730 (1989), recognize, implied warranties ensure that a
homebuilder in South Carolina is liable
for a reasonable period of time for latent
defects in the home which impact the
home’s suitability as a residence. Given
this extension of liability, liability under
the strict liability statute seems superfluous in this arena. Accordingly, we hold
that the trial court did not err in directing a verdict on the Fields’ claim for
strict liability.
Fields v. J. Haynes Waters Builders,
Inc. (Lawyers Weekly No. 010-035-08)
(21 pages) (Toal, C.J.) (SCSC) Appealed
from the Aiken County Circuit Court,
Gregory, J.; Charles A. Krawczyk,
William R. Padget, and Robert “Sam”
Phillips for appellants; John L. McCants
for respondent (no. 26443) (Feb. 25,
2008).
S.C. Court of Appeals
Domestic Relations
Divorce – Recusal – Prejudice
A Family Court judge properly denied
a husband’s request that the judge recuse
herself since there is no evidence of bias
or prejudice on behalf of the judge, the
Court of Appeals ruled in Simpson v.
Simpson (Lawyers Weekly No. 011-03608) (7 pages).
Background
The husband is the son of Daisy
Simpson and William Simpson Sr. In
December 2004, Judge R. Wright
Turbeville granted the husband’s parents
a divorce. As a shareholder/member of
W.R. Simpson Farms, L.L.C., the husband
was named a party to the divorce action.
The husband and his wife, Becky, were
granted a divorce in March 2005 through
a bifurcated decree of divorce. In March
2006, Judge Frances P. Segars-Andrews
heard the remaining issues pursuant to
the bifurcated divorce decree. The
husband and the wife entered into a
consent order on the issues of child
custody and visitation, and Judge SegarsAndrews issued written instructions for
a final order on all remaining issues.
Lon Shull, a partner in the law firm of
Andrews and Shull in Mount Pleasant,
was a witness, via affidavit, at the request
of the husband’s mother’s attorneys, in
the mother and father’s divorce action
regarding the issue of attorneys’ fees.
Shull’s law partner is Mark O. Andrews,
the husband of Judge Segars-Andrews.
Subsequent to Judge Segars-Andrews’
issuance of instructions for the final order,
the husband filed a motion for a new
trial which asserted a conflict of interest
had not been disclosed. He alleged a conflict due to Shull’s involvement in his
mother and father’s case and his connection to Judge Segars-Andrews’
husband. The husband’s motion did not
allege any prejudice or bias as a result
of this conflict, and after a hearing on
this motion, Judge Segars-Andrews denied
the motion.
At this same hearing, however, Judge
Segars-Andrews, acting sua sponte, orally
stated she would recuse herself. Judge
Segars-Andrews raised the question of
whether she should disqualify herself
because James McLaren, the wife’s
counsel in the present divorce action, and
Shull had been co-counsel in a personal
injury case. This unrelated case ended in
late 2004 or early 2005 and resulted in a
substantial fee to Shull’s firm, which in
turn benefited his law partner, Judge
Segars-Andrews’ husband. After receiving memos from both parties on this
question, Judge Segars-Andrews found
the situation did not require her to disqualify herself, and therefore, she had a
duty to hear the case. This appeal followed.
Discussion
Here, Judge Segars-Andrews’ findings
are supported by the record. Judge
Segars-Andrews provided a detailed list of
findings in support of her decision on
how to equitably divide the assets of the
husband and the wife. Judge SegarsAndrews made these findings and
included them in her “instructions for
order” before she remembered the previous relationship between her husband’s
law partner and the wife’s counsel. Facts
in the record support Judge SegarsAndrews’ findings.
The husband has not shown any evidence of bias or prejudice on behalf of
Judge Segars-Andrews. He argues Judge
Segars-Andrews’ own statements about
the need to disclose the previous working
relationship between her husband’s law
partner and the wife’s counsel might reasonably question her impartiality. The
husband fails, however, to provide any
evidence of how the former relationship
actually resulted in some prejudice or bias
in Judge Segars-Andrews’ ruling. Thus,
Page 9
Judge Segars-Andrews was correct to
deny the husband’s request for recusal.
We find Judge Segars-Andrews’
remarks about her concern for not disclosing the information at the beginning
of the hearing do not show any bias or
prejudice but instead show her sensitivity
to any apprehension each side might have
in her ability to make a fair and impartial ruling in the case.
Judge Segars-Andrews made an initial
oral ruling deciding she would recuse
herself from this matter but also agreed to
accept memoranda on the issue. After
reviewing the memoranda and affidavits
from each side, however, she found she
had no reason to recuse herself and,
therefore, had a duty to adjudicate the
case. Judge Segars-Andrews’ final, written
order denied the husband’s request for
recusal. The written order controls.
Having found no evidence that could
question the impartiality of Judge SegarsAndrews, or any other reason requiring
her recusal, we find Canon 3B(1) to be
controlling, which imposes a “duty to
sit.” Accordingly, the Family Court’s decision is affirmed.
Simpson v. Simpson (Lawyers Weekly
No. 011-036-08) (7 pages) (Per Curiam)
(SCCOA) Appealed from the Clarendon
County Family Court, Frances P. SegarsAndrews, J.; Steven S. McKenzie for
appellant; James McLaren, C. Dixon Lee
and Jan L. Warner for respondent (No.
4340) (Feb. 8, 2008).
Domestic Relations
Divorce – Marital Home –
Transmutation
The parties’ residence was transmuted
into marital property, even though the
land was a gift to the husband, since the
parties utilized the home and land in
support of the marriage, the Court of
Appeals ruled in Simpson v. Simpson
pages).
Background
The parties were married on Sept. 3,
1989. At the time of the marriage, the
husband was 19 and the wife was 17
years of age. During the marriage, the
wife primarily stayed at home and took
care of the parties’ two children. She
maintained periodic outside employment,
including a job at the children’s private
school, for which the parties received
reduced tuition.
Throughout the marriage, the husband
worked as a farmer with his father. In
exchange for the husband’s earning a
nominal salary and working hard, his
father awarded him a 50 percent interest
in Simpson Farms. The husband also
bought other property that he farmed separately from his father.
At the beginning of the marriage, the
parties purchased a mobile home, using
$6,000 the wife inherited, which was
located on the husband’s father’s property. Over time, the parties cleared the
land, and in 1995, they built the marital
residence. On May 15, 1996, the
husband’s father formally deeded the
property to the husband. At the time of
the final hearing, the residence had
$78,600 outstanding on the mortgage.
In late 2003, the wife began acting
somewhat erratically and appeared
depressed. Eventually, the wife was diagnosed as bipolar. Thereafter, the husband
asked the wife for a divorce. Eventually,
the Family Court granted the husband a
divorce based upon the wife’s adultery,
which occurred after the parties separated.
The husband filed a Rule 59(e), SCRCP,
motion to reconsider, which the Family
Court denied. This appeal followed.
Discussion
Under S.C. Code Ann. § 20-7-473(1),
property acquired by either party during
the marriage by gift from an individual
other than the spouse is nonmarital property. Under Jenkins v. Jenkins, 345 S.C.
Continued on PAGE 10
Page 10
L AW B I Z ® C O A C H ’ S C O R N E R
BY ED POLL
How do you sue a client? Very carefully!
