Justia Injury Law Opinion Summaries

Appellant Stephen Lipscomb, manager of SEL Properties, appealed a jury verdict against him for tortious interference with a contract entered into by SEL with Respondents Dutch Fork Development Group, II, LLC and Dutch Fork Realty, LLC. Appellant contended that he, as the manager of the limited liability company, could not be held individually liable in tort for a contract that was breached by SEL. Alternatively, Appellant challenged the jury's award of $3,000,000 in actual damages to Respondents on the grounds: (1) the trial judge erred in charging the jury that lost customers and lost goodwill were elements of damages as there was no evidence of such damages; and (2) the award was improper and should have been reduced as the actual damages for the tort claim were "coextensive" with or subsumed in the jury's award of actual damages to Respondents for the breach of contract claim against SEL. Upon review, the Supreme Court found that Appellant was entitled to a directed verdict as to the claim of tortious interference with a contract. Accordingly, the Court reversed the jury's award of damages.

Respondents Kelly Rhoden and her daughters, Ashley Arrieta and Emerlynn Dickey, were involved in a motor vehicle accident while riding in a vehicle owned and operated by Arrieta. The parties stipulated that the Respondents are relatives residing in the same household, and that Arrieta's insurance policy with Nationwide did not provide UIM coverage. Rhoden owned two vehicles that she also insured through Nationwide under a policy that did provide UIM coverage. Rhoden's policy contained a term specifying that the insurance it provided was primary when the covered vehicle was involved in the accident but excess when the involved vehicle was not the covered vehicle but was owned by the policyholder or a resident relative. Nationwide brought a declaratory judgment action seeking a determination that UIM coverage was not available to any of the Respondents under Rhoden's policy. Nationwide contended that because Arrieta's policy had no UIM coverage, clause 3(b), a portability limitation clause, operated to prevent any Respondent from recovering under Rhoden's policy. The trial court held that UIM coverage under Rhoden's policy was available to all three Respondents because such coverage is personal and portable, and Respondents were either named insureds or resident relatives under Rhoden's policy. Nationwide appealed the decision to the court of appeals, which reversed the trial court with regard to Arrieta, and affirmed the trial court's ruling that UIM coverage was available to Rhoden and Dickey under Rhoden's policy. The issue on appeal to the Supreme Court was whether public policy was offended by the portability limitation clause preventing non-owner resident relatives from importing UIM coverage from an at-home vehicle's policy when the involved vehicle lacked UIM coverage. The Supreme Court held that South Carolina's public policy that UIM coverage is personal and portable requires UIM coverage to be provided to Rhoden and Dickey, who did not own the vehicle involved in the accident, while denied to Arrieta, who owned the vehicle involved in the accident but chose not to purchase UIM coverage. The Court affirmed the court of appeals' decision.

Willie James Fee died while in the care of Respondent AMISUB of South Carolina, Inc., d/b/a Piedmont Medical Center (Piedmont). Petitioner Evelyn Grier, as the personal representative of his estate, subsequently brought this medical malpractice claim against Piedmont. The circuit court dismissed Petitioner's claim on the ground that the expert witness affidavit she was required to submit pursuant to Sections 15-36-100 and 15-79-125 of the South Carolina Code (Supp. 2011) did not contain a competent opinion on proximate cause. Respondent appealed, arguing the court erred in finding these statutes require the affidavit contain such an opinion. Upon review, the Supreme Court agreed, reversed the trial court's judgment and remanded the case for further proceedings.

