South Carolina Lawyers Weekly March 14, 2022

SCLAWYERSWEEKLY.COM VOLUME 20 NUMBER 6 ■

Part of the

MARCH 14, 2022 ■ $8.50

network

Jury awards $2.5M to woman hurt in car crash ■ BY DAVID BAUGHER

the amount of damage done to the owners’ belongings and wrongfully pressuring the owners into paying inflated charges by threatening legal actions against them.

The owners also cited two letters the law firm sent to the resort’s insurer. Though the firm began both letters by noting it represented the HOA, the owners claim the firm was

A Berkeley County jury has awarded $2.5 million to a woman who suffered back injuries as a result of a car crash, in a case that her attorneys say was strongly contested over the issue of damages because of the plaintiff’s preexisting conditions.

Chris Romeo and Michael Grabara of Thurmond Kirchner & Timbes in Charleston report that their client, Jill Amoruso, filed suit in Berkeley County after another driver rear-ended a vehicle that had stopped while its driver waited to turn left. The resulting impact propelled the vehicle forward into a head-on collision with Amoruso’s vehicle.

“When they hit, she rolled over,” Romeo said. “She ended up being trapped in the car.”

Amoruso suffered a fractured sternum and two vertebral compression fractures. Romeo said there was no argument from the insurer over liability or over the fact that Amoruso had been hurt, but much of the dispute centered on severity of her compression fractures. He said the defense contended that his client had healed well and that further problems were the result of previous neck injuries that had already necessitated three surgeries and years of ongoing pain management.

“The defense would not admit that her injuries were permanent,” Romeo said. “They took the position that she was injured, but only for about 10 months.”

Romeo said that his client had al-

S e e H OA P a g e 6 ►

See Back Injury Page 5 ►

COA cracks open door to owners’ suit against HOA’s law firm ■ BY DAVID DONOVAN david.donovan@sclawyersweekly.com A group of condo owners in Myrtle Beach will be able to move forward with a lawsuit against the law firm that provided legal advice to their homeowners’ association after the South Carolina Court of Appeals said in a case of first impression that it would “exercise restraint” and allow them to press on with their de-

rivative claims brought on behalf of the HOA. After condo units at Caravelle Resort were damaged by Hurricane Matthew in 2016, its HOA took steps to make repairs. The owners allege that some of these actions were unlawful and taken on the advice of the HOA’s law firm—McCabe, Trotter & Beverly—and/or its property manager. These alleged actions included misrepresenting

4th Circuit: No rubber-stamp of asylum rejection ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com A Guatemalan man seeking asylum will get a review of his case because an immigration judge applied an improper standard when determining whether the man reasonably feared persecution or torture if he were sent back to his home country, a unanimous 4th U.S. Circuit Court of Appeals panel has ruled in a case of first impression.

The U.S. Department of Justice argued that the decision of the immigration judge who re-

viewed an asylum officer’s determinations should be upheld because they were based on a “facially legitimate and bona fide reason,” a standard that the appeals court ruled was developed in the limited setting of denying visas, and thus inapplicable in an asylum case.

Judge Pamela Harris, writing for the 4th Circuit in its Feb. 2 opinion, said the government has yet to persuade a circuit to agree that courts should apply a more deferential standard than the usual substantial evidence standard in reasonable fear determinations.

“The government may not remove a nonciti-

zen to a country in which there are substantial grounds for believing he would be tortured, or in which he faces a clear probability of persecution on account of a protected ground,” Harris wrote.

“And if the noncitizen meets the relevant burden of proof, then both [Convention Against Torture] relief and withholding relief are mandatory— just as they are in the context of a full removal hearing, when we apply our already very deferential substantial evidence standard of review.”

See Asylum Page 6 ►

INSIDE VERDICTS & SETTLEMENTS

VERDICTS & SETTLEMENTS

COMMENTARY

Nerve damage after surgery leads to $1.75 settlement

T-bone crash leads to $1.5M settlement

Sweat the small stuff – it matters

Page 3

Page 3

Page 4

2 / NEWS

S O U T H C A R O L I N A L A W Y E R S W E E K LY I M arch 14, 2022

NEWS BRIEFS U.S. Supreme Court narrows reach of career criminal law WASHINGTON (AP) — The U.S. Supreme Court has narrowed the reach of a federal law that strengthens penalties for career criminals found to illegally have a gun.

The high court was ruling in the case of a man a lower court classified as a career criminal after counting the man’s burglary of 10 different public storage units on a single evening as 10 separate offenses. The high court said unanimously on March 7 that that was an error.

The man’s 10 burglary convictions should have been treated as one event rather than separate crimes when considering whether he qualified for a stiffened sentence under the federal Armed Career Criminal Act, the justices concluded.

Without the stronger sentence, the man’s recommended sentence would have been approximately two years, but he was instead sentenced to nearly 16.

“Convictions arising from a single criminal episode … can count only once under ACCA,” Justice Elena Kagan wrote.

The decision could result in reduced sentences for other people subject to stronger sentences under the law. According to a U.S. Sentencing Commission report, however, people classified as armed career criminals have recently made up less than one percent of those sentenced every year for federal offenses.

The Armed Career Criminal Act requires a 15-year mandatory minimum sentence for anyone found to have a gun after three or more previous convictions for violent felonies or serious drug offenses. The law says that each of the offenses must have been “committed on occasions different from one another.”

Kagan wrote that a single “occasion” can include distinct activities, citing the example of multiple events occurring on a couple’s wedding day.

“The occasion of a wedding, for example, often includes a ceremony, cocktail hour, dinner, and dancing.

Those doings are proximate in time and place, and have a shared theme (celebrating the happy couple); their connections are, indeed, what makes them part of a single event. But they do not occur at the same moment,” she said. “The newlyweds would surely take offense if a guest organized a conga line in the middle of their vows.

That is because an occasion may … encompass a number of non-simultaneous activities.”

The case before the justices involved William Dale Wooden. Wooden had a lengthy criminal history and was convicted in 2018 in Tennessee of being a felon in possession of a firearm. A judge concluded he should qualify for the Armed Career Criminal Act’s sentencing “enhancement.”

That conclusion was based on a 2005 burglary conviction and the fact that he had pleaded guilty in 1997 to 10 counts of burglary for joining in the burglary of 10 units at a ministorage facility in Dalton, Georgia.

Wooden argued the burglaries should count as one conviction, but lower courts disagreed.

“We’re delighted the Supreme Court agrees that Mr. Wooden is not an armed career criminal and never should have been subject to a fifteenyear mandatory-minimum sentence,”

Wooden’s attorney Allon Kedem wrote in an email.

Kedem said that the government had previously agreed that his recommended a sentence had he not qualified for a stronger sentence under the Armed Career Criminal Act was about two years and he has already served much more than that. Kedem said that “once he is resentenced, we expect him to be sent back home to his family.”

The Armed Career Criminal Act has been the subject of frequent litigation before the Supreme Court.

Newspaper: S.C. county court clerk gave herself $30K raise KINGSTREE (AP) — An elected court clerk in a small South Carolina county gave herself a $30,000 raise last year using federal money set aside to improve collecting child support, a newspaper has reported.

The county attorney isn’t sure what Williamsburg County Clerk of Court Sharon Staggers did was appropriate, and the State Law Enforcement Division is looking into her office, The Post and Courier reported.

Staggers’ salary is now more than $92,000, according to documents the paper obtained under a Freedom of Information Act request.

Staggers didn’t return messages seeking comment and when a reporter from the Kingstree News came to her office on March 7, she referred all questions to Williamsburg County Attorney Billy Jenkinson.

Jenkinson said he spent weeks tryin to figure out if Staggers spent the federal money appropriately. The federal guidelines are vague and the state Department of Social Services hasn’t answered his questions.

“When you find out more, let me know,” Jenkinson said. “I’m curious to know myself. We don’t know the answers.”

Staggers gave county officials a 2015 email from state officials saying clerks of court could use the federal money to pay salaries for employees with some exceptions. It did not clarify if a clerk could increase her own pay.

Staggers is a Democrat who was first elected in 2012 and ran unopposed in both the primary and general election for a third four-year term in 2020.

Officials in Williamsburg County have been questioning the raise for months after Williamsburg County Supervisor Tiffany Cooks learned about the pay increase.

“I’m just against stuff like that,” Williamsburg County Councilman Eddie Woods said. “Maybe legally it’s not wrong, but morally it certainly is.

That’s something the citizens need to be aware of.”

Homeowner shot by officer through window gets $650K COLUMBIA (AP) — A man shot in the foyer of his South Carolina home by a police officer firing through a window as he checked on a medical alarm will get a $650,000 settlement for his injuries.

The Greenville County deputy said Dick Tench had a gun. Tench said he had a concealed weapons permit and was getting ready to check on noises

outside his home after someone rang his doorbell without identifying themselves.

The officer did not have the blue lights on his cruiser activated when he arrived at the Simpsonville home.

Tench sued the Greenville County Sheriff’s Office and deputy Kevin Azzara. State prosecutors decided not to charge Azzara in the shooting.

The settlement was reached in early March in federal court. Tench and his family are glad to have the lawsuit resolved almost three years after the shooting, said Tench’s lawyer Beattie Ashmore.

Azzara was alone when he was sent to Tench’s Simpsonville home just after midnight June 14, 2019, after a cellphone connected to the address sent out a medical distress alarm.

The officer, who was wearing a body camera, rang the doorbell, but got no answer. He then stepped off the porch to look around the house when he saw movement inside, the sheriff’s office said in a briefing about the shooting.

The body camera footage starts with Azzara shining a flashlight through a long, narrow window at a man holding a gun a few steps back from the closed door.

Tench is then heard screaming in pain on the footage, saying he had been shot twice. “Oh my God, call the cops please!”

Azzara, standing in the yard away from the door, yells back, “I am the cops!”

The deputy gets inside and blood can be seen spreading on Tench’s shorts.

“You came to my house at 12 o’clock at night. I’m sleeping. Goddamn, I’ve got to protect my house,” Tench said on the body camera video. “You (expletive)! I can’t believe you did this to me!”

“We’re not going to talk about this right now,” Azzara responds calmly after coming inside to provide first aid. “We’re going to focus on keeping you alive, OK? So take some deep breaths and calm down and you’re going to be OK.” A bullet remains in Tench’s hip and it took him a month before he was mentally ready to go back to his house, his lawyer said.

There was no medical emergency at Tench’s home and the reason the call went to an alarm company has never been clarified.

It was the second on-duty shooting in just over two years for Azzara. He was one of five Greenville County deputies at another Simpsonville home in March 2017 when 50-year-old Joseph Inabinet was killed.

Inabinet had a pellet gun and told police he wanted to die when they responded to an argument he had with his estranged wife. Azzara fired 10 rounds with at least one of them hitting Inabinet, according to the State Law Enforcement Division report that prosecutors reviewed before clearing him.

Inabinet’s estranged wife was given a $175,000 settlement in his death, according to The Greenville News, which first reported on the settlement in Tench’s shooting.

Azzara also fired shots at Inabinet’s home a year earlier, telling state agents he shot a dog at the home after it bit an officer.

Azzara is still employed as a deputy, said Greenville County Sheriff’s Office spokesman Lt. Ryan Flood.

Flood said he would not comment further.

BAR DISCIPLINE

ROUNDUP Attorney: H. Bright Lindler Location: Rockingham, North Carolina Bar membership: Member since 1992 Disciplinary action: Disbarred on March 2 Background: Lindler was disbarred in North Carolina on Dec. 3, 2021 after admitting to misappropriating client settlement funds, willfully failing to pay state and federal income taxes for several years, and failing to remit federal employment taxes for thirtyseven quarters from 2008 to 2020. The Supreme Court disbarred Lindler in South Carolina as an imposition of reciprocal discipline.

Previous discipline: None All information contained in the Bar Discipline Roundup is compiled and edited by Lawyers Weekly editor in chief David Donovan. He can be reached at david.donovan@sclawyersweekly.com.

Democrats see ‘no reason to wait’ on Supreme Court vote WASHINGTON (AP) — Supreme Court nominee Ketanji Brown Jackson began courting senators on Capitol Hill, making her case for confirmation in private meetings as Democrats worked to move her through the Senate within weeks.

Senate Democrats announced that Jackson’s hearings will begin March 21, just three weeks after President Joe Biden nominated her to replace retiring Justice Stephen Breyer. With a goal of an April confirmation, they are using Justice Amy Coney Barrett’s quick confirmation ahead of the 2020 presidential election as a model for Jackson, who would be the first Black woman to serve as a justice in the court’s 200-plus year history.

Senate Judiciary Committee Chairman Dick Durbin called the quick confirmation process “a contemporary standard” after he met with Jackson in his office, while acknowledging that part of the reason for the rapid timeline was because of his party’s tenuous hold on the Senate.

“There’s no reason to wait,” Durbin said, even though Breyer has said he won’t leave the bench until summer.

He noted that the committee is also familiar with Jackson, who was just confirmed as an appeals court judge last year and had been confirmed by the Senate two times before that.

The sped-up timeline is just one byproduct of increased partisanship, and a decade of gradual rules changes, in the once-collegial Senate. The majority party knows it can win confirmation with a simple majority, and bipartisan outreach is more symbolic than necessary. While the Senate once took up to two months to review cases and credentials before questioning a nominee, Republicans held hearings just two weeks after Barrett’s nomination to replace the late liberal icon Ruth Bader Ginsburg as the presidential election loomed.

Senators will have a bit more time to review Jackson’s record, but not much.

There has been little pushback See Page 3 ►

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ma rch 14, 2022

VERDICTS & SETTLEMENTS / 3

Nerve damage after surgery leads to $1.75 settlement ■ BY DAVID BAUGHER Nerve damage that left a man unable to work in the wake of surgery to remove a cyst has resulted in a $1.75 million settlement, his attorneys report.

T. Ryan Langley and Charles Hodge of Hodge & Langley Law Firm in Spartanburg report that their client suffered an injury to T. Ryan his ulnar nerve during the outpaLangley tient operation.

“The day after the procedure, he came in and said, ‘I can’t feel my pinkie and part of my thumb’,” Langley said. “Instead of getting an MRI or a nerve conduction study or even an ultrasound, [the physician] just said we’ll sit on it for a while and see what happens.”

Langley said that his 51-yearCharles old client was eventually diagHodge nosed with a laceration, but during the ensuing months after the initial surgery, no ultrasounds, CT scans, X-rays,

or nerve conduction studies were done by the treating surgeon. Eventually, a hand specialist ordered an inconclusive MRI before doing an exploratory procedure. A nerve grafting operation followed but it was unable to fix the problem.

Langley said the original physician should have done more than wait and see.

“The doctor said he thought it was getting better, but he never got a hand consult or a specialist consult. Ultimately, by the time the guy got to a hand specialist, it was too late,” he said.

Langley said that the plaintiff’s hand had atrophied and he was no longer able to work as a machinist.

“There was a pretty significant lost wage component of it,” Langley said.

The issue was complicated by the fact that the client had gone back to work after the initial operation, which Langley said opened a defense argument that the two later surgeries had caused the man’s difficulties. A nerve conduction study was ordered, but there was no evidence that it was actually done, leaving a lack of proof as to the degree to which the nerve may have been lacerated during the initial procedure.

Langley said the defense tried to mitigate the

SETTLEMENT REPORT – MEDICAL MALPRACTICE

Amount: $1.75 million Injuries alleged: Nerve injury and lost wages Case name: Confidential Venue: Confidential Date of settlement: January 2022 Special damages: $98,000 in medical expenses and $900,000 in lost wages Attorneys for plaintiff: T. Ryan Langley and Charles Hodge of Hodge & Langley Law Firm in Spartanburg Attorney for defendant: Confidential damages by contending that while the plaintiff may no longer be able to work as a machinist, he could still find employment elsewhere.

Langley said it took two years of litigation to resolve the matter. The names of all parties were kept confidential under the terms of the settlement.

T-bone crash leads to $1.5M settlement ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com The estate of a woman who died 10 months after being involved in a car crash has settled its case for $1.5 million, the estate’s attorneys report.

Ryan Montgomery and Bill Young of Ryan Montgomery Law in Greenville represented the estate of the 65-year-old woman, who was a passenger in a vehicle that was T-boned by a driver who had run a red light at South Buncombe Road and Hammett Bridge Road in Greer. That driver died 10 days later from their injuries.

Montgomery said that his client was awaiting a liver transplant and was on her way to discuss the procedure with her doctor at the time of the crash.

“After [we] were able to establish she was ineligible for a transplant as a result of the injuries she sustained in the collision, and that her death was a direct result of being unable to obtain the needed organ transplant, all carriers tendered their limits,” Montgomery wrote in an email to Lawyers Weekly.

Many details of the case, including the names of the parties, venue, and defense counsel, were withheld due to a confidentiality agreement.

The settlement figure reflects the full amount of the available liability insurance coverage and full tenders of UIM coverage afforded to the decedent and the driver of the plaintiff’s vehicle, Montgomery said.