Special to Lawyers Weekly
Regular readers of this column know that
I consider the client intake process to be the
most important step in the collection
process. An appropriate conversation and
written agreement with your client about
payment of fees in the beginning of your relationship will almost certainly assure payment.
Shared expectations, effective communication and dependable follow-through by
lawyer and client all define the kind of good
relationship that results in collecting a higher
percentage of your billings. Sometimes,
however, problems happen. If the client
owes money and shows very little inclination to pay it, the relationship is clearly on
the rocks.
If a fee payment impasse develops, there
are two worst-case actions a lawyer can
take. The first is to walk away.
A lawyer cannot ethically cease representation when the client will be prejudiced
— for example, by withdrawing within 60
days of a court date. But the ABA’s Code of
(continued)
Professional Conduct, Rule 1.16,
the court, if paid at all. And, a
allows lawyers to withdraw if the
State Bar disciplinary action
client has not met an obligation
might be brought against you.
to pay and the lawyer has given
It is because of this potential
adequate warning that represenscenario, even if only as a detation will end.
laying and defensive maneuver
The second, and even more
by the client without expectation
drastic, action is to sue a former
of winning, that insurance carclient for non-payment. This
riers urge their insureds to “walk
should not be done lightly and
away” and not sue clients for
not without sufficient communifailure to pay what is legitication with the client about the
mately owed.
client’s obligation and records of
Personally, I disagree with
the client’s billing and payment
carriers who advise this; howPoll
performance.
ever, I do urge adequate intake
Nonetheless, litigation is an
procedures and frequent client
option, and these are the things that you
communications, I do urge caution and I do
should consider before pursuing it. First and
urge a complete peer review before taking
foremost, review the file to make sure there
any action.
are no legitimate potential claims of malSecond, take a close look at your insurpractice staring at you. Ask a colleague for a
ance situation. Realize that your malpractice
peer review to confirm your conclusion.
insurance carrier has risk-management poliIf a client can prove that payment halted
cies in place. You will want to know how
because your representation was negligent,
these risk-management policies may affect
the result may be “involuntary servitude” (or
you in the event of litigation.
pro bono work) to fulfill your ethical obliFor example, your policy coverage
gations toward the client; in other words,
may exclude fee disputes, or your carrier
your fee will be significantly discounted by
may increase future deductibles or in-
88, 545 S.E.2d 531 (Ct. App. 2001), nonmarital property may be transmuted into
marital property if: “(1) it becomes so
commingled with marital property as to
be untraceable; (2) it is jointly titled; or
(3) it is utilized by the parties in support
of the marriage ... so as to evidence an
intent by the parties to make it marital
property.”
Although the evidence shows the
husband acquired the land by gift from
his father during the marriage, the parties,
using funds earned during the marriage,
built the marital home. Together, they
cleared the land where the house was
built. The residence was occupied by both
the parties from the time it was built in
1995 until this action was commenced in
2004. Clearly, the parties utilized the
home and land in support of the marriage. Accordingly, we find the Family
Court properly concluded the house was
transmuted into marital property.
Simpson v. Simpson (Lawyers Weekly
No. 011-037-08) (12 pages) (Per Curiam)
(SCCOA) Appealed from the Clarendon
County Family Court, Frances P. SegarsAndrews, J.; Steven S. McKenzie for
appellant; James McLaren, C. Dixon Lee
and Jan L. Warner for respondent (No.
4341) (Feb. 8, 2008).
Criminal
Murder – Jury Charge – Curative
Instruction
The trial court properly denied the
appellant’s motion for a mistrial since the
To list you r e xper t ad
ca ll 1-8 00-87 6-52 97 x 11
judge’s instruction cured any potential
prejudice, the Court of Appeals ruled in
State v. Ferguson (Lawyers Weekly No.
011-038-08) (7 pages).
Background
On the afternoon of May 13, 2004,
the appellant shot and killed Virginia
Ann Wilson following a dispute concerning repairs to water leaking inside
the victim’s home. The victim’s daughter,
Kimberly Wilson, is the appellant’s
former girlfriend of 10 years. The girlfriend and the appellant have two daughters together. For the year preceding the
victim’s death, the girlfriend, the appellant, their two daughters and the appellant’s two children from a previous
relationship had lived together in the girlfriend’s mobile home. Three weeks
before the victim’s death, the girlfriend
and her two children moved next door
into the victim’s mobile home, while the
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appellant and his children from the prior
relationship remained in the first mobile
home
During the second day of trial, in
response to a question about the appellant’s behavior at the time of the shooting, the girlfriend responded that the
appellant allegedly told her she “was
next.” Defense counsel asked the court
to strike the girlfriend’s response as unresponsive to the question asked. The appellant’s counsel requested a mistrial,
contending the court should strike the
girlfriend’s answer because the state did
not notify the defense, in writing and
during discovery, about the appellant’s
alleged statement.
The court sustained the appellant’s
objection, ruling the girlfriend’s answer
to the solicitor’s question was unrespon-
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crease future annual premiums if you sue
and lose. Perform due diligence to uncover
the position of your carrier before you
move.
When lawyers sue for payment of fees,
they are often met with malpractice claims
either as an offset (counter-claim) or direct
attack (cross-complaint). Of all the suits
filed by lawyers to collect their fees, 10 percent arise as a result of counterclaim; 30 percent to 40 percent of the malpractice claims
come from cross-complaints.
About half of all lawyers’ suits to collect
unpaid billings will result in an offsetting
claim of malpractice and, I suspect, only a
few of these prevail against the lawyer. Evaluate the risk, know your carrier’s risk management policies and evaluate the likelihood
of winning your unpaid billing before filing
suit. Then, define your claim, file suit and
move forward.
Editor’s note: Ed Poll, J.D., M.B.A.,
CMC, is the principal of LawBiz® Management, a national law firm practice management consultancy based in Venice, Calif. For
more information, visit his Web site
www.lawbiz.com or e-mail him at [email protected].
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(continued)
sive. However, the court denied the appellant’s motion for a mistrial, finding a curative instruction to the jury would
overcome any potential prejudice to the
appellant. Ultimately, a jury found the
appellant guilty of murder and possession of a firearm during the commission
of a violent crime. This appeal followed.
Discussion
We find the trial court properly exercised its discretion in deciding to give a
curative instruction rather than granting
the appellant’s motion for a mistrial. We
additionally find the court cured any
potential prejudice to the appellant with
its instruction to disregard the girlfriend’s
response to the question posed by the
solicitor. Here, the trial court’s curative
instruction was simple and the court
refrained from reiterating or emphasizing
the unresponsive answer. Accordingly, we
find the instruction cured any potential
prejudice, and we hold the trial court
properly exercised its discretion in
denying the appellant’s motion for a mistrial. The appellant’s convictions for
murder and possession of a firearm during
the commission of a violent crime are
affirmed.
State v. Ferguson (Lawyers Weekly No.
011-038-08) (7 pages) (Hearn, C.J.)
(SCCOA) Appealed from the Laurens
County Circuit Court, James W. Johnson,
J.; Robert M. Dudek for appellant; Henry
D. McMaster, John W. McIntosh, Donald
J. Zelenka, Melody J. Brown and Jerry
W. Peace for respondent (No. 4342) (Feb.
20, 2008).
