Adair Ford Boroughs was sworn in July 26 as United States Attorney for the District of South Carolina. She was nominated by President Biden on June 6 and confirmed by the U.S. Senate on July 21, according to a press release from the U.S. Attorney’s Office. U.S. District Richard M. Gergel administered the oath of office in a ceremony at the federal courthouse in Charleston. Her investiture ceremony will take place at a later date.“I am incredibly excited and honored to return to the Department of Justice as the U.S. Attorney for the District of South Carolina,” Boroughs said in the release. “The team at the U.S. Attorney’s Office is incredibly talented, dedicated and committed to the mission. I look forward to digging in and doing the work alongside them, as well as alongside our law enforcement partners and our communities.” Boroughs is now the chief federal law enforcement officer responsible for federal criminal prosecutions and civil litigation in the District of South Carolina. She will supervise 61 assistant U.S. attorneys, 75 support staff and 13 contract staff. The office prosecutes a wide variety of federal crimes including narcotics and firearms cases, human trafficking, securities fraud, terrorism and civil rights violations. Prior to her confirmation, Boroughs was a partner at Boroughs
The SC Bar has recognized David Lail, partner at Yarborough Applegate Law Firm, for his role in the 2022 Law Enforcement Recognition Dinner and Training Symposium, hosted by MADD South Carolina, a news releaseHeldstated.inNorth Charleston, the event was organized to express gratitude and appreciation for law enforcement who work tirelessly to keep our roads safe, according to the release. As part of the inaugural event, Lail established the fi rst-ever Dram Shop Justice Award to honor an offi cer who has displayed a commitment to victims of drunk driving through the identifi cation of irresponsible establishments that break the law by over-serving alcohol and putting drunk drivers on our roads and our communities at risk, the release stated.The inaugural recipient of the Dram Shop Justice Award was Lieutenant Bryan C. Ridgeway of the South Carolina Law Enforcement Division (SLED), who went beyond the call of duty in his investigation of a drunk driving crash that took the life of Lail’s clients’ son, according to the release.
efforts
See ATTORNEY Page 4 ►See GAME Page 4 ► See Anti-Drunk Page 6 ►
■ BY JASON THOMAS jthomas@scbiznews.com
“Because of the way that the decision was interpreted, it led everyone to kind of jump to this conclusion that the NCAA doesn’t have the same powers to regulate individual student athletes’ commercialization of their name image and likeness,” said William “Corky” Klett III, an intellectual property attorney with Burr & Forman in Charleston and Columbia.InNCAA v. Alston, the high court found that the association, with its billion-dollar revenue stream, is not exempt from the Sherman Act, a late-19th Century antitrust law intended to promote competition. The unanimous decision, which has prompted ongoing changes in NCAA policies, did not directly address name, image and likeness (NIL) matters. However, it has been widely seen as a shot across the bow to the National Collegiate Athletic Association’s longstanding restrictions that have previously limited amateur athletes’ opportunities to profit off their fame. Of particular import was a concurring opinion by Justice Brett Kavanaugh which indicated that, although Alston only dealt with a limited set of concerns, future litigation is likely to widen the ramifications of its decision noting that the NCAA’s “current compensation regime raises serious questions.”
Law firm recognized for anti-drunk driving
BoroughsAdair
■ BY CHRISTINA LEE KNAUSS cknauss@scbiznews.com
■ BY DAVID BAUGHER Correspondent What’s in a name? For some amateur athletes, the answer may be defined in dollars and cents, thanks to court cases and legislative efforts that are fast changing the rules of the once-staid world of university athletics. Last year’s U.S. Supreme Court ruling regarding NCAA policies on compensation of students may have been limited in scope but it continues to have broad implications, including on issues related to an athlete’s ability to capitalize financially on their own notoriety.
VOLUME 20 NUMBER 16 ■ AUGUST 15, 2022 ■ $8.50Part of the network Page 3 MotorcyclistINSIDEsettles crash claim for $1.2 million Page 6 Estate of drowning victim awarded nearly $24 million Page 2 U.S. Attorney’s of ce names second in command in SC VERDICTS & SETTLEMENTS VERDICTS & SETTLEMENTS NEWS New US attorney for District of South Carolina sworn in
GAME
SCLAWYERSWEEKLY.COM
“Witnessing my clients meet and embrace Lt. Ridgeway, the offi cer whose work helped change the course of their lives after experiencing such an incredible loss, was one of those unforgettable moments in life,” Lail said in the release. “There are very few times where something truly comes full circle — this was one of them. I was humbled to be a part of Asit.”part of the 2022 MADD Law Enforcement Recognition Dinner and Training Symposium,
Name, image and likeness challenges the legal industry CHANGER
Last year’s U.S. Supreme Court ruling regarding NCAA policies on compensation of students continues to have broad implications in North and South Carolina, as legislatures and law firms try to sort out a patchwork of actions. Photo via Pexler
United States Attorney Adair F. Boroughs announced that Brook An drews has been named First Assis tant U.S. Attorney for the District of South Carolina, the office’s secondrankingAndrewsposition.isacareer federal prose cutor with experience spanning crimi nal, civil, trial, and appellate matters across several duty stations within the U.S. Department of Justice, ac cording to the attorneys’ office. He most recently served the office as the Deputy Criminal Chief for the White Collar/General Crimes Section. In that role, Andrews oversaw the investi gation and prosecu tion of federal crimes in South Carolina in cluding all financial fraud, civil rights, human trafficking and public corrup tionAsoffenses.acriminal prosecutor, Andrews handled a num ber of high-profile matters including the prosecution of former SCANA executives in the wake of the V.C. Summer Nuclear investigation, the release stated. Before that, he spent several years litigating civil fraud and whistleblower cases, recovering millions of dollars for Medicare, Med icaid, TRICARE, and other federal programs. In addition to his primary duties as a prosecutor, Andrews has served for over five years as the Eth ics Advisor for the district, and as an adjunct professor at the University of South Carolina School of Law. Before returning to his hometown of Columbia in 2016, Andrews prac ticed law in Washington, D.C., for five years, beginning with his selection into the U.S. Department of Justice Attorney General’s Honors Program and placement into the Environment and Natural Resources Division. As a DOJ Trial Attorney, Andrews spent several years representing the United States in cases around the country involving land use, water rights, and environmental regulations. Andrews then spent two years in private prac tice at a national law firm, represent ing states and cities around the coun try as outside counsel in complex civil fraud and consumer protection cases. Before his litigation practice, An drews served as a law clerk to Chief Justice Jean Toal of the South Caro lina Supreme Court and U.S. District Judge Margaret Seymour for the Dis trict of South Carolina. While at the Supreme Court, Andrews also served as a Staff Attorney on the South Caro lina Sentencing Reform Commission.
Anyone who suffered serious ill ness, miscarriage, or birth defects from the water contamination in this area is potentially eligible for disability, health care, and com pensation.“Wecommend President Biden and lawmakers for taking action to address the catastrophic harms caused at Camp Lejeune,” Beasley Allen attorney Julia Merritt said in the release. “Our clients and oth ers dedicated their lives to serving our country. … Now, it’s our duty to help them obtain justice.”
Larry D. Hall, former secretary for the North Carolina Department of Military & Veterans Affairs who served as a major and infantry officer in the United States Marine Corps, has joined the Wallace & Graham law firm of Salisbury, North Carolina. Hall has joined Wallace & Gra ham’s team currently involved in the firm’s military housing and Camp Lejeune water contamination litiga tion, himself having served at Camp Lejeune throughout the 1970s and 1980s, according to a Wallace & Gra ham news release. Prior to serving as secretary, Hall represented North Carolina’s 29th District in the House of Representa tives from 2006 un til 2017, serving as House minority lead er beginning in 2012. Born and raised in Durham, Hall earned his bachelor’s degree with honors in politi cal science and busi ness from Johnson C. Smith University and his law degree from the University of North Carolina at Chapel Hill School of Law. Upon graduation, he was com missioned as an officer in the United States Marine Corps. A decorated of ficer, Hall served 16 years in the U.S. Marine Corps and Marine Corps Re serves and served in support of the operations in the Middle East in Leba non and Iran. For his distinguished service, Hall was awarded the Navy Achievement Medal, the Marine Corps Reserve Medal, the Armed Forces Reserve Medal, and a Meritorious Unit Cita tion from the United States Marine Corps. Hall’s service to North Carolina continues to be merited, receiving the Equality in Legislation Leadership Award and Excellence from the Court room to the Capital Community Ser vice Award. Sec. Hall has been featured multiple times in “Governing” magazine and has been honored as a Champion of NC Working Families, a 100% Envi ronmental Champion, and a Defender of Justice for his commitment to safe guarding voting rights, expanding op portunities throughout the state for individuals and communities of low incomes, and protecting vulnerable families and members of the military from predatory lending. These ac colades make Hall a natural fit with Wallace & Graham which has, for de cades, successfully fought on behalf of those same communities against envi ronmental bad actors, predatory lend ers, and corporate landlords respon sible for substandard military housing at Fort Bragg and Camp Lejeune, the releaseFoundedstated.in 1981, Wallace & Gra ham is a nationally-recognized plain tiffs litigation law firm led by partners Mona Lisa Wallace, Bill Graham, and Whitney Wallace Williams in Salis bury, North Carolina, and has success fully represented thousands of workers and other injured individuals against corporations and other tortfeasors.