The matter was mediated by Karl Folkens of Florence.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $1.5 million Injuries alleged: Death Case name: Case settled before any suit was filed Venue: Confidential Mediator: Karl Folkens of Florence Date of settlement: February 2022 Insurance carrier: Allstate Attorneys for plaintiff: Ryan Montgomery and Bill Young of Ryan Montgomery Law in Greenville Attorney for defendant: Withheld

Charleston theatre ordered to pay $300K in negligence case ■ BY HEATH HAMACHER hhamacher@sclawyerweekly.com After a two-day trial, a Charleston County jury on Feb. 23 awarded $300,000 to a man who broke his arm after falling down the stairs of the Queen Street Theatre while helping the building manager move furniture from one floor to the next.

Gedney Howe IV and Michael Gedney Monastra of Law Offices of GedHowe IV ney Howe in Charleston represented the plaintiff, John Guilds.

Howe said that Guilds didn’t work at the theatre but was doing a favor for the manager, who was a friend of his. The manager incorrectly strapped a large desk to a dolly, causing the desk to fall when they began guiding it downstairs, Howe said.

Michael “The desk struck my client Monastra and knocked him down the stairs and upon landing, he broke his arm,” Howe said.

C o nt inu e d f r o m 2 ►

from Republicans, who confirmed Barrett and two other justices, Neil Gorsuch and Brett Kavanaugh, while they controlled the Senate and President Donald Trump was in office. While few GOP senators are expected to vote for Jackson, and several have

Howe said that Guilds’ medical bills were approximately $55,000 and that the injury required surgery and permanent hardware in Guilds’ arm. The injury slightly affected Guilds’ range of motion, but Howe said that his client has recovered well.

Court records show that the theatre made a $90,000 offer of judgment on Jan. 7, one which Howe said was unacceptable for a “textbook case of negligence.”

“That would’ve netted him some money, but that wasn’t the value of the case,” Howe said.

Howe said that the jury deliberated approximately four hours before awarding the maximum amount allowed against a nonprofit organization in South Carolina.

Morgan Templeton and David Nasrollahi of Wall Templeton in Charleston represented the theater. Neither attorney immediately responded to a request for comment.

Howe said that the defense initially approached the case as premises liability case before switching tactics.

“Then, they said that the whole thing never happened and that kind of ticked the jury off,” Howe said. “Then they fell on the sword of the charity … saying, ‘If you award something, it questioned whether she is too liberal, they are not spending much political energy to oppose her, so far.

Texas Sen. John Cornyn, a GOP member of the Judiciary panel, said, “I don’t think there’s a lot of mystery involved,” since Jackson isn’t new to the committee.

“Given the fact that she’s not going to change the

VERDICT REPORT — NEGLIGENCE

Amount: $300,000 Injuries alleged: Broken arm Case name: John Dustin Guilds v. Footlight Players Inc. Court: Charleston County Circuit Court Case No.: 2019-CP-10-03195 Judge: Clifton Newman Date of verdict: Feb. 23 Demand: $400,000 Highest offer: $90,000 offer of judgment Insurance carrier: Auto-Owners Insurance Attorneys for plaintiff: Gedney Howe IV and Michael Monastra of Law Offices of Gedney M. Howe in Charleston Attorneys for defendant: Morgan Templeton and David Nasrollahi of Wall Templeton in Charleston should be reasonable.’” balance, the ideological balance on the court, I think people will be respectful, and they’ll do their due diligence and ask questions, but I think we all have a pretty good idea what the outcome is likely to be, unless there’s a big surprise,” Cornyn said.

S e e P a g e 16 ►

4 / NEWS

S O U T H C A R O L I N A L A W Y E R S W E E K LY I M arch 14, 2022

Sweat the small stuff – it matters ■ BY HAYNES HANSEN AND ERIC MAGNUSON BridgeTower Media Newswires The brief is done. You spent years working up the case, and months thinking through the legal arguments, chasing down every last citation as you wrote the appellate brief. Now it’s done, and all that’s left to do is file it and wait for the court to adopt it wholesale, right?

Hold on. Even the best writer’s best work needs editing. After hours of staring at those pages, the details of the citations start to grow into each other, all that carefully coiffed legal argument begins to lose the plot-line, and the typos have grown like weeds — but the writer is too close to it to see the obvious.

Yes, no matter how badly you would like that brief just to be done, it needs editing, and it needs to be edited by someone who didn’t write it. Here are some tips for those taking on the less glamorous—but always necessary—work of appellate brief editing.

1. Sweat the small stuff after all.

It’s tempting to think that we left the Blue Book behind in our 1L year of law school and that citation form doesn’t matter. After all, who

is really paying attention to that wrongly italicized comma or to that incorrectly abbreviated case name?

Well, you never know who is paying attention. And more importantly, a persuasive brief has to be reliable.

Messy citations can be an express route to losing credibility. Judges and law clerks rely on your citations, and when the citations are inaccurate, they have to find your cited case on their own. That is more than irritating; it makes them wonder what else you got wrong.

Like it or not, accurate citations are an ingredient in the recipe for a confidence-inspiring brief.

We’d all love to draft perfect citations on the first go-around. But for us mere mortals, an attentive editor is the best way to error-free citations. Editors should be on the lookout for names that should be abbreviated, incorrect reporter names, and appropriate full and short-form citations. Word processing software lets you move text around with great freedom as you edit your brief, but it does not alert you when you move that short form citation several pages ahead of the full form, or cut out the full form completely.

Investing in the online version of the Blue Book ensures that you are

not following rules from a previous version. Above all, citations should clearly and easily direct the reader to the original source, and citation rules serve that ultimate purpose.

Some editors and authors mark the citations in some way so they can be checked quickly in the final editing process. Highlighting in yellow, or printing the brief out and putting a small mark above every word in the body of the brief and a mark above every character in the citations forces the editor’s brain to catch small mistakes that might otherwise go unnoticed.

2. What would your eighth-grade English teacher say?

One of the most important jobs of the editor is to make the brief easier to read. This process again starts with the details. The editor should keep a sharp eye out for things like weeding out inconsistent tenses, eliminating legal jargon, and identifying hard to read fonts. Be ready to tell writers that, no, it is not helpful to write headings in all capitals.

It can also be helpful to spot and eliminate the passive voice, unless keeping the attention off the subject of the sentence is advantaSee Page 5 ►

To mediate on Zoom or in person?

■ BY JEFF TRUEMAN BridgeTower Media Newswires After many months of pandemicrelated lockdown, we now know that Zoom works for mediation.

Simply stated, it’s efficient. When participants don’t have to travel to a physical location in order to mediate a satisfactory outcome to a litigated dispute, they save even more time and money than they did before the pandemic. Travel restrictions and preferences will likely wax and wane because of emerging COVID-19 variants.

If and when participants cannot mediate in person, lawyers and mediators can rely on Zoom to get the deal done.

But are in-person mediations really gone for good? I hope not. When environmental conditions permit, I encourage counsel to think strategically about whether to mediate in person or not.

First of all, do you want an opportunity to build a meaningful relationship with your client? Zoom’s breakout rooms are quick and easy to administer but keep you at a distance physically and emotionally. Your client may need your presence and guidance when considering his or her options.

Second, does your client want or need to experience something more tangible by interacting with the mediator or the other parties? People communicate on multiple levels, consciously and unconsciously. The physicality of a live, in-person mediation can intensify everyone’s attention to the process and the content of the discussions.

When it comes to Zoom, parties (and sometimes counsel and the mediator) often have disparate access to technology. Lagging video and audio can make it impossible to understand what is being conveyed. Even when

the technology works as intended, Zoom cannot accommodate conversational cross-talk.

On the other hand, Zoom allows people to participate from a safe space such as their home and that may foster greater engagement -- or distraction.

Some lawyers believe that the fear of trial can be leveraged more effectively in person. But the parties almost never meet face-to-face (by request of their lawyers). In private caucus rooms, with clients looking on, lawyers push back when pushed.

When it’s easier for parties to move off of their bargaining positions without threats and posturing from the other side, they may be more likely to negotiate strategically, manage risk responsibly, and make good decisions.

This tends to be true whether the process unfolds on Zoom or in person.

Third, do you want to show the other parties that you and your client are genuinely committed to the process and that you respect the other participants (assuming you do)? Everyone knows how easy it is to default to Zoom. So when you offer to show up in person, you make the statement that you’re serious about engaging in a meaningful process.

On the other hand, Zoom makes it easier for decision-makers to participate, assuming that they are not driving, caring for children, or otherwise distracted.

Joint discussion

There is one additional aspect of mediation that I don’t think should be overlooked: the benefits of a joint discussion.

Note that I did not say “joint session.” I’m not looking for reasons to inflame anyone’s emotions and make matters worse between the parties.

And there is no reason to assume or expect that joint sessions will occur at

any time in the process – especially at the beginning. But in my experience, strategic and well-managed joint discussions between select participants (counsel or the parties without counsel) often produce good results.

Yes, Zoom can facilitate effective joint discussions. But joint discussions that happen between participants who are physically in the same room are a bit more effective, in my opinion.

At the far end of the spectrum, the Mac-Daddy of all joint discussions, “breaking bread,” can work miracles.

It turned the tide in a highly sensitive case that occurred during lockdown.

With counsel’s permission, I ordered lunch for the parties and me— no lawyers. The case settled then and there (although getting counsel to stop blaming each other about other things was another matter).

If we used Zoom in that case, I suppose I could have arranged for lunch to be delivered to the parties via Door Dash but the power of archetypally “breaking bread” comes from the personal connection it creates. That cannot be facilitated in a virtual breakout room. Contentious and “impossible” cases require creativity and flexibility, with or without Zoom.

Essentially, mediation is about negotiating and making decisions with the aid of someone outside of the dispute. Zoom is just a tool that serves the mediation process, like other technological tools we use every day such as cell phones, email, PayPal, DocuSign, etc.

Consider how you use technology, along with elements of the mediation process, in order to generate quality information that will help you and your client get the best look at the best set of terms possible.

Jeff Trueman is a commercial mediator. He can be reached at jt@jefftrueman.com.

"Helping lawyers practice better, more efficiently, and more profitably."

■ PUBLISHER Liz Irwin lirwin@bridgetowermedia.com ■ EXECUTIVE EDITOR Andy Owens aowens@scbiznews.com ■ EDITOR IN CHIEF David Donovan ddonovan@sclawyersweekly.com ■ EDITORIAL Heath Hamacher, Reporter hhamacher@sclawyersweekly.com Scott Baughman, Digital Media Manager sbaughman@mecktimes.com ■ ADVERTISING Sheila Batie-Jones, Advertising Account Executive sbatie-jones@sclawyersweekly.com ■ ACCOUNTING & ADMINISTRATIVE Michael McArthur, Business Manager mmcarthur@bridgetowermedia.com ■ CIRCULATION Disa Ehrler, Audience Development Manager dehrler@bridgetowermedia.com Circulation: 1-877-615-9536 service@bridgetowermedia.com ■ PRODUCTION & OPERATIONS Bradley Redmond, Director of Production Ryan O’Shea, Production Supervisor John Reno, Production Specialist

©2022 BridgeTower Media.

Material published in South Carolina Lawyers Weekly is compiled at substantial expense and is for the sole and exclusive use of purchasers and subscribers. The material may not be republished, resold, recorded, or used in any manner, in whole or in part, without the publisher’s explicit consent. Any infringement will be subject to legal redress.

South Carolina Lawyers Weekly (USPS #020216) is published biweekly every other Monday with General Statewide Circulation by South Carolina Lawyers Weekly at 130 N. McDowell St. Unit B, Charlotte NC 282042411. (919) 829-9333, (800)-876-5297. Periodicals postage paid at Charlotte, NC 28228-9998.

Subscriptions Rates: $369 per year.

Website: www.sclawyersweekly.com POSTMASTER: Electronic Service Requested, send address changes to South Carolina Lawyers Weekly, Subscription Services, P.O. Box 1051 Williamsport, PA, 17703-9940 service@bridgetowermedia.com South Carolina Lawyers Weekly is a publication of BridgeTower Media, 222 South Ninth Street, Suite 900, Minneapolis, MN 55402.

NEWS / 5

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ma rch 14, 2022

Railway to pay $4.15M for company’s building ■ BY DAVID BAUGHER

SETTLEMENT REPORT – EMINENT DOMAIN

The state of South Carolina has reached a $4.15 million post-trial settlement with a family-owned technology company in a condemnation case, the company’s attorneys report.

G. Trenholm Walker and John Linton Jr. of Walker Gressette Freeman Linton in Charleston report that the issue dates back to a 2016 attempt by the South Carolina Department of Commerce’s Division of Public Railways to acquire the Charleston location of eLifespaces for use as a Navy base intermodal facility.

According to filings, the division offered $1.8 million for the company’s building and half acre of land. But the landowners, Gateway Properties, argued that the structure, completed in 2007, was a “custom, state-of-the-art” facility and the proposed price was insufficient. At trial in county court in 2019 their experts put the true value as high as $4.58 million. A jury ultimately awarded $3.75 million.

The court also awarded interest of nearly $225,000 and litigation expenses of more than $135,000.

The state appealed the verdict. Ultimately, a settlement was reached in which Gateway received an additional $2.35 million in addition to the $1.8 million already on deposit, with $400,000 of that going to litigation expenses and interest.

Walker and Linton said that their client “is pleased at the actions taken by the [South Carolina Ports Authority] board to finally honor the verdict of the jury and resolve this matter after four years of litigation.”

Keith Babcock of Lewis Babcock represented the Division of Railways. He did not return a request for comment.

Amount: $4.15 million Injuries alleged: Condemnation of 0.55 acres of improved land, attorney’s fees, litigation costs and interest Case name: South Carolina Department of Commerce, Division of Public Railways v. Gateway Properties of Greater Charleston, LLC; NBSC; VFC Partners 15 LLC; The Loft Pilates Center, LLC; Scott Miner; County of Charleston Court: Charleston County Circuit Court Case No.: 2017-CP-10-5382 Judge: Alex Kinlaw Jr. Date of verdict: March 28, 2019 (case settled while verdict was on appeal) Most helpful experts: Thomas Hartnett of Mount Pleasant (appraiser) and Steve Morey of Charleston (cost estimate) Attorneys for landowner: G. Trenholm Walker and John Linton Jr. of Walker Gressette Freeman Linton in Charleston Attorney for state: Keith Babcock of Lewis Babcock in Columbia

BACK INJURY / Injuries from crash were new and different C o nt inu e d f r o m 1 ►

VERDICT REPORT – MOTOR VEHICLE CRASH

ready been receiving treatment, but her injuries from the crash were in a slightly different area.

“The prior condition was lower neck,” he said. “The new condition was upper back, so we’re really talking about a matter of maybe a few inches of difference.”

He also contended that the problems were more debilitating than what she’d experienced before, and after the crash she was also unable to ride a horse, an activity she’d previously enjoyed.

“After the wreck, she no longer could run,” he said. “It was just too painful on her back.”

Romeo said that he stressed the issue of anterolisthesis, the Chris Romeo slippage of one vertebra over another.

“That’s what we focused in on through the diagnostic imaging,” he said. “Yes, the fractures healed, but they caused a different issue.”

Romeo said USAA held both the at-fault driver’s liability policy and Amoruso’s underinsured motorist policy. Because there was no dispute over at-fault driver’s liability, that claim was quickly settled for the driver’s full policy limits of $100,000, and the trial was contested over the UIM coverage. Since the verdict was handed down on Feb. 2, USAA has paid its $1.2 Michael million limit in UIM coverage, plus $79,000 in interest.

Grabara Before trial, the insurer’s highest offer had been $250,000.

John Grantland of Murphy and Grantland in Columbia rep-

C o nt inu e d f r o m 4 ►

geous. More generally, if a sentence doesn’t make sense to the editor, it probably won’t make sense to the judge. Good editing can help avoid that outcome.

This is also a good time to look at the table of contents. A quality table of contents will give the reader a detailed idea of what to expect from the brief. And if someone knows in advance how a brief is organized and how that organization ultimately shapes into the argument, it will be easier for the reader to digest the contents. Judges often read tables of contents and conclusions first to orient themselves to the case. There are no unimportant parts of a brief because you don’t know how a particular judge attacks the large volume of information she or he has to review each week. Too many briefs have tables of contents thrown together as an afterthought, and those briefs lose a chance to persuade with a big picture summary of the case and arguments.

When evaluating whether a brief is easy to read, don’t just point out the problems. A good editor points

out the rule that will fix an error and suggests revisions to clarify language.

3. You’ve seen the trees, now look at the forest.

A brief can have perfect, flowing language and ornate, precise citations and still lose the day if it just isn’t persuasive.

The editor once again plays a critical role here. Is there a step in the legal analysis that the writer missed? Did the writer fail to see an argument from another angle? Is there an absent but critical line of cases? A good editor can also evaluate the overall persuasiveness of the argument and help put together a brief that is sure to convince the court.

The editor should also pay close attention to the organization of the brief. Often, it is a good idea to put the strongest argument first. But some legal issues follow a well-trodden rubric, and courts will expect briefs to follow it.

