South Carolina Lawyers Weekly October 24, 2022

CENTURY OF SERVICE

Former state official returns to SC firm

Former Virginia Secretary of Commerce and Trade Brian Ball is returning to his former law fi rm, Williams Mullen, according to a news release from the fi rm.

Ball rejoined Williams Mullen on Oct. 10 as of counsel in its corporate section, supporting and serving the fi rm’s Economic Development Team and aiding clients with business expansion needs. He’ll be based in the fi rm’s Richmond offi ce.

Before serving as commerce secretary under Gov. Ralph Northam, Ball was with Williams Mullen for nearly 30 years as a partner, general counsel and a member of the firm’s board of directors.

Wyche celebrates 100 years with philanthropic investment

■ BY ROSS NORTON rnorton@scbiznews.com

Wyche is celebrating a century of practice with a philanthropic investment in one of South Carolina’s most prestigious and unique fellowship programs.

Wyche entered a partnership with Liberty Fellowship as the capstone of the Greenville-based law firm’s year-long celebration of its centennial. “The Challenge to Lead” calls on the business community to help build the next generation of leaders in South Carolina by investing in the fellowship’s rigorous leadership program.

Wyche is putting $55,000 into the program over the next three

years and has issued a challenge to other regional and statewide businesses to match or exceed the firm’s commitment.

For Wyche the commitment is part of the firm’s celebration of 100 years of law practice in South Carolina, according to a news release. This and other contributions by Wyche over the past year are part of the firm’s Centennial Legacy Project, designed to reflect and renew Wyche’s commitment to its core principles of service to the community: advancing the business community, societal impact, community transformation and environmental stewardship.

Liberty Fellowship is the only state-based fellowship program

of its kind in the United States, and there are more than 300 Liberty Fellows working collectively across South Carolina. The fellowship strives to activate individual leaders through a deeper understanding of a just, free and equitable society; serves as a convener for bringing together diverse perspectives to advance civil discourse; and provides infrastructure for taking action, according to the release. Liberty Fellowship is a nonpartisan, nonsectarian, nondogmatic organization which operates independently of the positions and views of its funders.

“Liberty Fellowship is very

“We are thrilled to have Brian return to us in a new capacity,” Williams Mullen Chairman, President and CEO Calvin W. “Woody” Fowler Jr. said in a statement. “His knowledge of our fi rm and its resources, combined with his insight in working effectively with the governor’s offi ce and cabinet secretaries, make him an incredibly valuable asset to clients looking to locate and grow their businesses in the commonwealth and beyond.”

As Virginia’s commerce and trade secretary from 2018 to 2022, Ball was instrumental in some of the state’s biggest deals, including bringing HQ2, Amazon.com Inc.’s East Coast headquarters, to Arlington. Other successes include Micron Technology Inc.’s expan-

Estate of woman killed during police pursuit awarded $2.5M

■ BY HAVILAND STEWART hstewart@nclawyersweekly.com

The estate of a woman fatally struck during a police pursuit was awarded $2.5 million in a settlement.

An Anderson, S.C., bystander was killed during a law enforcement vehicle pursuit that was in violation of Anderson Police Department (APD) policy and procedure.

APD employees Joseph Chapman and Zack Lucas initiated a vehicle pursuit for a suspected property crime and minor traffic violation. The pursuit was supervised by APD employee Craig Gardner. According to plaintiff attorney Samuel R. Clawson Jr., APD went on to conduct a lengthy high-speed vehicle pursuit that included numerous

instances of reckless driving by the fleeing suspect, which were mirrored by the pursuing officers. The vehicle pursuit lasted approximately 11 minutes and traversed approximately 14.7 miles.

According to Clawson, it was alleged that APD officers committed numerous violations of APD policy, SC Code Ann. § 56-5-760, and 42 U.S.C. §1983 with respect to the initiation, continuation, supervision and failure to terminate the vehicle pursuit.

The pursuit ended after Gardner requested that the Anderson County Sheriff’s Office deploy stop sticks. Alamance County Sheriff’s Office (ACSO) deployed the stop sticks in violation of ACSO policy and procedure, as well as in violation of manufacturer instructions. As the flee-

ing driver swerved to avoid the stop sticks, he lost control of the vehicle and fatally collided with bystander Brenda Wilson, as she was walking in her front yard towards her mailbox.

Husband of the deceased, Greg Wilson, as the representative of the estate, presented a claim for wrongful death on behalf of the statutory beneficiaries, as well as individual claims for loss of consortium and bystander liability.

The primary issue in the litigation was the application of 42 U.S.C. §1983 to the alleged Fourteenth Amendment right to substantive due process and whether the individual law enforcement officers

VERDICTS & SETTLEMENTS

& SETTLEMENTS

VERDICTS

SETTLMENTS

Wyche has entered a partnership with Liberty Fellowship as the capstone of the Greenville-based law firm’s year-long celebration of its centennial; above is its office along Broad Street downtown. (Photo/Provided)

Brian Ball

LAWYERS IN THE NEWS

Firm adds associate to Charleston office

Turner Padget has announced the addition of associate Hunter Wind ham to the firm’s Charleston office.

Windham joins the Insurance Liti gation practice group and will sup port the Insurance Litigation team by representing insurance companies and insureds. He will provide claims handling advice and defend insureds from a variety of claims prior to and during litigation.

examinations.

Prior to joining Turner Padget, Windham clerked for Judge A. Mar vin Quattlebaum Jr. of the United States Court of Appeals for the Fourth Circuit, where his experience provid ed him unique insight into the types of legal issues that often lead to an ap peal. Before that, Windham worked as an associate at a large defense firm, where his practice focused on business and commercial litigation.

Windham earned his undergradu ate degree from Wofford College and his law degree from The University of Alabama School of Law.

hail from six continents, more than 45 countries and territories, and all 50 U.S. states. The core purposes of the IADC are to enhance the develop ment of skills, promote professional ism and diversity, and facilitate ca maraderie among its members, their clients, as well as the broader civil justice community.

areas is needed.

For more information on the IADC, visit www.iadclaw.org

Florence attorney selected as McLeod fellow

Haynsworth Sinkler Boyd, P.A. has announced that Boone Aiken IV has been selected to join the 2023 Class of the McLeod Foundation Fellows.

Hunter Windham

“Hunter is an ex cellent addition to our growing South Carolina team,” said C. Pierce Campbell, CEO and sharehold er at Turner Padget. “His record of achievement, character, and commitment to excellent client service will further bolster our Insur ance Litigation practice group and our work in the State of South Carolina and beyond.”

In his role, Windham will support the Insurance Litigation team and fo cus on insurance claims counsel and litigation, including personal injury actions and various other tort claims. Through his defense, he will conduct depositions, mediations, hearings and

Partner at firm accepted as member of IADC

W. Taylor Stanley of Turner Padget in Columbia, S.C., was accepted as a member of the Inter national Association of Defense Counsel (IADC). The IADC is the preeminent invi tation-only global le gal organization for attorneys who rep resent corporate and insurance interests.

Founded in 1920, the IADC’s members

Commercial and business liti gation is where Taylor spends the majority of his professional time. Whether sorting through decades of records to unravel complicated business relationships, addressing claims of defective construction in projects large or small, or litigating real estate disputes, Taylor works closely with business owners, insur ance professionals, and corporate general counsel to bring disputes to the quickest cost-effective resolution, a news release from Turner Padget stated.

Taylor also advises commercial cli ents on matters related to corporate governance, shareholder disputes, business formation, property and leasing transactions, zoning issues and creditor/debtor rights, the re lease stated. A member of both the North and South Carolina bars, he also assists clients in other jurisdic tions and works as part of a team of lawyers when depth of experience in particular substantive or geographic

Through the eight-month program, participants will get an inside look into McLeod Health, the health care needs of the community and the complex issues driving healthcare today.

Based in the firm’s Florence office, Aiken works with the corporate law practice group. In addition, he advises individuals and families on trust and estate planning.

Aiken currently serves on the board of directors for the United Way of Florence County. He earned his Juris Doctor from the University of North Carolina and his bachelor’s degree, summa cum laude, from Wake Forest University.

Nelsen Mullins expands health care practice

National law firm Nelson Mullins Riley & Scarborough LLP announced in a news release the expansion of its national health care practice with the arrival of Robert “Bob” Wade and Christine Burke Worthen as part ners and Kendall Walker as of coun sel.

