South Carolina Personal Injury Law Blog

South Carolina Court Holds that Agreement to Arbitrate Nursing Home Negligence Claims Was Unenforceable

Published on: May 22, 2020 | by Patrick E. Knie

Healthcare providers like nursing homes and hospitals generally prefer to arbitrate, rather than litigate, South Carolina medical malpractice claims.

There are several reasons for this, including the likelihood that the damages award paid out to a particular medical malpractice victim (or his or her family, if the patient died) will be substantially lower if an arbitrator – rather than a jury – considers the issues in the case.

Of course, not every agreement to arbitrate is legally enforceable. While many such agreements are upheld by the courts, some are declared unenforceable.

South Carolina Court of Appeals Holds that Negligent Party is Not Entitled to Setoff for Amount Paid by Second Tortfeasor

Published on: May 22, 2020 | by Patrick E. Knie

Pursing fair compensation for injuries suffered due to another party’s negligence can be difficult. In addition to being required to offer credible evidence on issues such as duty, breach of duty, damages, and proximate cause, the plaintiff may also face difficulties caused by the various insurance companies that are involved in the case.

If a negligent party is not covered by a liability insurance policy, a South Carolina personal injury case can be even more complicated. While insurance companies can fight tooth and nail against a finding of liability against their insured, at least they have the financial resources to pay a judgment when one is finally entered (at least in most cases). Unfortunately, this is not always true of those who do not have insurance.

Facts of the Case

In a recent unreported case, the plaintiffs were injured by the negligence of the defendant and another individual. After the Orangeburg County Circuit Court granted a default judgment to the plaintiffs, the defendant filed a motion for entry of satisfaction of judgment. The trial court denied the motion. The defendant appealed, arguing that the trial court had made a mistake in denying her motion because its action had resulted in a double recovery for the plaintiffs because it did not offset a default judgment paid by a second tortfeasor. The defendant also argued that it was an error for the lower tribunal to determine that a default damages hearing did not establish the total amount of damages arising from an indivisible injury.

South Carolina Court of Appeals Finds that Exclusion for Injuries Suffered During Flight from Police or Commission of Felony Was Enforceable in Auto Accident Case

Published on: May 22, 2020 | by Patrick E. Knie

In a typical South Carolina car accident lawsuit, it is the injured driver or passenger who files suit. However, this is not always the case. Sometimes, an insurance company files what is called a “declaratory judgment action” in order to seek the court’s guidance as to the applicability and/or extent of coverage of a particular claim or set of claims. Such was the situation in a recent appellate case involving a fatal crash that allegedly followed a police chase in Anderson County, South Carolina.

Facts of the Case

In a case filed in the Anderson County Circuit Court and considered by the South Carolina Court of Appeals, the plaintiff was an automobile accident liability insurance company that sought declaratory relief following a fatal, one-vehicle accident that occurred in 2008. According to the plaintiff, its insured and two other individuals were riding as passengers in the vehicle at the time of the crash; one of the passengers was killed, and the insured and the other passenger were catastrophically injured. The driver, who was apparently not a party to the civil lawsuit filed by the plaintiff insurance company against the defendant insured and passengers, was the defendant in a separate criminal case in which he pled guilty to reckless homicide (a felony offense in South Carolina).

According to the plaintiff, the insurance policy in effect at the time of the accident had an exclusion for bodily injury caused by anyone who was operating the covered vehicle while committing a felony or fleeing from a law enforcement officer. The trial court found that the provisions at issue were unenforceable because (1) the insurance company had failed to inform the insured of the exclusions or otherwise place them conspicuously on the insurance policy; (2) the exclusions were ambiguous; and (3) the exclusions violated the state’s public policy of protecting innocent insureds,
namely the three passengers who were deemed not at fault in causing the collision.
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South Carolina Court of Appeals Dismisses Negligence Case Against Sheriff’s Office

Published on: May 22, 2020 | by Patrick E. Knie

When one person sues another individual (or business, governmental entity, etc.) for an act of negligence, the burden of proof is on the party seeking legal redress for the other’s wrongful conduct. It is important for the plaintiff in such a case to be represented by an experienced, thorough, and assertive personal injury attorney so that the case may be properly investigated and prepared for trial. If successful on the merits, the plaintiff in such an action may recover compensation for lost wages, medical costs, pain and suffering, and other damages caused by the defendant’s conduct. If you are suffering due to someone else’s conduct, it is important to speak with a South Carolina injury lawyer as soon as possible.

