South Carolina Lawyers | Turner Padget Law

Turner Padget enjoys a long tradition as one of South Carolina’s premier litigation firms. While our practice areas have expanded over the past eighty years to meet the evolving needs of our clients, it is our legacy as litigators that remains paramount to our success. This section of our blog contains recent courtroom achievements regarding various legal issues and to share our recent courtroom achievements.

Brandon Hylton and Sam Sammataro prevail in a workers’ compensation matter. The claimant alleged injury to his left knee both by repetitive trauma and by accident from a fall from his truck that occurred while making a delivery. He sought additional medical examination and treatment, temporary total disability payments, and a finding of permanent disability. The claimant also alleged he injured his right knee when he fell because of the weakened condition of his left knee. The employer and carrier denied the claim on the basis that no evidence supported claimant’s contention that his injuries arose out of and in the course and scope of his employment. The single commissioner found both falls to be compensable as a work-related injury and subsequent re-injury to the left knee. The commissioner found employer and carrier responsible for all causally related medical treatment for the left knee, as well as continuing medical treatment and temporary total disability payments. The single commissioner rejected the claimant’s contention that the left knee injury resulted from repetitive trauma and that he sustained any injury to the right knee. On review, the Commission’s Appellate Panel reversed the single commissioner’s findings with regard to the left knee injury and affirmed the denial of benefits for the alleged right leg injury. A unanimous panel of the South Carolina Court of Appeals affirmed the panel’s ruling.
Reggie Belcher secures summary judgment for an employer. The company fired the employee after he violated a safety rule, as his violation could have caused serious injury or death to himself or others. The employee sued the company, alleging race and age discrimination, race and age harassment, retaliation, and a violation of OSHA. On an earlier motion, the court dismissed all claims, except the race discrimination cause of action. Even though the employee alleged that his supervisor used offensive racial slurs, the court granted summary judgment and dismissed the case because the employer consistently applied its safety policy and had disciplined other employees whenever they committed safety infractions.
J. René Josey contributed to a winning brief submitted to the United States Court of Appeals for the Fourth Circuit on behalf of four securities brokers sued by their former employer. When it was discovered that the brokers were contemplating a move to a new employer, they were terminated and sued in United States District Court where the plaintiff sought to enjoin the brokers from soliciting their former clients and using any of the firm’s information. A partial injunction was entered, and the matter referred to regulatory arbitration where an arbitration panel ultimately awarded the brokers some $1.1 million in attorneys’ fees and costs, a decision confirmed by the District Court which dismissed its prior injunction. The decision was recently affirmed by the United States Court of Appeals for the Fourth Circuit in a published opinion. This case is significant in that an aggressive approach by the employer at trial was rebuffed and ultimately punished as frivolous. This was perhaps the first use of the South Carolina Frivolous Proceedings Act by an arbitration panel and the first Fourth Circuit opinion also dealing with the Act.
Eric Englebardt and Adam Russell obtain a favorable verdict in a motor vehicle case. Defendant and another driver were racing their Mustang GT’s through Fountain Inn, South Carolina, including a two mile stretch of Main Street around 3:30 p.m. on a weekday afternoon. Speeds reportedly hit 80-100 MPH. A mile from the accident a police officer saw the speeding Mustangs and gave chase and followed Defendant after the other vehicle turned off. Defendant attempted to flee the blue light and turned right in the middle of downtown Fountain Inn. Because of her speed, Defendant lost control of the car while making the turn and ran into the vehicle in which Plaintiff was a passenger. Plaintiff’s vehicle was sitting at a red light waiting to go forward. The entire chase was caught on the dash cam and shown to the jury multiple times. Defendant was arrested and pled guilty to reckless driving and failing to stop for a blue light. Plaintiff claimed $5300 in actual damages, plus entitlement to punitive damages, and his wife asserted a loss of consortium claim. Plaintiff had received $19,800 from the underlying carriers, representing his share of the full amounts of the policies, which were exhausted in settlement of the claims of the other two occupants of Plaintiff’s vehicle. Plaintiff demanded the full $25,000 in UIM limits from the carrier, and Plaintiff’s counsel wrote letters alleging first party bad faith for failure to pay the UIM benefits. The carrier offered $3,000, which would have brought his total amount to $22,800. The jury returned a verdict of $7,000 in actual damages and no punitive damages on Plaintiff’s claim and a defense verdict on the loss of consortium claim.
Reggie Belcher obtains summary judgment in a defamation case. Plaintiff provided financial and accounting-related services to a school district where Defendant served as statewide superintendent. Plaintiff sued Defendant for defamation, alleging that he repeatedly disparaged, both verbally and in writing, its reputation to numerous third-parties by commenting that, among other allegations, Plaintiff was a monopoly, had a conflict of interest with the district, wrote its own checks, profited from failed schools and sabotaged data and records after the district did not renew its contracts with Plaintiff. Plaintiff alleged that Defendant’s comments impaired its ability to attain new business, damaged its reputation with existing clients and charter schools throughout the state, and caused it to lose two potential contracts with the district and a merger with another financial services company. Plaintiff claimed $530,000 actual damages plus punitive damages. The case involved novel defamation issues regarding immunity, opinion, public figure status, common law and qualified privilege. The judge issued a 45-page ruling on these issues, containing favorable language for defending future defamation claims.