Wade focuses on health care com pliance matters and will be located in the firm’s Nashville office. Worthen focuses her practice on providing legal and strategic advice to health care organizations on provider and payor relationships and will be resi dent in the Boston and Fort Lauder dale, Fla., offices. Walker is a health care lawyer with a focus on Medicare

program and reim bursement matters and will be located in the Columbia, S.C., office.

Walker joins from BlueCross BlueShield of South Carolina, where he was associate gen eral counsel. He has been in the practice of law since 1991, with experience in multiple practice areas including healthcare, construction, and admin istrative and corporate law. He spent over 20 years in direct support of the Medicare Program, having served

as primary counsel for three Medi care Administrative Contractors (“MACs”) and one Medicare Quali fied Independent Contractor (“QIC”). Walker has substantial experience with most aspects of the Medicare Program and reimbursement mat ters.

“We are pleased to welcome Chris tine and Kendall to the firm and our team. With her more than 20 years of experience in a variety of healthcare regulatory employment and ERISA matters, Christine will be a great asset to the team,” said health care transactional and regulatory team leader and Myrtle Beach Office Man aging Partner Tom Moran. “We are

also excited to have a professional with Kendall’s experience with the full range of Medicare Program mat ters.”

Nelson Mullins’ Healthcare Group includes a combination of highly ex perienced attorneys in the health care industry, including enforce ment, compliance and regulatory matters, litigation, tax and finance, antitrust, employment, state and federal policy, data breach and priva cy, real estate and transactions. The multi-disciplinary team of attorneys combines real-world experience with innovative legal strategies to drive practical, real-time decision making. Staff report

SERVICE / Wyche celebrates with partnership

aligned with the ideals that have shaped Wyche’s 100 years of prac tice, and that continue to be central to our unique approach to serving our clients and our community,” Tal ly Parham Casey, CEO and chair of Wyche, said in the release. “Wyche is honored to have the chance to join forces with the Fellowship to sup port future leaders in our state.”

Liberty Fellows are selected based on an extensive nomination and in terview process, designed to assess candidates that will offer unique and diverse perspectives to address the most critical issues facing South Carolinians. Participants are chosen based on both merit and a demon strated commitment to community.

“Wyche is known for its strong tradition of service,” said Ann Ma rie Stieritz, president and CEO of Liberty Fellowship. “The firm has a reputation for challenging its attor neys to tackle complex problems and to become leaders who fully engage

Wyche is known for its strong tradition of service. The firm has a reputation for challenging its attorneys to tackle complex problems and to become leaders who fully engage in the community. We are honored to be a part of Wyche’s Centennial Legacy Project as we launch this exciting initiative to invest in future generations of leadership.

in the community. We are honored to be a part of Wyche’s Centennial Legacy Project as we launch this ex citing initiative to invest in future generations of leadership.”

Each Liberty Fellow is required to complete an 18-month seminar experience in the United States and

abroad to explore and understand a wide range of perspectives and develop their personal and profes sional leadership. Through the fel lowship’s affiliation with The Aspen Institute, all Liberty Fellows be come members of the Aspen Global Leadership Network.

As part of Liberty Fellowship’s focus on equal access to opportuni ties, the individuals selected for the program are not required to pay for their seminar experience. Wyche is investing $55,000 — the equivalent of one new Liberty Fellow’s initial 18-month seminar experience — and encouraging other businesses to do so through “The Challenge to Lead.”

“Both Wyche and Liberty Fellow ship have had a profound impact on my leadership journey,” Meliah Bowers Jefferson, member of Wyche P.A., said in the release. “Without these two organizations, my story might not be possible. I am delighted ‘The Challenge to Lead’ will ensure future leaders have the same oppor tunity to discover diverse perspec tives that challenge them to make an impact on South Carolina.”

With offices in Greenville, Spar tanburg, and Columbia, Wyche is the South Carolina member of Lex Mundi, the world’s leading associa tion of independent law firms.

Kendall Walker

Boone Aiken IV

W. Taylor Stanley

Ann Marie Stieritz, president and CEO of Liberty Fellowship

Gas leak nets $2M settlement for family after falling ill

■ BY HAVILAND STEWART hsteward@nclawyersweekly.com

A family was awarded $2 million after experienc ing sickness due to a leaky natural gas pipe. Soon after a family of 5 moved into a new apart ment complex, they all began ex periencing unexplained symptoms of headaches, nose bleeds, loss of appetite, bronchial problems, and vomiting.

Eight months after the mov ing in, it was discovered that dur ing construction, a siding nail had penetrated a natural gas pipe in the wall of the closet in the prima ry bedroom. The family sued the general contractor, the siding and plumbing contractors and the apartment complex. A global settlement of $2,000,000.00 was reached.

According to the family’s council Bert Louthi an, the youngest child, age 2, had the most severe symptoms because the child spent the most time in the apartment and slept closest to the location of the gas leak.

Once the leak was discovered and repaired each family members health slowly improved. Neither parent sought medical treatment and the 3 children

Is this a verdict or a settlement? Settlement

Type of case natural gas exposure

Amount: 2,000,000.00

Injuries alleged: headaches, nose bleeds, numbness in hands and feet, loss of appetite, coughing, cold and flu like symptoms and vomiting

Case name: withheld

Court: [or venue if settled pre-suit]:withheld

Case No.: withheld

Judge [or arbitrator or mediator]: Karl Folkens

Date of verdict or settlement: June 29, 2022

Most helpful experts [if applicable]: Warren Maddox, Maddox Engineering; Dr. Ben Hoffman, Toxi cology & Environmental Health; Dr. Marshall White, Neurology; Dr. Tim Osbon, Life Care Plan

Insurance carrier [if applicable]: Withheld

Attorney(s) for plaintiff and their firm(s): Bert Louthian, Robert Goings

Attorney(s) for defendant and their firm(s): Withheld

Was the opposing represented by counsel? Yes

Were liability and/or damages contested? Yes

Has the judgment been successfully collected? Yes

collectively had $11,000.00 in medical bills. Accord ing to Louthian, Doctors Hoffman, White and Os bon, toxicology and environmental health experts

were instrumental in creating a damages model based on the need for medical testing and monitor ing for the family moving forward.

Workers comp settlement results in $1.4M payout

■ BY DAVID BAUGHER

A police deputy will receive more than $1.4 mil lion as part of a workers compensation settlement after a deadly traffic accident that occurred while he was helping a disabled vehicle about to be towed from a bridge.

“While he was outside his vehicle, there was a truck that came from behind with a flatbed trail er that struck [the deputy’s] vehicle which in turn struck him and caused a chain reaction with the other two vehicles,” said Trip Riesen of Riesen Du Rant.

The 2020 accident pitched the tow truck driver off the side of the Don Holt bridge killing him. Depu ty Michael Costanzo survived the crash but suffered a traumatic brain injury as well as fractures to the back, femur, ankle, shoulder, clavicle and ribs.

Costanzo was transported to the hospital and placed in a medically induced coma, eventually go ing through rehab in Atlanta where he learned to walk again. However, he was unable to return to his job after nearly three decades as a police officer.

“He loved serving the community and misses his co-workers,” Riesen said noting that he now does volunteer work and coaches high school baseball.

He said the main issue in dispute was whether or not the claimant’s injuries qualified as a lifetime disability or if it was simply a permanent and total disability case.

“It was our position that because Mike sustained a severe brain injury and was incapable of return ing to work as a police officer or any other type of gainful employment, that it would meet the statu tory definition of a permanent and severe brain in jury that would allow for lifetime compensation,” he said.

The issue was important since South Carolina law limits permanently and totally disabled indi viduals to 500 weeks of payments but there are ex ceptions for paralysis and brain injury.

“In order to qualify under physical brain injury for lifetime benefits not limited to 500 weeks you must prove that the physical brain injury is perma nent and severe,” he said.

Riesen said the settlement eventually netted a $1.1 million lump sum plus an additional $339,792 to fund a Medicare set aside trust for future medical expenses.

He said that the figure was in addition to earlier sums totaling more than three-quarters of a million dollars including more than half a million in past

SETTLEMENT REPORT – WORKERS COMPENSATION

Amount: $1,439,792 (plus additional amounts earlier in the case)

Injuries alleged: Traumatic brain injury, mul tiple fractures

Case name: Michael Costanzo v. Charleston County and South Carolina Association of Counties

Attorneys for plaintiff: Trip Riesen and Rutledge DuRant of Riesen DuRant, (Mount Pleasant)

Attorney for defendant: J. Hubert Wood, III, (Charleston)

medical costs, more than $115,000 in non-medical services such as yard maintenance and house clean ing, nearly $100,000 in temporary total disability payments and $16,450 for home bathroom modifi cations.