4. Know thy writer.

The goal of the editor should not be to sand the brief into a one-sizefits-all, standard-issue submission that anyone could have written.

There is always more than one way

Amount: $2.5 million Injuries alleged: Sternum fracture and T2 and T3 compression fractures Case name: Jill Amoruso v. Kaira Miller Court: Berkeley County Circuit Court Case No.: 2019-CP-08-00758 Judge: Jennifer McCoy Date of verdict: Feb. 2 Highest offer: $250,000 Special damages: $103,000 in past medical bills; $812,000 in future medical expenses Most helpful experts: Dr. Todd Joye (life care planner) and Dr. Edward Nolan (treating doctor) Insurance carrier: USAA Attorneys for plaintiff: Chris Romeo and Michael Grabara of Thurmond Kirchner & Timbes in Charleston Attorney for defendant: John Grantland of Murphy & Grantland in Columbia resented the defense. He declined to comment on the verdict. to write a brief, and often there is vitality in a writer’s unique voice and perspective—good briefs are often not showy, but they are rarely boring. The editor’s job is to enhance and clarify the writer’s voice and the writer’s work. Is the writer someone who prefers a reserved, academic tone? Is the writer someone who is not afraid of taking an aggressive tone? An editor should be attuned to the writer’s philosophy and work in the same direction.

At the same time, the editor should not be afraid to say so if the tone is not right. It is easy for many lawyers to sound too aggressive and too passionate. Just as easily, writers can sound too divested, as though they are unconvinced by their own arguments. An editor can help the writer find the right balance, in particular if the editor has experience with that court or members of the panel.

5. Stick to your principles, to a point.

Editing is not a job for the faint of heart. The editor must tell the writer, often someone highly credentialed and influential, what they did wrong or tell them how they could do it better. But good

editors are courageous to a fault, and that courage will benefit all involved. Writers do well not to take insult, but to use editing as a means to turn inward and sharpen their own skills. Of course, the writer has the final say, and editors need to be aware of the point when they should stop advocating for their changes.

After all, the editor is a part of the writer’s process, not the other way around.

In the end, the court probably will not adopt your carefully crafted and well-written brief wholesale (we’re not selling magic beans here). But a well edited brief will be better than one that is not edited, and the improvement will be worth the investment.

Haynes Hansen is an associate in the Minneapolis office of Robins Kaplan and practices in the areas of commercial litigation, health care and appeals.

Eric J. Magnuson is a partner at Robins Kaplan LLP and served as Chief Justice of the Minnesota Supreme Court from 2008 to 2010. He has more than 40 years of experience practicing law and he focuses his practice almost exclusively in appellate courts.

6 / NEWS

S O U T H C A R O L I N A L A W Y E R S W E E K LY I M arch 14, 2022

HOA / COA remands suit despite “genuine concerns” C o nt inu e d f r o m 1 ►

actually negotiating on their behalf because they, not the HOA, were the named insureds on the policies and nothing authorized the HOA or its attorneys to handle issues related to their personal property. They also claim the firm sent them letters that gave them legal advice and could have caused them to reasonably believe the firm represented them as individuals in addition to the HOA. Horry County Circuit Court Judge Benjamin H. Culbertson granted the firm’s motion to dismiss the complaint against it, but in a unanimous Feb. 23 opinion written by Judge Blake Hewitt, the Court of Appeals reversed in part. Although the court had concerns about the derivative claims, it saw no defects in how they were pleaded, and concluded that the prudent course would be to exercise restraint instead of foreclosing the suit at the start of litigation.

The owners brought two derivative claims on the HOA’s behalf, one for legal malpractice and the other for breach of fiduciary duties. Hewitt noted that no authority in South Carolina addresses whether people can derivatively sue attorneys for malpractice, and some states permit these claims while others don’t. Even in the states that permit them, courts have raised concerns that such suits may compromise the attorney-client relationship and place the client and lawyer in a

difficult position—concerns that the Court of Appeals shared.

The court envisioned other issues on the horizon as well. Derivative lawsuits represent a challenge to the rule that a corporate entity is managed by its directors, not its members, and are thus a direct challenge to an HOA’s decision not to file a malpractice suit. Hewitt expressed particular worry “given that the relationship between homeowners and homeowners’ associations are often contentious and commonly involve dissent.”

Nevertheless, the court recognized counterpoints to these concerns, such as the heightened pleading requirements designed to deter plaintiffs from filing baseless claims, and the possibility that a derivative lawsuit might spur an HOA to file a valid malpractice claim it has resisted filing. An HOA might choose to waive the attorney-client privilege or foreclose further litigation by settling the potential malpractice claim or voting to terminate the derivative suit, decisions that may be an HOA’s to make subject to the business judgment rule.

“Our concerns about allowing these derivative claims are genuine, but they are also our attempt to imagine issues that may arise in the future, and we do not see the future better than anyone else,” Hewitt wrote.

Hewitt said that there were no defects in how the owners pleaded their claims, and so he concluded that they should be allowed to proceed with

them, at least for the time being.

“Dismissing this case at the pleading stage would require us to look past the fact that the derivative claims were properly alleged and rely exclusively on public policy,” Hewitt wrote.

“The first place we look for public policy is to the legislature. The second is to binding precedent. Because neither precludes this suit’s filing, we believe the better course is to exercise restraint.”

The appeals court did affirm the decision to dismiss the legal malpractice claims the owners brought on their own behalves because the owners conceded that they had no attorney-client relationship with the firm.

Traditionally, attorneys are immune to liability to any third parties arising from the performance of their duties to their clients. But in the last decade, South Carolina courts have recognized two exceptions in which a third party can sue a lawyer for malpractice—one for beneficiaries of trusts and estates, and one for insurance companies who hire counsel to represent their insureds. But Hewitt said that those exceptions involved situations where structural issues prevented a traditional malpractice claim, and the court declined to extend the exceptions any further.

The court also affirmed the dismissal of the owners’ claims against the law firm for fraud and conversion.

Drew Radeker and Sarah Larabee of Harrison, Radeker & Smith in Co-

lumbia represented the condo owners.

Larabee said that the court’s ruling reflected the fact that South Carolina’s courts are generally accessible at the pleading stage and do not have overly restrictive rules for pleading claims.

“I think it’s a pretty important decision because before this South Carolina didn’t really recognize derivative suits for legal malpractice, but now we do,” Larabee said. “When people are frustrated with their HOA, what we usually see is that there’s no power structure to effect any chance, so recognizing claims for legal malpractice gives a little foot in the door for those people when they see their HOA receiving bad legal advice or having been affected by some legal malpractice. Before this they might not have been able to do much about it, but now they can.”

Andy Countryman of Mount Pleasant and Bob Wood of Rogers Townsend in Columbia represented the law firm. Countryman could not comment on the decision in time for the print edition of this story because the deadline for either side to file a petition for rehearing had not yet passed.

The nine-page opinion is Hager v.

McCabe, Trotter & Beverly, P.C. (Lawyers Weekly No. 011-009-22). The full text of the opinion is available online at sclawyersweekly.com.

Follow David Donovan on Twitter @SCLWDonovan

ASYLUM / Court rejects permissive standard of review C o nt inu e d f r o m 1 ►

I hear what you’re saying, but…

Adan De Jesus Tomas-Ramos first entered the U.S. without authorization in 2017 but was returned to Guatemala a month later. He returned to the U.S. in 2018 with his teenage son, and the U.S. Department of Homeland Security reinstated the previous removal order but allowed him to live in Virginia with electronic monitoring. When DHS sought to remove Tomas-Ramos in 2019, he requested a reasonable-fear interview, claiming that Guatemalan gang members had threatened to kill him and his family because he wouldn’t allow them to recruit his son. After agreeing to the interview, DHS mistakenly deported TomasRamos but brought him back to the U.S. for a reasonable-fear hearing when he filed suit.

An asylum officer found TomasRamos’ story credible but determined that he hadn’t established a reasonable fear of persecution or torture because though the threats could indicate that he was harmed on account of a particular social group of his son’s “immediate family members,” that group does not qualify as a “cognizable and protected” particular social group because it “lacks social distinction.” (Protected characteristics are race, religion, nationality, political opinion, and membership in a particular social group.)

The officer further found no evidence that Tomas-Ramos was being targeted because of his religious beliefs (he’d claimed that gangs would also target him as a churchgoer) and that he failed to establish a reasonable possibility that he would be persecuted by or with the consent or

acquiescence of a public official, as required under the CAT. In 2020, an immigration judge reviewed and upheld the ruling, finding no nexus to any protected ground. The judge also doubted that gang members would harm TomasRamos for the reasons he expressed, and was skeptical about his claim that he couldn’t avoid harm by relocating within his country.

Family ties

Regarding the government’s position that the “facially legitimate and bona fide reason” standard—laid out by the U.S. Supreme Court in 1972’s Kleindienst v. Mandel—should be applied, the court ruled that in the context of challenging the denial of visas, the executive branch has virtually unlimited discretion to make rules for the admission of noncitizens and that the decisions are generally not reviewable. But that “unfettered” discretion doesn’t translate to the ability to remove a noncitizen pursuant to a reinstated removal order where the individual believes he would be tortured or face the clear probability of persecution on account of a protected ground.

The court further found that had Mandel has no “sensible application” because Mandel claimed that officials had denied his visa because of his political views rather than the reasons stated, contrary to the legitimate and bona fide reason standard.

Here, there was no suggestion that Tomas-Ramos was denied asylum for reasons other than those stated by the asylum officer.

The substantial evidence standard of review thus applied, and Tomas-Ramos established the requisite nexus to a protected ground in support of his claim of persecution.

Harris noted that the asylum officer found his continued testimony regarding the reason gang members were threatening his life credible, and the 4th Circuit ruled in 2011’s Crespin-Valladares v. Holder that the family provides a “prototypical example” of a particular social group and that “the threat of death qualifies as persecution.”

Tomas-Ramos met his burden of showing a “reasonable possibility” that he would be persecuted on a protected ground if returned to Guatemala.

“The record compels a finding that Tomas-Ramos was persecuted at least in central part because of his family relationship to his son, which qualifies as a protected ground for withholding purposes,” Harris wrote.

Attacking the kinship ties issue was a “legal mistake,” said Jeremy McKinney, a North Carolina boardcertified immigration law specialist with McKinney Immigration Law in Greensboro. McKinney is not involved in the case but commented on the ruling at the request of Lawyers Weekly. The mistake is one that immigration courts have made time and again, McKinney said, especially after the former administration’s justice department attempted to “walk back kinship ties” as a particular social group.

“Tomas-Ramos prevailed, like several others at the 4th Circuit in recent years, because the persecutors’ motivation for threatening him was the ‘relationship to his son— that is, on account of his membership in his son’s immediate family,’” McKinney wrote in an email.

Another safe place at home

The court also rejected the govern-

ment’s argument that the immigration judge correctly held that TomasRamos could safely relocate within his country because of the court’s finding of past persecution.

As the agency’s own manuals make clear, a showing of past persecution gives rise to a presumption of a reasonable fear of future persecution, and that presumption may be overcome only if it is established, by a preponderance of the evidence, that “under all the circumstances, it would be reasonable for the applicant to relocate,” Harris wrote.

Based on her incorrect belief that Tomas-Ramos hadn’t established past persecution, the immigration judge was unable to assess relocation under the proper framework of a man with a well-founded fear, the court determined.

The court also remanded TomasRamos’ torture claim for further consideration because the immigration judge never mentioned it at the hearing or in her written order.

McKinney wrote that seeking review of a negative reasonable fear determination is rare because the noncitizen often accepts a quick deportation rather than enduring prolonged litigation or detention, something that Tomas-Ramos declined to do.

“Tomas-Ramos fought and won,” McKinney wrote.

Michael Lieberman of Kirkland & Ellis in Washington represented Tomas-Ramos. Patricia Bruckner of the U.S. Department of Justice represented the government. Neither attorney immediately responded to a message seeking comment on the case.

The 25-page decision is TomasRamos v. Garland (Lawyers Weekly No. 001-025-22). The full text of the opinion is available online at sclawyersweekly.com.

OPINION DIGESTS / 7

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ma rch 14, 2022

Opinions S.C. SUPREME COURT

7

S.C. COURT OF APPEALS

4TH U.S. CIRCUIT COURT OF APPEALS

S.C. SUPREME COURT

Contract Third-Party Beneficiary – Express Disclaimer – Legal Conclusion – Medical Insurance Although she was not a party to the “Institutional Agreement,” which made the defendant-hospital a preferred provider organization for purposes of plaintiff’s health insurance coverage with Blue Cross, the contract clearly provided benefits for plaintiff.

Since the construction of the terms of a contract is a question of law, plaintiff may sue to enforce the terms of the contract, despite the Institutional Agreement’s declaration in § 16.16 that it “is not intended to, and shall not be construed to, make any person or entity a third party beneficiary.”

We affirm the Court of Appeals’ decision to reverse the circuit court’s grant of the hospital’s motion to dismiss plaintiff’s claims for breach of contract and unjust enrichment.

Allegations

Plaintiff was a member of Blue Cross Blue Shield of South Carolina (BCBS). Pursuant to the Institutional Agreement, if defendant, a health care provider (the hospital), provided “Covered Services” to a BCBS member, the hospital was to bill BCBS, and not its member, directly and at a discounted rate. In exchange, the hospital became part of BCBS’s preferred provider organization (PPO) network and gained access to more customers.

Plaintiff was injured in an accident and was provided Covered Services at the hospital. The hospital billed plaintiff directly, and not at the discounted rate required by the Institutional Agreement.

Plaintiff filed suit, and the hospital moved to dismiss. Based on § 16.16 of the Institutional Agreement, the circuit court granted the motion. Our Court of Appeals reversed.

Analysis

In the Institutional Agreement, the hospital promised that it would “not solicit any payment from [BCBS] Members” and that it would “seek payment for Covered Services solely from [BCBS].” This promise ensures that plaintiff and other BCBS members will not be required to file insurance claims because the hospital promised to look only to BCB for payment.

The hospital also promised to provide Covered Services to BCBS members at a discounted rate. Although this primarily benefits BCBS, it also directly benefits BCBS members. To the extent the hospital billed plaintiff for Covered Services without the discount and plaintiff paid the bill, plaintiff was deprived of the contractual benefit of cost savings.

Section 1.1 of the Institutional Agreement states that BCBS cre-

12

8

S.C. COURT OF APPEALS, UNPUBLISHED

ated its PPO “for the benefit of its Members.” Section 1.2 acknowledges that the hospital made its contractual promises because it “desires to become a PPO provider to allow it to provide Covered Services under the terms of this Agreement.” Thus, the operative terms of the Institutional Agreement indicate the hospital made a business decision to become a BCBS PPO provider, which necessitated the making of these promises for the benefit of BCBS members, and which promises BCBS solicited for the benefit of its members.

When plaintiff received Covered Services from the hospital, a contract arose pursuant to which the hospital provided the services and plaintiff agreed to pay for the services. If plaintiff breached the contract in regard to her obligation to pay for the services, the hospital had a right of action to collect payment under the contract.

If the hospital breached the Institutional Agreement by billing plaintiff directly for Covered Services, plaintiff could certainly rely on the Institutional Agreement as an affirmative defense.

Contracting parties’ right to limit remedies extends to remedies available to any third-party beneficiaries.

However, § 16.16 does not address the remedy plaintiff may pursue for loss of the benefit to which she was clearly entitled. Rather, it appears to set forth a legal conclusion directly contrary to decades of well-established South Carolina case law.

Our law provides that when the parties to a contract clearly intend to provide a third party a direct benefit, the legal conclusion that flows from their intent is that the third party achieves the status of third-party beneficiary. Section 16.16 does nothing to deprive BCBS Members of the rights promised. The hospital’s promise to bill only BCBS is not affected by § 16.16. Section 16.16 simply attempts to change the legal conclusion our courts have held flows from the provision of rights to a third party.

That § 16.16 sets forth a legal conclusion is made even more clear by the hospital’s attempt to tell this court how it “shall” construe the Institutional Agreement. The construction of a contract is a matter of law.

The drafters of a contract to be construed under South Carolina law do not write the law governing contract construction; they follow it. Thus, the phrase, “This Agreement ... shall not be construed to ... make any person or entity a third party beneficiary” does not clearly and unambiguously change the legal effect of otherwise clear operative language.

We have little doubt the hospital— perhaps also BCBS—was attempting to protect itself from civil liability by including § 16.16 in the Institutional Agreement. The proper manner in which to protect oneself from liability, however, is to clearly and accurately express the parties’ mutual intent in the operative language of the agreement, or clearly and specifically limit the remedies available for a breach,

10

U.S. DISTRICT COURT

not to attempt to change the legal consequences of the parties’ otherwise clearly expressed intent.

There is no dispute plaintiff is a third-party beneficiary to the extent a BCBS member may defend an action by the hospital on the basis of the Institutional Agreement. Mindful that we are reviewing a Rule 12(b)(6), SCRCP, dismissal order—not an order on the merits—we hold § 16.16 of the Institutional Agreement does not clearly change this third-party status so as to prevent a member from bringing an action to enforce the promises discussed above.

