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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.

Geathers v. 3V, Inc., 371 S.C. 570, 641 S.E.2d 29 (2007).
Opinion No. 26254, decided January 29, 2007.
Practice Areas: Workers' Compensation

This case involved a “successive-carrier problem” where an employee suffered successive work place injuries with an intervening change of insurance carriers by the same employer. The South Carolina Supreme Court adopted the “last injurious exposure rule” to solve this problem. This rule places full liability upon the insurance carrier covering the risk at the time of the most recent injury bearing a causal relation to the disability. Thus, the carrier in place at the time of the second injury bears full liability for the second injury even if the second injury would have been much less severe had the first injury not occurred. However, if the second injury is merely a recurrence of the first injury, then the carrier in place at the time of the original injury remains liable for the second.

Estate of Adair v. L-J, Inc., 372 S.C. 154, 641 S.E.2d 63 (Ct. App. 2007).
Opinion No. 4201, decided January 29, 2007.
Practice Areas: Premises Liability

The issue in this wrongful death suit was the status of a group of teenagers who, after consuming alcohol, went joyriding on a large tract of undeveloped commercial property. The South Carolina Court of Appeals upheld the trial court ruling that the teens were trespassers—persons “whose presence is neither invited nor suffered”—because the owners of the property had taken virtually all reasonable measures to keep uninvited persons off the property.

Keane v. Lowcountry Pediatrics, P.A., 372 S.C. 136, 641 S.E.2d 53 (Ct. App. 2007).
Opinion No. 4199, decided January 29, 2007.
Practice Areas: Corporate Law

The primary issue in this case was whether, in valuing a professional association, courts should consider the professional goodwill of the individual members. The South Carolina Court of Appeals held that in the absence of an agreement to the contrary, courts should not consider the goodwill of the individual members. To do so would require too much speculation, and goodwill does not possess value or constitute an asset separate and apart from the professional’s person.

Progressive Specialty Ins. Co. v. Murray, 472 F.Supp.2d 732 (D.S.C. 2007).
Decided January 26, 2007.
Practice Areas: Insurance Coverage

An employee of the owner of a truck used the truck without the owner’s permission. The employee loaned the truck to a third party, who ended up wrecking the car while the defendant was riding along as a passenger. The defendant sought coverage for his injuries under the owner’s insurance policy and the carrier sought a declaratory judgment that the defendant was not covered. The United States District Court for the District of South Carolina held that the defendant was neither an express nor an implied permissive user of the vehicle. Furthermore, the defendant was not an “insured” entitled to uninsured motorist coverage. Thus, the court granted summary judgment to the carrier.

Franklin v. Chavis, 371 S.C. 527, 640 S.E.2d 873 (2007).
Opinion No. 26251, decided January 22, 2007.
Practice Areas: Estate Planning

The South Carolina Supreme Court heard this case in its original jurisdiction because the case involved a question of whether a person engaged in the unauthorized practice of law. The central issue was whether a will was invalid because it was drafted by a non-lawyer. The court held that the preparation of a will constitutes the unauthorized practice of law when the drafter acts as more than a mere “scrivener,” which the court defined as someone who does nothing more than record verbatim what the decedent says. Because the drafter prepared the will outside the decedent’s presence and there was no evidence that the decedent ever actually reviewed the will, the drafter’s role exceeded that of a mere scrivener. However, the will was not invalid merely because it was drafted by a non-lawyer. Instead, its validity depended upon whether it reflected the decedent’s true wishes.

In re Murphy, 474 F.3d 143 (4th Cir. 2007).
Docket No. 05-1637, decided January 18, 2007.
Practice Areas: Bankruptcy

Several Chapter 13 debtors sought the permission of the bankruptcy court to sell or refinance real property. When these requests were approved, the bankruptcy trustees moved to modify the debtors’ repayment plans for the benefit of unsecured creditors. The United States Court of Appeals for the Fourth Circuit held that when faced with a motion to modify a confirmed plan under 11 U.S.C. § 1329(a)(1) or (a)(2), the court must determine if the debtor experienced a substantial and unanticipated change in his post-confirmation financial condition sufficient to overcome the doctrine of res judicata. Here, one debtor’s refinancing of his home was not a substantial and unanticipated change in condition where the debtor incurred debt equal to the amount of equity cashed out of the home and the purpose of the refinancing was to offset the debtor’s fifty-percent pay reduction. However, the other debtor did experience a substantial and unanticipated change in condition where he sold his condominium for a substantial profit, thereby receiving a substantial amount of readily available cash without incurring any corresponding debt.

Barton v. Higgs, 372 S.C. 109, 641 S.E.2d 39 (Ct. App. 2007).
Opinion No. 4197, decided January 16, 2007.
Practice Areas: Workers' Compensation

South Carolina law allows a general contractor to transfer liability for workers’ compensation benefits to the South Carolina Uninsured Employers’ Fund when it relies on the false representations of a subcontractor that it is covered by workers’ compensation insurance. In this case, the fund argued that a general contractor should not be allowed to transfer liability to the fund because the Certificate of Insurance provided to the general contractor by a subcontractor was not signed and was therefore not a standard form acceptable to the Workers’ Compensation Commission as required by S.C. Code Ann. § 42-1-415. The Court of Appeals upheld the lower court’s decision that the statute did not require the form to be signed. However, the South Carolina Supreme Court later reversed, 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. See Barton v. Higgs, 381 S.C. 367, 674 S.E.2d 145 (2009).

Taylor, Cotton & Ridley, Inc. v. Okatie Hotel Group, LLC, 372 S.C. 89, 641 S.E.2d 459 (Ct. App. 2007).
Opinion No. 4194, decided January 8, 2007.
Practice Areas: Mechanic's Liens

The central issue in this case was whether S.C. Code Ann. §§ 29-5-20, 29-5-40, and 29-5-60 require a trial court to credit a project owner for settlements reached with some subcontractors in determining the amount owned a separate subcontractor. The project owner settled with all but one subcontractor for 66.6% of their lien amounts and subsequently sought to limit any amount paid to the remaining subcontractor to this same percentage. The South Carolina Court of Appeals held that the remaining subcontractor was not bound by the prorated limit in the settlement because the mechanic’s lien statute does not contain a provision requiring a subcontractor to settle or be forced to receive a pro rata judgment as long as the aggregate amount of the liens does not exceed the amount due by the project owner on the general contract.

St. Paul Reinsurance Co. Ltd. v. Ollie’s Seafood Grille and Bar, LLC, 242 F.R.D. 348 (D.S.C. 2007).
Decided January 5, 2007.
Practice Areas: Insurance Coverage

Two restaurant patrons allegedly assaulted another patron with a knife, resulting in serious injury to the victim. The victim sued the two alleged assailants as well as the restaurant, which filed a claim with its insurance carrier requesting coverage for the lawsuit. The carrier defended the lawsuit under a reservation of rights and sought a declaratory judgment that it had no duty to defend or indemnify the restaurant. The United States District Court for the District of South Carolina granted summary judgment to the carrier based on policy language excluding coverage for claims “arising out of” assault and battery.

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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.