Riesen listed J. Hubert Wood, III as representing the county in the matter. His office declined com ment on the case.

Vacationer awarded $1.15M in settlement after fall at home

■ BY HAVILAND STEWART hstewart@nclawyersweekly.com

A vacationer settled for $1.15 million after suffer ing injuries from a fall at a vacation home.

In April of 2020, Plaintiffs rented a beach front home on Folly Beach, S.C. for a family vacation. While descending the stairs from the house to the raised walkway, the plaintiff fell forward down the stairs, and into a section of safety railing. However, according to plaintiff’s council, Samuel R. Clawson Jr., rather than protecting plaintiff from falling from the walkway, an entire 6-foot, 9-inch-long section of the lower rail and most of the pickets attached to that rail section broke free from the rail posts. As a result, plaintiff fell to the ground some 10 to 12 feet below the walkway and suffered a burst fracture of his T12 vertebrae that required surgical repair in volving a five-level spinal fusion.

The beach house was owned by Jack and Sharon Smoke and managed by Fred Holland Realty.

Plaintiff’s expert engineer, John Phillips, deter mined that the property had numerous deficiencies in the form of maintenance and building code viola tions, Clawson reported. The stairway between the house and the elevated walkway had several condi tions that made it unsafe, each of which could have caused or contributed to a fall. The elevated walkway

rail was in a deteriorated condition and was structurally unsound due to corroded nails, which caused it to fail when contacted by the Plain tiff. The stairs and elevated walk way, including the rail, were in violation of multiple codes, did not provide their intended function.

“Property owners, especially va cation rental property owners and the property management com panies who operate these rentals, have a duty to use reasonable care to prevent renters from suffering bodily injury by discovering fore seeable unreasonable risks and taking safety precautions to warn of or eliminate them,” Clawson said. “Here, the stairs and board walk were in an obvious state of disrepair, with visibly rusted fas teners and brittle wood. It was not a question of if, but rather when, a renter was going to be injured at this property.”

The case was mediated by Bo Wilson following the completion of party depositions for $1,150,000. Of this amount, $300,000 was paid by American Stra tegic Insurance and $650,000 by Allstate on behalf

Type of Action: Premises Liability

Injuries Alleged: Burst fracture of vertebra in lumbar spine

Name of Case: Christopher Gillett and Leela Oblichetti v. Jack A. Smoke, Sharon D. Smoke, and Fred Holland Realty

Court: Charleston County Court of Common Pleas

Judge or Mediator: Mediator Bo Wilson

Special Damages: Medical bills of approxi mately $157,000

Verdict or Settlement: Settlement $1,150,000

Date of Verdict or Settlement: July 29, 2022

Most Helpful Experts: John Phillips (engineer)

Attorneys for Plaintiffs: Samuel R. Clawson Jr. and Christy R. Fargnoli of Clawson Fargnoli Ut sey, LLC in Charleston and Nick Thomas of the Law Offices of Nick Thomas, LLC in Folly Beach

Attorneys for Defendants: Confidential Were Liability and Damages Contested: Yes

of Jack Smoke and Sharon Smoke; and $200,000 by Auto Owners on behalf of Fred Holland Realty.

Samuel R. Clawson Jr.

Christy R. Fargnoli

Bert Louthian

Motorcycle crash results in two verdicts totaling $11.5M

■ BY HAVILAND STEWART hstewart@nclawyersweekly.com

On Sept. 12, 2015, Harry Halstead, and Roy Joffrion were riding their Harley Davidson motorcycles along Highway 701 near Conway, South Carolina, when they were involved in a catastrophic collision with a rural mail carrier working for the United States Postal Service driving a Sat urn Ion automobile.

According to Halstead and Jof frion’s counsel, John Hudson, there were three members of their group of 11 who were a part of this collision, Halstead, Joffrion, and Jerry Jackson who died as a result of the inju ries he received.

During the case of Jackson v. United States of America in 2018, a federal judge ruled that a U.S. Postal Service worker had caused the crash by negligently crossing into the path of a group of motorcyclists riding to gether along Highway 701.

According to Hudson, upon impact, Halstead was ejected from his mo torcycle and thrown over the hood of the Saturn Ion before landing in the roadway. Halstead suffered numer ous bodily injuries from the crash, including a closed head injury, dental injuries, neck injury, rib fracture, el bow injury, bilateral knee and ankle injuries, hip injury and Post-Trau matic Stress Disorder. The injuries eventually forced Halstead to retire prematurely from his job as a clinical analyst for a hospital system.

At the time of the collision Joffrion’s pelvic area was driven into his motor cycle’s gas tank before he was ejected from the bike and thrown across the top of the Saturn Ion before eventu ally landing in the roadway, Hudson

Roy Joffrion v. United States of America

Is this a verdict or a settlement? Verdict

Type of case [Example: Motor vehicle wreck, medical malpractice, neg ligence]:  Motorcycle v. car.

Amount:  $7,496,435.58.

Injuries alleged: [Example: Broken leg, loss of wages, emotional dis tress]:  Open-book pelvic fracture; abdominal/core injury; back injury; right knee injury; right wrist fracture; Post-Traumatic Stress Disorder; lost wages and loss of earning capacity; pain and suffering; mental and emotional distress; loss of enjoyment of life.

Case name:  Roy Joffrion vs. United States of America.

Court: [or venue if settled pre-suit]:  United States District Court for the District of South Carolina, Florence Division.

Case No.:  4:18-cv-03548-MGL.

Judge [or arbitrator or mediator]: The Honorable Mary Geiger Lewis

Date of verdict or settlement: March 17, 2022.

Demand [for verdicts]:  $4,000,000

Highest offer [for verdicts]:  $1,000,000

Bench or jury trial? [for verdicts]: Bench Trial.

Special damages [if applicable]:  Past medicals: $251,665.58; Future medicals: $166,411; Lost Wages/Lost Earning Capacity: $842,415; Lost Household Services: $221,961

Most helpful experts [if applicable]: Dr. Mark Stebnicki (vocational rehabilitation); Lindsay Moore (life care planning); Mark Bokesch (econo mist); Dr. Jesse Raley (psychiatry)

Insurance carrier [if applicable]: Not applicable.

Attorney(s) for plaintiff and their firm(s):  John Hudson (McLeod Law Group, Columbia, SC); Dwight Hudson (Hudson & Graham, Myrtle Beach, SC); Tilghman Pope (Pope Law Group, Dunn, NC).

Attorney(s) for defendant and their firm(s): United States Department of Justice (AUSA Lee Berlinsky, AUSA Joanna Stroud).

*Was the opposing represented by counsel? Yes.

*Were liability and/or damages contested? Admitted liability.

*Has the judgment been successfully collected? Yes – case was settled on appeal.

said. Joffrion suffered numerous bodi ly injuries from the crash, including an open-book pelvic fracture, core/ab dominal injury, thoracic injury, right knee injury, right wrist fracture and

Harry Halstead v. United States of America

Is this a verdict or a settlement? Verdict

Type of case Motorcycle vs. car Amount: $3,954,705.22

post-traumatic stress disorder. The injuries eventually forced Joffrion out of his employment with both the North Carolina Army National Guard and the Department of Defense.

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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.

*Injuries alleged: Closed head injury, dental injuries, neck injury, rib fracture, elbow injury, bilateral knee and ankle injuries, hip injury, Post-Traumatic Stress Disorder, lost wages and loss of earning capacity, pain and suffering, mental distress and loss of enjoyment of life.

Case name: Harry Halstead v. United States of America.

Court: [or venue if settled pre-suit]: United States District Court for the District of South Carolina, Florence Division. Case No.:  4:18-cv-03540-MGL.

Judge [or arbitrator or mediator]:  The Honorable Mary Geiger Lewis

Date of verdict or settlement:  March 17, 2022

Demand [for verdicts]:  $2,000,000

Highest offer [for verdicts]: $600,000.

Bench or jury trial? [for verdicts]:  Bench Trial.

Special damages [if applicable]: Past medicals: $193,164.42; Future medicals: $459,577; Lost Wages/Lost Earning Capacity: $108,000; Loss of Household Services (past and future): $153,932.