Criminal
Marijuana Distribution – LesserIncluded Offense – Jury Instruction
The trial court properly refused to
charge the jury on the lesser-included
offense of simple possession of marijuana
since the appellant’s acts cannot support
a finding that he committed only the
offense of possession of marijuana and
did not participate in its distribution, the
Court of Appeals ruled in State v.
Franks (Lawyers Weekly No. 011-03908) (4 pages).
Background
On April 28, 2004, Agent Caron of
the sheriff’s department, accompanied by
a confidential informant, went to a trailer
for the purpose of arranging an undercover buy. When they reached the
address, Caron noticed a woman at the
window of the trailer facing their vehicle.
After the informant spoke with the
woman, who was later identified as
Heather Alley, Caron exited the vehicle,
and someone admitted her and the
informant into the trailer. Once inside the
trailer, Caron and the informant went to
a back bedroom, where they encountered
the appellant and Alley.
The appellant, who was standing by
a set of dresser drawers in the room,
removed several bags of marijuana from
a drawer and told Caron and the informant that the bags were “each ounce bags.”
Alley advised Caron and the informant
that she had two quarter-ounce bags and
inquired what they wanted. When Caron
answered she would buy a half ounce,
Alley took the two bags, weighed them
with hand-held scales, and asked the
appellant to “weigh these and make sure
it’s right.” After Alley tossed the bags to
the appellant, he weighed them, said
“they are fine” and tossed them back to
Alley. When Alley gave Caron the marijuana, Caron asked the price, whereupon
the appellant answered it would be $60.
Caron then took $60 and paid it to Alley,
who counted the money and laid it on a
bed in the room.
Caron further testified that, when the
informant asked about the possibility of
buying a larger amount, it was the appel-
Amendment to 403(g), SCACR
ORDER
Pursuant to Article V, § 4 of the South Carolina Constitution, Rule 403(g), SCACR, is
amended to read:
(g) Judge Advocate General Lawyers. The Judge Advocate General’s Corps of any
service of the Armed Forces of the United States (including the United States Coast
Guard) shall be considered a jurisdiction for the purposes of (f) above. Further, for the purposes of (f) above, an attorney who has been a judge advocate for three years or more,
either active or reserve, may use a court-martial with members as equivalent experience
for the trial experience required in (c)(2) and may use a separation action or other adverse
personnel action before a formal board of officers as equivalent experience for the trial
experience required by (c)(4). Additionally, an attorney who has served on active duty as
a judge advocate for three (3) years or more may submit a letter from a military judge or
staff judge advocate with personal knowledge of the attorney attesting to the attorney’s
trial competence, and this letter shall have the same effect as the letter from a judge under
(f) above. The military judge or staff judge advocate submitting the letter must have the
rank of Colonel or above in the Army, Air Force, or Marines or Captain or above in the
Navy or Coast Guard. All other requirements of (f) must be complied with.
This amendment is effective immediately.
IT IS SO ORDERED.
s/Jean H. Toal, C.J.
s/James E. Moore, J.
s/John H. Waller Jr., J.
s/Costa M. Pleicones, J.
s/Donald W. Beatty, J.
Columbia, South Carolina
February 21, 2008
lant who answered the question. Alley
then wrote down both her own name and
the appellant’s name, as well as their telephone numbers, on a piece of paper,
which she gave to Caron. The appellant
and Alley were arrested some time after
the sale and charged with distribution of
marijuana. Both were found guilty as
charged. This appeal followed.
Discussion
The evidence in the present case supporting the inference that the appellant
had dominion and control over the bags
of marijuana that Caron purchased was
as follows: (1) the appellant weighed the
bags to be certain of the quantity that
was being sold to Caron; (2) the appellant
tossed the bags back to Alley, who then
immediately handed them to Caron; and
(3) the appellant himself told Caron how
much she would have to pay for the
drugs. These acts, though probative of
the appellant’s dominion and control of
the marijuana Caron purchased, were also
an integral part of the transaction that led
to his arrest. We cannot conceive of any
way they would support a finding that
the appellant committed only the offense
of possession of marijuana and did not
participate in its distribution.
State v. Franks (Lawyers Weekly No.
011-039-08) (4 pages) (Thomas, J.)
(SCCOA) Appealed from the Pickens
County Circuit Court, G. Edward
Welmaker, J.; Joseph L. Savitz III for
appellant; Henry D. McMaster, John W.
McIntosh, Salley W. Elliott, Harold M.
Coombs Jr. and Robert M. Ariail for
Real Property
Mortgages – Possibility Of Reverter –
Property Interest
The appellant’s property interest was
not subject to Green Tree’s mortgages
since she never joined in the mortgages,
which were subject to the determinable
quality of the estate, the Court of Appeals
ruled in Green Tree Servicing, LLC v.
Williams (Lawyers Weekly No. 011-04008) (5 pages).
Background
In September 1995, Garvin deeded .23
acres of property to her granddaughter,
Reniata Williams. The deed provided the
property was to be used for residential
purposes and further provided that in the
event Williams failed to use the property
for residential purposes for a consecutive
period of 60 days or more, the property
shall revert back to the grantor or
grantor’s heirs and assigns, in fee simple.
Thus, the interest Garvin transferred to
Williams was a fee simple determinable
while she retained a possibility of reverter.
Williams subsequently obtained two
notes secured by mortgages on the property. Garvin was not a party to these
mortgages. Williams had a mobile home
placed on the property. The mobile home
encroached onto Garvin’s property by 6
feet. On June 1, 2004, Williams wrote to
Garvin that she no longer resided on the
property and in recognition of the condition in the deed, she wished to return
the property to Garvin.
Green Tree then sued for foreclosure
of the mortgages in August 2004. The
special referee ordered foreclosure of the
mortgages. Garvin was not named a party
to the action at this time.
In April 2005 Garvin wrote to Green
Tree stating she would charge it $25 a
day storage fee effective June 1, 2004,
for the mobile home on her property. She
explained $10 a day was for the part of
the mobile home on the far end of her
yard previously deeded to Williams and
$15 a day was for the part of the mobile
home that extended into her front yard.
Green Tree subsequently filed a petition for a rule to show cause requesting
the court order Garvin to show cause
why she should not be bound by the previous order and determine whether
Garvin’s interest was junior to Green
Tree’s mortgages. The special referee held
Garvin had no estate in the property until
the possibility of reverter was triggered,
which was after Green Tree had perfected
its mortgage. Thus, the referee held
Garvin’s interest in the property was
subject and junior to Green Tree’s mortgage that was already in place when she
acquired an estate in the property. This
appeal followed.
Discussion
The deed granting Williams the fee
simple determinable estate was duly
recorded and was referred to in the mortgage. Green Tree was on notice of the
nature of the estate. Garvin never joined
in the mortgages and the mortgages were
subject to the determinable quality of the
estate. When the determinable fee was
terminated, Green Tree’s interest in the
property terminated. Therefore, the special
referee erred in holding Garvin’s interest
in the property was subject to Green
Tree’s mortgages. We further reverse the
special referee’s ruling on Garvin’s trespass claim and remand for further proceedings consistent with this opinion.
Green Tree Servicing, LLC v. Williams
pages) (Huff, J.) (SCCOA) Appealed from
Page 11
the Hampton County Circuit Court,
Walter H. Sanders, Jr., J.; Lueveania
Garvin, pro se; Pearce W. Fleming, D.