Julian Allen secures a defense verdict in a John Doe action. The Plaintiff’s cases were consolidated for trial. Plaintiff husband was driving when he claims that a black SUV hit the front of his car, causing it to roll over twice. He had an open fracture to his left hand, with over $30,000 in medicals and permanent impairment. Plaintiff wife was a passenger who loss consciousness and sustained soft tissue injuries. She incurred approximately $4,000 in medicals and lost wages. Julian argued that an independent eyewitness and medical records showed this was a single-car accident.
By declining a rehearing en banc, the South Carolina Court of Appeals upholds another dismissal obtained by Rene Josey. Rene represented a CPA serving as trustee for a family trust. The CPA was sued for breach of fiduciary duties in connection with a settlement of trust litigation. The action was dismissed on the grounds the beneficiaries were on notice of the trustees actions and allowed the statute of limitations to run.
Gerald Chambers obtained a defense verdict in a week-long medical malpractice case representing a general surgeon. The Plaintiff claimed over $170,000 in medical expenses together with pain, suffering, gross negligence and punitive damages. The Plaintiff first presented to our physician for a colonoscopy during which the surgeon detected a polyp which was suspicious for cancer. Surgery was performed in which part of the colon was removed and the remaining colon reattached. A biopsy did indicate the presence of cancer. Post-operatively, the patient appeared to do well for the first five days but subsequently developed a leak. The Plaintiff’s expert testified that our client deviated from the standard of care in not recognizing the leak in a timely manner, stating that had this been accomplished earlier the patient’s post-operative course and hospitalization would have been lessened. The surgeon’s expert testified that our client managed the patient appropriately and the leak could not have been reasonably detected any earlier.
Brad Easterling and Sam Sammataro triumph at all stages of a workers’ compensation matter. The claimant alleged he sustained a compensable hernia injury while moving heavy equipment at the employer’s mill. The employer and carrier denied the claim on the basis that ample medical evidence established the hernia existed prior to the accident. The single commissioner denied benefits consistent with S.C. Code § 42-9-40, which bars compensation for pre-existing hernias and ruptures. The full commission affirmed. On appeal to the circuit court, the claimant argued for the first time that his condition was worsened by the workplace incident and that “hernia” and “rupture” are two distinct injuries. The circuit court affirmed on the basis that substantial evidence supported the denial of benefits based on pre-existing condition and the evidence did not support the claimant’s attempt to distinguish “hernia” from “rupture.” The court of appeals affirmed. The court agreed that substantial evidence supported the denial of benefits because it demonstrated a non-compensable, pre-existing injury. Further, the court determined the claimant had waived his statutory construction arguments because he never raised them at the commission level.
Mike Chase and Sam Sammataro prevailed on behalf of an employer in a workers’ compensation matter. The claimant, a South Carolina resident, alleged a work-related injury occurred while he was driving a truck for the employer. The employer and its carrier denied compensability on the jurisdictional bases that the employer did not have four or more regular employees in this state, the claimant was not hired in South Carolina, and his employment was not located here. The single commissioner denied benefits, and a unanimous panel of commissioners affirmed. The claimant then appealed to the court of appeals, which affirmed in a per curiam unpublished opinion. Critical to the affirmance were the key facts that all of the determinative events occurred in Indiana rather than South Carolina and that the claimant failed to meet his burden of proof that the employer regularly employs four or more people in this state.
Tom Kennaday argued the case of the month for January 2012 at the South Carolina Supreme Court. As part of his probate litigation practice, Tom was asking the court to recognize a new cause of action, intentional interference with an inheritance, and a new form of damages for civil conspiracy, lost expected inheritance. The case settled before the court had to rule on the issues. The case was also in the supreme court’s “Class Action” program, where the supreme court shares the briefs with schools around the state and invites students to watch the argument. For Tom’s case, a class from Furman University and a class from Westminster Catawba Christian School attended in person, and the argument was streamed to other classrooms across the state.
Troy Thames secures summary judgment in a premises liability case. The Plaintiff fell in a restaurant on Hilton Head Island. The Plaintiff claimed she tripped on the base of a pole used to hold a rope establishing lines for customers while placing orders. The Plaintiff alleged she sustained a torn medial meniscus and submitted over $6,000 in medical expenses. She further claimed she needed future surgery to repair the torn meniscus. The presiding judge granted the Defendant’s motion for summary judgment on the grounds that the Plaintiff had failed to submit any evidence that a dangerous condition existed that caused her injury.
Adam Russell successfully defends an automobile accident case where the Defendant entered the Plaintiff’s adjacent lane of travel causing the accident. The Plaintiff was treated by a physician after the accident and missed a month from work. Adam nonetheless was able to obtain a defense verdict relying on the minor impact involved in the accident.
The South Carolina Court of Appeals upheld a dismissal of claims assented against a bank client. Rene Josey represented the bank in this matter. The bank was sued by an account holder who alleged she was entitled to damages relating to an account jointly held with her deceased father. The plaintiff was not the personal representative of the father’s estate and attempted to assert a claim based upon duties owed to the father and damages he incurred.
