• Alternative Dispute Resolution
  
• Appellate
  
• Banking
  
• Bankruptcy
  
• Business Litigation
  
• Church Law
  
• Collections
  
• Construction Law
  
• Contract Law
  
• Corporate Law
  
• Estate Planning
  
• Fidelity & Surety Law
  
• Hospital and Medical
  Malpractice Defense
  
• Insurance Coverage
  
• Landlord - Tenant
  
• Legal Malpractice Defense
  
• Litigation
  
• Mechanic’s Liens
  
• Military Law
  
• Nursing Home Liability Defense
  
• Personal Injury
  
• Premises Liability
  
• Products Liability
  
• Probate Law
  
• Professional Liability
  
• Real Estate
  
• Retirement Plans
  
• Taxation
  
• Workers’ Compensation

This page is a compilation of recent developments in our firm’s Practice Areas. Updates are presented chronologically below. To sort by Practice Area, select a Practice Area from the menu at left.

Pringle v. SLR Inc. of Summerton, 382 S.C. 397, 675 S.E.2d 783 (Ct. App. 2009).
Opinion No. 4513, decided February 27, 2009.
Practice Areas: Premises Liability

A restaurant patron was injured when her chair collapsed, causing her to fall to the floor. She subsequently filed this negligence action against the restaurant. After the depositions of the restaurant owner and the plaintiff’s expert, the restaurant filed a motion for summary judgment, which the trial court granted. On appeal, the South Carolina Court of Appeals affirmed, holding that the plaintiff had failed to produce evidence that the restaurant created, was aware of, or should have been aware of the allegedly dangerous condition. The court also held that the plaintiff was not entitled to a spoliation inference derived from the restaurant’s disposal of the collapsed chair because she could not show that the chair would have provided any additional information indicating that its use at the restaurant would have constituted negligence.

In re Estate of Anderson, 381 S.C. 568, 674 S.E.2d 176 (Ct. App. 2009).
Opinion No. 4506, decided February 24, 2009.
Practice Areas: Probate Law

The decedent executed a new will just a few months before she died, leaving her entire estate to her two grandchildren to the exclusion of her sole surviving daughter. After the decedent’s death, her daughter filed a petition challenging the validity of the will, asserting that it was void because of undue influence. The probate court found that the will was valid, and the South Carolina Court of Appeals affirmed. The court acknowledged that a presumption of undue influence was raised by virtue of the fact that one of the beneficiaries was the decedent’s attorney in fact at the time the new will was executed, but held that the beneficiaries presented sufficient evidence to rebut the presumption and that substantial evidence in the record supported a finding that the will was valid and not the result of undue influence.

Hardee v. McDowell, 381 S.C. 445, 673 S.E.2d 813 (2009).
Opinion No. 26605, decided February 23, 2009.
Practice Areas: Workers' Compensation

In Hardee v. McDowell, 372 S.C. 413, 642 S.E.2d 632 (Ct. App. 2007), the South Carolina Court of Appeals held that in order for a general contractor to be eligible to transfer liability for a workers’ compensation claim to the Uninsured Employers’ Fund under S.C. Code Ann. § 42-1-415, the contractor must collect proof of insurance from its subcontractor for each job the subcontractor performs, regardless of the number of jobs the subcontractor performs in a given year. On certiorari to the South Carolina Supreme Court, the court clarified that a contractor must collect proof of insurance from its subcontractor each time the subcontractor is actually hired to perform work.

Judy v. Martin, 381 S.C. 455, 674 S.E.2d 151 (2009).
Opinion No. 26604, decided February 23, 2009.
Practice Areas: Appellate, Litigation

In 2000, the defendant filed an action against the plaintiff in magistrate’s court and the plaintiff filed a counterclaim in an amount over the jurisdictional limit of the magistrate. The plaintiff failed to appear at the trial, the magistrate entered a verdict for the defendant, and the plaintiff appealed to the circuit court. The circuit court affirmed the magistrate’s judgment and the plaintiff did not appeal the circuit court’s order. Four years later, in an attempt to satisfy the magistrate’s judgment, the defendant had a Notice of Levy issued on a piece of property owned by the plaintiff. The plaintiff then filed this declaratory judgment action seeking to have the magistrate’s judgment declared void ab initio for lack of jurisdiction. The master-in-equity found for the defendant, and the South Carolina Supreme Court affirmed. The court held that the circuit court’s unchallenged disposition on the magistrate’s jurisdiction was the law of the case and declined to reopen the issue in this subsequent action.

Rowzie v. Allstate Ins. Co., 556 F.3d 165 (4th Cir. 2009).
Docket No. 07-2159, decided February 12, 2009.
Practice Areas: Insurance Coverage

The plaintiffs were involved in separate automobile accidents with underinsured drivers. They received benefit payments from the medical payments coverages of their respective policies, but when they sought to recover underinsured motorist (UIM) benefits, their insurer claimed that the policies entitled it to reduce the amount payable as UIM benefits by the amounts previously paid as medical payment benefits. The plaintiffs filed suit in federal court, claiming that the policy provision at issue violated S.C. Code Ann. §§ 38-77-144 and 38-77-160. The district court granted summary judgment to the insurer and the United States Court of Appeals for the Fourth Circuit affirmed. The court found that section 38-77-144 applies only to the tortfeasor, that the insurer was not the legal equivalent of the tortfeasor, and therefore that the statute did not apply to the insurer. As to section 38-77-160, the court found that the policies did not create a subrogation or assignment of the plaintiffs’ UIM benefits, as would be required to invoke the statute.