■ BY JASON THOMAS jthomas@scbiznews.com
SOUTH CAROLINA LAWYERS WEEKLY August 15, 20222 / NEWS
US Attorney’s office names second in charge
■ BY HAVILAND STEWART hstewart@nclawyersweekly.com
President Joe Biden on Aug. 10 signed the Camp Lejeune Justice Act, which allows those exposed to contaminated water during a span of 30 days between 1953 and 1987 to bring a claim. Photo via U.S. Marines Corps
The U.S. government has taken action to bring justice to those who may have been exposed to toxic substances at Camp Lejeune dur ing a span between 1953 and 1987 – and a Charleston-based firm is reportedly the first to file a claim. Under the Camp Lejeune Jus tice Act recently signed by Presi dent Joe Biden, victims have two years from Aug. 10, 2022, when the act when into effect, to bring a claim forward, according to a news release from Beasley Allen Law Firm.Anyone who lived, worked, or served at Marine Corps Base Camp Lejeune for at least 30 days be tween 1953 and 1987 and suffered injuries or death from exposure to contaminated water can submit a claim, the release stated. During the years of operation, over one million military service personnel and their families were exposed to toxic water at Marine Corps Base Camp Lejeune and Marine Corps Air Station New River in North Carolina, accord ing to the release. The water was contaminated with volatile organic compounds, degreasers, chemicals used on heavy machinery, and more than 70 other highly toxic substances, the release stated. During this time the water was used for drinking, cooking and bathing.Poulin, Willey, and Anastopoulo Law Firm in Charleston, S.C., is believed to be the first in the na tion to file a claim for adminis trative relief immediately after Biden’s signing of the act, accord ing to a news release from the firm. “The signing of this bill is a mas sive victory for the Camp Lejeune Community, and we are proud to be able to join the fight in repre senting those who are going to be affected by it,” Paul Doolittle, the firm’s Chair of Class Actions & Mass Torts, said in the release. Many firms around the country are dedicated to helping the con taminated water victims of Camp Lejeune receive justice for the damage done to them and their families.“It’sbeen a long road toward jus tice, and now we have to spread the word about this opportunity,” Bea sley Allen attorney Trisha Green said in the release. “The U.S. gov ernment has finally acknowledged the damage it caused to those at Camp Lejeune and MCAS New River, nearly seven decades after the contamination began.”
■ BY JASON THOMAS jthomas@scbiznews.com
Claims process set for Camp Lejeune water contamination victims
LarryAndrewsBrookHall
Former state veterans’ official joins law firm
No one had to bump a horn to urge Boeing through the green light. Just two days after the FAA is sued a statement saying deliveries of the North Charleston 787s could resume “in the coming days,” and a day after Boeing remained mum on a specific schedule, American Airlines has received a 787-8, according to a company statement and a message to employees from Stan Deal, president and CEO of Boeing Commercial Air planes. “We have resumed 787 deliveries, following our thorough engineering analysis, verification and rework ac tivities to ensure all airplanes con form to Boeing’s exacting specifica tions and regulatory requirements,” the company statement said. “We remain committed to maintaining transparent discussions with our regulators, customers and suppli ers to ensure we continue to deliver airplanes that meet all regulatory requirements and Boeing’s highest qualityActingstandards.”FAAAdministrator
The CEO of the first company to receive a 787 since early in 2021, American Airlines, said he expects to receive eight more this year. Photo/Boeing
Billy Nolen met with FAA safety inspec tors in South Carolina on Aug. 4 to hear whether they were satisfied with the actions Boeing has taken since deliveries ground to a halt in 2021 as the company and agency addressed safety concerns over tiny gaps, about the width of a human hair, found be tween sections of the fuselage. The FAA greenlight was an nounced four days later, Aug. 8. “Today we resumed 787 deliveries as American Airlines received a 7878,” Deal said in his message to em ployees. “This milestone would not be possible without the hard work, dedi cation and perseverance of so many of you. Thank you for how you’ve dem onstrated our shared values through out this process.” He went on to say: “Let’s reflect on our values and commitments to our customers, regulator and the flying public. Every action and decision in fluences our customers’ trust in Boe ing — we build trust one airplane at a time. … Resuming deliveries is a be ginning. I look forward to many more as we continue to focus on safety, quality and stability.”
SETTLEMENT
Boeing continued producing the planes while deliveries were sus pended. The company has main tained that none of the issues were an immediate safety-of-flight concern for the in-service fleet. The 787 was the most-utilized widebody through the pandemic due to its fuel-efficiency and versatility, the company said. Several airlines used the 787 for cargo-only flights.
■ BY HEATH HAMACHER
Judge: Richard Hinson Date of settlement: April 12 Special damages: $204,291.19 in past medi cals Most helpful experts: Insurance carrier: SSQ Insurance Attorneys for plaintiff: Mark Bringardner of Bringardner Injury Law Firm in Charleston and Justin Lovely and Sarah Austin of The Lovely Law Firm in Myrtle Beach
68-year-old motorcyclist settles crash claims for $1.2M REPORT — MOTOR VEHICLE CRASH Amount: $1.2 million Injuries alleged: Rupture of right posterior tibialis and pes planus resulting in two surger ies, partial right rotator cuff tear, L5-S1 lumbar radiculopathy, cervical sprain/strain
■ BY ROSS NORTON rnorton@scbiznews.com
A 68-year-old motorcyclist seriously injured when he crashed his bike into an oncoming vehicle has settled his claims for $1.2 million. Mark Bringardner of Bringardner Injury Law Firm in Charleston said that the plaintiff, Croner Simmons Jr., was traveling south on U.S. Highway 17 near Surfside Beach on Oct. 1, 2019, when de fendant Jacques Legare attempted to turn left onto the highway’s northbound lane. Bringardner said that Legare drove through a blinking red light, blocked the intersection, and failed to yield the right of way.
Robert Isom, CEO and chief re cruitment officer at American Air lines, acknowledged receipt of the plane on his Instagram account, say ing it was the first 787-7 received since April 2021 but the first of nine the airline expects to receive this year. Reach Ross Norton at 864-7201222.
BringardnerMark
“Mr. Simmons tried to take evasive action to avoid the crash, but was unable to completely avoid Defendant Legare’s vehicle and hit the rear, driver side of the vehicle,” Bringardner wrote in an email to Lawyers BringardnerWeekly.said that Simmons was active and physically fit before the crash, enjoying kayaking, deep-sea fishing, traveling, and working out. He used physical exercise to keep his mind and body healthy, Bringardner said, and was exceptionally fit for his age. “He was not your average 68-year-old man,” Bringardner wrote. The crash left the plaintiff with serious and permanent injuries, Bringardner said, including ruptured tendons in his right ankle and that that required two sur geries and injuries to his lower back and right shoul der.“Due to the in juries sustained in the crash, Mr. Simmons’ lifestyle has unablechanged,completelyandheistolivethe active lifestyle he once enjoyed, which affects both his physical fitness and mental health,” Brin gardnerSimmonssaid.was also represented by Justin Lovely and Sarah Austin of The Lovely Law Firm in Myrtle Beach. Lovely called the case a “classic biker prejudice case.” “A Canadian insurance compa ny attempted to reverse the facts and place the blame on the mo torcyclist in order to delay and devalue our client’s case,” Lovely said. “We fight for motorcycle riders in our Legareoffice.”was represented by Joseph Tierney of Rogers Townsend in Charleston. Tierney did not im mediately respond to a message seeking comment.