Most helpful experts [if applicable]:  Lindsay Moore (life care planning); Mark Bokesch (economist); Dr. Jesse Raley (psychiatry).

Attorney(s) for plaintiff and their firm(s): John Hudson (McLeod Law Group, Columbia, SC); Dwight Hudson (Hudson & Graham Law Offices, Myrtle Beach, SC); Tilghman Pope (Pope Law Group, Dunn, NC).

Attorney(s) for defendant and their firm(s):  United State Department of Justice (AUSA Lee Berlinsky, AUSA Joanna Stroud).

Was the opposing represented by counsel? Yes.

Were liability and/or damages contested? Admitted liability.

Has the judgment been successfully collected? Yes – case was settled on appeal.

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John Hudson

SC

district looks to

The U.S. Dept. of Justice (DOJ) and U.S. Attorney Adair F. Boroughs announced the results of federal ef forts over the past year to protect old er adults from fraud and exploitation.

During the past year, DOJ and its law enforcement partners tack led matters that ranged from massmarketing scams that impacted thousands of victims to bad actors scamming their neighbors. Sub stantial efforts both nationwide and in South Carolina have been made over the last year to return money to fraud victims. DOJ also announced it is expanding its Transnational Elder Fraud Strike Force to amplify efforts to combat scams originating over seas.

“Our older adults deserve protec tion from those who seek to swindle funds they have spent a lifetime accu mulating, and this Office is ready and equipped to provide that protection here in South Carolina,” Boroughs said in the release. “These crimes are especially heinous because they can rob their victims - who often live on fixed incomes — of not only their lifelong savings, but of their dignity. We are proud to join DOJ’s intensified ef forts to target those who attempt to perpetrate these schemes.”

From September 2021 to Septem ber 2022, DOJ personnel and their law enforcement partners pursued approximately 260 cases involv ing more than 600 defendants, both bringing new cases and advancing those previously charged.

In the past year, DOJ has notified

over 550,000 people that they may be eligible to receive money lost through elder fraud scams. Many of these peo ple were victims of “sweepstakes” or “astrology” solicitations that falsely promised prizes or individualized ser vices in return for a fee. One of the most common scams used to prey on elderly victims is the “grandparent scam,” otherwise known as “personin-need scam.” These scams typically begin when a fraudster, often based overseas, contacts an older adult and poses as either a grandchild, other family member, or someone calling

on behalf of a family member. Victims are told that their family member is in jeopardy and is urgently in need of money.

In South Carolina, the United States Attorney’s Office has prosecut ed several cases in the past year in volving similar scams against elderly South Carolinians. In May, U.S. Dis trict Judge Sherri Lydon sentenced four Jamaican nationals to terms of incarceration ranging from approxi mately three to five years and ordered them to pay back over $350,000 in fraudulently-obtained proceeds.

In September, U.S. District Judge Bruce Howe Hendricks sentenced a foreign national to 78 months im prisonment and ordered her to pay back over $405,000 in fraudulentlyobtained proceeds for her involve ment in a similar scam. At least 175 victims, who were mostly elderly, suffered a loss as part of the scheme. Seventy-three of those victims were more than 80 years old, and several victims were targeted multiple times.

In order to increase public aware ness of these scams, the U.S. At torney’s Office has partnered with state prosecutors and law enforce ment agencies to speak to community groups about the pervasive dangers of elder fraud and abuse. For instance, the office and its partners have hosted “Elder Fraud Bingo” with senior citi zens across South Carolina, aimed at educating seniors on how to spot and protect themselves against frauds and scams. Any members of the pub lic interested in arranging a similar event or contacting a member of the United States Attorney’s Office who can speak to these issues, please call the main line at 803-929-3000.

Reporting from consumers about fraud and fraud attempts is critical to law enforcements efforts to inves tigate and prosecute schemes target ing older adults. If you or someone you know is age 60 or older and has been a victim of financial fraud, help is available through the National El der Fraud Hotline: 1-833 FRAUD-11 (1-833-372-8311).

Staff report

Collision results in $7.1M settlement for worker

■ BY HAVILAND STEWART hstewart@nclawyersweekly.com

A collision that resulted in injuries to an employ ee of a waste management company has resulted in a $7.1 million settlement for the worker.

On June 16, 2020, an employee of a waste man agement company was standing on the driver side riding step of a garbage truck while it made stops to collect trash. The garbage truck was involved in a motor vehicle collision with the defendant, a driver for a retail delivery service. The driver of the gar bage truck the plaintiff was on stopped to collect trash, and the defendant did not. According to the plaintiff’s counsel, Coilin O’Dawe, the defendant’s vehicle veered to the left, and crossed the centerline, striking another vehicle traveling in the opposite di rection. The impact forced the defendant’s vehicle into the garbage truck which crushed the plaintiff’s legs, O’Dawe reported.

The plaintiff sustained multiple injuries, includ ing fractures of the right tibia and fibula, exposed bone on the right leg, right heel avulsion/deglov ing, infection of the right heel, left calf detachment,

amongst other related injuries that resulted in permanent disfig urement to both legs.

The plaintiff underwent 22 sur geries which included three ortho pedic surgeries, 17 plastic surger ies, as well as vascular procedures, acquiring almost $340,000 in med ical bills. According to O’Dawe, the plaintiff requires orthotics and assistive devices for mobility, in cluding a wheelchair, walker, and crutches.

The defense alleged that the plaintiff was not permitted to stand on the rear step of the garbage truck at the speed and distance it was traveling prior to the wreck. However according to O’Dawe, that didn’t apply to this situation because the rule regarding speed and distance is aimed at prevent ing workers from falling off the truck involved, and in this case the truck had made a complete stop.

The defense attorney declined to comment.

Many details of this case have been withheld due to a confidentiality agreement.

Is this a verdict or a settlement? Settlement

Type of case: Motor vehicle wreck

Amount: $7.1 million ($5,951.299.33 from defen dants’ insurance carrier and $1,148,700.67 from defendants directly)

Injuries alleged: Fractures of the right tibia and fibula, exposed bone on the right leg, right heel avulsion/degloving, infection of the right heel, left calf detachment, amongst other related inju ries that resulted in permanent disfigurement to both legs.

Case name: Confidential Court: Halifax Superior Court  Case No.: Confidential

Date of verdict or settlement: Feb. 22, 2022

Special damages: $338,811.45 Rule 414 medical bills and $65,000.00 past lost wages  Insurance carrier: Confidential

Attorney(s) for plaintiff and their firm(s): Paul Hernandez, Colin O’Dawe, Tom Fitzgerald (pro hac vice). Kalfus and Nachman PC Attorney(s) for defendant and their firm(s): Withheld

Was the opposing represented by counsel? Yes

Were liability and/or damages contested? Yes

STATE / Former state official returns to firm

Continued from 1 ►

sion of its semiconductor manu facturing facility in Manassas, Merck’s expansion in Rockingham County and Morgan Olson’s new manufacturing facility in Danville and Pittsylvania County.

Ball oversaw 10 state agencies, including the Virginia Economic Development Partnership, the

Virginia Innovation Partnership Authority, Virginia Housing, the Department of Housing and Com munity Development and Virginia Tourism.

“I look forward to leveraging my experience and resources to help clients achieve their business ob jectives,” Ball said in a statement.

“I am also pleased to once again work with top-notch team mem

PURSUIT / Estate awarded $2.5M

Continued from 1 ►

would be shielded from liability by the doctrine of qualified immunity.

The secondary issue in the liti gation was the application of the South Carolina Tort Claims Act, specifically the definition of occur rence as it is used in the Act’s cap on actual damages. Plaintiff argued that there were multiple occurrenc es because there were multiple dis tinct acts of negligence, including improper initiation of the pursuit,

failure of the purchasing officers to terminate the pursuit, failure of the supervisor to terminate the pursuit, improper use of tire defla tion devices, and negligence in the hiring, training, and supervision of employees.

The case settled for $2,500,000. Of this amount, $2,000,000 was paid by the South Carolina Municipal Insur ance and Risk Financing Fund on behalf of the APD and $500,000 was paid by the Insurance Reserve Fund on behalf of the ACSO.