Randolph Whitt and Martha S. Phillips
for respondents (No. 4344) (Feb. 20,
2008).
Insurance
Commercially Reasonable Offer –
UIM Coverage
An insurer made a meaningful offer
of UIM coverage since the insurer’s notification process was commercially reasonable and it intelligibly advised the
appellant of the nature of UIM coverage,
the Court of Appeals ruled in Atkins v.
Horace Mann Ins. Co. (Lawyers Weekly
No. 011-041-08) (6 pages).
Background
On or about Dec. 27, 2000, the appellant purchased a 1993 Lexus. The Circuit
Court’s order is contradictory as to the
manner in which the Lexus became
covered by Horace Mann. The order initially states “the plaintiff purchased a
policy of insurance covering the [new]
Lexus.” However, the next paragraph
states the appellant made a request “to
add the Lexus to his existing Horace
Mann policy ... “ After making this
request, Kevin Hunt, a new agent for
Horace Mann, sent the appellant a form
entitled “automobile coverage selection/
rejection form.” The appellant’s name,
date, policy number and the make and
model of his new Lexus were already
filled in at the top of the form.
the
heading
entitled
Under
“Underinsured Motor Vehicle Bodily
Injury Coverage,” seven choices of coverage were listed, ranging from
$15,000/$30,000 to $500,000/$1 million.
A check mark on the form indicates the
appellant chose UIM coverage in the
amount of $25,000/$50,000. This selection
was below his policy liability limits, but
is the same amount of UIM coverage he
had on his other cars insured with Horace
Mann. The appellant admits he signed
his name on the signature line under the
UIM section; however, he contends he
does not recall writing the date beside
the signature line or putting a check mark
for the levels of UIM coverage that were
selected. He also admits that he signed
his name under the acknowledgment paragraph, indicating he had read the explanations and offers of UM and UIM
coverage.
On Oct. 22, 2003, the appellant was
involved in an automobile accident with
Terry Gillyard, and suffered bodily
injuries and other damages. Gillyard’s
insurance company tendered its liability
limits to the appellant, but he sought additional compensation from Horace Mann
because his damages exceeded Gillyard’s
coverage limits. Thereafter, the appellant
filed a declaratory judgment action
requesting to have his policy with Horace
Mann reformed to provide him with UIM
coverage equal to the limits of his liability insurance coverage.
The Circuit Court concluded Horace
Mann had carried its burden of proving
that it had made a meaningful offer of
UIM coverage to the appellant pursuant to
S.C. Code Ann. § 38-77-160 (2002) and
§ 38-77-350 (Supp. 2007), and the
Wannamaker test. This appeal followed.
Discussion
The appellant maintains Horace
Mann’s offer failed the Wannamaker test
in two respects. First, he asserts the offer
was not made in a commercially reasonable manner because Hunt never spoke
with him directly, instead mailing him a
selection/rejection form. We disagree. The
use of mail is a reasonable method of
communicating with the insured about an
important business transaction. Moreover,
the appellant had an ongoing relationship
with Horace Mann when he purchased
the Lexus. He chose to call Hunt to
insure his Lexus instead of going by the
(continued)
agent’s office, and it was apparently
acceptable to him to read the automobile
coverage selection/rejection form, sign
every blank and return it to the agent via
the mail. Therefore, we find that the
Horace Mann’s notification process was
commercially reasonable.
Next, the appellant contends that
Horace Mann failed to intelligibly advise
him of the nature of underinsured
motorist coverage. Again, we disagree.
The appellant purchased exactly the same
UIM coverage for his Lexus that he had
previously purchased on all his other
vehicles insured by Horace Mann. In
addition, he properly signed the form in
the five required locations, including the
lines accepting UIM coverage at limits
of 25/50 and under the paragraph
acknowledging he had read the form in
its entirety.
The form clearly explains the nature of
UIM coverage: various options of UIM
coverage limits are set out, every appropriate selection is made, each signature
block is signed and the form adequately
explains where the insured is to seek out
additional information if he or she has
questions. Moreover, the appellant is a
high school teacher, former principal and
coach of 35 years with a master’s degree
and over 30 hours towards a PhD.
Accordingly, we find that Horace Mann
intelligibly advised the appellant of the
nature of UIM coverage. The Circuit
Court’s order is affirmed.
Atkins v. Horace Mann Ins. Co.
pages) (Hearn, C.J.) (SCCOA) Appealed
from the Barnwell County Circuit Court,
Doyet A. Early III, J.; E.T. Moore Jr. and
Angela W. Abstance for appellant; Karl
Brehmer and L. Darby Plexico III for
Tort
Page 12
Raccoon Bite – Proximate Cause –
Duty To Warn – Licensee/Invitee
A man bitten by a pet raccoon at the
respondent’s home cannot maintain his
negligence claim since he failed to prove
any negligent act or omission attributable
to the respondent as the proximate cause
of his injury, the Court of Appeals ruled
in Singleton v. Sherer (Lawyers Weekly
No. 011-042-08) (21 pages).
Background
A raccoon bit the appellant while he
was on George Sherer and Julie
Underwood’s jointly owned property.
Approximately a year before this incident, the appellant rescued the raccoon
from the yard of a home where he was
delivering furniture “but wanted someone
else to take care of it.” Subsequently,
Underwood agreed to take the raccoon.
According to the appellant, he was familiar with the raccoon from the time it was
removed from the wild and placed in
Underwood’s care. Indeed, he “would
come to [Underwood’s] home from time
to time and was often around the
[raccoon]. He would play with the
raccoon and he liked it.” The appellant
testified the raccoon was neither vicious
nor dangerous and had never bitten
anyone prior to the incident.
The night before the incident, the
raccoon escaped from his outdoor pen
and reappeared the next morning in a
“disheveled” state. After letting the
raccoon into the house, Underwood
attempted to calm the animal by picking
him up and feeding him. However, when
her dog entered the room, the raccoon
bit Underwood’s arm severing an artery
and median nerve. Underwood was taken
by ambulance to the emergency room
accompanied by her children.
At her deposition, Underwood was
asked if she called anyone in her family
for help. From the hospital, she first
called her husband but he was out of
town. She called her father, Duke
Singleton, who was also the appellant’s
father, to tell him she had been bitten.
After learning his daughter was bitten
and in the hospital, Duke called and
informed the appellant of the incident and
suggested he go to Underwood’s home
“to see what he could do.” However,
Duke advised the appellant to wait until
he could arrive “with a net and some
sacks” and specifically instructed the
appellant not to capture the raccoon by
himself.
When the appellant arrived at
Underwood’s home, no one was home,
and Duke had not yet arrived. Despite
Duke’s warning, the appellant entered the
home and proceeded into the room where
the raccoon was located. The appellant
confronted the raccoon and attempted to
“soothe the animal with his voice.”
During his attempt to calm the raccoon,
“the animal attacked him and bit him on
the hand.” Shortly thereafter, Duke arrived
and the appellant made another effort to
capture the raccoon with the burlap sack
his father provided. While he was successful in capturing the raccoon, “the
raccoon bit him a second time through
the bag.”
Subsequently, the appellant sued Sherer
and Underwood for the injuries he sus-
tained from the raccoon bite while on
their jointly owned property. The trial
court granted summary judgment in favor
of Sherer and Underwood. The appellant
filed a motion to alter or amend judgment, which was denied. This appeal followed.