Facts of the Case

In a recent (unreported) case, the plaintiff was a woman who sought monetary compensation for injuries she allegedly suffered during an incident with a law enforcement officer. She filed suit against the defendants, a sheriff and the county sheriff’s office, in the Richland County Circuit Court, asserting claims for negligent hiring, retention, and training of the officer (who was apparently terminated prior to the suit) and for assault and battery. The trial court granted summary judgment in favor of the defendants, and the plaintiff appealed.

Decision of the Court

The South Carolina Court of Appeals affirmed the lower court’s decision. The plaintiff argued on appeal that summary judgment was improper because there was evidence in the record that supported her claim for negligent retention. In addition, she argued the defendants were liable for the torts committed by the former employee insomuch as he was acting within the course and scope of his employment at the time in question, and because his actions were consistent within the culture of the sheriff’s office at that time.
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South Carolina Appellate Court Rejects Nursing Facility’s Attempt to Force Deceased Patient’s Estate into Arbitration

Published on: May 22, 2020 | by Patrick E. Knie

More and more often, nursing homes, assisted living centers, and the like are requiring patients and their families to sign binding arbitration agreements prior to a patient’s admittance. Nursing homes do this because they do not want a jury to hear a South Carolina nursing home abuse case in which they are accused of negligently or recklessly injuring or killing a patient. Fortunately, not all of attempts to deprive a patient or his or her family of their day in court are successful.

Facts of the Case

In a recent case, the plaintiff was the niece and personal representatives of the estate of a man who allegedly died due to the negligence of the defendant skilled nursing facility in 2013. (The plaintiff was also the personal representative of the decedent’s statutory beneficiaries.) The defendant sought to compel arbitration of the plaintiffs’ claims based upon an arbitration agreement allegedly signed by the niece, who allegedly signed the agreement (along with other admission documentation) pursuant to a durable power of attorney for finance and a durable health care power of attorney (neither of which were recorded at the time that the documents were signed). (Notably, the defendant’s initial evaluation of the decedent showed that he possessed intact mental functioning and was alert to time, place, and situation.)

The Spartanburg County Circuit Court declined the defendant’s motion to compel arbitration of the plaintiff’s wrongful death and survival actions, holding that the decedent’s niece lacked the authority to execute the admission documents upon which the defendant relied.
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Federal Court Refuses to Remand Product Liability Case to State Court, Despite Plaintiff’s Stipulation of Damages Less Than $75,000

Published on: May 21, 2020 | by Patrick E. Knie

Attorneys who practice law in the area of personal injury and wrongful death are often concerned about the timing of a lawsuit, and rightfully so. Claims not filed within the statute of limitations and statute of repose are usually dismissed by the courts.

However, the timing of a lawsuit is not the only consideration in such cases. For example, in a South Carolina product liability lawsuit, there may also be a question of where to file suit. Sometimes, there is only one possible court in which to file a claim, but sometimes multiple courts arguably have jurisdiction.

Sometimes, even after a plaintiff has filed his or her suit, there is a chance that jurisdiction may be changed – at the defendant’s request. While not every defendant has a right to remove a case to another court, there are some circumstances in which this is possible.