Type of Action: Law Enforcement Vehicle Pursuit

Injuries Alleged: Wrongful Death, Loss of Consortium, Bystander Liability

Name of Case: Gregory Wilson, Individually and as Personal Representa tive of the Estate of Brenda Wilson vs. City of Anderson, Anderson County, Joseph Chapman, Zack Lucas, Craig Gardner, B.D. Jackson

Court: U.S. District Court, District of South Carolina, Anderson Division

Tried Before: N/A

Judge or Mediator: Mediator Karl Folkens

Special Damages: No economic loss claimed Verdict or Settlement: Settlement $2,500,000

Date of Settlement: July 26, 2022

Most Helpful Experts: Geoff Alpert (police practices)

Attorneys for Plaintiffs: Samuel R. Clawson Jr. and Christy R. Fargnoli of Clawson Fargnoli Utsey, LLC in Charleston and Steven M. Krause of the Law Offices of Steven M. Krause, P.A. in Anderson

Attorneys for Defendants: Withheld

Were Liability and Damages Contested: Yes

Person Submitting Report: Samuel R. Clawson, Jr. and Christy R. Fargnoli

bers here at Williams Mullen.”

Ball received his bachelor’s and law degrees from the University of Virginia and served as U.S. attor ney for the Central District of Cali fornia from 1981 to 1982.

Ball won’t be the only state gov ernment alum to work for Williams Mullen. Christopher J. “Chris” Mc Donald joined the firm in January as director of government relations

in the Richmond office. He served in Gov. Terry McAuliffe’s adminis tration, counseling the governor’s office, the secretary of commerce and trade and then-Department of Mines, Minerals and Energy, along with others.

Williams Mullen has 240 attor neys in offices in North Carolina, Virginia and South Carolina.

Staff report

Interim CEO of COMET dies

Derrick Huggins, the interim CEO and executive director of the Central Midlands Regional Tran sit Authority, died unexpectedly Oct. 7, according to a news release from COMET.

“We are saddened at this very unexpected loss, as so many of just had conversations with him in recent days and were making future plans together,” said Alli son Terracio, COMET board chair. “Derrick was not only the CEO of the COMET. He had been a board member and board chair, and we all knew him not only profession ally but also personally. He will be missed.”

Huggins had served as a leader both in the transportation field and

in the community, according to the release. He was a long-time COMET board member and served as board chair up to his ap pointment as in terim CEO and executive director in November 2021. He previously served as a transportation execu tive with the University of South Carolina.

LeRoy DesChamps, COO of COMET, will assume oversight of the organization as the board of directors works on plans for the fu ture, the release said.

We are saddened at this very unexpected loss, as so many of just had conversations with him in recent days and were making future plans together He had been a board member and board chair, and we all knew him not only professionally but also personally. He will be missed.

Allison Terracio

Colin O’Dawe

Derrick Huggins

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Governor puts his weight behind EV industry

■ BY KRYS MERRYMAN kmerryman@scbiznews.com

S.C. Gov. Henry McMaster signed and announced a new executive order that will help support the increase of electric vehicle production and coordi nate infrastructure for the industry in the state.

The executive order, which was an nounced at the end of the Electric Ve hicle Summit at the AC Hotel Green ville recently, formalizes McMaster’s efforts to coordinate the future rollout of the state’s electric vehicle in frastructure. The order prioritizes the state’s efforts to recruit vehiclerelated businesses to South Carolina by training the state’s workforce to be prepared for the jobs related to the industry and establishing a “one-stop shop” at the S.C. Department of Com merce for businesses interested in in vesting in the state, according to the news release sent by the governor’s office on Thursday afternoon.

“Thousands of jobs will be created,” said S.C. Department of Employment and Workforce Director Dan Ellzey at the summit. “We are ready from a workforce standpoint, but this electric vehicle trend will be a huge demand for technicians at car dealers who will need additional training for batteryoperated vehicles. We will continue to gather occupational information and analysis to figure out all the needs.”

Ellzey also predicted a need for in dustrial engineers, which require a college degree, and software develop ers among many other positions.

About 700 students across 16 state technical colleges are currently en rolled in automotive technology, said Tim Hardee, S.C. Technical College System president.

“Not only does the number of stu dents need to expand, but we will also need more instructors,” he added.

The S.C. Technical College System secured $12 million last year in state funding to train 6,000 people, Hardee said. He believes the interest in the manufacturing industry should be sparked earlier, in K-12 schools.

“We will continue to navigate to address this emerging industry,” said Hardee, “much like when Michelin came to South Carolina.”

Manufacturing jobs make up more than 30% of the state’s total workforce. South Carolina is currently home to more than 500 automotive companies and 72,000 autoworkers. The industry has a $27 billion economic impact in the state.

The governor’s executive order also creates an Interagency Working Group tasked with working collab oratively with stakeholders and local governments to develop a compre hensive plan regarding the strategic deployment of electric vehicle-related resources and infrastructure across the state, according to the release. The working group will be focused primar ily on developing a plan for strategi cally placing electric vehicle charging stations along South Carolina’s inter states and roadways.

The working group is made up of many of the agencies who provided guest speakers at the summit includ ing the department of Transportation, commerce, DEW and others.

“The only way South Carolina has been able to maintain its status as an automotive industry leader for near ly three decades is by strategically adapting as the industry innovates,” McMaster said. “As the industry con tinues to move toward electric vehi

cles, South Carolina will move along with it — working to ensure that our state will continue to be seen as the ideal place for manufacturers and suppliers to do business. Along with these investments comes good-paying jobs that our people will be ready to take on.”

The 2022 Governor McMaster’s Electric Vehicle Summit

Joey Von Nessen, University of South Carolina research economist, kicked off the summit with an electri fication study and economic impact of select South Carolina sectors.

South Carolina’s automotive man ufacturing industry has been a prin cipal driver for the state’s economic growth since 2010, with a total growth rate of approximately 186.1% between 2010 and 2020 — higher than any other Southeastern state. In order to continue long-term growth, the state intends to respond to changes in de mand and market transitions.

“This has been consistent growth over time, over the last decade,” said Von Nessen. “More and more compa nies are drawn to South Carolina than anywhere else in the United States for manufacturing.”

The e-Mobility industry is rapidly evolving with the rise in global de mand for electric vehicles, he said.

According to Von Nessen, even with the extraordinary growth the automo tive industry has seen in the previous decade, South Carolina’s automotive industry currently contributes just 26% of the total value to the vehicles it produces. That is due to the state historically not producing vehicle en gines.

“Now we are in a position where we can start thinking about the produc tion of vehicle engines in the state,” he said. “This is a real opportunity for the state, not only to adapt to the new electric vehicle landscape but to create an increase of value of the state.”

Keynote speaker J.B. Straubel said the landscape has changed in credibly fast over the last decade. He is co-founder and former chief tech nology officer of Tesla and founder and CEO of Redwood Materials, a domestic supply chain for lithiumion batteries across collection, re furbishment, recycling, refining and remanufacturing of sustainable bat tery materials. Redwood Materials partners with Ford, Volvo, Toyota, Volkswagen and other companies, focusing on a clean energy future. Straubel left Tesla and started Red

wood in 2017.

“We are only 1% of the way of elec trifying cars in the U.S.,” Straubel said. “It’ll be a challenging time, but we are already experiencing unprec edented growth in this industry.”

However, he added, globally the Southeast is going to be one of the largest battery manufacturing cen ters.

Also at the summit, several govern ment agencies and state organizations took the stage in Q&A-style inter views including representatives from the S.C. Department of Commerce, S.C. Department of Transportation, S.C. Technical College System and the S.C. Manufacturers Alliance.

Key takeaways from the summit

More electric vehicle production from S.C. manufacturing plants could lead to a greater reliance on out-ofstate suppliers, which could, in turn, result in lower rates of job creation, unless the state grows its e-Mobility supply chain.

Global projection of electric vehicles is increasing dramatically and is fore cast to continue in the coming decade.

A focus on growing electric vehicle supply chains, freight transportation, maintenance and workforce initia tives are all critical to help maintain the competitive advantages that the state has experienced throughout the last decade.

Greenville Mayor Knox White said, “We are a manufacturing state, an intersection between innovation and new technology, and electric vehicles are the future.”

McMaster said manufacturing is booming in the state. The industry has created billions of dollars in capi tal and thousands of jobs in South Carolina. For example, BMW has in vested more than $12 billion into the state since breaking ground on its Spartanburg County plant in 1992.

Volvo has also projected the com pany will make all its vehicles electric by 2030, according to McMaster.