Attorney for defendant: Joe Tierney of Rog ers Townsend in Charleston Justin Lovely Sarah Austin
Case name: Croner Simmons Jr. v. Jacques Legare Court: Horry County Circuit Court Case No.: 2020-CP-26-07410
Boeing makes first 787 delivery since 2021
Tom McGrath’s Motorcycle Law Group, an established Person al injury law firm in South Carolina is looking for an attorney to join our Columbia team. We are seeking a person who has experience with all phases of litigation, whether insurance defense or Plaintiff’s PI, including depositions, mediation, trial preparation and trial. Knowledge regarding health insur ance and provider liens is a must. We are very involved in the community and we are looking for an attorney who is willing to be engaged with the public. If you would enjoy not keeping up with billable hours, wearing jeans to work on days that don’t involve court and utilizing your skills in a supportive informal atmosphere, then you will like working with us. Our firm is very passionate about helping injured motorists. Our clients receive immediate returned phone calls, informa tive and accurate information, regular monthly updates from the attorney regarding their case. We provide excellent health insurance, retirement benefits and much more, plus the ability to become a partner in a short amount of time. Please provide a cover letter that includes information about you and please include if you own and ride a motorcycle as well as your prior working experience and resume with employment references. Please send withPay:Jobgroup.comandLiz@motorcyclelawgroup.comtoMatt@motorcyclelawType:Full-time$Salarycommensurateexperience.
SOUTH CAROLINA LAWYERS WEEKLY I August 15, 2022 VERDICTS & SETTLEMENTS / 3
■ LizPUBLISHERIrwin lirwin@bridgetowermedia.com ■ INTERIM EDITOR Jason Thomas jthomas@scbiznews.com ■ HavilandEDITORIALStewart, Reporter hstewart@nclawyersweekly.com Scott Baughman, Digital Media Manager sbaughman@mecktimes.com ■ SheilaADVERTISINGBatie-Jones, Advertising Account Executive sbatie-jones@sclawyersweekly.com ■ ACCOUNTING & ADMINISTRATIVE Michael McArthur, Business Manager mmcarthur@bridgetowermedia.com ■ DisaCIRCULATIONEhrler , Audience Development Manager dehrler@bridgetowermedia.com Circulation: 1-877-615-9536 service@bridgetowermedia.com ■ PRODUCTION & OPERATIONS Bradley Redmond, Director of Production 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 Circula tion by South Carolina Lawyers Weekly at 130 N. McDowell St. Unit B, Charlotte NC 282042411. (919) 829-9333, (800)-876-5297. Periodi cals 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, more"HelpingMinneapolis,222isSouthservice@bridgetowermedia.com17703-9940CarolinaLawyersWeeklyapublicationofBridgeTowerMedia,SouthNinthStreet,Suite900,MN55402.lawyerspracticebetter,efficiently,andmoreprofitably."
Universities and state legislatures are scrambling to keep up with the name, image and likeness issue, as there is no NIL statute like in other areas of intellectual prop erty law, according to attorney Corky Klett. Photo via Pexler Bryant LLC. From 2017 to 2019, she was executive director of Charleston Legal Access, a nonprofit, slidingscale law firm she helped to start in order to address the justice gap in South Carolina. From 2007-13, she served in the Tax Division of the U.S. Department of Justice in Wash ington, D.C. as part of the Attorney General’s Honors Program. Prior to law school, she taught high school mathematics in South Carolina pub lic Boroughsschools. holds a bachelor’s de gree in mathematics from Furman University and is a 2007 graduate of Stanford Law School. Reach Christina Lee Knauss at 803-753-4327.
The National Law Review recent ly noted legislative efforts to create or update NIL legislation in Florida, Kentucky and Virginia. “You’ve got universities and state legislatures trying to scramble to keep up with what it means,” Klett said. “There is no national name, image and likeness statute like you have in other areas of intellectual property law.” So far, North Carolina’s legisla ture has not passed any new mea sures on the matter. Robinson said that schools in the state currently rely on a combination of guidance from the NCAA and an executive or der by Gov. Roy Cooper. “Our firm is closely watching the legislative process with regards to whether or not it is going to be in troduced during a certain legisla tive session,” he noted. “We do know that there have been some senators here who have advocated for this to be brought to the senate floor. We’re just waiting on that to happen.” He feels that, over time, a general consensus may form in terms of best practices that will guide athletes, schools, attorneys and financial pro viders in making sure that the right safeguards are there to protect ath letes. He also thinks that it may open a new world to some once-impover ished students looking to channel their abilities on the field into entre preneurial ventures. “There are top-tier athletes that can barely feed themselves in many instances,” he said. “This now allows them an opportunity to create some financial independence for them selves while also still being able to perform at the highest levels.” In any event, a national approach may ultimately emerge to solve the issue and end the state-by-state and case-by-case situation that currently rules the day. “Right now, it is the wild, wild West,” Robinson said. “It is a quilted approach only because there is no federal standard as of yet.” Until one arrives, the issue of how student athletes can monetize their own images may keep filling legisla tive agendas and court dockets. “Really, everyone is trying to fig ure out what to do with this,” Klett said.
Continued from 1 ► Corky RobinsonBobbyKlett
Continued from 1 ►
“Businesses like the NCAA can not avoid the consequences of pricefixing labor by incorporating pricefixed labor into the definition of the product,” Kavanaugh wrote. He closed pointedly with “The NCAA is not above the law.”
On the other side of the state line in North Carolina, Bobby Robinson of Nexsen Pruet in Charlotte, agreed saying that there were already NIL cases bubbling up in the courts and “the writing was on the wall” for the NCAA.“They knew with out a shadow of a doubt that they would lose those cases and that it was time to change their policy,” said Robin son who has regu larly worked with student athletes on such matters. “I always emphasize ‘policy’ because they weren’t operating under some other legal standard other than that they are a non-profit collegiate association and that was an internal pol icy that they created nearly 100 years ago.”
ATTORNEY / New US attorney for District of South Carolina sworn in
“Justice Kavanaugh’s concurring opinion gave everyone the impres sion that the business model of the NCAA was probably not valid,” said Klett, “and the whole concept of ama teurism and not allowing athletes to be paid or commercialized or any thing like that was probably not a good business model.”
SOUTH CAROLINA LAWYERS WEEKLY August 15, 20224 / NEWS
GAME / Name, image and likeness resembles the ‘wild, wild West’
Still, the NIL issue had been on legislative radar screens even before the ruling was handed down. That includes in South Carolina where a 2021 law aimed to give students lee way, within certain parameters, to commercialize their identity. However, such efforts, well-inten tioned as they might be, have yielded uneven results and sometimes ended up sparking their own set of con cerns. For instance, South Carolina’s law, passed just last year, included a provision that kept student athletes from using the logos of their team. “That didn’t really quite seem work or make sense because that was the very reason that people would pay money was the associa tion between the university and the athlete,” noted Klett. The law was suspended ear lier this year. NIL legislation in Alabama, also passed in 2021, was scrapped altogether. “As we all know, particularly with college football, you don’t want to put your school or your state at a compet itive recruiting disadvantage,” Klett said. “By being one of the states that tried to get out in front with a state statute, it was actually detrimental to the process. The states that didn’t do that, the universities were able to make up their own rules.”
Your defenseis our focus. LiabilityProfessionalLawyers In your world – details matter. At First Indemnity we understand that lawyers need a reliable partner in the insurance industry to provide the best possible defense against claims. Our Lawyers Professional Liability Program is a proven leader in national specialty insurance. Other law firm coverages include: • Lawyer’s Malpractice • Cyber Liability • Umbrella Coverage • Surety Bonds • Copyright, Patent & Trademarks See Video “Our business is to underwrite and bind PL policies for lawyers in partnership with prime carriers.” – Andrew Biggio, CEO First Indemnity email: abiggio@firstindemnity.net fax: 781.595.2279 www.FirstIndemnity.net 781.581.2508 Boston • New York • Tampa • Chicago • Dallas • Los Angeles • Philadelphia u
SOUTH CAROLINA LAWYERS WEEKLY August 15, 20226 / VERDICTS & SETTLEMENTS
ANTI-DRUNK / Law firm recognized for anti-drunk driving efforts
The SC Bar has recognized David Lail, partner at Yarborough Applegate Law Firm, for his role in the 2022 Law Enforcement Recognition Dinner and Training Sympo sium Photo via SC Bar ■ BY HEATH HAMACHER After a weeklong trial, an Horry County jury has awarded nearly $21 million to the estate of a Mary land man who drowned in front of his family while vacationing at a Myrtle Beach resort. An attorney for the estate, J. Christopher Pracht of Thomason & Pracht in Anderson, said that Zeri hun Wolde, his fiancee, Meswaet Abel, and their four children headed to the beach near the Sea Crest Resort on Aug. 24, 2018. According to court documents, Abel and the couple’s twins stayed on the beach building sand castles while Wolde and his two older children entered the ocean. Wolde and the children were caught in rip currents and as Wolde struggled to save his children, he made cries for help that were never answered. Beachgoers were able to help safely return the children to shore, the complaint states, but Wolde drowned before he could be rescued. Pracht said that defendant Lack’s Beach Service was required to provide properly trained, certified, competent lifeguards for the portion of the beach where Wolde drowned. But as a result of a “dual role,” the United States Lifesaving Association stripped Lack’s of its certification more than a de cade ago, Pracht said. “Lack’s requires its lifeguards to rent beach um brellas and chairs at the same time they are tasked with public safety and water observation,” Pracht wrote in an email to Lawyers Weekly. The (USLA) prohibits lifeguards from being tasked with any thing other than public safety.” Pracht said that a former USLA president testi fied that Lack’s “bamboozled” the USLA for several years by representing that he would deploy a core of lifeguards whose sole purpose was public safe ty. He said that Lack’s was warned repeatedly about the unsafe nature of “dual role” life guarding and that he believes Myrtle Beach is the only city in the country to employ the prac tice.“Testimony and evidence indicated that while Mr. Wolde and his two children were struggling and calling for help, the lifeguards assigned to monitor the beach were engaged in commercial sales,” Pracht wrote. “Further, no lifeguards made any attempt to en ter the water and save Mr. Wolde or his Prachtchildren.”saidthat the jury delib erated for a total of four hours be fore awarding $13.73 million in actual damages and $7 million in punitive damages. “We spoke to several jurors that stopped and wanted to give our client a hug,” Pracht said. “The refrain from the jury was that our client Meswaet Abel was an amazing, strong woman. Absolute truth.”The plaintiff was also represented by Mullins McLeod and Cooper Wilson of The McLeod Law Group in Columbia and Charleston. Wilson said that after hearing all the evidence, the jury’s verdict speaks for itself. “We are honored to be able to represent this family through years of litigation and through this weeklong trial,” Wilson said. Pracht said that the City of Myrtle Beach was re leased as a defendant on their motion for summary judgment, a ruling that he anticipates appealing. Joseph “Trey” Thompson III of Hall Booth Smith in Charleston represented Lack’s Beach Service and Kelli Sullivan and Gerald Chambers of Turner Padget in Columbia represented the City of Myrtle Beach. None of the attorneys immediately respond ed to a request for comment.