As to plaintiff’s claim in quantum meruit, the circuit court stated that it was dismissed as a matter of fact. As our Court of Appeals said, this was error at the Rule 12(b)(6) stage.

Affirmed.

Beverly v. Grand Strand Regional Medical Center, LLC (Lawyers Weekly No. 010-007-22, 10 pp.)

(John Few, J.) Appealed from Horry County Circuit Court (Benjamin Culbertson, J.) James Lynn Werner, William Thomas and Katon Edwards Dawson for petitioner; Jordan Christopher Calloway, John Gressette Felder, Chad Alan McGowan, Sidney Major, Roy Harmon and Jeffrey Christopher Chandler for respondent.

S.C. S. Ct.

Criminal Practice DUI – Miranda Warnings – Video Recording – Audio Only – Suppression S.C. Code Ann. § 56-5-2953(A) requires that the reading of a DUI suspect’s Miranda rights be shown on video. Since the General Assembly amended a previous version of the statute, which said the video was required to “include” the Miranda warnings, to say the video was required to “show” the warnings, we agree with our courts below that the warnings must be visible on the video.

However, going forward, when a DUI suspect is not Mirandized in accordance with § 56-5-2953(A), the appropriate remedy will not be the per se dismissal of the charge of driving under the influence. Instead, statements made by the suspect during custodial interrogation are to be considered under the cloud of a Miranda violation.

We modify and affirm the Court of Appeals’ decision upholding the dismissal of the DUI charge against defendant.

In this case, the patrol car’s exterior camera was recording while, inside the car, the state trooper read defendant his Miranda rights. The exchange could be heard on the video recording but not seen.

Subsection 56-5-2953(A)’s introductory language plainly states that a person who violates a DUI statute “must have his conduct at the incident site ... video recorded.” Most importantly, this subsection provides that the video recording “must ... show the person being advised of his Miranda

11

rights.” § 56-5- 2953(A)(1)(a)(iii).

The state argues this language requires the video to simply “demonstrate” or “make apparent” that Miranda warnings are administered to the defendant. We disagree.

This interpretation of the word “show” ignores the 2009 amendment to subsection 56-5-2953(A), which changed the relevant language from the video recording “must include the reading of Miranda rights” to the video recording must “show the person being advised of his Miranda rights.” The General Assembly could have retained the prior language or used other terms, but it intentionally amended the statute to add a visual requirement. We cannot engage in forced construction of the words the General Assembly chose to employ.

The state’s interpretation also cuts against one of the primary purposes of the DUI video recording statute: seeing the defendant and officer on camera reduces “swearing contests” in DUI trials, captures their interactions, and ensures the use of fair procedures to protect the defendant’s rights. We hold that in order for a DUI recording to “show” a defendant being advised of his Miranda rights, the defendant and arresting officer must be visually seen and audibly heard.

Although the issue was not preserved for our review, we take this opportunity to clarify that moving forward, when a DUI suspect is not Mirandized in accordance with the statute, statements made by the suspect during custodial interrogation are to be considered given under the cloud of a Miranda violation. Miranda is a constitutional construct that mandates suppression of evidence in certain circumstances, not per se dismissal of the underlying charge.

Affirmed as modified.

State v. Taylor (Lawyers Weekly No. 010-008-22, 9 pp.) (George James, J.) Appealed from Spartanburg County Circuit Court (Mark Hayes, J.) Alan McCrory Wilson, William Blitch and Barry Joe Barnette for petitioner; Kennety Taylor, pro se; Jason Scott Luck for amicus curiae. S.C. S. Ct.

Tort/Negligence Premises Liability – Equitable Indemnity – Trip & Fall – Fault For five years, neither a landowner nor its shopkeeper-tenant warned of or attempted to remedy a trip hazard that their own safety expert identified at trial. As such, the landowner and shopkeeper were not without fault, so they were not entitled to equitable indemnity from the contractor who built the store.

We reverse the Court of Appeals’ finding that the landowner and shopkeeper were without fault.

After settling with a store customer who tripped and fell on the sidewalk in front of the store, the landowner and the shopkeeper sought equitable indemnity from the general contractor who built the store and sidewalk.

8 / OPINION DIGESTS For the landowner (which the lease made responsible for maintaining the parking lot and sidewalks) and shopkeeper to be entitled to equitable indemnity, they were required to show they were without fault in the incident: the customer tripped and fell after catching her toe on the sloped portion of the wheelchair ramp at the entrance of the store. We must analyze the “without fault” element through the lens of premises liability law, rather than construction defect law.

However, at trial, a safety expert proffered by the landowner and shopkeeper identified a trip hazard that had existed for five years before the incident, and he testified that merely painting such the curb yellow “can make a difference.”

Where neither the shopkeeper nor the landowner warned of or attempted to remedy the trip hazard identified by their own safety expert, it was error to conclude the shopkeeper and the landowner were without fault.

Reversed.

Fountain v. Fred’s, Inc. (Lawyers Weekly No. 010-009-22, 10 pp.)

(John Kittredge, J.) Appealed from Barnwell County Circuit Court (Doyet Early, J.) Morgan Templeton for petitioner; Matthew Clark LaFave, Randi Lynn Roberts and Regina Hollins Lewis for respondents. S.C. S. Ct.

Attorneys Reciprocal Discipline – North Carolina Disbarment – Misappropriation of Funds – Tax Crimes Even though respondent sought a “substantially different discipline in this state,” given his consent to disbarment in North Carolina and his admitted misappropriation of client funds and criminal tax-related misconduct, we find disbarment is the appropriate sanction to impose as reciprocal discipline.

In re Lindler (Lawyers Weekly No. 010-010-22, 2 pp.) (Per curiam) John Nichols and Jamie Wilson for the Office of Disciplinary Counsel; Barbara Marie Seymour for respondent. S.C. S. Ct.

Direct Claims

An attorney is immune from liability to third persons arising from the performance of his professional activities as an attorney on behalf of and with the knowledge of his client.

The owners did not claim the law firm acted outside the scope of its representation of the HOA. This forecloses the firm’s liability for fraud and conversion under Gaar v. N. Myrtle Beach Realty Co., 287 S.C. 525, 339 S.E.2d 887 (Ct. App. 1986), and Stiles v. Onorato, 318 S.C. 297, 457 S.E.2d 601 (1995).

Where the owners repeatedly acknowledge the law firm represented the HOA, and where the owners do not allege the firm also represented them or that they believed the firm represented them, the owners have not alleged the first element of a legal malpractice action: the existence of an attorney-client relationship.

Even if the owners were led to believe they were also the firm’s clients, they are suing over advice the firm gave to the HOA. We are not aware of a rule allowing one client to sue for advice a lawyer gave a different client.

In two limited circumstances, our courts have permitted a third-party to sue for legal malpractice. In Fabian v. Lindsay, 401 S.C. 475, 765 S.E.2d 132 (2014), an intended beneficiary of a trust was allowed sue the settlor’s attorney over a drafting error that thwarted the settlor’s intention. And in Sentry Select Insurance Co. v. Maybank Law Firm, LLC, 426 S.C. 154, 826 S.E.2d 270 (2019), an insurance company was allowed to pursue a malpractice claim against the attorney it had hired to represent its insured in a personal injury case.

Both Fabian and Sentry noted the critical need to allow those “third-party” suits because of structural issues preventing a traditional malpractice claim. Indisputably, that concern is not present here. The HOA could sue the firm for malpractice but has chosen not to do so.

Our Supreme Court specifically limited Fabian and Sentry to the circumstances that were before the court in those cases. We will not read Fabian and Sentry to authorize more than they advertise.

Derivative Claims

S.C. COURT OF APPEALS

Attorneys Legal Malpractice – Derivative Action – First Impression – HOA No authority in South Carolina addresses whether people can derivatively sue attorneys for malpractice. However, there are no defects in how the plaintiff-condo owners pled their derivative legal malpractice claims on behalf of their homeowners’ association.

Dismissing this case at the pleading stage would require us to rely exclusively on public policy. Since neither the legislature nor binding precedent precludes this suit’s filing, the better course is to exercise restraint.

We affirm the dismissal of the condo owners’ direct claims and reverse the dismissal of their derivative claims.

The plaintiff-condominium owners allege that the defendant-law firm gave bad legal advice to their homeowners’ association in the wake of property damage caused by Hurricane Matthew.

No authority in South Carolina addresses whether people can derivatively sue attorneys for malpractice.

Other states have expressed concern over a derivative suit’s effect on the attorney-client privilege. However, South Carolina allows an attorney to reveal information that is protected under the attorney-client privilege “to respond to allegations in any proceeding concerning [his] representation of the client.” Rule 1.6(b)(6), RPC. Although derivative lawsuits challenge the rule that a corporate entity is managed by its directors rather than by its members, a derivative lawsuit might spur an HOA to file a valid malpractice claim it has resisted filing, or the HOA might settle or vote to terminate the derivate suit.

There are no defects in how the owners pled their derivative legal malpractice claims.

Dismissing this case at the pleading stage would require us to look past the fact that the derivative claims were properly alleged and rely exclusively on public policy. The first place we look for public policy is to the legislature. The second is to binding precedent. Because neither precludes this suit’s filing, we believe the better course is to exercise restraint.

Affirmed in part; reversed in part.

S O U T H C A R O L I N A L A W Y E R S W E E K LY I M arch 14, 2022

Hager v. McCabe, Trotter & Beverly, P.C. (Lawyers Weekly No. 011-009-22, 9 pp.) (Blake Hewitt, J.) Appealed from Horry County Circuit Court (Benjamin Culbertson, J.) Andrew Sims Radeker and Sarah Megan Larabee for appellants; Andrew Countryman and Robert Wood for respondent. S.C. App.

Domestic Relations Parent & Child – Visitation – Hearsay – Medical Diagnosis – Mental Health Professional The hearsay exception in Rule 803(4), SCRE, for statements made for the purpose of medical diagnosis or treatment may be subject to overextension; however, the exception can be reined in by trial court’s application of the “reasonably pertinent” requirement and its discretion. On this issue of first impression, we hold that Rule 803(4) covers the admissibility of a statement made to a therapist or mental health professional.

We affirm the trial court’s order on visitation with two exceptions: (1) we reverse the family court’s delegation to therapists of the decision as to when the defendant-Father may resume visitation with the parties’ daughters and (2) we reverse the family court’s award of attorney’s fees to the plaintiff-Mother.

When one of the parties’ daughters accused Father of abuse, Mother moved for a modification of custody.

No abuse has been shown, but the trial court still suspended Father’s visitation.

Hearsay

Whether Rule 803(4), SCRE, covers the admissibility of a statement made to a therapist or mental health professional (rather than a medical doctor) does not appear to have been addressed in South Carolina. The text of the rule does not require that the statement even be made to a medical provider.

Indeed, the advisory committee notes to Federal Rule 803(4) explain that the statement “need not have been made to a physician. Statements to hospital attendants, ambulance drivers, or even members of the family might be included.” In the federal system, “every Court of Appeals to consider [the] issue has determined that statements made to a mental health professional for the purposes of diagnosis or treatment qualify under the hearsay exception in Rule 803(4).”

Rule 803(4) is subject to overextension (almost anything a mental health patient says could be “reasonably pertinent” to the diagnosis), and the wise trial judge will, when appropriate, deploy his discretion “to admit the statements only as proof of the patient’s condition and not as proof of the occurrence of the recited events.” That is what the family court did here.

We recognize the “selfish treatment motivation” may not hold up when the patient is a malingerer or afflicted by a mental malady like Munchausen’s syndrome, but that is why Rule 803(4) contains the “reasonably pertinent” requirement, and Rules 401 and 403, SCRE, may be used to exclude the irrelevant and unduly prejudicial. It is also why we have cross-examination.

Accordingly, we affirm the family court’s ruling that a parental alienation expert and the girls’ counselor could testify regarding the statements the girls made to them that they used

in diagnosing and treating the girls.

Due Process

The trial court quashed Father’s subpoena of his daughter, “J”; Father claims his due process rights were thus violated. We disagree.

J’s testimony was not essential to establish the facts. The girls’ counselors explained their diagnoses did not depend on whether Father actually did or said what his daughters claimed. What mattered was the girls’ perceptions of and responses to the situations and environment. The counselors acknowledged these perceptions could be flawed, unrealistic, or mistaken.

Because the truth of the events was not essential to the custody and visitation issue, the family court acted within its discretion in ruling Rule 23, SCRFC, did not require J’s testimony.

Further, given J’s response to being subpoenaed and her diagnosis of PTSD and anxiety, the family court properly determined it was not in J’s best interest to testify in the presence of the parties or their attorneys. Thus, we affirm as to this issue as the trial proceedings minimized any risk that Father’s rights would be wrongfully deprived and Father had a meaningful opportunity to be heard despite the lack of confrontation.

Other Issues

Contrary to Father’s argument, the family court did not essentially terminate his visitation rights. Rather, the trial court suspended visitation pending counseling.

However, the family court did err in ordering that Father could only have visitation when and if his counselor and the girls’ counselor deemed it appropriate. Deciding issues related to the best interests of children, including visitation, is the exclusive authority and responsibility of the family court, not third parties.

Although Mother obtained beneficial results at trial, she earns a gross monthly income of $4,052 while Father grosses only $1,300 per month.

Mother is better able to pay her attorney’s fees than Father.

Affirmed in part and reversed in part.

Glinyanay v. Tobias (Lawyers Weekly No. 011-010-22, 10 pp.) (Garrison Hill, J.) Appealed from Greenville County Family Court (Matthew Turner, J.) Melinda Inman Butler for appellant; Kenneth Philip Shabel and Rachel Ilene Brough for respondent.

S.C. App.

Criminal Practice DUI – Blood Samples – Chain of Custody – Jury & Jurors The state presented evidence as to who drew defendant’s first blood sample (Sample A) and who handled it at each step. The state was not required to have every person who handled Sample A testify. Although most of the witnesses in the custody chain did not recall specifics, the state established through testimony and documentation Sample A’s chain of custody as far as practicable given the circumstances, which included the fact that defendant had been in a head-on crash and was airlifted to the hospital.

We affirm defendant’s convictions for felony driving under the influence resulting in death and felony DUI resulting in great bodily injury.

Since Sample A was collected for medical purposes to save defendant’s life and not for any investigative pur-

Capable. Committed.

Experienced. Invested.

• Real-time underwriting support • Timely & relevant education • Best-in-class technology • Superior claims services • Excellent financial stability • Commercial Services Division • ClientCONNECT Software Integrations • SearchCONNECT Search Services • iTracs Trust Account Reconciliation Services • §1031 Exchange Services 803.799.8650 | southeast@invtitle.com

invtitle.com

10 / OPINION DIGESTS pose, the circumstances surrounding the preservation and custody of Sample A diminished the likelihood it was tampered with.

Although there was inconsistency within the medical records and flight records regarding the landing time and the time of the blood draw, this did not establish either a break in the chain of custody or that the blood was from someone else. The circumstances of this case reflect that the exact syncing of times between medical and flight records was unlikely. This discrepancy, as well as the discrepancy of 30 minutes between drawing the blood and its delivery to the lab, goes to the weight and credibility of the evidence, not its admissibility.

Defendant argues the trial court erred in admitting a second blood draw (Sample B) into evidence because more than 150 percent of his blood had been replaced by blood and other fluids before Sample B was drawn. Even if the admission of Sample B was so unreliable that its admission was error, this error was harmless. The jury received clear evidence of defendant’s intoxication from Sample A, the evidence of open containers in his truck, the alcohol spilled on the floor of his truck, and testimony that his breath smelled of alcohol at the accident scene.

Juror Concealment

Juror 164 served on defendant’s jury without responding truthfully (at all) to the trial court’s voir dire question about whether any panel member had been arrested and charged with a criminal offense. However, nine more questions were asked before the trial court asked the jurors to approach the bench if any of the questions applied to them.

Juror 164’s arrest, which occurred shortly before defendant’s trial, was discovered after trial. When defendant moved for a new trial, the trial court did not err by failing to conduct an evidentiary hearing.

The trial court stated that on its face, the question asked during voir dire was comprehensible to the average juror; however, the court noted that it was the first of ten questions the juror had to remember and the amount of time between question and answer “could be confusing to the average juror.” The trial court further opined because an arrest is a public arrest record, the juror did not conceal

his arrest.

Because the trial court’s conclusion that defendant was not entitled to a new trial was based upon its own observations of voir dire, the record supports the trial court’s conclusion, and Juror 164’s testimony was not necessary for the trial court to rule on the issue. Thus, we find the trial court did not err in failing to conduct an evidentiary hearing and did not abuse its discretion in denying defendant’s motion for a new trial based on Juror 164’s concealment.

Affirmed.