Frank Shuler secures the reversal by the South Carolina Court of Appeals of a Family Court case involving the termination of the mother’s parental rights. The Department of Social Services (“DSS”) obtained the termination of parental rights based upon evidence that the children had been in foster care for fifteen of the most recent twenty-two months. Frank was able to establish that the lower court erred in finding that DSS met its burden of clear and convincing evidence that a statutory ground for termination existed and in proving that such termination was in the children’s best interests.
Wayne Byrd and Audra Byrd obtain a verdict of $6,450,000 on a personal guaranty. The Defendant had signed the guaranty in connection with a loan from a bank to his company. The loan was purchased by Turner Padget’s client who brought suit on the guaranty. The Defendant disputed the validity of our client’s purchase of the loan and further claimed the client interfered with the company’s operations causing it to default on the loan. The trial judge granted a directed verdict at the close of the Defendant’s case and entered judgment in our client’s favor.
Rich Dukes secures a defense verdict for a title insurance company. The dispute involved a million dollar claim plus interest and attorney’s fees. The Plaintiff claimed the company breeched its policy because it only covered what was described in the Plaintiff’s deed and did not afford coverage for the expanded property the Plaintiff alleged he was supposed to have received. After a three-day bench trial, the presiding judge found in favor of Rich’s client on all counts.
The Product Liability Group prevails at trial and on appeal for an automobile manufacturer sued on a rollover accident. As a result of the accident, the driver was rendered a quadriplegic and died two years later. Ken Carter and Sam Sammataro tried the case twice. The first trial resulted in a mistrial with the jury hung eleven to one in favor of the manufacturer. The jury was unanimous in favor of our client in the second trial. Sam joined forces with Curtis Ott for the appeal, and the verdict was upheld by the South Carolina Court of Appeals.
Heath Atkinson prevailed in two automobile accident cases over a two-week period. In the first case, Heath not only defeated the Plaintiff’s claim, but his client was awarded $20,000 on her counterclaim. In the second case, the verdict was only $10,000 under extremely adverse circumstances. The Defendant fled the scene of the accident, and liability was admitted. The Plaintiff claimed $45,000 in medical expenses, but Heath was able to convince the jury to award a minimal verdict due to the Plaintiff’s back surgery two months prior to the accident.
Chuck Turner obtained a favorable verdict in an automobile accident case where his client hit the Plaintiff’s vehicle from the rear. The Plaintiff claimed $89,000 in current medical expenses and $81,000 in future medical expenses. The pretrial demand was $200,000. The jury returned a verdict for $3,300 with Chuck successfully defeating the majority of the Plaintiff’s damages due to the relatively minor impact involved in the accident.
Julian Allen obtained a defense verdict in an automobile accident where liability was admitted. The Plaintiff claimed the accident aggravated his pre-existing knee condition, and his treating physician provided testimony to support the claim. Julian convinced the jury otherwise resulting in a verdict for the Defendant.
In a direct appeal from the South Carolina Workers’ Compensation Commission handled by Sam Sammataro and Shayne Williams, the South Carolina Supreme Court vacated decisions by the full commission and the circuit court in an occupational disease claim because the claimant did not timely file his initial request for appellate review. In a matter of first impression in workers’ compensation cases, the supreme court held that the commission lacks authority to extend the fourteen days permitted for the filing of an appeal from the decision of the single commissioner. The court also clarified that the issue is properly couched as one of appellate, rather than subject matter, jurisdiction.
Walt Barefoot and Sam Sammataro represented a large regional hospital and obtained reversal of an award by the Workers’ Compensation Commission. The claimant was a certified registered nurse anesthetist supplied by a local staffing agency. The potential liability of the hospital approached $1,000,000. The hospital disputed the claim by the injured worker and the staffing agency that she was the hospital’s employee, and the court agreed. Applying the even handed analysis required by Wilkerson v. Palmetto State Transportation Company, the court of appeals determined the worker failed to meet a single element of the employment test. Accordingly, the court held the worker was not the hospital’s employee and remanded the case for a determination of whether she was an employee of the staffing agency.
Curtis Ott and David Marshall secured judgment in favor of an automobile manufacturer on appeal. The Plaintiff alleged the speed control deactivation switch of its unattended truck malfunctioned and caused a fire in its warehouse over a long weekend. There were no injuries, but the fire destroyed the truck, the building, and several pieces of equipment. After the fire, the owner cleaned the scene and disposed of the truck without providing notice to the manufacturer. Several months later, the manufacturer issued a recall for the vehicle due to a concern that the switch could overheat and potentially cause a fire. The Plaintiff sued the manufacturer under a negligent design defect theory, and the jury returned a verdict for the Plaintiff. We argued the case should have been dismissed based on the Plaintiff’s admitted spoliation of evidence, which prevented the Plaintiff from satisfying its burden of proof and the manufacturer from presenting any defense. The South Carolina Court of Appeals reversed the jury’s verdict and entered judgment for the manufacturer based upon the lack of evidence of negligent conduct at the time the truck was manufactured and sold. Due to the sheer lack of any evidence of this critical element of proof, which alone was enough to warrant reversal, the court did not address the merits of the spoliation argument.