Discussion
The appellant fails to prove any negligent act or omission attributable to
Underwood as the proximate cause of his
injury. First, the record contains no evidence but for Underwood’s failure to
warn the appellant, he would not have
sustained injury. By his own admission,
the appellant was aware the raccoon had
bitten Underwood prior to his arrival and
was warned by his father “not to try and
catch the raccoon by himself.” The appellant entered Underwood’s home and voluntarily exposed himself to the danger
posed by the raccoon. The fact he
attempted to capture the raccoon in spite
of his father’s warning refutes any contention he would have proceeded differently and not sustained injury if
Underwood warned him.
The record contains no evidence the
appellant’s injury was foreseeable, as
required to establish legal cause.
Underwood had no notice the raccoon’s
attack on the appellant was going to
occur. As evidenced by the record,
Underwood was hospitalized on the day
of the incident and never invited the
appellant to enter the property during her
absence. Consequently, Underwood had
no reason to foresee the appellant would
enter her home and attempt to capture
the raccoon. Contrary to the appellant’s
contention, the evidence negates the existence of both causation in fact and legal
cause as a matter of law. The trial court
did not err in holding there was no
genuine issue of material fact as to the
proximate cause of the appellant’s injuries.
We affirm the trial court’s decision.
Singleton v. Sherer (Lawyers Weekly
No. 011-042-08) (21 pages) (Anderson,
J.) (SCCOA) Appealed from the Lexington
County Circuit Court, Larry R. Patterson,
J.; Darra J. Coleman and Charles S.
Gwynne for appellant; S. Jahue Moore
2008).
Fraud
Moisture Damage – Termite Letter –
Statute Of Limitations
A man who sued the homeseller and
the exterminator for failure to disclose
moisture damage at the home cannot
maintain his action since the statute of
limitations bars his claim, the Court of
Appeals ruled in Watters v. Terminix
Service, Inc. (Lawyers Weekly No. 011043-08) (4 pages).
Background
The appellant purchased a home from
Furlow in April 1997. As part of the purchase process, Terminix completed a CL100 Report, also known as a termite
letter, and it was presented to the appellant at closing. Terminix noted there was
evidence of inactive wood destroying
fungi, an acceptable moisture level and
previous treatment of the property for
termite control. Terminix also suggested a
qualified building inspector evaluate the
structural integrity of the house. The
appellant hired American Inspection
Service, Inc. to conduct a home inspection, and subsequently he purchased the
home.
After the closing, the appellant made
numerous repairs to the home. Following
another inspection, his attorney wrote
Terminix a letter on May 15, 1997, indicating an examination of the house disclosed damage not reported at the closing.
In August 1998, the appellant hired
Russell A. Rosen to evaluate the moisture
level. Rosen’s inspection revealed the subfloor plywood was delaminated and a
moisture problem existed in the crawl
space. Rosen opined that the source of
the sub-floor damage was related to
installation and ductwork alterations performed by Smoak’s Air Conditioning. The
appellant pursued a claim against
Smoak’s, which resulted in Smoak’s
paying a settlement of $72,000.
On Dec. 30, 2002, the appellant
brought the current lawsuit for fraud, negligent misrepresentation and indemnification alleging Furlow and Terminix failed
to disclose the moisture damage. The trial
court determined that the appellant filed
this action outside the statute of limitations and granted summary judgment to
Furlow and Terminix. This appeal followed.
Discussion
For purposes of commencement of the
statute of limitations, the appellant likely
received notice of a potential cause of
action at closing when he received the
Terminix report together with the suggestion by Terminix for an evaluation of
the home’s structural integrity by a qualified building inspector. Under the
summary judgment standard, we give the
appellant every benefit of the doubt.
Even measured against the exacting
summary judgment standard, it seems an
insurmountable hurdle for the appellant
to delay the start of the statute of limitations after his attorney’s May 15, 1997
Mediation
H. MICHAEL BOWERS
Certified Mediator and Arbitrator
Personal Injury
Products Liability
Business Disputes
Insurance Issues
Trucking & Transportation
WILKES BOWERS, P.A.
Attorneys at Law
171 Church Street, Suite 210 • Charleston, SC 29401 • Office: 843-577-9888
[email protected]
Workersʼ Compensation
(continued)
letter to Terminix referencing the moisture
damage. At that time, when viewed objectively, one would reasonably conclude
that a claim might exist. Nevertheless,
under no circumstances could the appellant claim he lacked knowledge of his
potential cause of action after August
1998 when he received the report of his
expert.
In August 1998, the appellant’s expert,
Rosen, referenced the damage in a report
to the appellant. The fact that the expert
Rosen identified the wrong source did not
further delay the commencement of the
statute of limitations as a matter of law.
The appellant’s assertion of an estoppel
theory to further delay the start of the
statute of limitations is unavailing, for the
August 1998 report of the appellant’s
expert clearly establishes that the delay in
filing the action could not properly be
attributed to any alleged misconduct by
Terminix or Furlow. We affirm the grant of
summary judgment, for the statute of limitations commenced no later than August
1998 and, therefore, bars the appellant’s
claims brought in December 2002.
Watters v. Terminix Service, Inc.
pages) (Kittredge, J.) (SCCOA) Appealed
from the Charleston County Circuit Court,
Mikell R. Scarborough, J.; Gregg E.
Meyers for appellant; Clinch H. Belser
Jr., H. Freeman Belser, Eugene P.
Corrigan III and Michael J. Ferri for
respondents (No. 4347) (Feb. 25, 2008).
Treating Physician – Selection
A woman’s employer was allowed
to select her treating physician, despite
a 2002 decision that appeared to say
claimants were entitled to select their
physicians, since in this case, there has
never been a designation of a treating
physician, the Court of Appeals ruled
in McKinney v. Kimberly-Clark
Corp. (Lawyers Weekly No. 011-04408) (4 pages).
Background
The appellant worked for KimberlyClark Corporation for 28 years. In
April 2003, she brought a workers’
compensation claim requesting temporary total disability benefits, permanent
total disability benefits, payment for
medical examinations and payment for
treatments to her neck, back, both
shoulders/arms, legs and psyche. She
alleged these injuries occurred while
she was driving a forklift, and the psychological injuries occurred because
she suffered severe depression regarding her pain and lack of mobility.
The single commissioner found the
appellant was entitled to medical treatment and that the defendants were
responsible for all past, present and
continuing medical treatment. The commissioner also ordered Kimberly-Clark
to pay for causally related medical
treatment and ordered it to select a
treating physician for the appellant.
Thereafter, the appellant requested
appellate panel review of the single
commissioner ’s determination that
Kimberly-Clark should be allowed to
select a treating physician. She contended that Toby Warren, a chiropractor, should be designated as the
authorized treating physician. During
the pendency of this matter, Warren
presented Kimberly-Clark a bill for chiropractic services in excess of $48,000.
The appellate panel affirmed the
single commissioner’s decision. The
Circuit Court affirmed the decision of
the appellate panel, finding that
Kimberly-Clark must pay for causally
related medical treatment and should
be allowed to select a treating physician. This appeal followed.