Horry County v. Ray, 382 S.C. 76, 674 S.E.2d 519 (Ct. App. 2009).
Opinion No. 4501, decided February 10, 2009.
Practice Areas: Litigation, Real Estate

A parcel of property was sold at a foreclosure sale, but the checks the purchaser tendered to the county turned out to be fraudulent, so the county filed a lis pendens on the property. Subsequently, the purchaser gave a mortgage on the property to a bank, which investigated the title to the property and recorded its mortgage. A few days later, the county cancelled its lis pendens. The purchaser then defaulted on the mortgage and the bank sold the property. The proceeds of the sale were held in escrow while a special referee determined whether the bank or the county was entitled to the funds. After a trial, the special referee awarded the funds to the bank, finding that the county’s lis pendens was invalid because the county did not commence a lawsuit within twenty days after filing the lis pendens, and therefore that the county’s claim did not take priority over the bank’s mortgage. On appeal, the South Carolina Court of Appeals affirmed, agreeing with the special referee that the county’s failure to file suit within twenty days after filing the lis pendens, as required by statute, rendered the lis pendens invalid. Accordingly, the lis pendens could not have provided constructive notice to the bank of the county’s claim.

Harris v. Anderson County Sheriff’s Office, 381 S.C. 357, 673 S.E.2d 423 (2009).
Opinion No. 26596, decided February 9, 2009.
Practice Areas: Personal Injury

A police dog attacked a veterinary clinic employee while it was kenneled at the clinic. The employee brought suit against the sheriff’s department under the dog bite statute, S.C. Code Ann. § 47-3-110, which provides that a dog bite victim may recover damages from “the owner of the dog or other person having the dog in his care or keeping.” The trial court granted summary judgment to the sheriff’s department, holding that when a dog is in the “care or keeping” of some “other person,” the owner cannot be held liable under the statute. However, the South Carolina Supreme Court reversed, holding that both the owner and the “other person having the dog in his care or keeping” are liable when a dog bites a third party. The court found that the Legislature intended to hold dog owners strictly liable for dog bites and therefore that temporarily relinquishing control of the dog does not absolve the owner of liability.

Barton v. Higgs, 381 S.C. 367, 674 S.E.2d 145 (2009).
Opinion No. 26594, decided February 9, 2009.
Practice Areas: Workers' Compensation

In Barton v. Higgs, 372 S.C. 109, 641 S.E.2d 39 (Ct. App. 2007), the South Carolina Court of Appeals upheld the circuit court’s determination that a general contractor could transfer its liability for workers’ compensation benefits to the South Carolina Uninsured Employers’ Fund despite the fact that the Certificate of Insurance provided to the general contractor by a subcontractor was not signed. The fund had argued that the certificate’s lack of a signature meant that it was not a standard form acceptable to the Workers’ Compensation Commission as required by S.C. Code Ann. § 42-1-415. The South Carolina Supreme Court agreed with the fund and reversed the Court of Appeals, holding that by failing to collect a signed certificate, the general contractor failed to meet the requirements of section 42-1-415 and its implementing regulation.

Dykeman v. Wells Fargo Home Mortgage, Inc., 381 S.C. 333, 673 S.E.2d 804 (2009).
Opinion No. 26593, decided February 9, 2009.
Practice Areas: Real Estate

Property owners paid off a mortgage on a piece of property, but the mortgagee did not record a mortgage satisfaction within the three-month period mandated by S.C. Code Ann. § 29-3-310. The property owners subsequently filed suit against the mortgagee seeking statutory damages and attorneys’ fees under S.C. Code Ann. § 29-3-320. The trial court granted summary judgment to the mortgagee and the South Carolina Supreme Court affirmed. The court held that section 29-3-320, as a penal statute, must be strictly construed, and therefore because the property owners merely sent a payoff check to the mortgagee and never explicitly requested that the mortgage be satisfied, they were not entitled to any recovery.

Richardson v. Donald Hawkins Construction, Inc., 381 S.C. 347, 673 S.E.2d 808 (2009).
Opinion No. 26575, decided February 9, 2009.
Practice Areas: Litigation

The plaintiffs’ new home was severely damaged by a fire nearly two years after its construction. When it was discovered that the builder and/or its employees had likely started the fire, the plaintiffs sued the builder and several of its employees. One of the employees, Taylor, who had given four statements regarding his involvement in the fire, failed to answer the plaintiffs’ complaint and was held in default. Prior to trial, Taylor was killed in an unrelated car accident. At trial, the defense sought to admit two of Taylor’s statements which denied involvement in the fire. However, the trial court excluded the statements under Rule 403, SCRE, because Taylor, by virtue of his default, was deemed to have admitted the material allegations of the complaint, including that Taylor was involved in the fire. Therefore, admission of the statements into evidence would have been unduly prejudicial due to their likelihood of confusing the jury. The jury returned a verdict for the plaintiffs, but the South Carolina Court of Appeals reversed on the grounds that Taylor’s statements should have been admitted. However, the South Carolina Supreme Court reversed the Court of Appeals and reinstated the verdict, holding that the trial court did not abuse its discretion in refusing to admit the statements.

Archives
April 2009
March 2009 | February 2009 | January 2009
December 2008 | November 2008 | October 2008
September 2008 | August 2008 | July 2008
June 2008 | May 2008 | April 2008
March 2008 | February 2008 | January 2008
December 2007 | November 2007 | October 2007
September 2007 | August 2007 | July 2007
June 2007 | May 2007 | April 2007
March 2007 | February 2007 | January 2007

 

Barnes, Alford, Stork & Johnson, LLP makes this information available as a service to its clients and friends. This information is not a solicitation or an effort to provide legal advice, nor does it create an attorney-client relationship. The information provided should not be relied upon without consulting a qualified attorney to determine if it is applicable to a specific legal need.