Chuck Turner, Anne Culbreath and Adam Russell successfully teamed to settle a major case against a local college. The case involved a very serious brain injury where the minor fell from stadium stands during a football game. Plaintiffs claimed $5 million in damages. The case settled for $675,000. We obtained summary judgment for the individual defendants, which effectively limited the value of the case of the statutory cap of $600,000 under the Charitable Immunity Act. The case had been pending for three years and was near trial. Prior to summary judgment being granted, Plaintiffs had been offered $750,000 to settle.
Chuck Turner and Anne Culbreath settled a motor vehicle negligence case for $10,000 where the minor Plaintiff had medicals of more than $290,000 from a serious neck surgery. A significant issue in the case was whether the car our client hit then hit Plaintiff’s car after Plaintiff’s mother had lost control and became stalled in the roadway. Anne drafted and successfully argued a summary judgment motion in the case whereby our clients were dismissed on the mother's claim for negligent infliction of emotional distress and negligence. The case settled at mediation for the aforementioned $10,000.
Julian Allen secures a favorable verdict on an uninsured motorist claim. The impact was substantial, and Plaintiff claimed $37,800 in medical bills related to a hip surgery and soft tissue injuries. Defendant was arrested and pled guilty to driving on a suspended license and following too closely. Liability was admitted. The judge charged the jury on punitive damages. Plaintiff asked for $240,000 in closing plus punitive damages. The jury returned a verdict for $50,000. The Plaintiff’s last demand was for $60,000 over and above the liability coverage of $30,000. Thus, the verdict amounted to $40,000 less than Plaintiff’s last demand.
Adam Russell prevails in a dog attack case. Defendant's dog was running free and approached Plaintiff and his dog. Plaintiff alleged that Defendant's dog attempted to attack him and his dog was injured when it jumped to try to allegedly protect him. Plaintiff sought damages in the amount of $6,200, which included substantial vet bills. Adam argued that any recovery should be limited to the value of the dog, which was established to be $250. The judge agreed, and a judgment was entered against the Defendant in that amount.
Julian Allen triumphs on a UIM claim. The claim arose from a four-car accident on Hwy 17 in Mt. Pleasant. The at-fault Defendant passed away after the accident, and Julian tried the case with an empty chair admitting negligence. The Plaintiff submitted $33,825 in medical expenses for her neck injury and asked for $85,000 in closing. The jury returned a verdict for $53,825. With a $50,000 offset, Julian's client only paid $3,825.
Troy Thames obtains a favorable verdict in motor vehicle accident with disputed liability and damages. Defendant allegedly pulled out in front of Plaintiff at an intersection and sustained soft tissue injuries. The jury returned a verdict for Plaintiff in the amount of $10,000. Defendant had offered $8,000 prior to trial, but Plaintiff refused to accept and demanded $30,000.
Michelle Clayton prevails in a four-day nonjury trial. The case was an equitable action involving who should bear the costs of replacing portions of a storm water drainage system that was improperly installed on the Plaintiff’s property more than twenty years ago. The Plaintiff sought to have the costs of replacing that system imposed upon the Defendants, the upstream property owners whose storm water drains into a South Carolina Department of Transportation (“SCDOT”) catch basin before being discharged into the Plaintiff's storm water drainage system. At the close of the Plaintiff’s evidence, the court granted the motions for directed verdict made by three of the Defendants but denied the motions of Michelle’s client. Thereafter, the remaining Defendants presented their cases. After taking the matter under advisement, the court entered an order granting judgment in favor of the remaining Defendants.
Thom Salane obtains a defense verdict after a multiple-day trial. Thom’s client ran a plastics recycling operation in a leased portion of an old mill. The mill caught fire and burned for seven days before being extinguished. Plaintiff was the Chief of the local fire department who sustained permanent (50%) loss of lung function from inhalation of smoke during the week spent fighting the fire. He became totally disabled, and his economic loss was black-boarded at more than $1.6 million. Plaintiff requested in excess of $2,000,000 in closing argument. Plaintiff contended that the fire originated in an area under the client’s control and most probably as a result of an electrical overload, but failed to prove either theory. Plaintiff also contended that the plastics recycling operation was unsuited for the mill because there was no sprinkler system to suppress the fire, shredded or powdered PVC was highly combustible and should not have been stored on premises, and the client’s operation had previously been shut down for violation of fire codes and regulations. South Carolina is one of only two states to have rejected the "Fireman's Rule"--a fireman is barred from suing a landowner in tort for injuries sustained in fighting a fire caused by the negligence of the landowner. Thom relied upon SC common law licensee status, and primary implied assumption of risk (fireman assumes inherent risks of fire fighting, including inhalation, heat, fire, collapse). Thom also proved that Plaintiff was aware of the exact nature of the toxic fumes and was instructed after first inhalation not to return to fire fighting activities and to wear apparatus whenever in presence of smoke or fumes, but nevertheless returned to his duties and did not wear a breathing apparatus at all times he was within the fire perimeter. The jury returned a defense verdict on special interrogatories, finding that Defendant owed no duty to Plaintiff.