Discussion
The appellant argues the Circuit
Court erred in finding that she is not
entitled to select her treating physician
after being determined permanently and
totally disabled. We disagree. The
appellant relies upon Risinger v. Knight
Textiles, 353 S.C. 69, 577 S.E.2d 222
(Ct. App. 2002), for the proposition
that she should be allowed, unilaterally, to select a provider to treat her,
and that Kimberly-Clark should be
responsible for payment for such treatment. This reliance is misplaced.
In Risinger, the appellate panel designated a treating physician for the
claimant in its order. The employer and
carrier refused to pay for an additional
treatment as recommended by this
physician, and sought further to have
the claimant evaluated by another
physician. We held that the employer
and carrier could not refuse to pay for
additional treatment under those circumstances.
Here, unlike in Risinger, there has
Page 13
never been a designation of a treating
physician. While the appellate panel
ordered Kimberly Clark to pay for
causally related medical expenses pursuant to S.C. Code. Ann. § 42-15-60
(1976), no particular physician was designated by the appellate panel to treat
the appellant. Therefore, Risinger does
not apply.
The appellant further contends that
Risinger stands for the proposition that
in a case where the claimant has
received permanent and total benefits,
the claimant has an absolute right to
pursue medical treatment, of any type
and nature, at any location, and that
an employer and carrier are responsible
for payment of that treatment. We disagree.
The appellant’s argument is inconsistent with S.C. Code Ann. §§ 42-1560 and 42-9-10 (1976), which establish
the rights of the employer and the
employee with regards to payment for
treatments, and ultimately gives great
deference to the appellate panel. This
statute does not give a unilateral right
to claimants to select their treating
physician, and such an unencumbered
right undermines the authority of the
appellate panel, as prescribed by the
legislature. The Circuit Court’s order
is affirmed.
McKinney v. Kimberly-Clark Corp.
pages) (Hearn, C.J.) (SCCOA)
Appealed from the Aiken County Circuit
Court, Doyet A. Eearly III, J.; E. Ros
Huff Jr. for appellant; Clarke W.
McCants for respondent (No. 4348)
(Feb. 25, 2008).
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1. The majority, but not all, of the firm’s ERISA
cases are handled by Robert E. Hoskins of
Greenville, South Carolina who is a partner in the
firm. Experience cited herein is primarily that of
Robert E. Hoskins. (See attorney profile, Robert E.
Hoskins, www.fosterfoster.com, for specifics.) Mr.
Hoskins is admitted in South Carolina, but associates
with counsel in North Carolina frequently. The circuit
court opinions are from the United States Courts of Appeal for the Fourth, Sixth and Eleventh Circuits.
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Jay Reeves
DOCTOR: Claimant’s reliance on 2002’s Risinger decision misplaced, court says
Page 14
Continued from PAGE 1
pellate panel said that the employer was entitled to pick the treating physician, notwithstanding the ruling in Risinger v. Knight
Textiles.
The Risinger case was different, according to the opinion, because the appellate
panel there had already appointed a doctor,
but the employer in that case wanted a second opinion before it would pay up.
The case of McKinney v. Kimberly-Clark
Corp. (South Carolina Lawyers Weekly No.
011-044-08, 4 pages) diverged because the
commission had not yet assigned a treating
physician. The appellate panel said Risinger
— which dealt with additional treatments
from an approved provider — did not mean
that the claimant here could unilaterally select her doctor and pass the bill off to her
employer.
Chief Judge Kaye G. Hearn wrote the decision in McKinney. Judges John W. Kittredge and Paula H. Thomas concurred.
After working for Kimberly-Clark for 28
years, the claimant sought comp benefits for injuries she received while driving a forklift. She
claimed injuries to her back, shoulders, legs, as
well as resulting psychological problems.
The single commissioner found that she
was entitled to medical treatment. He ordered the employer to pay for all past, present and continuing treatments. The
commissioner directed the employer to select the claimant’s treating physician.
The claimant wanted a chiropractor to be
designated for that role. While the case was
pending, the chiropractor presented the employer a bill for more than $48,000.
Opinion Brief
Case name: McKinney v. Kimberly-Clark Corp. (South Carolina Lawyers Weekly No.
011-044-08, 4 pages)
Court: S.C. Court of Appeals
Judge: Chief Judge Kaye G. Hearn
Attorneys: E. Ros Huff Jr., Huff Law Firm, of Irmo, for claimant-appellant. Clarke W.
McCants, of Beaufort, for employer-respondent.
Issue: Was a comp claimant entitled to select her own doctor for approved medical
treatments at her employer’s expense?
Holding: No. The claimant’s reliance on the holding in Risinger v. Knight Textiles was
misplaced because that case dealt with an employer that wanted a second opinion after
a commission-appointed physician prescribed a course of treatment. In the claimant’s
case here, no physician had been appointed.
Potential impact: The decision shows that Risinger does not stand for the proposition
that claimants who are awarded benefits have an absolute right to pursue treatment of
any type and nature at any location — and make the employer foot the bill.
Opinion digest: See page 13.
Comments? E-mail [email protected].
The commission’s appellate panel and
the Circuit Court affirmed the single commissioner’s ruling, including that the employer should be allowed to select the
physician.
The claimant appealed. She cited the case
of Risinger v. Knight Textiles, 353 S.C. 69
(Ct. App. 2002)
The claimant contended that Risinger
stood for the proposition that she should be
able to select her treating physician, and her
employer must pay for it.
The appellate panel in Risinger designated a treating physician, but the carrier refused to pay for additional treatment that the
doctor recommended. It wanted a second
opinion.
The Risinger court said that the carrier
could not refuse to pay for additional treatment in that situation (see story in the Dec.
16, 2002, issue of Lawyers Weekly).
Wrote Chief Judge Hearn in McKinney,
“In the present case, unlike in Risinger, there
has never been a designation of a treating
physician. While the appellate panel ordered
Kimberly-Clark to pay for causally related
medical expenses pursuant to S.C. Code
Ann. § 42-15-60, no particular physician
was designated by the appellate panel to
treat [the claimant].
“Therefore, Risinger does not apply,” the
opinion stated.
The court also rejected the claimant’s
argument that she had an absolute right to
pursue medical treatment of any type at
any location, and the employer must pay
for it.
That position ran afoul of S.C. Code
Ann. §§ 42-15-60 and 42-9-10, according to
the decision.
“This statute does not give a unilateral
right to claimants to select their treating
physician, and such an unencumbered right
undermines the authority of the appellate
panel, as prescribed by the legislature,”
Chief Judge Hearn wrote.
BY GREGORY FROOM
RACCOON: Animal did not pose a latent danger to plaintiff, a licensee at sister’s house
argued that he would not have gone into the
home,” Coleman told Lawyers Weekly.
She said her client had not decided
whether to pursue the case further.
The appeals court said the plaintiff failed
to show that he would have avoided injury if
the defendants had warned him. Instead, the
defendants had no reason to foresee that he
would attempt a solo capture of the formerly
tame raccoon, according to the opinion.
The Feb. 25 decision, Singleton v. Sherer
and Underwood (South Carolina Lawyers
Weekly No. 011-042-08, 21 pages), sheds
light on how the appeals court will handle
cases involving injuries caused by wild animals kept as pets.
Judge Ralph King Anderson Jr. wrote the
opinion, and Judges Paul E. Short and Paula
H. Thomas concurred.
The defendant’s attorney had not returned Lawyers Weekly’s call by press time.