“Times are changing, and we are right in the middle of it,” he said. “It’s a great future.”

S.C. Parks Recreation and Tour ism Director Duane Parrish said the agency plans to have electric vehicle charging stations in all 47 state parks.

“This is an opportunity to be a lead er in the industry across the nation,” he said.

If everyone in the country woke up and decided they wanted an elec tric vehicle, said S.C. Commerce Sec

retary Harry Lightsey, it would still take decades to get the United States to where it needs to be for the future.

“It’s a process,” said Lightsey.

As part of the S.C. DOT’S National Electric Vehicle Infrastructure plan, more electric vehicle charging sta tions will be added across the state, said Transportation Secretary Christy Hall.

“It’s a real issue with battery limita tions,” she added. “But we are looking at interstates and more rural areas, and we anticipate leveraging public and private sectors at maximum ca pacity, especially federal funding to help implement the NEVI plan.”

The state is already seeing an in crease in electric car production.

An electric car company, Dash EV, which produces vehicles to expand the carsharing business, announced on Oct. 12 it will expand its operations and move headquarters to Greenville Dash EV created “Dash,” a 100% electric, solar-charged vehicle. The company’s mission is to provide sus tainable mobility that fills a gap be tween walking, biking and mass tran sit in cities and on campuses.

In September, the S.C. Energy Office released the Electric Vehicle Stakeholder Initiative Report, which summarizes opportunities to advance electric vehicle deployment in South Carolina. The report features the col laborative work of more than 350 di verse stakeholders to examine the leg islative and regulatory landscape for electric vehicle access and adoption, identify challenges and opportunities, and develop actionable recommenda tions for South Carolina. The sum mary of the report (pdf) was shared at the summit.

“It is time to embrace the future for more sustainability to continue to be competitive as a state,” said Com merce Deputy Secretary Ashely Teas del. “In the automotive force, we have here some of the best in the world, so we have a responsibility to help sup port our companies and businesses.”

Sara Hazzard, S.C. Manufacturers Alliance CEO, agreed with Teasdel, that South Carolina is a pro-business state.

“We make it our business to be probusiness here, which is why we have a strong ecosystem in the state to support new businesses,” she added.

“Manufacturing businesses love doing business here because they are thriv ing. I believe we will see more renew able energy sources here over the next decade.”

S.C. Gov. Henry McMaster signs executive order during the Greenville Electric Vehicle Summit supporting state’s electric vehicle infrastructure roll-out. Photo/Krys Merryman

Change of Superfund status opens site in Charleston for future development

■ BY KRYS MERRYMAN

A site that could go on to repre sent the largest redevelopment of formerly contaminated land in the state was recently removed from the federal Superfund list by the Environmental Protection Agency. The move clears the way for devel opment of the Magnolia project.

Thousands of Superfund sites exist all over the country because of hazardous waste being dumped there, left out in the open, or other wise improperly managed, accord ing to the EPA’s website . Those sites include manufacturing fa cilities, processing plants, landfills and mines.

Like much of the Upper Penin sula, the Magnolia development site was once home to heavy indus try, which polluted the land for de cades with lead, creosote, arsenic and other contaminants from the manufacture of fertilizer and woodtreatment products. The Koppers tract, named for the wood treat ment plant that operated there from 1940 to 1977, was placed in the Superfund Trust in 1994, ac cording to the Magnolia developer, Highland Resources Inc

Environmental cleanup of the site began after a Raleigh-based real estate investor assembled the land in 2002 from about two doz en individual tracts and began to reimage the industrial wasteland as a “new urbanist” community of homes, shops, hotels, entertain ment venues and parks, Highland Resources added.

When the Environmental Pro tection Agency removed the site from the National Priorities List, it effectively gave Magnolia a green light to begin development on the former brownfield site. Two other federal environmental reme diation sites at Magnolia, formerly owned by Columbia Nitrogen and Ashepoo Phosphate, previously had been remediated to EPA stan dards, according to the developer.

Davis said with evidence today and word from federal authorities who cleared the site, he doesn’t not see recontamination as a concern. Fresh soil has been put down over the span of the property, he said.

“This site has been cleaned up twice, so we have absolutely no concerns about recontamination at all,” said Craig Zeller, EPA At lanta office project manager. “If we felt differently, we wouldn’t have cleared it for mixed-use develop ment, so it is good to go.”

Overall environmental remedia tion costs have totaled $75 million to date, which included removing contaminated soil and covering an area the size of 34 football fields with a protective barrier and clean soil, said Highland Resources.

‘The next phase of the project’

It has been a decades-long un dertaking to bring the 189-acre Magnolia project to life. The land is a total of nine parcels combined into one large parcel to build a oneof-a-kind mixed-use town center in Charleston proper. Magnolia is zoned for more than 4,000 residen tial units, 1 million square feet of

office space, up to 200,000 square feet of retail space, more than 1,000 hotels rooms, multiple enter tainment venues, a marina and a waterfront park along the marshy banks of the Ashley River.

The first phase will focus on the waterfront area of the property and include 150,000 square feet of retail space, 850 residential units, 300,000 square feet of office space and a luxury hotel.

The Magnolia site has been com pletely cleared for development, but infrastructure design and per mits are in the process with the city of Charleston before construc tion can be started, which is ex pected to begin in early 2024.

“There has never been a devel opment of this size in Charles ton to this date that can be rede veloped to this magnitude, so it makes sense to use it for a mixeduse development here once the en vironmental issues were remedied, as close to the city core as possible to make for a sustainable green development,” said Clark Davis, CEO and president of Highland Resources Inc. “We look forward to moving into the next phase of the project, which will create a strong sense of place through engaging the waterfront with public access to the Ashley River.”

Highland is partnering with Portman Holdings to develop the Magnolia project. The Atlantabased, private real estate firm has developed projects such as The Line in Charlotte’s South End and other projects out West.

“We are going to joint venture with Portman, because we feel we can bring more to the Charleston area in an efficient and economical fashion working together,” Davis said.

Ambrish Baisiwala, Portman chairman and CEO, said the first phase of construction will activate the waterfront, creating a public amenity for the entire community to enjoy.

“The first phase will focus on

creating at least two public access points along the waterfront,” he said. “In total, Magnolia will in clude 24 acres of public parks, with neighborhood greens, plazas and public squares, and we will pre serve all 48 acres of marshland.”

The Magnolia will be a live, work, play community with more than a half-mile of waterfront and the largest open park area in Charleston, “so we want to make sure we are building sustainable designs throughout the project,” Davis said.

This site is a special opportu nity to have almost 190 contigu ous acres directly on the Ashley River with proximity to downtown Charleston and the historic dis trict, said Baisiwala.

“The (Superfund) delisting is a significant milestone that allows us to move forward with the de sign and programming of a oneof-a-kind, mixed-use development entirely focused on activating the currently inaccessible waterfront for the community,” he added. “We’re working to transform the site with a master plan focused on walkability, green spaces, local restaurants and residential com munity to deliver a sustainable waterfront destination that ben efits from and contributes to the essential appeal of Charleston.”

What Magnolia means for the cty of Charleston

Charleston Planning Manager Christopher Morgan said working with the developers of the site to get it cleaned up has been nearly 20 years in the making.

“This redevelopment will be really instrumental for the city, as it has the potential to be a dy namic part of the city in an area of Charleston that hasn’t contrib uted much for a while,” said Mor gan. Seeing the site now cleaned up is phenomenal for our city, and we are excited to see the project move along. It’s an amazing piece of property.”

Morgan also said the Magnolia site is an ideal location to create more activity with the view of the Ashley River and along the land ing of history, where Charleston was first settled. It’ll have a tran sit stop as well, allowing for more connectedness for the region and downtown Charleston.

Market conditions will dictate the completion of phases, said Davis, but the first phase will be the most significant, as it is set to be 20-25% of the entire site. The first phase will include multifam ily units, hotels, retail, shopping, dining and the completion of the waterfront park, so residents can start taking full advantage of these amenities early in the devel opment, Davis added.

Portman and Highland estimate the total cost of the project to be about $2 billion when the project is completed, likely in the next 1215 years.

Once completed, Davis said they expect the development to create many jobs and have a positive im pact on the Charleston community.

“We have been working with the city and neighborhood groups to make sure this is a project every one is proud of,” he said. “The size of the project alone sets it apart, and there is nothing else like it. It’ll have a town center feel. It’ll be a place people will want to stay, live, visit.”