Josh Shaw obtains a favorable verdict in a property damage case. Plaintiff truck driver claimed his truck was damaged by rocks coming from Defendant truck driver's trailer While driving on I-77 behind Defendant, Plaintiff claimed that multiple rocks struck his truck, cracking the windshield, breaking LED lights, and damaging the hood. At trial, Plaintiff presented photographs of the damage and a video of loose rocks on Defendant's trailer. The defense of the case hinged on attacking the Plaintiff's damages. In addition to Defendant, a state trooper who completed an incident report and another truck driver were called as witnesses at trial to establish the unlikelihood of Plaintiff suffering the damages he claimed. The client had offered $500 shortly after the incident, but Plaintiff refused to accept. The judge awarded Plaintiff $500 in damages, denying the majority of Plaintiff's claimed damages.
Nosizi Ralephata obtains summary judgment in an insurance coverage case. The insured had been drinking for approximately twelve hours at a bar, and after the bar closed, he assaulted and shoved the plaintiff. The insurer filed a declaratory judgment action in district court seeking a declaration that the assault and battery: (1) did not constitute an occurrence; and (2) was excluded under the “intentional acts” exclusion. The district judge declined to rule on the issue of whether "shoving" constituted an occurrence as that term is defined in the policy, and proceeded (without deciding) on the assumption that the events qualified as an accident. The judge granted summary judgment in favor of the insurer on the basis that an intentional, malicious shove is excluded pursuant to the "intentional acts" exclusion, even if the act produces injury that is significantly greater than that contemplated by the insured.
Brandon Smith obtains a defense verdict in an automobile accident case. The plaintiff testified that the impact was severe and she continues to have back pain as a result. Photographs of the vehicles showed no damage to the plaintiff's vehicle and very minimal damage to the defendant's vehicle. In all, the plaintiff claimed more than $7,200 in medical expenses. The jury returned a verdict finding that the plaintiff sustained no damages. The plaintiff's last demand was $16,000. Plaintiff's counsel made a motion for a judgment notwithstanding the verdict, as well as a motion for a new trial. The trial judge denied both motions, as there was ample evidence that the plaintiff was not injured as a result of the accident.
Brandon Smith obtains a favorable verdict in an automobile accident case. The plaintiff claimed injuries to her neck and left shoulder from a fairly significant automobile accident nearly five years ago. The plaintiff sought recovery of medical expenses of approximately $23,000. The plaintiff also claimed the need for prescription medication for the rest of her life, but the trial judge disallowed the claim based on the lack of any substantiating evidence. The jury returned a verdict for exactly $10,000 more than the plaintiff's medical expenses. The plaintiff's last demand was $60,000.
David Sligh successfully defends a property owners association. Plaintiff brought causes of action for breach of fiduciary duty and declaratory judgment primarily relating to whether the association had the authority under the Nonprofit Corporation Statute to fund a class action lawsuit through the issuance of special assessments to its members. Plaintiff also sought the refund of attorneys' fees related to the class action. After a bench trial, the judge returned a defense verdict on both causes of action. The judge agreed with David's position that the broad language of the corporate charter and the Nonprofit Corporation Statue allowed the association to fund the class action. The judge also agreed that the business judgment rule protected the board from plaintiff's allegation that the lawsuit was a poor decision.
Ed Cole and Audra Byrd obtain a directed verdict in a case against a finance company. The company had financed a truck for the Plaintiff. When the Plaintiff’s account became delinquent, the company hired a towing service to repossess the vehicle. The Plaintiff alleged the towing service driver tried to run over him during the repossession operation, causing him to break his left wrist and injuring him in assorted other ways. The Plaintiff sued the driver for negligence in the operation of the wrecker and the towing service and the finance company for, among other things, "negligent hiring." The towing service and driver settled at mediation. The finance company made a nominal offer and went to trial. At the close of the Plaintiff’s case, the trial judge granted the company’s motion for a directed verdict. The judge agreed with the defense position that the Plaintiff never produced any proof as to the standard of care to be applied to a finance company in selecting a repossession company.
David Sligh delivers a substantial verdict on a debt owed to his client. The primary issue in the case was whether the business that incurred the debt was solely owed by one of the defendants or whether there was an implied partnership with the co-defendant making them both liable for the debt. The jury returned a verdict of $126,935 against both defendants. The judge also awarded David’s client approximately $17,000 in prejudgment interest.
Julian Allen obtains a defense verdict in a motor vehicle accident case where liability was admitted. The Plaintiff maintained that the accident aggravated of pre-existing degenerative changes in his neck and claimed $17,000 in past medical expenses and $120,000 in future medical expenses. The Plaintiff asked for $340,000 in closing and never made a demand less than the policy limits of $250,000.
Sam Sammataro and Cindy Dooley win at every stage through the South Carolina Court of Appeals in a workers’ compensation matter. Claimant received medical treatment for work-related injuries allegedly sustained in 1999 and 2000. Claimaint continued to work until June 2004, when he went out of work on short and long-term disability due to right shoulder problems. He eventually underwent surgery for a rotator cuff tear on August 23, 2004. Claimant filed for all medical care under group health insurance and did not notify employer of a claim until October 15, 2004. He pursued a repetitive trauma claim, which Respondents denied on the basis of Claimant’s short-term disability application, the failure of his medical provider to establish proximate cause, and statements Claimant made to his employer to the effect that he injured his shoulder on a trip to a local amusement park. The single commissioner, affirmed by the Full Commission, denied the claim on the basis that Claimant injured his shoulder as the result of a non-work related incident. The Commission order denying benefits was upheld by the circuit court and a unanimous panel of the South Carolina Court of Appeals.