The Supreme Court granted a petition for a writ of certiorari to review the decision in "Fairchild v. South Carolina Department of Transportation," (385 S.C. 344, 683 S.E.2d 818 (Ct. App. 2009)). The Court of Appeals affirmed in part, reversed in part, and remanded for a new trial a negligence action arising from a motor vehicle accident. In relevant part, the Court of Appeals determined (1) Respondent Marilee Fairchild's claim for punitive damages should have been submitted to the jury; (2) the trial court should have charged the jury on the intervening negligence of a treating physician; and (3) the trial court did not abuse its discretion in denying Defendant William Leslie Palmer's motion under Rule 35, SCRCP for an independent medical examination (IME) to be performed by Dr. James Ballenger. This action arose out of a motor vehicle that occurred on March 1, 2001 while several vehicles were traveling on Interstate 95. Just before the accident, an employee with the South Carolina Department of Transportation (SCDOT), was driving a dump truck with an attached trailer transporting a backhoe. The employee was traveling in the left lane of the southbound traffic (closest to the median) when he pulled in to a paved "cross-over" in the median so he could turn around and enter the northbound lanes of I-95. While he was stopped waiting for the northbound traffic to clear, the back of his trailer allegedly protruded into the left traffic lane on the southbound side. Several cars traveling south in the left lane directly behind the SCDOT truck, saw the trailer and simultaneously switched to the right lane. When those cars moved over, Fairchild, who was behind them driving a minivan, saw the trailer partially blocking the left lane where she was traveling. She "flashed" her brakes and then continued to brake while staying ahead of the vehicle behind her. Fairchild managed to avoid the trailer, but she was struck by a truck traveling behind her that was driven by William Leslie Palmer. After a trial, the jury returned a verdict in Fairchild's favor. Upon review, the Supreme Court affirmed the decision of the Court of Appeals, which found reversible error in the trial court's failure to submit the issue of punitive damages to the jury and to charge the jury on the intervening negligence of a treating physician, and found the trial court did not abuse its discretion in denying Palmer's motion for an IME to be performed.

This case presented a "novel" question of whether a member of a limited liability company could be held personally liable for torts committed while acting in furtherance of the company's business. Carl R. Aten, Jr., and his wife are the only members of R. Design Construction Co., LLC. In this particular case, R. Design selected a lot in Beaufort, South Carolina, on which it planned to build a four-unit condominium project. When Aten could not secure the necessary financing, he approached Dennis Green about entering into a contract for R. Design to construct the building. Green ultimately formed 16 Jade Street, LLC for this purpose, and R. Design entered into an agreement with Jade Street for the construction of the condominium. One of the subcontractors selected by R. Design was Catterson & Sons Construction. Michael Catterson is the sole shareholder of Catterson & Sons, and he is a specialty subcontractor with a special license for framing in addition to holding his general contractor's license. As the general contractor, it was Aten's job to supervise the project. A couple months into construction, problems arose concerning the AAC block construction and the framing. Following a progress payment dispute, Catterson & Sons left the job site and did not return. In the ensuing months, Aten's relationship with Green deteriorated as Aten tarried in fixing the defects, and the construction eventually ground to a halt. R. Design subsequently left the project, never replacing Catterson & Sons nor adequately addressing the defects. The day after R. Design left the project, Kern-Coleman conducted another inspection of the property. This time, it identified thirty-four defects in addition to the original four, which had not yet been remedied, for a total of thirty-eight. Anchor Construction was retained as the new general contractor, and its own inspection revealed sixty defects in the original construction. After Anchor began working on the project, more defects surfaced. Jade Street subsequently sued R. Design, Aten, Catterson & Sons, and Catterson for negligence and breach of implied warranties. As to Aten personally, the circuit court concluded that despite the fact he was a member of an LLC, he was personally liable because he held a residential home builder's license. In particular, the court concluded the statutes pertaining to the license create civil liability for the licensee. The court imposed no liability against Catterson himself. The court ultimately awarded Jade Street damages for its claims. Upon review, the Supreme Court concluded that the General Assembly did not intend the LLC act to shield a member from liability for his own torts. Accordingly, the Court affirmed the circuit court's holding that Aten was personally liable for his negligence, and that Catterson was not personally liable for the acts of Catterson & Sons.

In the summer of 1999, Petitioner Gerald Bass was a guest at the Super 8 Motel (Super 8) in Orangeburg while he and several co-workers performed refrigeration work at a local grocery store.  Gopal, Incorporated (Respondent), a franchisee of Super 8, owned and operated the motel. At approximately 10 PM on one evening, Petitioner and his roommate were turning in for the evening when they received a knock at their door. Both men got out of bed, and without looking first to see who was at the door, the roommate opened the door. They saw a man standing a couple of feet from the door. The man then asked Petitioner for his money. When Petitioner refused, the man shot Petitioner in the leg with a small caliber handgun and fled on foot. In September 2002, Petitioner filed a complaint alleging negligence against both Respondent and Super 8. Respondent and Super 8 each filed motions for summary judgment, which were granted.  The court of appeals affirmed, and Petitioner appealed. At issue on appeal was "foreseeability": whether a business owner has a duty to protect its invitees from criminal acts of third parties. Upon review, the Supreme Court adopted a balancing approach to determine "foreseeability," but found that it was unreasonable for Respondent to have foreseen what happened to Petitioner: "[e]ven with all reasonable inferences from the evidence cast in favor of Petitioner, we find Petitioner did not provide the circuit court any evidence that Respondent's security measures were unreasonable given the risk of criminal activity on the property. " The Court affirmed the grant of summary judgment in favor of Respondent.