J. CooperPrattChristopherWilson McLeodMullins
The South Carolina Election Commission has asked the state Attorney General’s Of fice for a legal opinion on how to handle a dispute between election officials and the Labor Party regarding candidates for governor and the U.S. House. Photo via Pexler
Lail conducted a training with law enforcement officers entitled, Drunk Drivers and Dram Shop Case, the release stated. Lail’s training, a South Carolina Crimi nal Justice Academy-approved continuing education event, ex plained the purpose and impor tance of Dram Shop laws, shared insights on how law enforcement’s investigations can aid in the crim inal prosecution of a drunk driver and potentially change the lives of victims and their families at the same time in a civil case. The training also delivered real-world examples of specific steps law en forcement officers can take to un cover critical evidence to help vic tims in both the criminal and civil justice systems. Lail devotes much of his prac tice representing victims in Dram Shop Litigation and has written extensively on this niche practice area. Lail is a principal author of the book, Dram Shop Litigation: A Practice Guide and is a contribut ing co-author of, South Carolina Damages, Second Edition, Dram Shop Liability, both published by the South Carolina Bar.
Estate of drowning victim awarded $20.73M
Labor Party argues whether to put candidates on SC ballot
COLUMBIA, S.C. (AP) — South Carolina election officials are putting the names of Labor Party candidates for governor and U.S. House on No vember’s ballots despite a request from one of the party’s leaders to keep them off. One co-chair of the Labor Party sent a letter to the South Carolina Election Commission with the names of the candidates, while the other called the party’s nomination con vention a sham and said the party decided not to put anyone up for elec tion, The Post and Courier reported. The Election Commission asked the state Attorney General’s Office for a legal opinion on how to handle the dispute. But when the office re fused saying it was not a legal issue, the commission looked at the word ing of the law, agency spokesman Chris Whitmire said. State law says the commission must put candidates on the ballot “if the names of the nominees are certi fied, in writing, by the political party chairman, vice-chairman, or secre tary.”The commission must take the certification from one Labor Party leader and has no authority to re solve the party’s dispute, the agency said.The decision means Gary Votour of Columbia and his running mate, Harold Geddings of St. Matthews, will be on the ballot as the Labor Party’s gubernatorial ticket, while Lucus Faulk of Bonneau will be its candidate for the coastal 1st District in the U.S. House. Labor Party co-chairman Willie Legette, who didn’t want their candi dates on the ballot, said his group is exploring legal options. Legette told the newspaper he thought the party decided in March to not run candidates because it didn’t want to take votes away from Democratic candidates,. “In different circumstances and different conditions, we’d be will ing to do that, but there’s just too much at stake at this present time,” Legette said.
SETTLEMENT REPORT — WRONGFUL DEATH Amount: $20.73 million Injuries alleged: Death Case name: Meswaet Abel as Personal Rep resentative over the Estate of Zerihun Wolde v. Lack’s Beach Service et al. Court: Horry County Circuit Court Case No.: 2019-CP-26-07075 Judge: Kristi Curtis Date of verdict: July 29 Attorneys for plaintiff: J. Christopher Pracht of Thomason & Pracht in Anderson and Mullins McLeod and Cooper Wilson of The McLeod Law Group in Columbia and Charles ton Attorneys for defendant: Joseph “Trey” Thompson III of Hall Booth Smith in Charles ton represented Lack’s Beach Service and Kelli Sullivan and Gerald Chambers of Turner Padget in Columbia represented the City of Myrtle Beach
We
requirements are
With iTracs, your reconciliation status is confirmed daily from wherever you may be, including from your mobile device! itracs@invtitle.com | 800.326.4842 | myitracs.com Leverage our expertise for your firm. The iTracs® Advantage TRUST ACCOUNT MANAGEMENT SERVICES
SeveralTOOLS including Positive Pay provide maximum visibility into trust account and alert you to possible fraud in time for to act. ONBOARDING iTracs client onboarding and user training are second to none. Training plans, including Positive Pay automation training, are customized to meet quickly and SIMPLIFIED Fulfillment of compliance not easily – but we can help! iTracs reinforces best practices and has built-in protocols that assist with meeting regulatory VERIFICATION OF RECONCILIATION need to wait until month end.
efficiently. COMPLIANCE,
activity
your
outsourced
compliance requirements. ELECTRONIC
tools,
No
your needs. Services are implemented
you
VALUE-ADDED SERVICES iTracs services don’t stop with the software. Account clean-up, audit preparation, consulting, and other services are CUSTOMIZEDavailable.SOLUTIONS don’t believe in “one size fits all.” We listen first. Then we develop customized, innovative solutions that meet your ongoing business needs.
RISK MANAGEMENT = PEACE OF MIND iTracs helps you manage trust-account-related risk through ongoing account reconciliation, account activity monitoring, and daily reporting. Gain the peace of mind that comes from knowing your trust account is secure. EXPERT SUPPORT The iTracs platform automates daily account reconciliation and includes transaction monitoring, activity alerts, built-in reporting, and Positive Pay options. Professional account managers provide valuable customer support and assistance, lead product implementation, and deliver training. Courteous, knowledgeable, and responsive, they serve as partners in analyzing and managing your trust account.
options,
CLIENT
you
& School Boards – 1st Grade Teacher
Opinions
SOUTH CAROLINA LAWYERS WEEKLY August 15, 20228 / OPINION DIGESTS
Second, South Carolina recogniz es actions for negligent infliction of emotional distress when a plaintiff suffers emotional distress in addi tion to physical injuries. Teacher’s grabbing K.S.’s arm in the cafeteria is undoubtedly evi dence of physical contact. Still, the evidence does not demonstrate the grab physically harmed K.S. We therefore agree that there is no evi dence K.S.’s mental anguish accom panied a physical injury. The third species of negligent in fliction of emotional distress claims applies when emotional trauma proximately causes bodily injury. Some cases suggest suffering from a nervous breakdown as a result of negligence would support a verdict, even if no other injury was sus tained. But one of those same cases counsels that if a plaintiff whose sole damage is a nervous breakdown is going to prevail, the defendant’s conduct must be exceedingly bad such that severe emotional distress would be expected to follow in a rea sonable person. We think these formulations of the rule are correct. Nobody ques tions that Teacher’s conduct was inappropriate and improper. It nev ertheless does not reach the extreme level required, even if we view that conduct in the light most favorable to K.S. Affirmed. K.S. v. Richland School District Two (Lawyers Weekly No. 012-01622, 7 pp.) (Per Curiam) Appealed from Richland County Circuit Court (Jocelyn Newman, J.) Jacob John Modla for appellant; Sheneka Shan te Lodenquai and Thomas Kennedy Barlow for respondent. S.C. App. Unpub.