Julian Allen again prevailed in an admitted fault wreck case. Plaintiff was a 45 year old male who claimed two disc herniations (mid and low back) and neck pain from degenerative changes that were made symptomatic by the accident. Plaintiff was 100% disabled prior to the accident from a fall off a platform at a steel mill. His treating orthopedic surgeon testified that all his injuries were related. Surprisingly, Julian could not find one record that showed any pre-existing back or neck problems. Plaintiff received two injections and needed pain medications for the remainder of his life. Surgery was too risky given the location of the herniations. Plaintiff was seeking $14,193.96 in past medicals, future medical expenses, pain and suffering, and loss of enjoyment of life. The liability carrier already had paid their limits of $25,000. The last demand was for $25,000 in UIM benefits. The jury returned a verdict for $14,193.96.
Julian Allen prevailed in an admitted fault wreck case involving a significant impact. Plaintiff was a 17 year old who was a passenger in the adverse vehicle. She was transported by EMS to the ER. One week later, she followed up with an urgent care facility with complaints of chest pain and headaches. A CT of the head and x-rays of the chest were normal. The doctor prescribed muscle relaxers and pain medications. Plaintiff was out of school for two weeks. Plaintiff’s last demand was $6,500, and the jury returned a verdict of $2,517.
The Fourth Circuit Court of Appeals affirmed summary judgment obtained by Jake Kennedy in favor of an employer who terminated a worker for insubordination. The plaintiff claimed the company violated Title VII of the Civil Rights Act of 1964 by paying him lower wages and terminating him because of his race. The plaintiff alleged the company paid a particular worker more per hour because that worker was white. The company maintained the higher wage was necessary to hire the other worker who had more than thirty years experience. The presiding judge held the stated reason for the wage difference was race-neutral and the plaintiff failed to produce sufficient evidence that the reason was pretext for true racial animus. With regard to the plaintiff’s discriminatory discharge claim, the judge accepted the report of the magistrate who recommended summary judgment because the plaintiff failed to sufficiently rebut the company’s stated reason for termination and the plaintiff failed to perform a work duty after being warned just one day earlier of the need to do so. The judge noted the strong inference of non-discriminatory discharge when the same person who hired the plaintiff decides to fire the plaintiff within a short time span.
Duvall Spruill prevailed in a non-jury trial in Sumter County. The dispute involved the interpretation of voluntary partition deeds between family members and a claim of adverse possession. The case further presented issues involving the dead man’s statute. Duvy represented the purchasers through the title insurer.
Josh Shaw recently obtained a favorable verdict on behalf of a non-profit corporation in its suit against a former employee for return of advance payments made to the employee prior to the employee’s resignation. The trial involved proving the payroll procedures of the company and the facts surrounding the employee’s resignation, which required Josh to present the testimony of a representative of the company’s accounting firm and the director of the company. Josh also effectively undercut the defense that the employee was released without condition. The judge in this bench trial awarded all relief requested by the non-profit corporation.
Reggie Belcher and Michelle Clayton obtained summary judgment on behalf of an insurer. Plaintiff sued six defendants, including Turner Padget’s client, alleging claims for fraud, breach of fiduciary duty, intentional misrepresentation, civil conspiracy, negligent hiring/retention/training, and violation of the Unfair Trade Practices Act. Plaintiff alleged that the insurer was responsible for the alleged conduct of a former manager who purportedly defrauded Plaintiff, causing her to lose her home. Plaintiff sought actual damages in an unspecified amount (likely equal to the value of her home), punitive damages, treble damages, and attorney's fees. After conducting extensive written discovery (and prior to deposing any witnesses), Reggie and Michelle convinced opposing counsel to consent to summary judgment in our client’s favor on all claims.
Nosi Ralephata recently prevailed on a motion to dismiss in a case in U. S. District Court. Plaintiff filed a lawsuit alleging that the display and use of her photographs as part of the promotional material for an exhibit that was displayed at museums in South Carolina constituted an invasion of privacy and misappropriation of her likeness for commercial gain. The photographs were taken more than thirty years ago and were included in a book that had approximately 115 photographs, and only two images were Plaintiff’s. An anniversary edition of the book was published in 2007 and had been in circulation in major public libraries and academic institutions for at least two years prior to the institution of the litigation. Both the photographs and the book were subject to registered copyright protection. Nosi took the position that Plaintiff had failed to state a cause of action for misappropriation of likeness because her client’s role was limited to arranging the loan of the exhibit, and therefore, could not be liable for misappropriation of likeness as a matter of law. Nosi also argued that pursuant to the Copyright Act, third parties had a right to rely on the copyright as demonstrative of the owner’s proper ownership of the photographs and the owner’s right to reproduce, display, and distribute that work. The judge agreed, finding the copyright argument particularly compelling. The judge held that the Defendant had a right to rely on the copyright and did not have an independent duty to investigate the validity of the copyright.