Background
The plaintiff said that he was familiar
with the raccoon since he rescued it and
gave it to his sister a year before the incident.
He often played with the animal, according
to the opinion.
After escaping and returning in a disheveled state, the raccoon bit the plaintiff’s
sister. The sister told her father to try to catch
the raccoon inside the house.
The father informed the plaintiff about
the situation, but said he should wait for
help. The plaintiff didn’t wait. After trying
to soothe the animal with his voice, the raccoon attacked him and bit his hand.
When the father arrived with a burlap
sack, the plaintiff caught the animal, but it
bit him a second time through the bag.
The plaintiff sued his sister and the coowner of the home. The trial court granted
summary judgment in the defendants’ favor.
Opinion Brief
Case name: Singleton v. Sherer and Underwood (South Carolina Lawyers Weekly No.
011-042-08, 21 pages)
Court: S.C. Court of Appeals
Judge: Judge Ralph King Anderson Jr.
Attorneys: Darra James Coleman and Charles S. Gwynne, Rogers Townsend &
Thomas, both of Columbia, for plaintiff-appellant. S. Jahue Moore, Moore Taylor &
Thomas, of West Columbia, for defendants-respondents.
Issue: Could property owners be held liable when their pet raccoon bit the plaintiff
while he was trying to capture it after it had bitten his sister, who was one of the homeowners?
Holding: No. The raccoon, which the plaintiff had played with many times as a pet, was
not a latent danger. The homeowners had no reason to foresee that the plaintiff would
try to catch the animal, and their failure to warn him was not the proximate cause of his
injury.
Potential impact: The case gives some indication as to how the court will handle lawsuits involving attacks by wild animals that have been tamed and kept as pets.
The plaintiff appealed.
The appellate panel upheld the lower
court’s decision.
First, the appeals court said that the trial
court correctly determined that the plaintiff
was a licensee, not an invitee. The duties
owed to a licensee are less than those owed
to an invitee, according to the decision.
“By his own admission, [the plaintiff] did
not enter [his sister’s] property through an
express or implied invitation. Rather, [he]
voluntarily entered the premises in an effort
to capture the raccoon regardless of specific
instructions to the contrary,” Judge Anderson wrote.
Coleman disagreed.
“We did not take the position that he was
a social guest. We took the position that he
was an invitee, because he was there for the
sole purpose of assisting his sister, and there
was no mutual benefit to be gained by him,”
she said.
[email protected]
Duty To Warn And Proximate Cause
The court also rejected the plaintiff’s argument that his sister had a duty to warn him
about the raccoon regardless of his invitee/licensee status.
“[C]ontrary to [the plaintiff’s] argument,
the raccoon did not pose a hidden or latent
danger about which [his sister] had an affirmative duty to warn [him],” Judge Anderson wrote.
The appellate panel said there was no evidence that his sister’s failure to warn was
the proximate cause of his injury.
“The fact that [the plaintiff] tried to capture the raccoon in spite of his father’s warning refutes any contention he would have
proceeded differently and not sustained injury if [his sister] warned him,” the opinion
stated.
The panel said the sister had no reason to
foresee that the plaintiff would attempt a
capture on his own.
Assumption Of Risk
The appeals court rejected the plaintiff’s argument that there was a jury question on whether he assumed the risk, since
the state now has adopted comparative
negligence.
“By [the plaintiff’s] own admission, his
actions on the day of the incident were
‘pretty stupid.’ Any factual issues which
might exist as to [the defendants’] contributory negligence cannot alter the inescapable conclusion [the plaintiff’s]
negligence exceeded 50 percent,” Judge
Anderson wrote.
Coleman, the plaintiff’s lawyer, said that
issue should have gone to the jury. “It was
impossible for my client to appreciate the
nature and extent of the risk assumed. Based
on that argument, there was a genuine issue
of material fact,” she said.
BY GREGORY FROOM
[email protected]
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401(k): High court takes note of shift in retirement plan ‘landscape’ over past decades
Page 16
of the plan, but now we see it’s about the individual account also,” Hoskins told
Lawyers Weekly. “I think Justice Stevens
summed it up best when he said that, in reality, a 401(k) plan is nothing but the sum of
its individual parts, and that’s not the case
with a defined-benefit plan.
“To protect the integrity of the [401(k)]
plan, we have to be able to protect each of its
component parts,” he said. Hoskins did not
argue the case in Washington; instead, that
was handled by Peter K. Stris of Costa
Mesa, Calif.
Lawyers Weekly left a message for the
defendant’s attorney, Thomas P. Gies of
Washington. Gies returned the call after
hours, but then could not be reached before
press time because he was traveling.
The case is LaRue v. DeWolff, Boberg &
Associates, Inc. (South Carolina Lawyers
Weekly No. 003-001-08, 8 pages). Justice
John Paul Stevens wrote the opinion. Justices David H. Souter, Ruth Bader Ginsburg
and Samuel A. Alito Jr. concurred. Chief
Justice John G. Roberts Jr. concurred in part
and concurred in the judgment. Justices
Clarence Thomas and Antonin Scalia concurred in the judgment.
Background
The plan at issue in LaRue permitted participants to direct how their contributions
would be invested. The plaintiff claimed that
he told his employer to alter his allocations
in 2001 and 2002.
According to the plaintiff, his employer
never made the requested changes, which
ended up reducing the value of his account
by about $150,000. He claimed that was a
breach of fiduciary duty under ERISA.
In his suit, the plaintiff sought relief
under § 502 of the Employee Retirement Income Security Act of 1974.
The plaintiff said that he didn’t want
monetary damages, but simply wanted his
interest in the plan to reflect what the balance would have been if his employer had
done what he asked.
The District Court granted the em-
Opinion Brief
Case name: LaRue v. DeWolff, Boberg & Associates, Inc. (South Carolina Lawyers Weekly No. 003-001-08, 8 pages)
Court: U.S. Supreme Court
Judge: Justice John Paul Stevens
Attorneys: Jean-Claude André, Ivey, Smith & Ramirez, of Los Angeles; Peter K. Stris, Whittier Law School, of Costa Mesa, Calif.; Robert
E. Hoskins, Foster Law Firm, of Greenville; and Shaun P. Martin, University of San Diego School of Law, of San Diego, for plaintiff-petitioner. Thomas P. Gies, Clifton Elgarten and Ellen M. Dwyer, Crowell & Morning, all of Washington, for employer/plan-respondents.
Issue: Could a 401(k) plan participant who claimed his employer failed to make requested changes to his investment allocations sue under
ERISA for breach of fiduciary duty?
Holding: Yes. Even though ERISA law is focused on protecting the plan’s integrity, the plaintiff’s suit could proceed because his individual account made up a portion of the plan, unlike in previous cases that dealt with traditional defined-benefit plans.
Potential impact: According to one of the plaintiff’s lawyers, the decision will significantly improve 401(k) participants’ ability to recover damages when plan administrators breach their fiduciary duties.
ployer’s motion to dismiss, and the Fourth
Circuit affirmed (see opinion digest in the
June 26, 2006, issue of Lawyers Weekly).
The appellate panel cited the U.S.
Supreme Court’s decision in Massachusetts
Mut. Life Ins. Co. v. Russell, 473 U.S. 134
(1985).