Highland Resources was found ed by brothers George and Herman Brown, owners of Brown & Root and Texas Eastern Corp. Houstonbased Highland Resources Inc. has a track record of developing residential, industrial, hospitality and office projects. Highland has accumulated and owns, or is devel oping, more than 32,000 acres of land and 6.2 million square feet of commercial space throughout the Southeastern United States and in Scotland.

If you have a business story idea for Krys, reach out to her at kmerryman@scbiznews.com

Developers want to create a town center with a mix of housing, office, retail and hospitality, and even a waterfront park along the Ashley River, on a former Superfund site. Rendering/Provided

Opinions

Insurance

Uninsured Motorist Coverage –Shooting Death – Independent Act

Discharging a firearm into another vehicle constituted an independent act that severed any connection to the use of motor vehicles and therefore ended coverage under auto insurance policies.

We reversed the court of appeal’s judgment overturning the grant of summary judgment to an insurer seeking to disclaim coverage for gun shot injuries that occurred while the victim’s and shooter’s vehicles were stopped at a red light.

Jimi Redman shot and killed Lynn Harrison while both of their vehicles were waiting at a red light. Prior to the shooting, Redman approached Harrison’s vehicle in the lane to Har rison’s right. Witnesses saw Redman make hand gestures and blow kisses toward Harrison. Harrison made no attempt to evade Redman. However, when both vehicles stopped at the light, Redman pulled out a rife and fired at Harrison through her passen ger window.

Harrison was insured by an auto insurance policy issued by USAA and by her husband’s motorcycle policy is sued by Progressive. The Progressive policy included uninsured motorist coverage that would pay benefits for bodily injury sustained in an accident “arising out of the ownership, mainte nance or use of an uninsured motor ve hicle.” The USAA policy also included uninsured motorist coverage that was available for bodily injury or injury to or destruction of property arising from the ownership, maintenance or use of an uninsured motor vehicle.

Progressive filed the present de claratory judgment complaint seeking a ruling that it had no obligation to provide uninsured motorist coverage because Harrison’s fatal injuries did not arise from the use of Redman’s vehicle. The parties cross-moved for summary judgment, with Progres sive arguing that firearm injuries were not foreseeable injuries from the normal use of a vehicle. In response, Harrison’s estate argued that because Redman pursued Harrison in his ve hicle before shooting her, there was a causal connection to the use of a mo tor vehicle. The circuit court granted summary judgment for Progressive, finding that Harrison’s injuries were not causally connected to the use of Redman’s vehicle nor foreseeable from the use of a motor vehicle as the use of a firearm constituted a significant independent act. The court of appeals reversed, and Progressive filed a peti tion for a writ of certiorari

We reverse the court of appeals’ de cision and reinstate the circuit court’s grant of summary judgment in favor of Progressive. We find that the legal landscape concerning auto insurance coverage for gunshot wounds that occur in motor vehicles has evolved, sharply limiting the circumstances

in which insurance coverage could be available for firearms injuries in mo tor vehicles. We hold that the court of appeals erred in relying on older case law that, although not expressly over ruled, was limited by the newer cases cited by the circuit court. We rule that Harrison’s estate was not entitled to uninsured motorist coverage because the act of firing a weapon from one motor vehicle into another constitutes an act of independent significance that breaks the causal chain linking to the use of motor vehicles.

Reversed.

Progressive Direct Insurance Co. v. Groves (Lawyers Weekly No. 010-039-22, 8 pp.) (Kaye G. Hearn, J.) Appealed from Dorchester County Circuit Court (Alison Renee Lee, J.) John Robert Murphy and Wesley Bri an Sawyer for petitioners; John Phil lips Linton, Jr., and Ryan Harris Sigal for respondent. S.C. Sup. Ct.

Criminal Practice

Homicide – Protection of Persons and Property Act – Defense of Others –Motion for Immunity

Circuit courts were obligated to make credibility determinations and findings of facts as the factfinder in the first instance on a motion for im munity based on defense of others and could not simply leave factual disputes to the jury.

We reversed and remanded the circuit court’s denial of a defendant’s motion for immunity under defenseof-others where the circuit court failed to weigh credibility and facts and instead determined that factual disputes were for the jury to resolve.

Petitioner was charged with mur der and possession of a weapon during a violent crime, following the shooting death of the victim, Mitchell Bradley. Petitioner asserted immunity under the South Carolina Protection of Per sons and Property Act, alleging that he was acting in defense of his partner Randy Wilson. Petitioner and Wilson shared a mobile home. They allowed Bradley’s brother, Jacob Kirk, to live with them rent-free in exchange for helping with chores and errands.

On the evening of the shooting, Bradley was visiting Kirk at petition er’s and Wilson’s home. Kirk started drinking soon after coming home from work. Later in the evening, Bradley and Kirk continued drinking on the porch. Wilson, who was on the phone, had placed leftovers for Bradley and Kirk in the microwave. An altercation began when Kirk entered the home and interrupted Wilson’s phone call several times to ask about leftovers. Wilson instructed Bradley to leave the home. When Bradley refused, Wilson called 911. While waiting for police to arrive, Wilson went outside to fix Kirk’s truck.

Police arrived and found Wilson, Kirk, and Bradley in an intoxicated state; petitioner was asleep in his bedroom. The officers stated that they

could not force Bradley to leave since he was an invited guest of Kirk, a resident of the property, and left the home. The argument resumed sever al minutes after police left, becoming physical when Bradley shoved Wilson down the stairs, causing him to break his foot. As Wilson came back up the stairs, Bradley hit Wilson in the face, and Wilson called to petitioner for help. Wilson testified that he was con cerned for his safety and recalled that petitioner first fired a warning shot at the floor and then fired at Bradley when he did not stop. Kirk testified that the altercation did not become physical until Wilson began messing with Bradley’s personal effects. Pe titioner testified that his intent was only to wound Bradley.

The circuit court denied petition er’s motion for immunity. Petitioner proceeded to trial and was convicted. The court of appeals affirmed. Peti tioner appealed, arguing that the cir cuit court erred in denying immunity.

We reverse the denial of petition er’s motion for immunity. Although the circuit court ruled that there was a dispute regarding Wilson’s role in instigating the altercation, we note that subsequent cases have held that a conflict in evidence did not automat ically warrant the denial of immunity. Instead, we hold that the circuit court must weigh the evidence and make its own credibility determinations and factual findings. We also note that while an individual may start an al tercation, there are circumstances in which that individual’s right to selfdefense could be restored. In the pres ent case, we note that Wilson tried to retreat into his home but was blocked by Bradley. Thus, we hold that a re mand is necessary for the circuit court to exercise its role as a factfinder in the first instance.

Reversed and remanded.

State v. McCarty (Lawyers Weekly No. 010-40-22, 16 pp.) (Don ald W. Beatty, J.) Appealed from Pickens County Circuit Court (Letitia H. Verdin, J.) Appellate Defender Su san Barber Hackett for petitioner; At torney General Alan McCrory Wilson, Deputy Attorney General Donald J. Zelenka, Senior Assistant Deputy At torney General Melody Jane Brown, Assistant Attorney General Michael G. Ross, and Assistant Attorney Gen eral Julianna E. Battenfield, and So licitor William Walter Wilkins III, for respondent. S.C. Sup. Ct.

Criminal Practice

Cocaine Trafficking – Traffic Stop –Reasonable Suspicion – Consent to Search

Police impermissibly ex tended a traffic stop when there were insufficient objective facts prior to and during the stop to support reasonable suspicion to extend the stop for further investigation, and a suspect’s compliance with police direc

tions could not provide a basis to find consent to search.

We reversed the denial of a motion to suppress where po lice lacked reasonable suspicion to prolong a traffic stop for a broken taillight as there were insufficient objective facts to support a reasonable belief that criminal activity was afoot.

Two officers sat in an unmarked vehicle outside a bus station in North Charleston while conducting a routine drug interdiction. That morning, peti tioner traveled by bus from New York to North Charleston. The officers were located about 100 yards away from the bus station’s exit when they no ticed petitioner leave the station. The officers stated that petitioner immedi ately stopped after exiting the station, looked left and right, then walked to a vehicle driven by Cheryl Jones and got in the car, which drove away. Be lieving that petitioner was looking for law enforcement, the officers became suspicious. Noticing that Jones’ ve hicle had an inoperable third brake light, the officers called another patrol officer to conduct a traffic stop. The of ficers informed the patrol officer that petitioner seemed suspicion but did not relay any of the details that led to their suspicion.