–Easements – Civil Practice – Joinder
Analysis The neighbors’ rights against plaintiffs are determined by the new easement, not the old one. Conse quently, the circuit court does not need to ascertain the neighbors’ rights before it can determine the dispute about the old easement be tween plaintiffs and the law firm. We have not been able to identi fy any interest the neighbors could have in this suit. The neighbors have no claim against the law firm for le gal malpractice. They also have no interest in the original easement. We do not see any practical prob lems created by dropping the neigh bors, nor do we see a risk of inconsis tent judgments. Plaintiffs may win or lose their malpractice case, and we see no way either outcome affects the new easement between plaintiffs and the neighbors. Therefore, the neighbors are not necessary parties. Rule 21, SCRCP, gives the circuit court broad authority to drop a party “at any stage of the action and on such terms as are just.” We do not see anything unjust about the circuit court’s decision to drop the neigh bors.When the neighbors were joined, their rights were determined by the same easement at the center of plaintiffs’ malpractice claim. That easement no longer exists. The neighbors do not want to be in the case, they have no claim against the other parties and, as far as we can see, dropping the neighbors does not prevent or impair the law firm from asserting any of its claims about the original easement’s validity. As we read the filings, the law firm seeks a declaratory judgment on the validity of the original ease ment, but the neighbors no longer claim any interest in that easement. Accordingly, dismissal for misjoin der was proper. The law firm seeks a ruling on the new easement’s validity as well as the old one. We do not see how the law firm could have standing to challenge the new easement, which (by all accounts) was a voluntary agreement between the neighbors and plaintiffs. We do not see how the new easement affects the law firm or its defense that the original ease ment was not valid. There is undoubtedly a causeand-effect relationship between the two agreements. If the original easement turns out to be invalid or waived, that may show that plain tiffs’ decision to participate in the new easement was unwise or impru dent. Either way, it seems apparent that the neighbors will not be affect ed by a declaratory judgment on the original easement’s validity. Affirmed. Jones v. Rogers Townsend & Thomas, P.C. (Lawyers Weekly No. 012-017-22, 8 pp.) (Per Curiam) Ap pealed from Berkeley County Circuit Court (Deadra Jefferson, J.) Warren Powell and Chelsea Jaqueline Clark for appellants; Jay Hulst and Robert Wade Maring for respondents. S.C. App. Unpub.
Criminal Practice Money Laundering & Drug Conspir acy – Forfeiture – Substitute Assets –Firearm Possession – Knowledge When he tried to flee the country, defendant was caught with $2,528; however, the jury could not trace this property to defendant’s money laundering or drug conspiracy of fenses. Nevertheless, since the pro ceeds from defendant’s offenses could not be located, the trial court properly ordered forfeiture of the cash pursuant to 21 U.S.C. § 853. We affirm defendant’s convictions andAtsentence.histrial, held prior to the de cision in Rehaif v. United States, 139 S. Ct. 2191 (2019), defendant stipulated that he “had previously been convicted of a crime punish able by a term of imprisonment ex ceeding one year” and had “not been pardoned for that aforesaid convic tion,” nor had his right “to possess a firearm been restored.” Because defendant admitted that he knew he had a qualifying prior conviction at the time of the offense, there was no plain error under Rehaif, and the evidence adduced at trial was other wise sufficient to convict defendant of possession of a firearm by a con victed felon. United States v. Ath (Lawyers Weekly No. 003-032-22, 8 pp.) (Per Curiam) No. 18-4824. Appealed from USDC at Spartanburg, S.C. (Timothy Cain, J.) Mario Pacella for appellant; Rhett DeHart and Leesa Washington for appellee. 4th Cir. Unpub. sySocialAdministrativeSecurityDisability–Narcolep–NewEvidence–Contradictory
Once plaintiffs and their neigh bors negotiated a new easement, the neighbors were no longer neces sary parties in plaintiffs’ legal mal practice action against the law firm that allegedly failed to discover and disclose the neighbors’ original ease ment. We affirm the circuit court’s dis missal of the neighbors from the lawsuit. Facts The plaintiff-buyers hired the de fendant-law firm to conduct a clos ing. The law firm allegedly failed to discover and disclose an easement over plaintiff’s property in favor of plaintiffs’ neighbors. Plaintiffs sued the law firm for legal malpractice On the law firm’s motion, the neighbors were added as necessary parties. Thereafter, plaintiffs and the neighbors negotiated a new, nar rower easement. The circuit court then dismissed the neighbors from this action.
Even though the appellant-stu dent suffered emotional distress as a result of harsh treatment by his first-grade teacher, the teacher’s grabbing of his arm was insufficient to prove the necessary physical-in jury element of negligent infliction of emotional distress. We affirm the directed verdict for the respondent-school district. Appellant-student K.S.’s firstgrade teacher (Teacher) treated K.S. harshly. The only physical contact in the record occurred after K.S. dropped his tray in the school cafeteria,Teacher approached K.S. “harsh ly” and forcefully grabbed his arm. Teacher walked K.S. to a table, where he was required to eat his lunch alone. Although K.S. said Teacher clawed him with her fin gernails, which hurt, there was no evidence of any scratches or cuts on K.S.’sK.S.arm.was soon moved to anoth er teacher’s class, but his mental health continued to suffer because of his interactions with Teacher. South Carolina recognizes negli gent infliction of emotional distress in three contexts. First, South Carolina recognizes negligent infliction of emotional dis tress in the “bystander” context— when a plaintiff observes a defen dant’s negligence cause the death or serious injury of a relative. Because K.S. did not observe the death or se rious injury of a relative, “bystand er” recovery is irrelevant.
See Page 9 ►
LegalTort/NegligenceMalpractice–RealProperty
Plaintiff’s claim for social security disability, based on his narcolepsy, was denied. Thereafter, his doctor completed a one-page questionnaire in which she said that, if plaintiff were taking the appropriate level of stimulant medication, it would nev ertheless be most probable that he would fall asleep at unpredictable times during the working portion of each work day. Since this question naire contradicted not only plain tiff’s testimony but also the doctor’s own notes and other record evi dence, there is no reasonable prob ability that the new evidence would change the outcome of plaintiff’s ap plication for benefits. We affirm the denial of plaintiff’s claim. Plaintiff testified that his nar colepsy did not interfere with his work as a corrections officer on the day shift. However, once the prison moved him to the night shift, he fell asleep on the job and was fired. The notes of plaintiff’s treating physician, Dr. Geeta Handa, indi cate that medications worked well for plaintiff and that his narcolep sy problems were likely related to noncompliance with his medication regimen. When she filled out the question naire, Dr. Handa based her stated opinion on two sleep studies. How ever, the earlier underlying study recommended medication and the later study recommended an in creased dosage and reconsideration of other medications which cause se dation. Neither sleep study suggests that plaintiff will likely fall asleep during the workday while taking an appropriate level of medication. Where Dr. Handa’s treatment notes do not accord with her an swer on the questionnaire regarding the severity of plaintiff’s symptoms while taking an appropriate level of medication, our precedent indicates this is fatal to plaintiff’s position. Affirmed. Wiebusch v. Commissioner of So cial Security (Lawyers Weekly No. 003-033-22, 13 pp.) (Per Curiam) No. 20-1590. Appealed from USDC at Anderson, S.C. (Michelle Childs, J.) Dana Wayne Duncan for appellant; Shannon Petty, Brian O’Donnell, Stephen Giaccino, Joanne Kernicky, Peter McCoy and Tina Cundari for appellee. 4th Cir. Unpub.