Charlie Hill successfully defended a medical malpractice case against a Columbia hospital when it ended abruptly on the second day of trial, with the plaintiff accepting a compromise settlement very favorable to the hospital. The plaintiff, who had a complex medical history including diabetes and end stage renal disease, was hospitalized for treatment of calcium insufficiency. His doctor had ordered the intravenous administration of calcium gluconate. The IV was started successfully, but on the third night of the admission the nurse discovered that the IV had infiltrated, meaning that the fluid was leaking outside of the blood vessel. Calcium gluconate is a caustic substance, which can cause soft tissue damage if there is a leakage. The nurse promptly stopped the IV. The patient was to be discharged the next afternoon. One of his nurses noticed a blister in the area where the IV had infiltrated, notified the patient’s attending physician, and obtained an order for a consultation with the wound care team. However, the patient had been given his discharge papers, was anxious to go home, and left the hospital before the wound care nurse arrived. Over the next several days, the area became worse, and eventually got to the point where the patient had to be re-admitted for surgical removal of necrotic skin. He was left with a significant scar on his forearm. The hospital defended the case on the grounds that the IV was properly administered; infiltration is a known risk of IV therapy; the floor nurse took appropriate action when the infiltration was discovered; and the patient should not have complained about an injury when he declined the hospital’s efforts to have the wound evaluated by its specialized team.
Mike Chase and Sam Sammataro prevailed at the South Carolina Court of Appeals in a Workers’ Compensation matter. After clocking out and exiting her place of employment, the employee fell on a public sidewalk. She claimed entitlement to workers' compensation benefits on the basis that she injured herself within a reasonable time and distance after her shift ended so as to fall within the so-called "going to or coming from" exception to the general rule that an employee going to or coming from work ordinarily is not engaged in performance of job duties such that any injury at the time does not arise out of and in the course and scope of his employment. The Appellate Panel of the Workers' Compensation Commission reversed the single commissioner's order awarding benefits, and the employee appealed to the South Carolina Court of Appeals. The employee argued the Appellate Panel erred in reinstating the appeal, which earlier had been administratively dismissed as untimely, and in reversing the award of benefits. In its order affirming the Appellate Panel, the court of appeals found the commission acted within its discretion to reinstate the appeal, particularly in light of existing regulatory authority and the showing of good cause by the employer. Turning to the compensability issue, the court held that the commission correctly denied benefits where the evidence clearly established that the employee did not meet any of the recognized exceptions to the going to or coming from rule.
Thom Salane prevailed for the second time in an insurance coverage case. The case arose out of underlying state and federal lawsuits by Plaintiff for wrongful death of an individual under confinement. The underlying cases were settled and then this action was commenced by Plaintiff to determine whether the liability insurance policy was a “defense within limits” policy and whether the insured’s attorneys negligently misrepresented the nature of the policy to induce settlement at less than full policy limits. Thom won an initial motion to dismiss with the judge ruling that the policy was unambiguously a “defense within limits” or “declining limits” policy. Plaintiff made a motion for reconsideration but the judge left the state bench to assume a position on the federal district bench. The reconsideration motion was reassigned to another judge who considered the entire matter de nova and again ruled in favor of the insurer by holding that the policy was unambiguously a “defense within limits” policy and that the amounts available to pay the claim declined as defenses costs were incurred by the insured. This is the first case in South Carolina involving “defense within limits” policy and construction of language defining “ultimate net loss” as including the expenses incurred in the defense of a covered claim.
David Marshall obtained defense verdicts for both an automotive client and local car dealership in a false advertising case in Greenville County. The plaintiff purchased a new vehicle equipped with a Premium Package that included an in-dash navigation system, power sunroof, and enhanced audio system with eight speakers. The Premium Package cost $2,400 of the total $22,500 purchase price. After the sale, the customer returned to the dealership seeking a full refund for the price of the Premium Package because the vehicle did not include an in-dash six-disc CD changer. The customer pointed to the showroom brochure and website to support his claim, both of which incorrectly stated the Premium Package would include an in-dash six-disc CD changer in addition to the other features. All sales documents specific to the vehicle correctly stated that the vehicle contained a single-disc CD player, as well as the items contained in the Premium Package. The disgruntled customer eventually filed a lawsuit against both the automotive distributor and local selling dealership. The plaintiff asserted causes of action against both defendants for fraud and negligent misrepresentation, as well as for violations of the South Carolina Unfair Trade Practices Act and the South Carolina Regulation of Manufacturers, Distributors, and Dealers Act. Under the statutory claims, the plaintiff sought double actual damages, triple punitive damages, and attorneys’ fees and costs. In defense of the claims, the defendants relied on disclaimers contained in both the showroom brochure and internet website that stated they reserve the right to make changes at any time without notice, and without any obligations as to colors, materials, specifications, features, accessories, packages, and models. Further, the defendants relied on the testimony of various dealership employees to explain the accuracy of the sales documents specific to the vehicle and their interaction with the customer both before and after the sale. After a brief deliberation, the jury returned defense verdicts for both defendants on all four causes of action.