The Russell court said that a participant in
a fixed-benefit disability plan could not recover under ERISA for damages arising from
the delayed processing of her claim. The reason, according to Russell: ERISA was designed to protect the entire plan and was not
concerned about individual beneficiaries.
The high court said the Fourth Circuit’s
reliance on Russell was misplaced.
“Russell’s emphasis on protecting the
‘entire plan’ from fiduciary misconduct reflects the former landscape of employee
benefit plans. That landscape has changed,”
Justice Stevens wrote.
“Defined-contribution plans dominate
the retirement plan scene today. In contrast,
when ERISA was enacted, and when Russell was decided, ‘the [defined-benefit] plan
was the norm of American pension practice,’” the opinion stated.
The disability plan in Russell did not
have individual accounts, whereas the plan
in LaRue did, according to the opinion.
“Whether a fiduciary breach diminishes
plan assets payable to all participants and
beneficiaries, or only to persons tied to particular individual accounts, it creates the
kind of harms that concerned the draftsmen
of [ERISA],” Justice Stevens wrote.
The high court said that § 502(a)(2) did
provide for recovery for fiduciary breaches
that reduce the value of assets in a participant’s individual account. That’s true regardless of what percentage of the plan’s
balance is held in the individual account, according to the decision.
“[T]he legal issue under § 502(a)(2) is
the same whether his account includes 1 percent or 99 percent of the total assets in the
plan,” the court said.
Said Hoskins, the plaintiff’s lawyer, “Before this case came out, theoretically if you
had a plan with 100 people in it, and one person had $100,000 stolen out of his account,
that person had no remedy. The plan would
be short $100,000, so the integrity of the
plan would have been compromised.
“But, because it was just one individual
account, there would have been no remedy.
We believe that was not what Congress intended, and that was just what the court
found,” he said.
According to Hoskins, the case will now
head back to District Court in South Carolina. “I think there were issues raised by
Chief Justice Roberts in his concurring opinion that are going to be developed further
[on remand], and which may actually
broaden the scope of the opinion.”
— Questions or comments may be directed to the
writer at [email protected].
SCWLA: President says, ‘It is fun to be a woman lawyer in South Carolina now’
mentors whom they can contact in states beyond South Carolina.”
Collaborations have already begun.
Last year, SCWLA members joined with
the N.C. Bar Association Women in the
Legal Profession to hold a symposium featuring U.S. Supreme Court Justice Ruth
Bader Ginsburg. In May, SCWLA and the
Georgia Association of Women Lawyers
will travel to Washington to be sworn in at
the U.S. Supreme Court.
It’s these types of alliances that will enhance the status and influence of women in
the profession, said Crum, a shareholder at
the McNair Law Firm in Columbia.
“Any lawyer who is a rainmaker is going
to have a greater status and more influence
in her firm and in the Bar,” said Crum. “To
the extent that the Southeast region could
work together to encourage that, that helps
us all.”
Crum said that it’s crucial for the
SCWLA to develop mentoring connections
with women lawyers early in their careers.
“It starts by reaching out to women in
law school,” she said. “I want to be able to
take law students and say, ‘What area of law
are you interested in?’ and be able to connect them with various lawyers in specific,
detailed practice areas. Having developed
this tri-state network — or really, a regional
network throughout the South — would
open up worlds of opportunities for young
lawyers.”
A concern that’s been voiced by judges
is that many young lawyers show up in court
who have never had mentors or are sent into
court by large firms without supervision,
said Crum. She wants the SCWLA to be a
place where those lawyers — women and
men alike — can turn to for help.
“There’s no way that law schools prepare you for everything that you’ll run into
Liz Crum: Biographical Information
Liz Crum is a native of Denmark, S.C. After graduating from
the University of South Carolina School of Law in 1973, she
served as an assistant attorney general for South Carolina in the
special litigation section until 1977.
From 1977 to 1981, Crum served as staff counsel and director
of research for the South Carolina House of Representatives Judiciary Committee. In that position, she was responsible not only
for research on legislative matters and drafting legislation and
amendments, but also represented the House of Representatives
in litigation matters.
She joined McNair Law Firm in 1981 and became a shareholder in 1983.
Crum is a part of the firm’s administrative and regulatory section
and has extensive experience in the federal and state regulatory areas
of health care, certificate of need and related matters, licensure,
Stark and anti-kickback and HIPAA matters, state and local government procurement and other state and local administrative and regulatory matters.
as a lawyer,” said Crum. “I think our students at law schools in North Carolina,
South Carolina and Georgia all get a good
education. But then real life pops up. Classic example: Nobody explained to me in
law school how hard it would be to schedule one deposition when there were four
firms on a case. Seems simple enough, but
it really isn’t.”
Trying to figure out how to become a
rainmaker and get the recognition that male
lawyers get is another pressing issue for
women lawyers, said Crum.
“When you look at Best Lawyers, you’re
seeing more and more women,” she said.
“But it’s taken a while to get that recognition.”
Indeed, when Crum graduated from the
University of South Carolina School of Law
Through court appointment, she serves on the S.C. Judicial
Council and the Administrative Law Court Rules Committee.
Crum is a member of the S.C. Bar, American Bar Association and
the American Health Lawyers Association. She is a member of
the board of directors of the South Carolina Women Lawyers Association and of the Richland County Election Commission.
Crum has served as chairman of the Governor’s Juvenile Justice Advisory Committee, member of the State Board of Architectural Examiners, member of the board of trustees of the South
Carolina Nature Conservancy, and as a member of the board of
directors of the Columbia Downtown Business Development Association. A graduate of Leadership South Carolina, she has
served on its board of regents.
Crum received the Athena Award from the Greater Columbia
Chamber of Commerce in 1992, which recognized her efforts to
encourage and celebrate the achievements of women in business
and the professions. Crum has been elected to serve as a 5th Judicial Circuit Delegate in the South Carolina Bar House of Delegates.
Source: McNair Law Firm Web site
in 1973, women scarcely registered on the
legal radar in the Palmetto State. In her entering law school class, there were 360 people. Six of them were women. Only five
graduated.
“When I first went into court, I had a
judge tell me, ‘Good morning, Ms. Crum. I
have practiced with your grandfather and
your father, and you’re the prettiest,’ in front
of the jury. He meant it nicely; he was an
old-timey fellow, but that really wasn’t a
good way to start off.”
Thankfully, she said, those episodes
don’t happen as frequently now.
But the numbers of women in leadership
positions are still low considering how
highly qualified women attorneys are, said
Crum. Her dream is to see the election of
more women judges based on their excel-
lence, not their numbers.
“I don’t think you should have the mindset of meeting a quota, but you also do not
need to have what I would call a reverse
quota, which means that just because we’ve
got a couple of [women judges] doesn’t
mean we don’t need to have any more.
“I’ll tell you one thing, though. It is fun to
be a woman lawyer in South Carolina now.
There are so many more opportunities now,
and it’s so much more accepted. At least
from my perspective, you have the opportunity to look at younger lawyers and say,
‘You have it good. Let me tell you what it
was like before, and let me tell you why you
need to take care of your sister lawyers.’”
— Questions or comments may be directed to the
writer at [email protected].

South Carolina Lawyers Weekly Columbia, SC

Transcription

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