NIEDTort/Negligence–PhysicalInjury–Schools
NonprofitCorporate–Country Club Member ship – Suspension & Perpetual Dues
SOUTH CAROLINA LAWYERS WEEKLY I August 15, 2022 OPINION DIGESTS / 9
When the defendant-member joined the plaintiff-club, if defen dant stopped paying dues, his ex pulsion was mandatory. According to defendant, the club changed its governing documents unilaterally – though a membership vote was required – such that, when a mem ber stops paying dues, the club can now suspend the delinquent mem ber, refuse to reissue his member ship and continue to charge the de linquent member dues indefinitely. Since there is evidence to support defendant’s position, the Court of Appeals erred in upholding the cir cuit court’s grant of summary judg ment.We reverse the decision of the Court of Appeals and remand to the circuit court for further proceed ings. Facts This case concerns a country club on Callawassie Island. Under the plaintiff-club’s 1994 plan, equity club memberships were separate from real property ownership. In 1995, defendant separately bought real property on the island and an equity membership in the club. Subsequently, plaintiff amended its organizational documents. One such amendment provided that all persons who purchased property on the island were required to pur chase an equity membership in the club and retain it as long as they owned their property. After nearly 15 years as a duespaying member, defendant sought to exit the club, but he encountered difficulties in doing so. He stopped paying dues in October 2009. There is evidence that the club formally deemed defendant’s account de linquent and placed his member ship on the club’s suspension list in 2011. Defendant retained owner ship of his property on the island. In 2012, the club brought this action against defendant to collect allegedly delinquent dues, fees and assessments. The club maintained that ownership of a lot required de fendant to remain a member in good standing and to continue paying dues until his membership was re issued by the club to a new member. Defendant relied on the organiza tional documents in effect in 1995. He contended that, not only were club membership and real prop erty ownership separate, but the 1994 organizational documents re quired that he be expelled after four months of nonpayment. Defendant also contended that the expulsion provision was unilaterally changed by the club without notice to or vot ing by the equity members, contrary to provisions in the organizational documents that required any ma terial alterations in the controlling terms affecting equity members to be approved by a majority of the members.Defendant also alleged that the club quietly reissued the member ships of some club members while refusing to reissue his. The circuit court granted summa ry judgment for the club and award ed the club damages of $58,744.23 and attorney’s fees of $9,132.23. Re lying on Callawassie Island Mem bers Club, Inc. v. Dennis, 425 S.C. 193, 821 S.E.2d 667 (2018) (Dennis II), our Court of Appeals upheld the circuit court’s judgment. Analysis Dennis II did not require the Court of Appeals to uphold sum mary judgment for the club in this case. Dennis II concerned whether the Court of Appeals erred in hold ing specific portions of the club’s or ganizational documents regarding resignation were ambiguous and in interpreting a portion of the Non profit Corporation Act (NCA) that is applicable to resignations. In contrast, defendant here was formally suspended by the club. This status triggers different pro visions in the club’s organizational documents. Moreover, in Dennis II, we acknowledged that we were not addressing the question at issue in this case: the potential for perpetu al liability.Defendant’s case presents a genuine issue of material fact as to whether the club violated the NCA by failing to afford each of its mem bers the same rights and obligations as to their transfer rights and in making changes that affected those rights and obligations without the vote of the affected members. There is evidence in the record that the club selectively allowed some mem bers to concede their memberships, while others, such as defendant, found themselves lingering on the club’s elusive resale list. The manner in which the club made its decisions regarding the re issuance of memberships is an ap propriate topic for further develop ment at Undertrial.the club’s theory of the case, even though membership at the time defendant joined was strictly optional, a member can never actually terminate his or her membership following a delin quency after the club unilaterally changed the terms of the organiza tional documents. The original and amended organizational documents both stated dues obligations would continue until a membership was reissued, but at the time defendant joined, this reissuance provision operated in tandem with other pro visions that stated a member who was delinquent could be suspended (which defendant was) and that after four months any suspended member must be expelled and their payments forfeited. We find the alteration of one part of the equation, i.e., the provision for expulsion and the forfeiture of all payments, is evidence that may support defendant’s claim that the club has effectively made it impos sible for members to terminate their obligations if the club chooses not to reissue a membership. This is, arguably, a material, substan tive change that alters the parties’ original documents and adversely affects the rights of the members. Consequently, it required a major ity vote of the affected equity mem bers pursuant to the terms of the original organizational documents. The club does not deny that it unilaterally made this change, but it argues it was free to do so with out the consent of the equity mem bers. Under this scenario, a sus pended member could theoretically be forced to pay membership dues in Theperpetuity.club’s plans and bylaws originally required a majority vote of the equity members in these circumstances, and the club could not subvert this protection on vot ing rights by making a unilateral change in the general club rules for its own benefit that materially and adversely affected the financial in terests of equity members like de fendant. Provisions that surrepti tiously purport to permanently lock in club members in this manner vio late the ReversedNCA.and remanded. Callawassie Island Members Club, Inc. v. Martin (Lawyers Week ly No. 010-025-22, 17 pp.) (Donald Beatty, C.J.) Appealed from Beau fort County Circuit Court (Ernest Kinard, J.) On writ of certiorari to the Court of Appeals. Ian Ford, Neil Davis Thomson and Ainsley Fish er Tillman for petitioner; Andrew Lindermann, Dawes Cooke, John Fletcher, Bradley Banias Stephen Hughes and James Andrew Hoyo for respondent. S.C. S. Ct.
Continued from 8 ► See Page 10 ►
Plaintiff’s decedent (Wife) had already filed suit against the defen dant-Husband in the family court for equitable apportionment when she died. As a result, Wife’s prop erty rights in the couple’s marital property had vested, and the family court correctly continued to exercise jurisdiction over the equitable ap portionment action. We affirm the Court of Appeals’ decision upholding the family court’s exercise of jurisdiction. S.C. Code Ann. § 63-3-530, gov erning the family court’s subject matter jurisdiction, provides in sub section (A)(2) that the family court has “exclusive jurisdiction” to settle all legal and equitable rights regard ing marital property. Importantly, in S.C. Code Ann. § 20-3-610, the General Assembly has confirmed that each spouse has a “vested spe cial equity and ownership right in the marital property” that is subject to apportionment by the family court at the time marital litigation is filed. Further, the definition of “marital property” in S.C. Code Ann. § 20-3630(A) provides “marital property” is all property acquired or owned by the parties as of the date mari tal litigation is filed, regardless of how it is titled, so marital property essentially springs into existence as a legally defined concept at that mo ment in time. As to the probate court, S.C. Code Ann. § 62-1-302(a)(1) gives that court exclusive original jurisdiction over the estates of decedents, in cluding a determination of the prop erty in which the decedent has an interest. The General Assembly has provided the probate court has con current jurisdiction with the fam ily court in three instances—issues regarding paternity, common-law marriage, and the interpretation of marital agreements—to the extent they arise in the context of an estate action. Those circumstance are not present here. In any event, a provision allowing concurrent jurisdiction is not an ab rogation of jurisdiction by the family court. If the General Assembly had intended this result, it could have included this point in the plain lan guage of the statutes governing the jurisdiction of the two courts. It did not do so, and principles of statutory interpretation do not favor imply ing such a result in the absence of any indicia that this was, in fact, the General Assembly’s intent Because Wife initiated this mari tal litigation in the family court dur ing the parties’ lifetimes, the family court acquired exclusive jurisdiction over the issue of equitable appor tionment at that time. In addition to the lack of any overt intent by the General Assembly to divest the family court of jurisdiction in these circumstances, we note the General Assembly has not enacted any com parable statutory procedures for the probate court to follow in identifying and equitably apportioning marital property, as it has for the family court. Thus, the family court is in the best position to decide issues af fecting marital property in light of the longstanding, detailed statutory procedures governing the family court’s exercise of exclusive jurisdic tion over this subject matter.
Domestic Relations Subject Matter Jurisdiction – Equita ble Apportionment – Trusts & Estates
Affirmed. Seels v. Smalls (Lawyers Weekly No. 010-026-22, 13 pp.) (Donald Be atty, C.J.) Appealed from Berkeley County Family Court (Jack Landis, J.) On writ of certiorari to the Court of Appeals. Thomas Ray Sims for pe titioner; Diane Current and Donald Clark for respondent. S.C. S. Ct. Domestic Relations Alimony & Attorney’s Fees – Adultery – Increased Income
Although the plaintiff-Wife has more education and steadier em ployment than the defendant-Hus band, since (1) Husband’s adultery was the impetus behind this litiga tion, (2) Wife has significant stu dent loans to repay, and (3) Wife’s support during the marriage al lowed Husband to reach a senior ity level in the International Long shoremen’s Association that now allows him to earn significantly more than Wife, the family court erred when it denied Wife’s claim forWealimony.reverse the family court’s or der denying Wife alimony and at torney’s fees. The family court originally awarded Wife both alimony and attorney’s fees. However, on Hus band’s motion for reconsideration, the family court declined to award Wife either alimony or attorney’s fees. Alimony Wife supported Husband while he accrued the International Long shoremen’s Association (ILA) se niority that now enables him to earn more money than her. In denying Wife alimony, the family court considered only the disposition of the parties’ assets, fo cusing primarily on Wife’s award of the home as nonmarital property, the small mortgage on the home, and the fact that Wife’s expenses would be minimal after she paid off the mortgage. The court focusing its alimony analysis on these few considerations was an error as it failed to adequately consider all of the mandatory, statutory factors in determining Wife was ineligible for alimony.Under our evaluation of the statutory factors, we find Wife has a need for alimony. The parties’ ten-year marriage was not so short as to overly affect our alimony de
SOUTH CAROLINA LAWYERS WEEKLY August 15, 202210 / OPINION DIGESTS
Attorney’s Fees Because Wife would not have in curred litigation expenses but for Husband’s adultery, she was bur dened with more fees because of Husband’s uncooperativeness, Hus band has a better ability to pay a portion of Wife’s attorney’s fees, and the fee is less likely to affect Hus band’s standard of living, we find Wife is entitled to Husband pay ing a portion of her attorney’s fees. Therefore, we reverse on this issue and reinstate Wife’s attorney’s fees. Reversed. Cohen v. Cohen (Lawyers Weekly No. 011-045-22, 8 pp.) (Bruce Wil liams, C.J.) Appealed from Charles ton County Family Court (Michèle Patrão Forsyth, J.) William Clifford for appellant; Alan David Toporek for respondent. S.C. App.