State v. Rowell (Lawyers Weekly No. 011-011-22, 11 pp.) (James Lockemy, C.J.) Substituted opinion. Appealed from Greenwood County Circuit Court (Donald Hocker, J.) Billy Garrett, Carson McCurry Henderson, Jane Hawthorne Merrill and Clarence Rauch Wise for appellant; Alan McCrory Wilson, Jonathan Scott Matthews and David Matthew Stumbo for respondent. S.C. App.

Criminal Practice Murder – Late Discovery – Lack of Prejudice – Closing Argument – ‘Evil’ The state waited months – until shortly defendant’s murder trial – to reveal potentially exculpatory statements that had been made by “Munchkin” Washington. However, just before defendant’s trial, Washington changed his story, said he had hired defendant to murder the victim, and was made a co-defendant with respect to the victim’s murder. Defendant was not prejudiced by the state’s late disclosure of Washington’s earlier statements because defendant had approximately a month prior to trial to investigate Washington’s statement that others wanted to kill the victim.

We affirm defendant’s murder conviction.

Any prejudice to defendant was occasioned by Washington in changing his story, implicating himself, and directly naming defendant as the victim’s killer. The state was not responsible for Washington’s deception or for the fact that Washington’s attorney would not permit him to speak again on the matter once he was charged with the victim’s murder. In fact, Washington’s unavailability to testify likely inured to defendant’s benefit.

Moreover, any late disclosure re-

S O U T H C A R O L I N A L A W Y E R S W E E K LY I M arch 14, 2022

lated to Washington did not hamper defendant’s ability to present a third-party guilt defense to the jury— 15-year-old Alex Wallace confessed to the victim’s murder from the witness stand. The jury simply did not believe the teenager’s “confession” or his claim that nobody forced him to take the charge for defendant. As defendant cannot demonstrate he was prejudiced by the late discovery, we find the circuit court did not abuse its discretion in denying his motion for a continuance.

Other Issues

The state used the term “evil” several times in its closing argument, painting defendant as a person with a propensity to kill—someone the jury should be afraid to have living in their community. Nevertheless, the state’s characterizing of defendant as “evil” did not prejudice him, nor did the solicitor’s comments so infect the trial with unfairness as to make the resulting conviction a denial of due process.

The record supports the state’s theory that defendant executed the victim because Washington directed him to kill her in retaliation for her agreement to cooperate against Washington in her work as a confidential informant for Richland County. Because malice is a statutory element the state must prove to sustain a murder conviction, the circuit court did not abuse its discretion in allowing the prosecutor to argue “what he thinks he’s proved”, i.e., the element of malice.

Defendant was in custody in New York and had not yet been Mirandized when he made the statements, “How do you charge me with murder? You found a gun with my fingerprints on it?”

However, the officer to whom defendant made those statements over the telephone was merely trying to work out the logistics of coming to New York to question defendant and transport him back to Lexington County.

The officer’s inquiry was unlikely to evoke an incriminating response – he merely told defendant he would not discuss evidence over the phone. As defendant was not subjected to the functional equivalent of questioning, we find no error in the circuit court’s admission of defendant’s voluntary, non-responsive statements.

Affirmed.

State v. Hart (Lawyers Weekly No. 011-012-22, 15 pp.) (Stephanie

McDonald, J.) Appealed from Lexington County Circuit Court (Eugene Griffith, J.) Joanna Katherine Delany for appellant; Alan McCrory Wilson, Donald Zelenka, Melody Jane Brown and Caroline Scrantom for respondent. S.C. App.

S.C. COURT OF APPEALS, UNPUBLISHED

Domestic Relations Equitable Distribution – Indirect Contributions – Political Appointment – Interest Award Date The parties agree that the defendant-Husband is responsible for the plaintiff-Wife’s appointment as a magistrate court judge and that he could work to prevent her from being reappointed at the end of her term.

Based on Husband’s financial assistance in at least a portion of Wife’s college degree as well as his political connections, which likely aided in her appointment, we find Husband contributed to Wife’s earning potential and assisted her in alleviating her need for additional training or education to achieve her income potential.

The family court erred in finding there was no testimony as to Husband’s indirect contributions to the marriage.

We modify and affirm the equitable distribution order entered by the family court on remand from a previous appeal.

Even though Wife did not cook or clean, there is evidence that she made other indirect contributions to the marriage. She paid the parties’ bills, was responsible for the daily maintenance and upkeep of the marital home, and generally took care of the parties’ personal lives, leaving Husband free to focus on running his various businesses. Additionally, Wife took over the care of one of Husband’s daughters from his previous marriage—who had significant diagnosed health issues—when her mother was unable to do so. Moreover, Wife made considerable efforts to help Husband mend his strained relationship with his daughters.

Because this court remanded this matter “to allow the family court to consider the equitable apportionment anew, analyzing the statutory factors

LAWYER TO LAWYER / Directory

MEDIATIONS: TOM MILLIGAN

• OVER 30 YEARS OF EXPERIENCE • TRIAL LAWYER WHO HAS TRIED OVER 200 JURY TRIALS • CERTIFIED ARBITRATOR SINCE 1999 • CERTIFIED MEDIATOR SINCE 2001

PROFESSIONAL

CONVENIENT

OBJECTIVE

MILLIGAN & HERNS, PC

721 Long Point Road, Suite 401 Mt. Pleasant, SC 29464 843-971-6750 ❘ tom@milliganlawfirm.com

OPINION DIGESTS / 11

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ma rch 14, 2022

in light of our opinion,” the family court did not err in making new findings of fact regarding Wife’s indirect contributions to the marriage, as this is one of the statutory factors the family court must weigh in making an equitable apportionment.

Pursuant to the family court’s original equitable distribution order, a monetary award of $595,263.20 was due to Wife as of June 5, 2014. Following the issuance of the amended order on remand on May 17, 2018, the monetary award was reduced to $162,446.50, plus post-judgment interest. Based on the rule set forth in Calhoun v. Calhoun, 339 S.C. 96, 529 S.E.2d 14 (2000), and the correlation made in Casey v. Casey, 311 S.C. 243, 428 S.E.2d 714 (2007), between equitable distribution monetary awards and other monetary judgments, we find the family court correctly determined Wife is entitled to postjudgment interest at the statutorily prescribed post-judgment rate on the final equitable distribution figure of $162,446.50 and that this interest runs from June 5, 2014.

Affirmed as modified.

McMillan v. McMillan (Lawyers Weekly No. 012-006-22, 12 pp.) (Per curiam) Appealed from Spartanburg County Family Court (Dale Moore Gable, J.) Bruch Wyche Bannister and Luke Anthony Burke for appellant; Gwendolynn Wamble Barrett for respondent. S.C. App. Unpub.

U.S. DISTRICT COURT

Insurance Duty to Defend – Complaint & Deposition – Notice The complaint in the underlying action—alleging Philip Riley was exposed to chromated copper arsenate (CCA)—indicated that Riley had been exposed in an occupational context.

Riley was born on December 27, 1978, and the defendant-insurer’s policy was in effect from January 1, 1978 through January 1, 1979. However, during his deposition, Riley testified that he had been exposed from birth.

Since Riley’s deposition testimony indicates a possibility that Riley could have been exposed to CCA between his birth and the end of the term of defendant’s policy, defendant had a duty to defend its insured in the underlying action.

The parties’ cross-motions for summary judgment are granted in part and denied in part.

Although the underlying action was initiated in 2014, the insured did not seek a defense and indemnity until September 1, 2016. Nevertheless, a genuine issue of material fact exists as to whether the insured’s notice of the underlying action was reasonable under the circumstances. The original complaint in the underlying action did not raise the possibility of coverage given that it alleged Riley was exposed to CCA as an adult. In the light most favorable to the insured, its failure to notify the insurer of the underlying action in 2014 was reasonable.

However, the insured is entitled to reimbursement, if at all, only for fees and costs incurred after March 16, 2016. It was only after Riley’s deposition in March 2016 that a possibility of coverage, and thus a possibility of breach of contract on the insurer’s part, arose.

Even though the insured did not notify the insurer of the underlying

action until September 2016, an insurer’s duty to defend arises when an underlying suit is brought against the insured with allegations that are arguably within the scope of the insurance policy’s coverage, not when the insured tenders proper notice of the underlying suit or explicitly demands a defense thereto. In order to deny the insured recovery for fees and costs incurred before September 1, 2016, the insurer must demonstrate substantial prejudice—something which it has not done at this time.

Where the sum allegedly due under the parties’ policy is capable of being reduced to certainty, prejudgment interest may be awarded.

Motions granted in part, denied in part.

Koppers Performance Chemicals, Inc. v. Travelers Indemnity Co. (Lawyers Weekly No. 002-003-22, 14 pp.) (Richard Gergel, J.) 2:20-cv2017. Laura Figueroa Locklair and Robert Friedman for plaintiff; Charles Norris, Ezra Gollogly, Lee Ogburn, Steven Klepper, Mark Steven Barrow, Brandon Robert Gottschall, Joseph Madden and Timothy Domin for defendants. D.S.C.

Tort/Negligence Drunk Driver’s Employer – Voluntary Undertaking – No Duty to Third Parties Even if (1) a drunk driver had consumed alcohol at work, (2) the defendant-employer knew she had done so, (3) the employer sent the intoxicated employee home, and (4) the employer refused a co-worker’s offer to drive the intoxicated employee home, there is no evidence that the employer otherwise “took control” by purporting to step in and assist the intoxicated employee itself. Nor is there evidence that the employer affirmatively contributed to its employee’s intoxicated state. The employer is not liable to those injured by its employee’s drunk driving.

The defendant-employer is entitled to summary judgment.

Voluntary Undertaking

According to plaintiffs, the employer “voluntarily acted by evaluating [its employee Laura] Gilbert, making her clock out, blocking a co-employee from getting [her] home safe, and sending her to drive home[,] all with the knowledge or actual notice that Ms. Gilbert was not in any condition to get behind the wheel.” For this argument to withstand summary judgment, the court would have to accept that Gilbert did, in fact, consume alcohol while at work. Gilbert testified, in no uncertain terms, that she did not begin consuming any alcohol until after she left the employer’s premises Plaintiffs present evidence that no open containers were found in Gilbert’s vehicle, that Gilbert did not consume alcohol while driving home, and that Gilbert took work breaks outside the view of the cameras. As perhaps plaintiffs’ most persuasive evidence, they also provide testimony from co-worker Mackenzie Day that Gilbert returned from her breaks with a “strong pungent smell” and was “acting intoxicated.” The court presumes, for purposes of this motion for summary judgment, that Gilbert began drinking while she was still working.

Even if Gilbert consumed alcohol during her employment, plaintiffs would have to establish that a duty to third parties arose when the employer sent Gilbert home with the knowledge

of that consumption. While Day testified that she offered to drive Gilbert home and was denied by supervisor Milinda Anderson, there is no evidence that that Anderson or the employer otherwise “took control” by purporting to step in and assist Gilbert themselves.

South Carolina cases that have examined similar arguments have rejected the notion that actors in the employer’s position voluntarily assume a duty. An intoxicated person is considered helpless, but in order to establish a defendant has “taken charge of” one who is helpless, a plaintiff must show the defendant did more than act, but through affirmative action assumed an obligation or intended to render services for the benefit of another.

Plaintiffs have presented no evidence that the employer affirmatively contributed to Gilbert’s intoxicated state, regardless of when that state occurred.

Other Issues

Where there is no evidence that Gilbert made a specific threat of harm directed at plaintiffs, the employer owed plaintiffs no duty of care under the “special relationship” test, regardless of its ability to monitor, supervise and control Gilbert’s conduct.

The employer’s compliance with its own corporate policies might go to the element of breach, but it has no bearing on whether the employer owed a duty. Even if the court were to consider the employer’s policies as potential evidence of a duty, they would at most speak to a duty owed to its employees, but not to third parties like plaintiffs.

Courts applying South Carolina law have specified that a business’s failure to follow its own internal policies does not establish a legal duty to a third party, even if such policies could be relevant to the issue of failure to exercise due care.

Plaintiffs present no evidence that there is a corporate policy addressing third parties who might be affected by an employee’s intoxication. Plaintiffs have presented no germane argument indicating that the employer owed plaintiffs a duty based on its status as Gilbert’s employer.

Plaintiffs’ respondeat superior argument also fails. When Gilbert collided with plaintiffs’ golf cart, she was no longer carrying out the employer’s business.

Plaintiffs argue that Gilbert clocked out early “because that is what [the employer] told her to do,” and as such, “the reason Ms. Gilbert was on the road at the time and place of this collision is because [the employer] blocked Ms. Day’s efforts to take her home.”

These arguments attempt to ascribe liability based on the employer’s actions, but they fail to speak to whether Gilbert was acting within the scope of her employment during the accident.

To the extent that plaintiffs are claiming that Gilbert was acting within the scope of her employment because she was ordered to go home early, they present no legal support for that argument.

Moreover, to adopt plaintiffs’ interpretation of the law would risk blurring the line for when a principal retains the right to control the time, manner, and method of employment of the agent. Courts analyzing South Carolina law have consistently found that employees returning home are no longer working for their employers.

Likewise, plaintiffs have not shown that Gilbert consumed alcohol in the scope of her employment such that the employer should be liable as a matter of respondeat superior. Plaintiffs’

argument, that an employer owes a duty to third parties if the employee consumes alcohol on the employer’s premises, relies entirely on law from outside this jurisdiction.

Plaintiffs have not shown that Gilbert’s alcohol consumption occurred within the scope of her employment.

Gilbert’s drinking on the job, if assumed to be true, in no way furthered the employer’s interests.

Gilbert’s supposed decision to drink at work could only have been personally motivated. Accordingly, the court finds that the employer did not owe plaintiffs a duty of care under respondeat superior because Gilbert was not acting within the scope of her employment at the time of the accident.

Plaintiffs have failed to allege a negligence action because there is no duty arising under any special relationship with Gilbert, under vicarious liability, or based on the employer’s affirmative acts.

Motion granted.

Scibek v. Gilbert (Lawyers Weekly No. 002-004-22, 18 pp.) (David Norton, J.) 2:20-cv-2638. Amanda Ruth Itterly and Kevin Smith for plaintiffs; Jeffrey Michael Crudup, Brett Harris Bayne, James Smith, Helen Faith Hiser and Matthew Neal Tyler for defendants. D.S.C.

Attorneys Constitutional – Advertising – Disciplinary Proceeding – Abstention Even though there are no pending state court proceedings in which the plaintiff-law firm is a party—the South Carolina Rules of Professional Conduct apply only to attorneys licensed in the state—the firm’s claims that the Rules regulating lawyer advertising are unconstitutional are entirely derivative of the plaintiff-attorney’s claims. Plaintiffs’ claims are unavoidably intertwined and inseparable; consequently, the law firm’s claims are as subject to Younger abstention as the attorney’s claims.

Defendants’ motion to dismiss is granted.

Formal disciplinary proceedings were filed against the plaintiff-attorney because of his legal services advertisements. Those advertisements refer to the name of the defendantfirm, HawkLaw, and feature actors dancing while flapping their arms.

Plaintiffs contend that the rules concerning lawyer advertising violate their First and Fourteenth Amendment rights. Plaintiffs seek declaratory and injunctive relief.

Defendants move to dismiss pursuant to the abstention doctrine established by Younger v. Harris, 401 U.S. 37 (1971).

State lawyer disciplinary proceedings can be subject to Younger abstention when they are akin to a criminal proceeding. South Carolina lawyer disciplinary proceedings begin with a screening, followed by a preliminary investigation, full investigation, filing of formal charges, and a review by the state’s Supreme Court. Accordingly, South Carolina lawyer disciplinary proceedings are judicial in nature and subject to Younger abstention.

Furthermore, regulating the conduct of attorneys licensed in the state implicates a vital state interest, and states have traditionally exercised extensive control over the professional conduct of their attorneys. The interest of the states in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice

12 / OPINION DIGESTS and have historically been officers of the court. This weighs in favor of abstention.

In addition, plaintiffs have the opportunity to raise their constitutional claims in the disciplinary hearing and on appeal to the South Carolina Supreme Court. Although plaintiffs contend that neither the Office of Disciplinary Counsel nor the Commission on Lawyers Conduct has the authority to declare a Rule of Professional Conduct unconstitutional, nothing in the disciplinary rules prohibits plaintiffs from raising their constitutional claims before these entities. And the South Carolina Supreme Court certainly has such authority.

Plaintiffs point out that there are no pending state court proceedings in which HawkLaw is a party. HawkLaw is not subject to the Rules of Professional Conduct, which apply only to attorneys licensed in the state. Therefore, HawkLaw’s claims are entirely derivative of the defendant-attorney’s claims. As such, plaintiffs’ claims are unavoidably intertwined and inseparable, and this case fits into one of the narrow circumstances where it is appropriate to extend Younger abstention to all of plaintiffs’ claims.

Although the charges based on RPC 7.1(c) and (e) have been dismissed, those charges were pending at the time this action was filed. Defendants’ dismissal of some of the charges against the attorney does not nullify the existence of parallel state proceedings in which their federal claims could be presented.