Shannon Bobertz recently prevailed on an assault and battery claim lodged against her deceased client. Plaintiff was a 65-year old male who claimed a 57-year old woman beat him with a golf club and a baseball bat and also attacked him with a knife over his alleged refusal to be intimate with her. Defendant passed away from lung cancer three weeks after the alleged attack and never gave a statement regarding the incident. Shannon took the position that the Plaintiff was not credible. The case was tried for two days, and the jury returned a defense verdict.
Thorne Barrett obtained a reversal of a trial judge’s decision to increase a jury’s verdict. The appeal was of an automobile accident case in which Turner Padget’s Shannon Bobertz represented the defendant at trial. The defendant admitted fault for the accident, but Bobertz challenged the bulk of the damages claimed by the plaintiff, which exceeded $10,000. After Bobertz obtained favorable concessions from the plaintiff during cross-examination, the jury returned a verdict of only $3,023.90. However, the trial judge granted the plaintiff’s motion for a new trial nisi additur. This meant the plaintiff would be granted a new trial unless the defendant agreed to pay the verdict amount plus an additional $12,500. The client decided to appeal the trial judge’s decision. Relying on one of his previous appeals, which involved similar facts, Barrett argued the trial judge abused his discretion by granting additur. South Carolina law only allows a trial judge to disturb a jury’s verdict when there are “compelling reasons” to do so. In this case, the trial judge stated the jury’s failure to award the plaintiff all of her claimed damages justified his decision. As Barrett pointed out, however, Bobertz had challenged most of those damages at trial, which meant the jury could decide whether or not to award them. The Court of Appeals agreed with this argument. As a result, the court reversed the trial judge’s decision and reinstated the jury’s original verdict. In making this decision, the court clarified that a jury’s failure to award damages that were disputed at trial does not provide a “compelling reason” for a new trial nisi additur under South Carolina law.
Jeff Payne and Jake Kennedy recently won summary judgment in federal court for a banking client. In December 2010, the presiding judge granted the client summary judgment on all claims brought by a bank customer. The customer deposited a $4,800 out-of-state check which he "miraculously" received in his mail. On the first day the bank was required to make funds available, the customer withdrew the funds. The bank then received notice from the out-of-state bank that the check was counterfeit and exercised its legal and contractual right to charge back the customer's account. When the customer refused to pay the deficiency, the bank cooperated with local law enforcement, and a grand jury issued a true bill of indictment on one count of forgery. The customer was ultimately arrested. The customer sued the bank in South Carolina state court alleging, among other things, conversion, malicious prosecution, abuse of process, unfair trade practices, and violation of federal civil rights. Jeff and Jake removed the case to federal court on grounds of federal question subject matter jurisdiction and filed a motion for summary judgment as to all causes of action. In the court's order, the judge found the charge-back was authorized by the customer account agreement as well as South Carolina banking law and, therefore, the customer could not prove his claims for conversion and unfair trade practices. She also found that the issuance of a true bill was sufficient probable cause for initiating criminal prosecution; restitution is a legitimate objective for using the criminal process; and there was no evidence that the bank was a "state actor" capable of committing a civil rights violation.
Brandon Smith obtained defense verdicts in two separate cases in a two-week period: (l) In a Darlington County case, the Defendant was alleged to have negligently struck the Plaintiff in the rear on a rural highway in the early morning hours of December 31, 2006. The Defendant claimed that he came upon the Plaintiff stopped in the middle of the road and attempted to avoid striking the Plaintiff. The Defendant had been at work prior to the accident, while the Plaintiff was returning home from a card game. The Plaintiff claimed injuries to his left shoulder, which ultimately resulted in a left shoulder surgery and $31,000 in medical bills. His treatment consisted of visits to the emergency room, his general practitioner, a local chiropractor and his surgeon. The surgeon related the injuries to the accident but later expressed concern after being confronted with the fact that the Plaintiff had been involved in a subsequent accident. The surgeon also testified that the Plaintiff’s sixteen-month gap in left shoulder treatment was uncommon for an acute injury. (2) In a Florence County case, the Plaintiff, a passenger in a vehicle being driven by his newly-permitted daughter, claimed injuries after his vehicle struck by the Defendant. The Plaintiff and his daughter claimed to have had control of the intersection while attempting to make a left turn. They testified they entered the intersection on a green light and were waiting for traffic in the opposite direction to clear. They further testified that an unidentified red van ran a red light traveling in the opposite direction and caused them to be delayed in making their turn. In the meantime, the Defendant entered the intersection on a green light from the Plaintiff’s right. The daughter, nervous after being directed by her father and receiving horn warnings from other vehicles, struck the driver’s side portion of the Defendant's vehicle as he proceeded through the intersection. The Defendant testified that another vehicle had actually proceeded through the intersection in his lane ahead of him. The daughter apologized to the Defendant at the scene. She testified that this was not an admission of fault, but rather a kind gesture under the circumstances. The Plaintiff claimed injuries primarily to his head, chest, back and neck. He also insinuated that the accident caused him ultimately to undergo surgeries to his gallbladder and appendix. Six months after the accident, he underwent a cervical diskectomy. The Plaintiff testified that he had been involved in numerous other accidents in his life, both before and after the subject accident. He denied prior symptoms to his neck but was confronted with numerous medical records to the contrary. In total, the Plaintiff claimed nearly $92,000 in medical bills.