The parties entered into a medi ated settlement agreement for the claimant’s future medical expens es arising from a work-related in jury. Pursuant to the agreement, the respondent-employer and the respondent-insurer agreed to pay the claimant $1,000,000, and the agreement was signed by the claimant, his attorney, respon dents, respondents’ attorney and the mediator. Although the claim ant was killed in an unrelated car accident seven days later, prior to the settlement agreement being filed with the Workers’ Compensa tion Commission, the settlement was nevertheless binding. We reverse the Commission’s order affirming the single com missioner’s order, which conclud ed that the agreement was not enforceable because the claim ant never executed or signed an “Agreement and Final Release,” resulting in one never being filed with the Commission in accor dance with S.C. Code Ann. § 42-9390.TheRemanded.Commission relied on Mack ey v. Kerr-McGee Chemical Co. , 280 S.C. 265, 312 S.E.2d 565 (Ct. App. 1984), in reaching its deci sion. However, § 42-9-390 has been amended since Mackey , and the current version no longer requires the Commission’s approval of a settlement agreement when both parties are represented by counsel. It simply requires the employer to file a copy of the settlement agree ment with the Commission. This is a perfunctory act. It appears that the only reason respondents did not file the agree ment with the Commission was because the claimant unexpectedly died. There was no evidence that either side had expressed a desire to withdraw from the agreement. In fact, the claimant’s attorney filed a motion requesting permis sion to file the agreement and a Form 50 requesting the agreement be filed with and enforced by the Commission.Theagreement language pro vided the case was “fully and com pletely resolved by agreement.”
The same day the parties signed the agreement, the mediator filed a Form 70, stating the issues were settled and respondents will sub mit “documentation regarding the agreement to the Commission.”
Respondents had already writ ten the $1,000,000 settlement check to the claimant and mailed it to his attorney. Although the ac companying letter stated respon dents were “in the process of fi nalizing the Agreement and Final Release,” it also provided the check amount represented “a full and fi nal settlement of all claims in this matter.” Thus, there was nothing left for the parties to decide. We find the parties substantially com plied with the statute, and their actions satisfied the reasonable objectives of the of the amended statute. Further, we find legislative in tent disfavoring abatement in S.C. Code Ann. § 42- 9-280, which pro vides, “When an employee receives or is entitled to compensation un der this title for an injury covered by the second paragraph of Section 42-9-10 or 42-9-30 and dies from any other cause than the injury for which he was entitled to com pensation, payment of the unpaid balance of compensation shall be made to his next of kin dependent upon him for support, in lieu of the compensation the employee would have been entitled to had he lived.”
On a matter of first impression, the court finds that the state need not show physical injury in order to prove assault and battery in the first degree; legal injury is suffi cient. We affirm defendant’s convic tion for assault and battery in the first degree. In pertinent part, S.C. Code Ann. § 16-3-600(C)(1)(a)(i) pro vides, “A person commits the of fense of assault and battery in the first degree if the person unlawful ly: (a) injures another person, and the act: (i) involves nonconsen sual touching of the private parts of a person, either under or above clothing, with lewd and lascivious intent. . . .”
The Legislature uses inconsis tent language through S.C. Code Title 16, Chapter 3 to define specif ic elements required to constitute an offense against an individual’s person, especially when the ele ment requires an “injury.”
termination. Furthermore, even though Husband was injured at work several times throughout the marriage and was laid off several times following the 2008 recession, his income is much higher than Wife’s after accruing seniority with the ILA.
Turning to the parties’ finan cial declarations, Wife shows a fi nancial need for alimony as her monthly expenses far exceed her monthly net income. While the family court relied heavily on the fact that Wife received the marital home and would have a decrease in expenses when the relatively small mortgage was paid off, the $407.28 decrease in expenses associated with the mortgage still leaves Wife with a monthly deficit of $503.51. Wife also has a principal balance of $207,039.86 in student loans. On the other hand, given his se niority with the ILA, Husband has the ability to pay Wife alimony. In 2017, he reported a gross income of $80,942. His financial declaration reflects a monthly net income of $4,103 and total monthly expenses of $4,544 that primarily consists of rent and his $1,100 temporary support to Wife. While Husband’s financial declaration shows a defi cit, it quickly changes to a surplus when the $650 alimony obligation in the family court’s original order is substituted for the $1,100 tempo rary support obligation. Moreover, Husband shares expenses with a live-inFinally,girlfriend.Wife supported Hus band through his injuries and a great economic downturn using her education and stable employment as a school teacher. Wife’s support allowed Husband to heal his inju ries, return to work, receive senior status with the ILA, and realize a substantial pay increase. Wife now shows a need for ali mony and would not require ali mony but for Husband’s adulterous relationship. Wife should not be penalized and left in need because she supported Husband for the ma jority of their marriage, especially considering Husband’s ability to contribute financially to the mar riage transpired at the end of the marriage and after his adulterous relationship.BecauseWife shows a need for alimony, Husband has the ability to pay alimony, and the other factors militate towards awarding Wife alimony, we find the family court erred in denying Wife alimony. Therefore, we reverse and reinstate Husband’s alimony obligation.
Criminal Practice Voluntary Manslaughter – Racial Animus – PPPA Because the state had the bur den to prove defendant’s actions were not in self-defense but rather constituted an unjustified effort to harm the victim (or that defen dant’s actions involved a degree of force exceeding that necessitated by the situation), establishing a ra cial motive was significant for the state in meeting its burden. On a 911 recording that was admitted into evidence, defendant could be heard repeatedly referring to the victim as a “f***ing n***er” – a strong indicator of racial animus. After the state had thus estab lished defendant’s potential racial bias, the trial court did not abuse its discretion when it allowed the state to introduce evidence that defendant (1) had been sexually as saulted by two African-Americans while he was in the military and (2) said that he did not want to be housed with African-Americans in jail. We affirm defendant’s conviction for voluntary manslaughter. Where defendant sustained only a small cut on his leg while the vic tim was beaten to death after he tried to flee and was admittedly no longer a threat to defendant, the circuit court did not abuse its discretion in denying defendant immunity under the Protection of Persons and Property Act. State v. Rosenbaum (Lawyers Weekly No. 011-046-22, 13 pp.) (John Geathers, J.) Appealed from Horry County Circuit Court (Ben jamin Culbertson, J.) Susan Bar ber Hackett for appellant; Alan McCrory Wilson, William Blitch and Jimmy Richardson for respon dent. S.C. App.
DeathMediatedCompensationWorkers’Settlement–Unrelated–EnforceableAgreement
Finally, workers’ compensation law is to be liberally construed in favor of Respondentscoverage.were required to file the agreement with the Com mission regardless of the claim ant’s untimely death. Reversed and remanded. Ex parte Horne (Lawyers Week ly No. 011-047-22, 7 pp.) (Paula Thomas, J.) Appealed from the Workers’ Compensation Com mission. Gary Christmas, Reese Stidham, Pauul Doolittle, Allison Sullivan and Andrew Safran for appellants. Richard Daniel Addi son for respondents. S.C. App. Criminal Practice Assault & Battery in the First Degree – First Impression – Legal Injury
Despite these inconsistencies, the plain language of § 16-3-600(C) (1)(a)(i) is clear in defining what constitutes assault and battery in the first degree. We find the stat ute requires one injury stemming from a single act and that the Leg islature intended the single act that caused the injury to “involve[] nonconsensual touching of the private parts of a person . . . with lewd and lascivious intent.” § 16-3600(C)(1)(a)(i). Defendant argues that because the Legislature followed the term “injures” with the conjunction “and,” it intended to create a con junctive list that establishes two distinct elements for the state to satisfy to prove assault and bat tery in the first degree: (1) a physi cal injury and (2) a separate, non consensual touching of the victim’s private parts with lewd intent. Contrarily, after a plain reading of the subsection, it is evident the Legislature included “and” to fur ther modify and define the nature of the act that caused the injury it intended to constitute assault and battery in the first degree. Our interpretation of the subsec tion—requiring only a single inju ry occurring from a single noncon sensual touching of an individual’s private parts—agrees with the other portions of the statute and is supported by the traditional un derstanding of assault and battery as delineated by our courts for over a century. Moreover, when read in conjunction with the remaining subsections, this interpretation is aligned with the Legislature’s intent in enacting the statute as a whole. Each subsection either defines the harm caused by an of fender’s act upon the victim’s per son or the nature of the act itself – e.g., a nonconsensual touching of another’s private parts with lewd intentions.Herethe minor victim (Minor) testified that defendant – her cous in’s father – asked Minor to show him to the bathroom. Once there, defendant backed Minor into a cor ner while holding her in place with his left hand on her neck. Minor claimed that, while she was forced against the wall, defendant groped her breasts with his free hand. Af ter Minor screamed for defendant to get off of her, defendant let go of Minor’s throat, attempted to re move her shorts, and offered her money to have sex with him. As evidenced by Minor’s excla mation for defendant to get off of her, his actions were nonconsen sual, and clearly the object of the groping was Minor’s breasts, which satisfies the definition of “private
Continued from 9 ► See Page 11 ►
Background From 1963 to 2002, plaintiff’s decedent worked at a plant that transformed wood pulp into pa per. Plaintiff presented evidence of decedent’s exposure to asbestos at work. Plaintiff also presented evidence of decedent’s diagnosis of, treatment for, pain and suffer ing from and death from mesothe lioma.The jury awarded plaintiff $600,000 in damages for his sur vival action and $100,000 in dam ages for the wrongful death action. Upon plaintiff’s motion for a new trial nisi additur, the trial court increased the survival damages award to $1 million. Based on plaintiff’s allocation of the settlement funds he had received from other tortfeasors, the trial court reduced the sur vival damages by $207,200 and the wrongful death award by $828,000, which exceeded the jury’s award for wrongful death. After applying the setoff, the trial court entered judgment against defendant in the amount of $792,800.