Thomas Skinner received an award of benefits from the Workers' Compensation Commission for asbestosis under the scheduled loss provisions of Section 42-9-30 of the South Carolina Code.  Westinghouse Electric Corporation, Skinner's former employer, appealed that decision, arguing Skinner could not recover for a scheduled loss and must proceed under the "general disability" statutes found in Sections 42-9-10 and 42-9-20 of the South Carolina Code. Westinghouse's arguments on appeal concerned the impact of section 42-11-60 on Skinner's right to recover for his pulmonary disease.  In particular, it argued Skinner could only recover for total or partial disability under sections 42-9-10 and 42-9-20, respectively.  The Supreme Court agreed with Westinghouse and reversed the special referee's affirmation of Skinner's award based upon the clear language of section 42-11-60: "[i]n that section, the General Assembly specified that recovery for a pulmonary disease such as Skinner's hinges upon a showing of lost wages under section 42-9-10 and 42-9-20.  Because our resolution of this issue is dispositive of the appeal, it is not necessary for us to address the remaining issues raised by the parties."

Appellant Theresa Clea filed suit to recover for personal injuries sustained by her son (Trevon) after he was bitten by Respondent Essix Shannon's dog. The circuit court granted summary judgment in favor of Respondent. Upon review, the Supreme Court found the circuit court erred in granting summary judgment as to Appellant's strict liability and common law negligence claims. However, the Court found the circuit court properly granted summary judgment as to appellant's attractive nuisance claim. Accordingly, Court affirmed part, and reversed part of the circuit court's order and remanded the case for further proceedings.

Appellant/Respondent Harleysville Mutual Insurance Company ("Harleysville") issued a series of standard CGL policies to the Respondent developers or their predecessors (collectively "Crossmann") for a series of condominium projects in the Myrtle Beach area of South Carolina. The exterior components of the condominium projects were negligently constructed, which resulted in water penetration and progressive damage to otherwise nondefective components of the projects. The homeowners settled their lawsuits against Respondents. Crossmann then filed this declaratory judgment action to determine coverage under Harleysville's policies. Upon review of the lower courtâs order, the Supreme Court reversed a finding of joint and several liability against the developers and its insurer, and found the scope of Harleysville's liability was limited to damages accrued during its "time on the risk." In so ruling, the Court adhered to its holding in âJoe Harden Builders, Inc. v. Aetna Casualty & Surety Co.â: â[u]sing our âtime on riskâ framework, the allocation of the damage award against Crossmann must conform to the actual distribution of property damage across the progressive damage period. Where proof of the actual property damage distribution is not available, the allocation formula adopted herein will serve as an appropriate default method for dividing the loss among Crossmann's insurers.â The Court remanded the case to the trial court for further consideration of the "time on risk" allocation.

In May 2002, Respondent Eagle Windows & Doors, Inc.âs predecessor purchased Eagle & Taylor Companyâs assets (Eagle I) from Eagle I's bankruptcy estate. In 2000, homeowners constructed a residence using defective windows manufactured by Eagle I. In 2006, homeowners settled their construction claims against the Appellant contractor. The contractor and its insurer (Appellants) then brought this contribution suit against Respondent as successor to Eagle I. The circuit court granted respondent's motion to dismiss, holding (1) dismissal was required under Rule 12(b)(6) because a bankruptcy order expressly precluded any state law successor liability actions since the sale was "free and clear" under 11 U.S.C. 363(f) of the Bankruptcy Code; and (2) that dismissal was proper under Rule 12(b)(1) of the state rules of civil procedure because the bankruptcy court in Ohio which issued the Eagle I order retained jurisdiction over any claims against respondent for successor liability. Upon review, the Supreme Court found that Appellants' claim did not arise under either the settlement agreement or the order, nor did their claim relate to Eagle I. Rather, it was predicated upon Respondent's post-sale conduct which, Appellants contended, exposed it to successor liability under South Carolina state law. The Supreme Court concluded the court erred in dismissing this suit, and remanded the case for further proceedings.