Finally, the court has no reason to believe that the members of the Commission, many of whom are lawyers, or the justices of the South Carolina Supreme Court would refuse to consider a claim that the rules they are enforcing violate federal constitutional guarantees.

Principles of comity and federalism counsel the court’s abstention from this matter.

Motion granted.

Hawkins v. South Carolina Commission on Lawyer Conduct (Lawyers Weekly No. 002-005-22, 11 pp.) (Michelle Childs, J.) 3:21cv-01319. Robert Daniel Dodson for plaintiffs; Angus Macaulay, Brittany Nicole Clark, Sara Sofia Svedberg, Susan Pedrick McWilliams and Harley Littleton Kirkland for defendants.

D.S.C.

4TH U.S. CIRCUIT COURT OF APPEALS

Arbitration Bank customer avoids arbitration of residential mortgage dispute Where a customer alleged his bank violated the Truth in Lending Act, or TILA, by using money in his deposit accounts to pay the outstanding balance on a Home Equity Line of Credit or HELOC, the bank could not compel arbitration because the arbitration agreements were executed after passage of the Dodd-Frank Act, which imposed restrictions on the use of mandatory arbitration agreements for mortgage-related transactions.

Background

William Lyons Jr. filed suit against PNC Bank NA, alleging violations of TILA related to PNC’s set-off of funds from two of Mr. Lyons’s deposit accounts to pay the outstanding balance on a HELOC. PNC moved to compel

arbitration based on an arbitration provision in the parties’ agreement applicable to the two deposit accounts.

The district court found that amendments made by the DoddFrank Act to TILA barred arbitration of Mr. Lyons’s claims related to the 2014 account because it was opened after the effective date of the provisions but that those restrictions did not apply retroactively to bar arbitration of his claims related to the 2010 account.

PNC appeals the district court’s partial denial of its motion to compel arbitration, and Mr. Lyons cross-appeals the district court’s partial grant of the motion to compel arbitration.

Analysis

The Dodd-Frank Act amended TILA, including by adding a section entitled “Arbitration,” which imposed restrictions on the use of mandatory arbitration agreements for mortgagerelated transactions. The plain language of § 1639c(e)(3) is clear and unambiguous: a consumer cannot be prevented from bringing a TILA action in federal district court by a provision in an agreement “[related] to” a residential mortgage loan—like a HELOC. PNC insists, however, that § 1639c(e)(3) cannot prohibit arbitration of Mr. Lyons’s claims because the provision was not intended to restrict agreements to arbitrate. Rather, argues PNC, the provision limits a consumer from agreeing to waive certain claims but does not control the proper judicial forum for resolution of such claims.

PNC notes that § 1639c(e)(3) does not include the term “arbitration” and cites to a series of Supreme Court cases which have held that arbitration is not precluded merely because a statute provides a plaintiff with a cause of action. But these cases are inapposite.

In contrast to the provisions at issue in the cases cited by PNC, which authorize a cause of action, § 1639c(e)(3) expressly prohibits a covered agreement from barring a consumer “from bringing an action in an appropriate district court of the United States, or any other court of competent jurisdiction.”

Further, PNC’s position is difficult to reconcile with the structure of Dodd-Frank. While the text of § 1639c(e)(3) does not include the term “arbitration,” the provision is found in a short section entitled “Arbitration.”

Moreover, the court’s interpretation is consistent with the legislative history of the provision. And it is also consistent with the Consumer Financial Protection Bureau’s implementing regulations.

PNC nevertheless contends that, when Mr. Lyons opened the 2014 account, he was not entering a new contractual relationship with PNC but merely continuing an existing relationship with the bank and, therefore, that the later account is properly covered by the arbitration provision in the earlier account agreement. But the record makes clear that the arbitration provision applicable to the 2010 account via the 2013 account agreement was not entered into by Mr. Lyons until June 11, 2013—ten days after the effective date of § 1639c(e)(3). Thus, the arbitration clause is precluded by § 1639c(e)(3) from applying to Mr. Lyons’s claims related to either the 2010 account or the 2014 account.

PNC argues, however, that the court lacks jurisdiction to review the district court’s order compelling arbitration of the 2010 account agreement. But the district court’s partial

S O U T H C A R O L I N A L A W Y E R S W E E K LY I M arch 14, 2022

grant of PNC’s order to compel arbitration of the 2010 account is “inextricably intertwined” with the district court’s partial denial of the order to compel arbitration of the 2014 account because the court’s consideration of the latter order necessarily resolves the former. PNC may not compel arbitration of Mr. Lyons’s claims as to both the 2010 account and the 2014 account.

Affirmed in part, reversed in part.

Concurrence/Dissent

(Quattlebaum, J.): I agree with the majority’s analysis that § 1639c(e)(3) applies to the kind of set-off claim Mr. Lyons raises here. I also concur that § 1639c(e)(3) bars arbitration over the 2014 account because both the account and its own terms and conditions postdate Dodd-Frank. I write separately from my colleagues, however, because I do not believe we have jurisdiction to adjudicate Mr. Lyons’s cross-appeal.

Lyons v. PNC Bank NA (Lawyers Weekly No. 001-030-22, 23 pp.)

(Roger Gregory, C.J.) (A. Marvin Quattlebaum Jr., J., concurring and dissenting) Case Nos. 21-1058 and 211289. Feb. 15, 2022. From D. Md. at Baltimore (Stephanie A. Gallagher, J.) Daniel J. Tobin for PNC Bank NA. Ellen Louise Noble for William Lyons Jr. Kevin E. Friedl for Amicus Curiae Consumer Financial Protection Bureau. 4th Cir.

Civil Practice Plaintiff lacks standing to challenge Israel-boycott order Where a man sued the Maryland governor and attorney general over an executive order that he interpreted as prohibiting him from bidding on state procurement contracts due to his personal boycotts of Israel-tied products, but the executive order only prohibited a business from engaging in antiIsrael national origin discrimination in the process of preparing a bid for a state procurement contract, his suit was dismissed.

Background

Saqib Ali seeks to pursue § 1983 proceedings against Maryland’s governor and attorney general, challenging as unconstitutional an executive order that prohibits boycotts of Israel by business entities that bid on the state’s procurement contracts. The district court dismissed with prejudice Ali’s lawsuit for want of Article III standing to sue.

Analysis

Ali’s primary argument that he has sustained a direct injury is predicated on his own interpretation and understanding of the executive order, a construction that prohibits him from bidding due to his personal boycotts of Israel-tied products. The court cannot agree, however, with Ali’s interpretation of the executive order.

As the district court recognized, “Section C, which contains the language Mr. Ali would have to sign to submit a bid, does require that bidders affirm that they would not take ‘other actions intended to limit commercial relations’ with ‘a person or entity on the basis of Israeli national origin.’”

But as the court further observed, that language “is limited by [two] ‘prefatory clauses’ —‘in preparing its bid on this project’ and ‘in the solicitation, selection, or commercial treatment of any subcontractor, vendor, or supplier.’”

Accordingly, the court determined that the key passage of Section C

should be read as follows: “In preparing its bid on this project, the bidder ... has not, in the solicitation, selection, or commercial treatment of any subcontractor, vendor, or supplier ... taken other actions intended to limit commercial relations, with a person or entity on the basis of Israeli national origin.” The court then explained that, read in that manner, the certification required by “Section C is effectively limited to an affirmation that the bidder has not discriminated in the bid formation process.” The court agrees with the district court’s well-reasoned distillation of the plain text of the executive order.

If a business entity has engaged in anti-Israel national origin discrimination in the process of preparing a bid for a state procurement contract, the executive order would bar that entity from being awarded the contract. If, by contrast, the entity has engaged in a boycott of Israel entirely unrelated to the bid formation process, the executive order is of no moment.

The amended complaint alleges that Ali boycotts Israel in his personal capacity only, by “[refusing] to purchase Sabra hummus or SodaStream products, which have ties to Israel and its occupation of Palestine.” Those limited factual allegations are problematic for Ali, in that the amended complaint “does not allege that he boycotts Israel in his business capacity,” much less in the context of preparing a bid for a state procurement contract.

As such, the court rejects Ali’s related theory that he possesses standing to sue premised on a direct injury.

Ali relies on recent district court decisions that involve similar procurement provisions of other states; in them, the courts ruled that plaintiffs sustained direct injuries that conferred Article III standing to sue. In two of these cases, however, “as a result of their refusal to sign, the plaintiffs ... either lost a contract that otherwise would have been theirs, or were refused payment on a contract under which they had already rendered performance.” By contrast, Ali has not submitted a bid for any state procurement contract, much less been offered or accepted one.

As an additional source of direct injury, Ali argues on appeal that section C constitutes an unconstitutionally vague loyalty oath. The court is satisfied, however, that Ali’s characterization of the executive order as an unconstitutional loyalty oath does not create a direct injury that confers Article III standing to sue. The executive order requires a business entity to refrain from discriminating on the basis of Israeli national origin only in forming a bid. It does not require the entity to, for example, pledge any loyalty to Israel or profess any other beliefs.

Finally, although the court is satisfied that Ali has not alleged facts adequate to establish Article III standing to sue, the dismissal of his amended complaint should be without prejudice.

Affirmed as modified.

Ali v. Hogan (Lawyers Weekly No. 001-031-22, 23 pp.) (Robert Bruce King, J.) Case No. 20-2266. Feb. 18, 2022. From D. Md. at Baltimore (Catherine C. Blake, S.J.) Gadeir Ibrahim Abbas for Appellant. Adam Dean Snyder for Appellees. 4th Cir.

Immigration BIA erred when it interpreted ‘unambiguous’ rule Where a regulation requires the Department of Homeland Security

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ma rch 14, 2022

or DHS, to notify an applicant of the need to provide biometrics, such as photographs and fingerprints; provide the applicant with a biometrics notice and provide instructions for producing biometrics, the Board of Immigration Appeals, or BIA, erred when it interpreted the regulation in a way that omitted the second requirement.

Background

Katherin Mejia-Velasquez, a native and citizen of Honduras, applied for asylum, withholding of removal and protection under the Convention Against Torture. Because MejiaVelasquez failed to produce biometrics (such as her photograph, fingerprints and signature) in support of her application, after having been warned of the consequences of failing to do so, the immigration judge or IJ, deemed her application abandoned and ordered her removed to Honduras. The BIA affirmed in a decision dismissing her appeal.

Mejia-Velasquez argues mainly that she did not receive sufficient notice that she was required to provide biometrics, and that the BIA’s decision upholding the notice given in this case relied on its erroneous decision in Matter of D-M-C-P-, 26 I. & N. Dec. 644 (BIA 2015), which misinterpreted the regulation by eclipsing a portion of its requirements.

Analysis

In 8 C.F.R. § 1003.47(d), the DHS must (1) “notify” the applicant of the need to provide biometrics, (2) “provide” the applicant with “a biometrics notice” and (3) “provide” the applicant with “instructions” for providing biometrics. The BIA’s interpretation in Matter of D-M-C-P-, however, requires the DHS to satisfy only the first and the third requirements, omitting the requirement that it provide “a biometrics notice.” In this case, the BIA concluded that, because the DHS had provided Mejia- Velasquez with all of the information required by Matter of D-M-C-P-, the DHS had satisfied the requirements of § 1003.47(d).

The regulation is unambiguous as to the three requirements specified— oral notification, a biometrics notice and instructions. But Matter of D-MC-P-, when construing the regulation, omitted the requirement for providing applicants with “a biometrics notice.”

Accordingly, the BIA’s interpretation of § 1003.47(d) in Matter of D-M-C-Pis not entitled to deference for at least two reasons. First, the regulation is not “genuinely ambiguous” with respect to these requirements. Second, even if the regulation was ambiguous, the BIA’s interpretation is not a reasonable one because it fails to account for a distinct requirement in the regulation.

The government contended at oral argument that, regardless of whether Matter of D-M-C-P- properly interprets § 1003.47, Mejia-Velasquez actually received a biometrics notice in this case because one was provided to her by the IJ at her Feb. 7, 2017 master calendar hearing. That document, entitled “Fingerprint Warning,” contained all the information that could reasonably be contemplated by the regulation’s requirement of “a biometrics notice.” The court concludes that the content of this document was sufficient to constitute “a biometrics notice.”

Mejia-Velasquez contends further, however, that the biometrics notice required by § 1003.47(d) must come in the form of an “appointment notice” from the USCIS Application Support Center that schedules applicants’ ap-

pointments for providing biometrics.

While this argument might support her criticism of the DHS’s current practice, it does not substantially advance her position that § 1003.47(d) was not satisfied at her February 2017 hearing.

Finally with respect to her first petition for review, Mejia-Velasquez contends that even if she were provided with a biometrics notice satisfying § 1003.47(d), the IJ nonetheless erred in deeming her I-589 application for relief abandoned and the BIA likewise erred in affirming that conclusion and dismissing her appeal. She makes essentially three arguments, none of which the court finds persuasive.

In her second petition for review, Mejia-Velasquez challenges the BIA’s May 27, 2020, order denying her motion to reconsider its Jan. 22, 2020, decision dismissing her application.

The court finds no abuse of discretion here. The BIA permissibly found that Mejia-Velasquez failed to identify any legal error, factual error or overlooked arguments in its Jan. 22, 2020 decision.

Petitions for review denied.

Dissent

(Motz, J.): Mejia-Velasquez does not deny that she failed to have her fingerprints taken. She argues, however, that DHS failed to fulfill its own obligation to first provide her with a biometrics notice setting a date and time to have her fingerprints taken.

I agree that DHS failed to fulfill that obligation and would thus grant the petition for review.

Mejia-Velasquez v. Garland (Lawyers Weekly No. 001-032-22, 37 pp.) (Paul V. Niemeyer, J.) (Diana Gribbon Motz, J., dissenting) Case Nos. 20-1192 and 20-1628. Feb. 15, 2022. From the Board of Immigration Appeals. Evelyn Rose Griggs Smallwood for Petitioner. Rachel Louise Browning for Respondent. 4th Cir.

Arbitration Securities broker awarded $1.1 million for wrongful termination Where an arbitration panel awarded a broker over $1.1 million for wrongful termination without cause, the district court erred by refusing to enforce the award. Although the employer argued that North Carolina does not recognize a claim for wrongful termination without cause, because there were decisions suggesting that such a claim could arise in these circumstances, the employer couldn’t show the panel manifestly disregarded the law.

Background

James Warfield, a securities broker, contended before an arbitration panel that his former employer, ICON Advisers Inc., and a related corporation, ICON Distributors Inc., wrongfully terminated him without just cause. The panel awarded him $1,186,975.

The district court refused to enforce the award, holding that North Carolina is an “at-will” employment state that does not recognize a cause of action for wrongful termination without just cause. The court determined that the arbitrators manifestly disregarded the law in finding to the contrary and vacated the award on that basis.

Analysis

To establish manifest disregard, a party must demonstrate: “(1) the disputed legal principle is clearly defined

OPINION DIGESTS / 13 and is not subject to reasonable debate; and (2) the arbitrator refused to apply that legal principle.”

First, ICON asserts that because North Carolina is an at-will employment state, a state court would necessarily reject Warfield’s asserted wrongful termination without just cause claim. ICON cites a series of cases holding that North Carolina has a strong presumption of at-will employment. The problem for ICON is that Warfield has cited Paine Webber, Inc. v. Agron, 49 F.3d 347 (8th Cir. 1995), and Shearson Hayden Stone, Inc. v. Liang, 653 F.2d 310 (7th Cir. 1981), as holding that the presence of an arbitrability clause governing an employment dispute implies for-cause termination protections, notwithstanding a state law at-will doctrine to the contrary.

This court expresses no opinion on the persuasiveness of these decisions; the point is that they exist, and Warfield presented them to the arbitrators.

ICON has not cited, either to the arbitrators or to this court, any North Carolina case rejecting the specific proposition that the arbitrability of an employment relationship implies for-cause protections. This court has previously explained that in the absence of clearly on-point and controlling precedent, the fact that courts disagree on a particular legal question weighs against second-guessing an arbitrator’s award.

In the manifest disregard context, it is not this court’s role to predict whether North Carolina courts would reject the theory embraced in these decisions that arbitrability implies for-cause protection. The fact is that to date, they have not. And therefore, North Carolina’s at-will doctrine cannot provide the “binding precedent requiring a contrary result” necessary to demonstrate that the arbitrators manifestly disregarded the law.

ICON also argues that this court’s decision in Raymond James Financial Services, Inc. v. Bishop, 596 F.3d 183 (4th Cir. 2010), affirmatively rejected the decisions relied upon by Warfield, such that the arbitrators disregarded clearly established controlling law.

Even assuming that a federal court could theoretically establish controlling precedent on state law for purposes of the manifest disregard inquiry, Raymond James was not such a holding.

Moreover, even if ICON established to this court’s satisfaction that, under North Carolina law, courts would not recognize Warfield’s wrongful termination without just cause claim, this prong of the manifest disregard analysis requires something more than merely establishing that the arbitrators misapplied the law; instead, it requires evidence that they knowingly rejected a controlling precedent.