Discussion Contrary to defendant’s argu ment, plaintiff’s expert did not employ the “each and every expo sure” theory of causation at trial. Rather, Dr. Arthur Frank deployed the cumulative dose theory, ex plaining how an individual’s risk of developing mesothelioma or other lung disease increases as that individual’s dose of asbestos increases through exposure. As did Dr. Frank, we have refused to con flate the cumulative dose theory with the each and every exposure theory. Jolly v. Gen. Elec. Co ., 435 S.C. 607, 869 S.E.2d 819 (Ct. App. 2021).Inincreasing plaintiff’s survival damages, the trial court relied on uncontroverted evidence of dece dent’s medical bills and his great pain and suffering caused by meso thelioma. By meticulously analyz ing the details of decedent’s pain and suffering, loss of enjoyment of life, and mental anguish, and in analyzing other awards for simi lar cases, the trial court provided ample justification for increasing decedent’s survival award. Defendant argues the trial court erred in failing to reallocate plaintiff’s internal apportionment of settlement proceeds between the wrongful death (80 percent) and survival (20 percent) actions, claiming the allocation did not re flect “fairness and justice.” Howev er, plaintiffs who settle with defen dants gain control and leverage in relation to non-settling defendants – control that is often reflected in the plaintiff’s ability to apportion settlement proceeds in a manner most advantageous to it. The fact that plaintiff’s internal allocation of the proceeds is not in defen dant’s best interests is insufficient to justify an appellate reapportion ment for the sole purpose of ben efitting a non-settling party. Because we do not perceive the effect of setoff based on plaintiff’s internal allocation as improper, unreasonable under the facts of this case, or unfair simply because it favored plaintiff and did not re flect percentages that corresponded with the percentage of each award, we find the trial court did not err in denying defendant’s motion to re allocate plaintiff’s settlement pro ceeds for the purpose of setoff.
Continued from 10 ►
Finally, defendant argues the trial court erred in refusing to ad mit claims that plaintiff filed with bankruptcy trusts established by companies that manufactured as bestos-containing products used by decedent’s employer. Defendant contends the trial court made it impossible for defendant to try its empty-chair defense. We disagree. Plaintiff’s trust claims are an of fer to compromise. Although these claims could amount to a party ad mission, this type of admission— made for the purpose of settling a claim—is precisely what Rule 408, SCRE, was designed to exclude at trial. The purpose of Rule 408 is to encourage free and unfettered ne gotiation while providing parties peace of mind that their negotia tions—concessions, denials, admis sions, and claim amounts—cannot be used against them to prove li ability for the disputed claims or its amount at trial. Further, defendant’s emptychair defense argument fails to grasp the nature and purpose of these unique trusts and the emptychair defense. The empty-chair de fense is the defendant’s right to as sert another potential tortfeasor, whether a party or not, contributed to the alleged injury or damages and was codified in the Uniform Contribution Among Tortfeasors Act at S.C. Code Ann. § 15-38-15. In seeking to establish an emptychair defense, a defendant must as sign fault for the plaintiff’s injury to another party by providing evi dence to the fact-finder that is suf ficient for it to determine whether the party’s actions were the cause of the plaintiff’s injuries. Here, the settlement claims plaintiff filed would not provide ev idence to the jury that is sufficient for it to determine if the bank rupt companies’ products were the cause of decedent’s mesothelioma. The claims would only show that decedent could have been exposed to their products and that he was seeking compensation from the trusts for his mesothelioma. The claims do not in themselves pro vide a link between decedent’s me sothelioma and the bankrupt com panies’Moreover,products.contrary to defen dant’s argument on appeal, the tri al court’s ruling in no way “made it impossible for [defendant] to try its empty-chair defense.” The record is replete with instances of defendant interrogating witnesses regarding other companies that produced as bestos-containing dryer felts, insu lation, and valves used at the em ployer’s plant. At trial, defendant named 13 manufacturers of asbes tos-containing products used at the employer’s plant during dece dent’s employment. The trial court did not err in refusing to admit the bankruptcy trust claims and did not prevent defendant from trying its empty-chair defense.
LAWYER TO LAWYER / Directory parts” as set forth by the statute. Further, the evidence shows de fendant’s intent in calling Minor to the bathroom and forcing her into the corner was lewd and lascivious because he offered her money to have sex, revealing an overt sexu al desire. Although Minor testified that defendant did not hurt her, only that his hand around her neck was “uncomfortable,” a physical, bodily injury is not required for an individual to be guilty of assault and battery in the first degree un der § 16-3-600(C)(1)(a)(i). Because (1) our interpretation of the subsection appears to be con sistent with the remainder of the statute, (2) our jurisprudence has never required an actual, physi cal injury to a victim’s person to constitute an assault and battery, and (3) the nature of defendant’s actions falls squarely within the definition of first-degree assault and battery, we find the trial court did not err in denying defendant’s motion for a directed verdict. Affirmed. State v. Robinson (Lawyers Weekly No. 011-048-22, 8 pp.) (Bruce Williams, C.J.) Appealed from York County Circuit Court (William McKinnon, J.) Susan Barber Hackett for appellant; Alan McCrory Wilson, William Blitch and Kevin Scott Brackett for re spondent. S.C. App.
Affirmed. Edwards v. Scapa Waycross, Inc. (Lawyers Weekly No. 011-04922, 20 pp.) (Bruce Williams, C.J.) Appealed from York County Cir cuit Court (Jean Hoefer Toal, J.) William Peele Early, Joseph Wil son, Christopher Collier and Rob ert Gilbreath for appellant; Mona Lisa Wallace, Kathleen Chewning Barnes, Gregory Lynn Hyland, Thomas Hart, Frederick John Jekel and William Graham for re spondent. S.C. App.
SOUTH CAROLINA LAWYERS WEEKLY I August 15, 2022 OPINION DIGESTS / 11 TOM MILLIGAN • OVER 30 YEARS OF EXPERIENCE • TRIAL LAWYER WHO HAS TRIED OVER 200 JURY TRIALS • CERTIFIED ARBITRATOR SINCE 1999 • CERTIFIED MEDIATOR SINCE 2001 PROFESSIONALMEDIATIONS:CONVENIENTOBJECTIVEMILLIGAN&HERNS,PC 721 Long Point Road, Suite 401 Mt. Pleasant, SC 29464 843-971-6750 ❘ tom@milliganlawfirm.com
–Empty Chair Defense – Bankruptcy Trust Claims In this survival and wrongful death case against the defendantmanufacturer of a product that con tained asbestos, the trial court cor rectly refused to allow defendant to introduce evidence of the decedent’s claims against the trusts of bank rupt companies whose products also contained asbestos. Such claims were offers to compromise; as such, they were inadmissible under Rule 408, SCRE. We affirm the trial court’s rul ings and uphold the $729,800 (af ter setoff) judgment for plaintiff.
ProductTort/NegligenceLiability–Mesothelioma
Don’t miss out Join us online! • The latest legal news • Immediate access to the digital edition of the paper • Verdict & settlements, court opinion digests, andfull-text opinions A digital access account is included with your subscription to South Carolina Lawyers Weekly. Register your email to get full, behind-the-paywall access at sclawyersweekly.com Take advantage of the resources available online at Including:sclawyersweekly.com If you need assistance accessing your account contact customer service at 1-877-615-9536 or email service@bridgetowermedia.com