Upon stopping the vehicle, the pa trol officer noticed that Jones’ pants zipper was open, which suggested that she might be hiding contraband. The officer also noticed that both Jones and petitioner seemed nervous.

Jones did not have her driver’s license and provided her personal informa tion to the officer. Dispatch indicated that Jones had no outstanding war rants, and the officer indicated that he would issue a warning and try to obtain consent to search the vehicle. The officer returned to the vehicle and asked Jones to step out of the vehicle. Jones consented to a search, and pe titioner was asked to exit the vehicle. Officers found cocaine on petitioner’s person and in his jacket in the back seat of the vehicle.

Petitioner moved to suppress, ar guing that the officer lacked reason able suspicion to prolong the traffic stop and that he never consented to a search. The circuit court denied the motion, noting facts cited by the solici tor as supporting reasonable suspicion such as petitioner’s travel by commer cial bus and scanning for law enforce ment, Jones’ open zipper, and Jones’ and petitioner’s nervous behavior. The circuit court further found that petitioner’s behavior unambiguously showed consent to search.

We reverse the denial of petition er’s suppression motion. We first find that the patrol officer lacked reason able suspicion to prolong the traffic stop. We note that although the nar cotics officers informed the patrol offi cer that petitioner seemed suspicious, their suspicions were merely based on a hunch. Although the patrol officer witnessed other factors such as Jones’

open zipper and her and petitioner’s nervous behavior, we hold that these were not enough to give rise to reason able suspicion in the absence of other evidence of criminal activity. We note that the traffic stop was merely a pre text for a drug stop and to obtain con sent for a search.

We also reverse the circuit court’s conclusion that petitioner consented to a search. We find that petitioner only placed his hands on the vehicle at the officers’ instruction, and thus his behavior could not provide a basis to find consent.

Reversed.

State v. Frasier (Lawyers Weekly No. 010-41-22, 11 pp.) (Kaye G. Hearn, J.) Appealed from Charleston County Circuit Court (Deadra L. Jefferson, J.) Appellate Defender Kathrine Hudgins for petitioner; Attorney General Alan McCrory Wilson and Assistant Attor ney General Mark Reynolds Farthing, and Solicitor Scarlett Anne Wilson for respondent. S.C. Sup. Ct.

Attorneys

Discipline – Definite Suspension –Domestic Violence – Alcohol Monitor ing

After an altercation with her boy friend in which both parties suffered minor injuries and a gun was acciden tally discharged, (1) respondent was charged with third-degree domestic vi olence, (2) she self-reported the charge and was placed on interim suspension, (3) she entered into a monitoring con tract with Lawyers Helping Lawyers (LHL), (4) she successfully completed an intensive outpatient program with Prisma Health Behavioral Care Day Treatment, (5) the charge against her was dismissed and (6) the charge was expunged from her public record.

Under these circumstances, we accept the parties’ agreement for dis cipline by consent and suspend re spondent from the practice of law for six months, retroactive to the date of her interim suspension. Should re spondent be reinstated to the practice of law, she shall be required to enter into a two-year monitoring agreement with LHL, the terms of which shall include random drug and alcohol screening and regular attendance at

Alcoholics Anonymous meetings. She shall also be required to provide quar terly reports from her treating provid er regarding her diagnosis, treatment compliance, and prognosis for a period of two years.

In re Perkins (Lawyers Weekly No. 010-043-22, 3 pp.) (Per Curiam) John Nichols and Jamie Wilson for the Of fice of Disciplinary Counsel; George Pappas for respondent. S.C. S. Ct.

Criminal Practice

Constitutional – Confrontation Clause – Lab Report – Homicide by Child Abuse – Confession – Impair ment

Where a report from a private laboratory was required to satisfy the state’s burden of proof for homicide by child abuse, and where the prosecu tion’s pathology witness vouched for the reliability of the private lab, the state violated defendant’s right to con front the witnesses against her when it used a surrogate witness to explain the lab report.

We affirm the Court of Appeals’ conclusion that the trial court did not err in admitting a portion of the video of defendant’s interrogation. Howev er, we reverse defendant’s conviction because the Confrontation Clause mandates that an individual who ac tually performed the forensic testing be subject to cross-examination.

Confrontation Clause

Defendant was the only adult present while she cared for her 13-month-old grandson (Child) and his one-month-old sister. Defendant mentioned having given Child lemon ade around midday. At the end of the day, Child could not be awakened.

A pathologist could determine no apparent cause of death, so he sent samples to a private lab. The toxi cology results (NMS report) led the pathologist to conclude the cause of death was acute oxycodone toxicity.

SLED tested two sippy cups found in defendant’s house; one of them tested positive for oxycodone. Defen dant’s neurologist explained that de fendant’s prescription was for 12-hour extended-release oxycodone. The pa thologist testified that a person can abuse the long-lasting medication by cutting the pill and dissolving it into

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an acidic substance.

The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.”

Although the forensic analyst who actually performed the testing may not have known each particular fact calling defendant’s innocence into question, the state cannot undermine the Confrontation Clause by utilizing a private laboratory in a criminal trial without calling the individual who performed the testing.

Moreover, S.C. Code Ann. § 17-5520 specifically requires that an au topsy be done by a “pathologist with forensic training” whenever a child dies as a result of violence, in a sus picious manner, or in an unexplained way. Other state appellate courts have looked to their respective stat utes governing autopsies, and many have reasoned that if an autopsy is le gally required in order to investigate a death, then its primary purpose is for a criminal investigation and thus, is testimonial.

While we must review the primary purpose of the evidence to ascertain whether it is testimonial, we cannot ignore the reality that if a criminal prosecution takes place, the NMS report would be critical to prove the state’s case.

The NMS report served as the ba sis for the pathologist’s cause-of-death determination and revealed the quan tity of oxycodone found in the child. Both points go straight to the heart of the state’s burden of proof for this ho micide by child abuse charge because the state had to establish the cause of death and disprove defendant’s con tention that the child accidently in gested oxycodone by swallowing a pill or pills.

The pathologist testified the NMS lab offered the best product he can purchase, and he would not sign his official report if he had any indication that the lab did not provide reliable testing. In closing, the state informed the jury about the contents of the re port and how the pathologist repeat edly testified that the lab was trust worthy and the preeminent lab in the country. Accordingly, the state vio lated defendant’s Sixth Amendment right to confront the witnesses against her because it was permitted to use a surrogate witness to explain the re

sults of a test involving a key fact at issue and to essentially vouch for the accuracy of that lab without undergo ing the crucible of cross-examination.

We acknowledge that it may be more efficient for a pathologist to uti lize a private lab in investigating a death in some situations. However, the Confrontation Clause does not carve out an efficiency exception, and therefore, we cannot compromise a de fendant’s constitutional rights in the name of efficiency.

Instead, because the NMS lab re port is testimonial in nature, defen dant should have had an opportunity to cross-examine the individual who performed the testing. Without being afforded that right, defendant lost her constitutional right to force the wit ness to submit to cross-examination, the greatest legal engine ever invent ed for the discovery of truth.

Interrogation

Investigators interrogated defen dant at around 11:40 a.m. on Decem ber 18, 2014. She waived her Miranda rights and informed the investiga tors that she had taken Oxycontin at around 6:00 that morning. Later in the interview, she mentioned that she had taken Valium shortly before ar riving at the sheriff’s office, sometime between 10:00 and 11:00 a.m. Approx imately 45 minutes into the interview, investigators walked outside with de fendant to give her a break because she was slurring her words and strug gling to stay awake.

Proof that an accused was intoxi cated at the time he made a confession does not render the statement inad missible as a matter of law, unless the accused’s intoxication was such that he did not realize what he was saying.

The trial court properly applied our case law when it admitted the first part of defendant’s interview but excluded the second portion of the in terview because defendant’s condition had deteriorated to the point where she was too intoxicated to understand what she was saying.

Affirmed in part; reversed in part.

State v. Brewer (Lawyers Weekly No. 010-044-22, 14 pp.) (Kaye Hearn, J.) Appealed from Pickens County Circuit Court (Perry Gravely, J.) Su san Barber Hackett for petitioner; Alan McCrory Wilson, William Blitch and William Walter Wilkins for re spondent. S.C. S. Ct.

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

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