In this case, ICON did make the arbitrators aware of North Carolina’s presumption of at-will employment and of Raymond James. But if there is a North Carolina case rejecting the Agron-Liang theory, ICON never cited that precedent to the arbitrators (or to this court, for that matter).

ICON therefore cannot establish manifest disregard because even if it made the arbitrators aware of the “general[] [employment at-will] defense,” it did “not present[] any evidence” on the “specific[]” point at issue.

Moreover, the award contained no explanation of how the arbitrators determined that Warfield could bring a claim for wrongful termination without just cause. As ICON acknowledged, the parties could have requested an explained decision from

the arbitrators but apparently did not do so. Of course, “arbitrators are not required to explain their reasoning.”

But when arbitrators do not provide any explanation, the court cannot simply impute manifest disregard.

Reversed.

Warfield v. ICON Advisors Inc. (Lawyers Weekly No. 001-033-22, 13 pp.) (Diana Gribbon Motz, J.) Case No. 20-1690. Feb. 24, 2022. From W.D.N.C. at Charlotte (Graham C. Mullen, S.J.) Christopher S. Edwards for Appellant. Jonathan Woodward Yarbrough for Appellee. 4th Cir.

Civil Practice Abortion providers have standing to challenge South Carolina law Where abortion providers challenged South Carolina legislation that bans abortions after an ultrasound detects a “fetal heartbeat,” they had third-party standing to do so because they would suffer an injury-in-fact from enforcement and could reasonably be expected to frame the issues and present them with the necessary adversarial zeal.

Background

Three abortion providers challenge South Carolina legislation that bans abortions after an ultrasound detects a “fetal heartbeat”—usually around the sixth week of pregnancy, and well before the “viability threshold” protected by the 14th Amendment to the federal Constitution. The district court enjoined the enforcement of the statute. Several South Carolina state officials now appeal, arguing that the abortion providers do not have standing to pursue this action and that the district court erred by enjoining the law in its entirety instead of severing the six-week abortion ban component of the statute.

Standing

The Supreme Court has “long permitted abortion providers to invoke the rights of their actual or potential patients in challenges to abortion- related regulations” and has “generally permitted plaintiffs to assert thirdparty rights in cases [like this one] where the enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties’ rights.”

Even absent this longstanding precedent, appellees plainly satisfy the criteria to assert third-party standing in this action. A litigant has third-party standing when it has suffered an injury-in-fact and “can reasonably be expected properly to frame the issues and present them with the necessary adversarial zeal.” The latter condition is met when the litigant seeking thirdparty standing demonstrates “a close relationship with the person who possesses the right” and “a hindrance to the possessor’s ability to protect his own interests.”

This court recently held that abortion providers suffered an injury in fact sufficient to establish standing to challenge two North Carolina statutes that, similar to the statute at issue here, “[criminalize] ... previability abortions”—even though those statutes had not been enforced against the abortion providers. And the Supreme Court has noted that a patient seeking an abortion has a sufficiently close relationship with the abortion provider to establish third-party standing because “[a] woman cannot safely secure an abortion without the aid of a physician.” The court has likewise

14 / OPINION DIGESTS determined that a woman seeking an abortion has “several obstacles” to filing suit on her own behalf, including “a desire to protect the very privacy of her decision from the publicity of a court suit” and “the imminent mootness, at least in the technical sense, of any individual woman’s claim.”

These mootness considerations are especially prevalent in this case because, in addition to the difficulty the court has recognized in completing litigation within the typical gestation period of nine months, the act prohibits abortions after a “fetal heartbeat” is detected. This usually occurs about six weeks after a woman’s last menstrual period and at a time when many women do not yet know that they are pregnant and cannot even exercise what minimal right the act affords them to secure an abortion—which is precisely the effect the act is intended to have.

Therefore, in keeping with Supreme Court precedent—and with reality— appellees have third-party standing to bring this action.

Injunction

The district court reasonably determined that, notwithstanding the act’s severability clause, its provisions were not severable. A straightforward review of the function of each of the provisions remaining in the act after the removal of the six-week abortion ban reveals that the entirety of the statute was designed to carry out the ban.

Specifically, the portions of the act that require an abortion provider to perform an ultrasound, document the results, display the ultrasound images to the patient and offer the patient the opportunity to listen to any detected fetal heartbeat are plainly intended to facilitate the act’s “fetal heartbeat” abortion ban. The same is true of the requirements that an abortion provider report the results of the ultrasound and disclose the presence of a fetal heartbeat to the patient seeking an abortion. These provisions serve to carry out the six-week abortion ban and make little sense without the ban. As such, the district court did not abuse its discretion by declining to sever the remaining portions of the act.

Affirmed.

Planned Parenthood South Atlantic v. Wilson (Lawyers Weekly No. 001-034-22, 13 pp.) (Stephanie Thacker, J.) Case No. 21-1369. Feb. 22, 2022. From D.S.C. at Columbia (Mary Geiger Lewis, J.) Christopher Ernest Mills for Appellants. Julie Alyssa Murray for Appellees. 4th Cir.

Consumer Protection Borrower’s letter triggered RESPA protections Where a borrower’s letter to his loan servicer included the name, account number and other information that would “enable[] the servicer to identify” the account, and it explained why the borrower believed the account was in error, it constituted a qualified written request or QWR, under the Real Estate Settlement Procedures Act or RESPA.

Background

The issue is whether letters sent by borrowers Rogers Morgan and Patrice Johnson to their loan servicer, Caliber Home Loans, constitute QWRs under RESPA or the related Consumer Financial Protection Bureau Regulation X, such that they triggered an obligation for Caliber to cease providing adverse information about appellants’

accounts to credit reporting agencies.

The district court concluded (1) the Morgan letter is not specific enough to constitute a QWR and (2) the Johnson letter is not a QWR because it “challenges only [appellee’s] stated denial for the loan modification,” which “does not implicate servicing of the loan.”

Morgan letter

The district court erred by concluding the Morgan letter is not a QWR and does not “trigger[] RESPA’s prohibition on credit reporting” because it does not “dispute specific payments.”

RESPA does not limit the reporting of overdue payments to disputes of specifically identified payments but includes any “qualified written request relating to a dispute regarding the borrower’s payments.” The Morgan letter is a QWR subject to RESPA, as it is “a written correspondence” that articulates a “statement of reasons” in “sufficient detail” to indicate to appellee why Morgan believed the credit reporting was in error.

Specifically, the Morgan letter includes the name, account number and other information that would “enable[] the servicer to identify” the account, and it includes “reasons for the belief of the borrower, to the extent applicable, that the account is in error.”

Morgan described the conflicting balance information he had received from his employer’s reports, showing that he “[owed appellee] $16,806,” and appellee’s representative, who allegedly identified the balance as “$30,656.89” in addition to “$630.00 on [his] record” for “late charges.”

Further, the district court erred by concluding the Morgan letter is not a QWR due to a “lack of specificity.”

The Morgan letter is not a general or vague complaint. To the contrary, as noted, the Morgan letter includes an account number, as well as a reference to an agent and that agent’s ID number related to a specific phone call Morgan had with a representative of appellee to discuss the conflicting balance information.

The Morgan letter also details conflicting balance information received from appellee and the credit reporting service. Although the Morgan letter does not state which amount, if either, is the correct amount, this type of discrepancy is sufficient to indicate a dispute exists as to the servicing of loan.

Johnson letter

Correspondence limited to the dispute of contractual issues that do not relate to the servicing of the loan, such as loan modification applications, do not qualify as QWRs. The Johnson letter does not relate to any dispute of Johnson’s payments, or assert an error related to the servicing of the loan.

Rather, the Johnson letter merely challenges the denial of a modification of the terms of Johnson’s loan. The only error alleged in the Johnson letter is denial of the loan modification based on title issues regarding the solar panel company lien. This does not fall within the ambit of “servicing” so as to trigger RESPA’s protections against providing adverse information to credit reporting agencies.

Affirmed in part, reversed in part and remanded.

Concurrence/dissent

(Richardson, J.): I disagree that the Morgan letter constitutes a “qualified written request” triggering protection under RESPA. The Morgan letter fails to identify the believed error and provides no “statement of the reasons” for believing that unidentified error exists.

S O U T H C A R O L I N A L A W Y E R S W E E K LY I M arch 14, 2022

Morgan v. Caliber Home Loans Inc. (Lawyers Weekly No. 001-035-22, 15 pp.) (Stephanie Thacker, J.) (Julius N. Richardson, J., concurring in part and dissenting in part) Case No. 201745. Feb. 22, 2022. From D. Md. at Greenbelt (Paula Xinis, J.) Phillip R. Robinson for Appellants. Matthew Allen Fitzgerald for Appellee. 4th Cir.

Criminal Practice Defendant who took weapons to Haiti didn’t violate firearm statute Where the defendant was convicted of taking weapons to Haiti in an attempt to help the government quell gang violence, his conviction under 18 U.S.C. § 922(a)(5) was vacated because the statute requires a defendant to transfer the firearm to an unlicensed person and, here, the firearms were never transferred.

Background

Jacques Yves Sebastien Duroseau, a naturalized United States citizen, was convicted of five offenses springing from his plan to take weapons to his native Haiti in an attempt to help the Haitian government quell gang violence overtaking the country. On appeal, Duroseau challenges the conviction on Count Five of the indictment, which charged him with transporting firearms to the Haitian army, in violation of 18 U.S.C. § 922(a)(5). Duroseau argues that the district court erred by denying his motion for judgment of acquittal as to Count Five because the government failed to prove that he actually transferred the firearms to another person, as required by the statute.

Jurisdiction

At the close of the government’s case, Duroseau moved for a judgment of acquittal on Count Five only, arguing that § 922(a)(5) does not apply to the transfer of firearms in foreign commerce. Because Duroseau did not initially argue that the evidence did not show a transfer to an unlicensed person, the government contends Duroseau waived the claim and cannot pursue it on appeal. The court disagrees.

The point of error-preservation rules, including the requirement that a Rule 29 motion include all grounds supporting acquittal, is to give the district court the first opportunity to consider an issue and correct any errors. Although Duroseau did not initially question whether the evidence showed a transfer to another person, the issue was considered and addressed in depth by the district court during the trial.

Merits

Section 922(a)(5) provides that it is unlawful for any unlicensed person “to transfer, sell, trade, give, transport, or deliver any firearm to any [unlicensed] person” who does not reside in the defendant’s state of residence. Because there is no general attempt statute in the federal criminal code, “attempts to commit a crime are punishable only if the statutory definition of the crime itself proscribes attempts.”

The government agrees that § 922(a)(5) does not criminalize attempts, and it insists that Duroseau was not convicted of an attempt offense. Instead, the government contends that Duroseau’s “‘transport’ offense was complete upon his unlawful movement of firearms to his intended recipients,” such that Duroseau was not convicted on a theory of “attempt-

ed transport.” The court disagrees.

Section 922(a)(5) creates a single offense of transferring firearms between unlicensed parties, and it identifies multiple ways that the transfer can occur—by selling, trading, giving, transporting or delivering. But whichever means of transfer is involved, the statute requires that the firearms be transferred “to any [unlicensed] person.” Thus, regardless of the meaning of “transport” in isolation, the unambiguous language of the statute explicitly requires the firearms to in fact be transferred to an unlicensed recipient before there is a violation of the statute.

The government also contends that Duroseau was properly convicted of a completed transportation offense because he managed to get the firearms to Haiti, where the intended recipients were located. This argument reflects the same misunderstanding.

Section 922(a)(5) criminalizes completed offenses only, and a completed transfer to an unlicensed recipient is an element of the offense, even when the defendant is charged with transporting firearms. Transporting firearms to an out-of-state location is not sufficient for conviction.

The government also contends that Duroseau’s conviction can be sustained because the firearms were taken by the national police, “whom [Duroseau] had said he wanted to train.”

However Count Five of the superseding indictment alleged that Duroseau “willfully [transported] firearms ... to the Haitian Army.” The government is bound by the allegations of the indictment and cannot now claim that the conviction was based on the police seizure of the firearms at the airport, a theory that was never presented to the jury. Moreover, the national police who arrested Duroseau were not the intended recipients of the firearms, and Duroseau did not voluntarily give them the weapons.

Vacated and remanded.

United States v. Duroseau (Lawyers Weekly No. 001-036-22, 16 pp.) (William Byrd Traxler Jr., S.J.) Case No. 21-4104. Feb. 24, 2022. From E.D.N.C. (James C. Dever III) Edward D. Gray for Appellant. Vijay Shanker for Appellee. 4th Cir.

Criminal Practice Police’s search of defendant’s bag was unlawful Where the defendant was handcuffed on the ground and had no access to his bag at the time it was searched by officers, the search was unlawful.

Neither the bag nor the defendant posed any danger to the officers at the time of the search.

Background

After Anthony R. Buster was charged with one count of possessing a firearm after having been convicted of a felony, he filed a motion to suppress the firearm, the ammunition and his various statements as having been obtained in violation of the Fourth and Fifth Amendments.

The government agreed it would not seek to use many of the pre-Miranda statements. The district court granted Buster’s request to suppress his post-Miranda statements, but denied Buster’s motion to suppress in all other respects.

Buster and the government then reached a plea agreement. The written agreement stated that Buster was “pleading guilty conditionally under United States v. Bundy, 392 F.3d 641

OPINION DIGESTS / 15

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ma rch 14, 2022

(4th Cir. 2004),” and that it “[preserved]” Buster’s “right to appeal the denial of his motion to suppress.”

Jurisdiction

In Bundy, a defendant attempted to use the conditional guilty plea mechanism to appeal the denial of “a motion for production of certain documents.”

This court rejected that effort, reasoning that the “discovery issue” raised

by Bundy’s motion to compel was “not case-dispositive” because a ruling in his favor would do nothing more than allow him to “see certain documents and decide whether they help his defense.” Here, unlike in Bundy, each issue preserved by Buster’s written plea agreement satisfies Bundy’s definition of “case-dispositive.”

The government responds that the un-Mirandized statement Buster made about the firearm at the scene is not truly essential evidence because it would have prevailed at trial even without that statement. The government would thus have a reviewing court ask—before reaching the merits of any Fourth or Fifth Amendment issue preserved via Rule 11—whether a defendant who in reality chose to plead guilty after having failed to suppress a particular piece of evidence would have been convicted at a hypothetical trial where the government was unable or chose not to use the very evidence it had previously and successfully fought to keep in.

Neither Bundy, the text of Rule 11 nor the advisory committee notes charge appellate courts with conducting that sort of odd counterfactual inquiry as a necessary prelude to considering an otherwise-proper appeal. Moreover, Bundy specifically acknowledged its result may have been different had the various issues the defendant sought to preserve been “inextricably intertwined”—a description fitting this situation to a T.

Merits

The district court concluded that the “search of [Buster’s] bag” was constitutionally reasonable under the protective search doctrine associated with Terry v. Ohio, 392 U.S. 1 (1968).

On the facts of this case, this court respectfully disagrees.

When the officer opened Buster’s bag (thus beginning a “search” of the bag), Buster was handcuffed on the ground and had no access to it. Indeed, the record is clear that the officers opened the bag and examined its contents after they had tackled Buster, handcuffed him, cut the bag off his body and “[moved] it away from his person.” The government offers no explanation for how the contents of the bag presented any credible threat to the officers’ safety at the time they searched it, and quickly frisking an unsecured suspect or a bag during a Terry stop is simply not the same as methodically searching the contents of a bag to which a suspect no longer has access—particularly where the suspect remained restrained and under the officers’ physical control.

The government relies on the searching officer’s testimony that, when she removed the bag from Buster’s body, she noticed it “was hard to the touch,” which, “in [her] experience ... indicates ... a weapon.” But even assuming the officer had reasonable suspicion that the bag contained a weapon, that fact alone could not generate reasonable suspicion that Buster was “presently dangerous” after he was already restrained and no longer had access to the bag. The officers’ suspicion that Buster may have discharged a firearm earlier in the evening fails

for the same reason.

This firearm should have been suppressed and Buster must be given an opportunity to withdraw his guilty plea. The district court’s order denying Buster’s motion to suppress the firearm is reversed, the judgment of conviction is vacated and the case is remanded.

Dissent

(Richardson, J.): In Bundy, this court held that conditional guilty pleas are valid under Rule 11(a)(2) only if all the issues they preserve are “casedispositive.” But rather than apply Bundy faithfully to the facts before us, the majority warps Bundy’s core holding and adds to it a new “inextricably intertwined” exception that promises to vex litigants for decades to come.

While I would fully support abandoning Bundy through the proper channel—an en banc rehearing—I cannot condone the majority’s sly revision of it here. I respectfully dissent.

United States v. Buster (Lawyers Weekly No. 001-037-22, 28 pp.)

(Toby J. Heytens, J.) Case No. 214101. Feb. 22, 2022. From E.D. Va. at Richmond (John A. Gibney Jr., S.J.) Caroline Swift Platt for Appellant.

Aidan Taft Grano-Mickelsen for Appellee. 4th Cir.

Criminal Practice Defendant’s concession dooms challenge to firearms statute Where a defendant did not dispute that his conduct fell “squarely” within the confines of a federal firearms’ statute, he could not challenge that statute as vague. Both the Supreme Court and this court have held that a litigant whose conduct is clearly prohibited by a statute cannot be the one to make a vagueness challenge.

Background

After unsuccessfully challenging the statute as unconstitutionally vague, Christopher Hasson pleaded guilty to violating 18 U.S.C. § 922(g) (3) by possessing firearms as someone “who is an unlawful user of or addicted to any controlled substance,” in addition to three related counts. At sentencing, the district court increased Hasson’s guidelines range pursuant to U.S.S.G. § 3A1.4 upon concluding that his offense was intended to promote a federal crime of terrorism, and the court sentenced him to 160 months’ imprisonment.

On appeal, Hasson contends that § 922(g)(3) is facially vague. He also argues that § 3A1.4 cannot apply because he was not convicted of a federal crime of terrorism and, in any event, the district court clearly erred in applying the provision.

Vagueness

Hasson again challenges 18 U.S.C. § 922(g)(3) as unconstitutionally vague on its face. But Hasson does not dispute the district court’s holding that his conduct “falls squarely within the confines of [section 922(g)(3)].”

That abandonment dooms Hasson’s vagueness challenge. The Supreme Court and this court have repeatedly held that it must “consider whether a statute is vague as applied to the particular facts at issue, for ‘[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.’”

According to Hasson, however, in Johnson v. United States, 576 U.S. 591 (2015), and Sessions v. Dimaya,

138 S. Ct. 1204 (2018), the Supreme Court repudiated this principle, and those decisions so “clearly undermined” this court’s precedents that they no longer bind this panel. The court disagrees. Neither Johnson nor Dimaya “explicitly [questioned] the rule that a litigant whose conduct is clearly prohibited by a statute cannot be the one to make a facial vagueness challenge.” Indeed, any suggestion that Johnson discarded that rule is foreclosed by Expression Hair Design v. Schneiderman, 137 S. Ct. 1144 (2017), in which, the term after Johnson, the Supreme Court applied the rule to deny a vagueness claim.

Even if this court were to view Johnson and Dimaya as instances in which the Supreme Court bypassed as-applied challenges to proceed directly to facial vagueness, their unique context sets them apart. Because Hasson does not contest that § 922(g)(3) clearly applies to his conduct, his attempt to assert a facial vagueness challenge fails.

Sentencing

Hasson also appeals his sentence— specifically, application of the terrorism adjustment, which more than tripled his guidelines range. Hasson mounts two challenges. First, he believes that U.S.S.G. § 3A1.4 is ultra vires to the extent it encompasses defendants not convicted of a federal crime of terrorism. Second, he contends that the district court summarily disregarded his expert’s findings and opinion that Hasson did not present a risk of violence and so the adjustment should not apply to him.

The court disagrees with both contentions and therefore affirms Hasson’s sentence.

Affirmed.

United States v. Hasson (Lawyers Weekly No. 001-038-22, 31 pp.)

(Allison Jones Rushing, J.) Case No. 20-4126. Feb. 22, 2022. From D. Md. at Greenbelt (George G. Hazel, J.) Cullen Oakes Macbeth for Appellant.

Thomas Patrick Windom for Appellee.

4th Cir.

Criminal Practice ‘Ambiguous’ jury verdict insufficient for habeas relief Where it was unclear whether the jury relied solely on now-invalid predicate counts in rendering guilty verdicts on two other counts, the defendant wasn’t entitled to habeas relief.

He needed to show “more than a reasonable possibility” that the jury only found him guilty on the two counts because it improperly considered the now-invalid counts, which he could not do.

Background

The question on appeal is whether Mohamed Ali Said’s convictions on two counts of using and carrying a firearm during and in relation to a crime of violence may stand when some of the predicate convictions that the jury might have relied on in convicting him of the firearms charges have been invalidated. The district court answered no and vacated the two firearms convictions.

Analysis

The government concedes that, after United States v. Davis, 139 S. Ct. 2319 (2019), Counts One through Three—the conspiracy charges—may no longer serve as predicate crimes of violence. Additionally, the parties and the district court agreed that, at minimum, Counts Seven and Eight

remained valid predicate crimes of violence after Davis. Because it is Said’s burden to show error, and because the parties have not briefed the crime-ofviolence question as to Counts Five through Eight, the court assumes for purposes of this analysis that they are all valid predicates.

Thus, Said was charged with, and the jury found him guilty of, both valid and invalid predicates. Both parties agree with the district court that instructing the jury that any of these crimes could serve as predicates for the § 924(c) charges was error. Nevertheless, a § 924(c) conviction may stand even if the jury based its verdict on an invalid predicate, so long as the jury also relied on a valid predicate.

But here, the verdict form did not specify which predicate or predicates the jury relied upon in finding Said guilty of Counts Four and Ten. So, the court is left with the question of whether Said is entitled to habeas relief because the jury may have relied solely on one or more of the invalid predicates in rendering guilty verdicts on Counts Four and Ten. The district court indicated that it held “grave doubt” that Said would have been convicted on Counts Four and Ten “but for the improper jury instructions” because “there is no evidence in the record showing that the jury relied on either an invalid or valid predicate offense to convict” him of those counts. That is not enough. As this court has repeatedly held, even under the plain-error standard, “the defendant bears the burden of showing ‘that the erroneous instruction given resulted in his conviction, not merely that it was impossible to tell under which prong the jury convicted.’”

To meet his burden, Said must show “more than a reasonable possibility” that the jury only found him guilty on Counts Four and Ten because it improperly considered Counts One through Three to be crimes of violence. This he cannot do. Certainly, the record does not indicate which predicates the jury relied on. But, at the risk of repetition, that sort of ambiguity is not enough. Further, common sense supports that a jury that found Said guilty of several substantive crimes of violence, the evidence for all of which showed to involve the use of firearms in an attack against the Ashland, had at least one of those crimes in mind when they convicted him of using, carrying and discharging a weapon (or aiding and abetting the same) during and in relation to a crime of violence that occurred during the time period covering the attack on the Ashland.

Said further contends that this case involves a second, separate error: the issue of juror unanimity. The district court agreed. Said argues that he is entitled to relief because, while the jurors were told their “verdict must be unanimous,” they were not instructed that they must unanimously agree on the specific predicate or predicates upon which they based their guilty verdicts for Counts Four and Ten. The idea that even a single juror relied solely on the conspiracy charges, rather than the other violent crimes of which the jury unanimously found Said guilty, in convicting him of the § 924(c) charges in Counts Four and Ten, simply strains credulity. For the foregoing reasons, Said is not entitled to habeas relief on Counts Four and Ten. Reversed in part and remanded with instructions.

United States v. Said (Lawyers Weekly No. 001-039-22, 22 pp.)

16 / OPINION DIGESTS (James A. Wynn Jr., J.) Case No. 217089. Feb. 23, 2022. From E.D. Va. at Norfolk (Raymond A. Jackson, J.) Joseph Attias for Appellant. Marisa Rayna Taney for Appellee. 4th Cir.

Insurance UnitedHealthcare failed to provide documents to policyholder Where UnitedHealthcare failed to provide documents requested by a father who sought payments for services provided to his minor son on the basis the documents were HIPPAprotected, but some were not HIPPA protected, the father had a right to obtain plan-related documents and United never told him he had submitted a deficient HIPPA form, the plan administrator must undertake a full review of the claim.

Background

After health insurance payments for services provided to his minor son were denied, Kenneth Wilson filed a complaint challenging that determination under. The district court affirmed the plan administrator’s denial of coverage for the son’s treatment from Dec. 1, 2015, through May 15, 2016, concluding the plan administrator acted reasonably. In addition, the district court dismissed Wilson’s claims arising from treatment his son received from May 15, 2016, through his discharge on July 31, 2017, for failure to exhaust administrative remedies.

First dates of service

The first dates of service or DOS, encompasses services the Change Academy at Lake of the Ozarks or CALO, provided from Dec. 1, 2015, through May 15, 2016. For this period, having reviewed the record and the admission guidance, the court concludes that United acted within its discretion to deny J.W.’s claims.

The three independent reviewers separately arrived at the same conclusion: the 24-hour residential setting of services provided at CALO was no longer needed by the beginning of— and throughout—the first DOS. That determination is consistent with the criteria United established pursuant to the plan, which set out that coverage can be denied for not being medically necessary when care could have occurred at a less intensive setting.

Second and third DOS

Wilson asserts he was excused from exhausting the administrative remedies for the services provided during

C o nt inu e d f r o m 3 ►

So far, there have been few surprises with Jackson, who has been a federal judge for nine years and is well-liked by members of both parties.

After his own meeting with Jackson, Senate Democratic Leader Chuck Schumer said the Senate will move her nomination “fairly but expeditiously.”

He gushed about the nominee to reporters, saying she is “an optimistic person” who tries to see all sides of an issue. He said they spoke some about her judicial philosophy but mostly about her life and her family.

“You can see it when you meet her that she has real empathy,” Schumer said. “I think it’s very important in a judge because you’re having two sides clashing over whatever the issue is,

S O U T H C A R O L I N A L A W Y E R S W E E K LY I M arch 14, 2022

the second DOS (July 16-31, 2016; Aug. 1-15, 2016 and Nov. 1-30, 2016) and the third DOS (all other dates of services CALO provided from May 15, 2016, through J.W.’s discharge) because he initiated an appeal and requested copies of documents, but United failed to respond to either, thwarting the plan’s internal review process and making exhaustion futile.

Wilson’s counsel sent letters on Jan. 26, 2017, and Feb. 24, 2017, addressing the claims for the entire second DOS. The court concludes that it’s appropriate to consider claims for services denied before the date of the January 26 letter as part of the analysis of the 2017 letters’ substance, but that claims for services denied after that date do not reasonably fall within its scope. The court will adopt the phrase “modified third DOS” to refer to the subset of third DOS claims affected by the court’s analysis of the 2017 letters’ requests. To reiterate, the modified third DOS consists of any claims that are not part of the first DOS or second DOS and that United had denied coverage for as of Jan. 26, 2017. The analysis that follows concerning the 2017 letters relates solely to the second DOS and the modified third DOS. The 2017 letters requested that United provide certain materials to Wilson’s counsel. United did not provide any of the requested materials or respond to the letters in any fashion, although Wilson had the right to request and receive copies of the requested documents, which United would ordinarily be obligated to provide.

United insists that it had no obligation to produce any materials because they are all protected by HIPAA and Wilson’s HIPAA authorization form was fatally defective.

However, it is clear that some of the requested materials should have been disclosed because they do not constitute and would not lead to J.W.’s “individually identifiable health information” and thus would not require a HIPAA-compliant authorization form before being provided to Wilson’s counsel. Further, it’s undisputed that the 2017 letters plainly identified Wilson as a plan participant, such that he had a right under the plan and ERISA to obtain copies of certain generally applicable plan-related documents upon request (or upon his authorized representative’s request).

Finally, ERISA and the plan obligated United to respond to the request by notifying Wilson’s counsel of the existence of the potentially defective HIPAA authorization form attached to the 2017 letters. Given this, the best course is to remand for the plan administrator to undertake a full and

fair review in the first instance. As for the claims that United denied after Jan. 26, 2017, however, Wilson has failed to show that he exhausted his administrative remedies or that the futility exception should apply.

Affirmed in part, vacated in part and remanded with instructions.

Wilson v. UnitedHealthcare Insurance Company (Lawyers Weekly No. 001-040-22, 41 pp.) (G. Steven Agee, J.) Case No. 20-2044. Feb. 24, 2022. From D.S.C. at Charleston (David C. Norton, J.) M. Leila Louzri for Appellant. Cavender Crosby Kimble for Appellee. 4th Cir.

The fund does not challenge the district court’s characterization of the liquidated damages provisions as penalties. Instead, it argues that such penal liquidated damages provisions should be enforceable here despite the general rule against them. It points to § 502(g)(2) of ERISA, which makes explicit provision for liquidated damages up to 20% in the case of companies with unpaid obligations to welfare and benefit funds like this one.

The court finds that position unpersuasive. ERISA § 502(g)(2) by its very terms does not support the fund’s position in this case. That section of ERISA only applies to “unpaid contributions.”

All agree that Nitro’s contribution payments were tardy, but they were paid in full before this suit was commenced.

And § 502(g)(2) does not reach such late—but paid—contributions. This court is in accord with other circuits

(Wynn, J.): Federal labor law permits parties to agree under a collective bargaining agreement that liquidated damages may be recovered against an employer that is delinquent in making contributions to multiemployer plans.

In this instance, where Nitro was late making its contributions in at least 17 instances over a 15-month period before the fund brought this lawsuit under § 301, the district court’s order granting summary judgment in favor of Nitro and against the fund should be reversed. Accordingly, I respectfully dissent from the contrary view of my good colleagues.

Plumbers & Pipefitters Local 625 v. Nitro Construction Services Inc. (Lawyers Weekly No. 001041-22, 26 pp.) (J. Harvie Wilkinson III, J.) (James A. Wynn Jr., J., dissenting) Case No. 20-2080. Feb. 23, 2022.

From S.D. W.Va. at Charleston (John T. Copenhaver, S.J.) Avrum Levicoff for Appellants. R. Booth Goodwin II for Appellee. 4th Cir.

to be able to empathize and walk in the other person’s shoes.”

Jackson also met with Senate Republican leader Mitch McConnell and Iowa Sen. Chuck Grassley, the top Republican on the Senate Judiciary panel. Referring to pitched partisan battles for Trump’s three nominees, especially Kavanaugh, Grassley told reporters ahead of his meeting that Republicans would treat Jackson with “dignity and fairness, and most importantly thoroughness.”

As is tradition, the hearings this month will last four days, with opening statements March 21 and testimony and questioning the next two days. The fourth day will include testimony from outside witnesses.

Biden spoke about Jackson and honored Breyer in his State of the Union speech Tuesday evening, calling the nominee “one of our nation’s

top legal minds, who will continue Justice Breyer’s legacy of excellence.”

In addition to her time as a federal judge, Jackson, 51, once worked as one of Breyer’s law clerks and served on the U.S. Sentencing Commission, the agency that develops federal sentencing policy.

Biden said she was a “consensus builder,” noting her work as a private litigator and as a federal public defender, and pointed out that she comes from a family of public school educators and police officers.

While Democrats can win Jackson’s confirmation without Republicans, assuming the caucus is present and healthy, they are still hoping to win some GOP votes. Durbin has said he is working toward that goal, predicting that “about half a dozen” GOP votes may be in play.

Only Sens. Susan Collins of

Maine, Lisa Murkowski of Alaska and Lindsey Graham of South Carolina voted to confirm Jackson to the appeals court last year. While Collins has appeared open to voting for Jackson again, Murkowski said in a statement last week that her previous vote did not mean she would be supportive this time.

Graham had pushed for a different candidate from his home state, federal Judge J. Michelle Childs, and expressed disappointment that she was not Biden’s pick.

Schumer said Jackson is someone who should appeal to all sides, noting her past as a public defender and support from some police groups, for example.

He said he hopes that when Republicans meet her, “they will be as wowed as I was. She’s an amazing person.”

Labor & Employment No punitive damages for tardy contributions to fund Where unions sued a construction company for liquidated damages after it made a series of tardy payments to an employee health and welfare fund, the court joined three other circuits in holding that punitive damages are not recoverable in cases for late contribution payments under section 301 of the Labor Management Relations Act, or LMRA.

Background

A group of labor unions and the West Virginia Pipe Trades Health and Welfare Fund sued Nitro Construction for liquidated damages after Nitro made a series of tardy payments to the fund. The district court granted summary judgment to Nitro, holding that the liquidated damages constituted penalties and were therefore unrecoverable.

Analysis

in making this distinction and recognizing that § 502(g)(2) only applies to unpaid contributions.

The fund nevertheless argues that § 502(g)(2) provides evidence of a federal labor policy generally favoring punitive damages against companies in labor disputes. The court disagrees.

ERISA does not speak to cases of tardy contributions. Congress deliberately chose not to include within § 502(g) (2)’s ambit contributions that were tardy but fully paid. Thus, while Congress displaced the common law rule against punitive damages for cases of unpaid contributions covered by § 502(g)(2), it did not similarly displace the common law rule in cases of tardy contributions. The common-law rule against punitive damages stands.

Nor can ERISA be read to evince an overarching federal policy favoring punitive damages in all labor disputes.

Congress was very precise in detailing what ERISA’s liquidated damages provision covers and what it does not; it does not establish a general policy.

The court accordingly joins the Sixth, Eighth and Ninth Circuits in holding that punitive damages are not recoverable in LMRA § 301 cases for late contribution payments.

The fund was not without opportunity for redress here. It could have pressed its suit for lost interest, a measure of actual damages for Nitro’s late payments. Moreover, if the fund does not like the application of the common law rule here and desires punitive damages for late payments, it may press that case before Congress.

Affirmed.

Dissent