South Carolina Workers’ Compensation Commissioner Should Have Recused Herself Following Threat of Criminal Proceedings Against Former Highway Patrol Lance Corporal

Published on: May 21, 2020 | by Patrick E. Knie

Just like judges in other types of cases, South Carolina workers’ compensation commissioners are under an obligation to be fair and impartial in matters proceeding before them. If a judge’s impartiality might reasonably be questioned in a particular case, he or she is supposed to disqualify himself or herself from further rulings in the matter.

Unfortunately, this does not always happen, and it is up to the court of appeals and state supreme court to remedy matters later on. If the reviewing court determines that a judge should have granted a parties’ motion to recuse, the court has the option of reversing the decision that the judge ultimately made and remanding the case to a different judge for further proceedings.

In a case recently considered by the state supreme court, a workers’ compensation commissioner’s actions were held to be “quite simply unacceptable and offensive to the ideals of a fair and impartial judiciary.”

Patient’s Lawsuit Against Carrier Who Delivered Medication Two Weeks Late Was Preempted by Federal Law, According to South Carolina Court

Published on: May 21, 2020 | by Patrick E. Knie

When someone is hurt by the negligence act(s) of a business, government, or individual, the injured person may be able to receive compensation for his or her injuries through a personal injury lawsuit. In most such cases, the plaintiff need only prove that the defendant owned him or her a duty of care and that the breach of that duty was the proximate cause of the damages for which he or seeks compensation. In some situations, however, this general rule may be complicated by other factors including the possibility that the usual remedy is preempted under federal law. A recent South Carolina personal injury lawsuit explained the concept further.

Facts of the Case

In a recent case originating in the Circuit Court for Orangeburg County, the plaintiff was a man who was prescribed a thyroid medication by doctors at the Veterans Administration. On several past occasions, the defendant carrier had delivered the plaintiff’s prescriptions to his residence without incident. In April 2013, however, the plaintiff was deprived of his medication for almost two weeks, purportedly due to an issue with the address indicated on the package (even though previous medication had been sent to the same location without any problems).

As a result of not having his medication, the plaintiff went into a “thyroid storm,” in which he suffered seizures, congestive heart failure, and extremely high blood pressure. The plaintiff’s medical condition culminated in him having to be hospitalized, and eventually, surgical intervention was required. The plaintiff, joined in the suit by his wife (who asserted a loss of consortium claim), sought legal redress for the defendant’s negligence and negligent entrustment. The defendant filed a motion to dismiss the plaintiff’s state law claims on the basis that they were preempted by the Federal Aviation Administration Authorization Act of 1994 (FAAAA), 49 U.S.C.A. § 14501(c)(1), a federal law that prohibits states from enacting laws related to the service of motor carriers. The plaintiffs appealed.

South Carolina Court Finds That Excluded Driver Endorsement on UIM Policy Meant No Coverage in Fatal Crash

Published on: May 21, 2020 | by Patrick E. Knie

One of the most important types of insurance that is available to South Carolina vehicle owners is uninsured/underinsured motorist coverage. When such a policy of insurance is in place, it protects the insured individual in the event of a serious injury collision caused by someone who doesn’t have automobile accident insurance or who has only minimum policy limits.

Unfortunately, insurance companies resist paying uninsured/underinsured motorist claims whenever they can. Sometimes, the denial of coverage is held to be valid by a court, but, other times, it is not. Ultimately, it is up to a judge to decide whether the coverage is applicable given the particular set of facts presented by a given case. If you have sustained injuries in a car crash and wonder whether the driver at fault is either uninsured or underinsured, it is worth your time meeting with a South Carolina car accident attorney as soon as possible.

Facts of the Case

In a recent case arising in the Greenville County Circuit Court, the plaintiff was an insurance company that sought a declaratory judgment as to whether underinsured motorist (UIM) coverage existed under an automobile insurance policy taken out by the defendant, who was the wife and personal representative of the estate of a man who died in a 2016 motorcycle accident caused by another driver. The defendant applied for the policy in 2014, about a year and half prior to her marriage to the decedent. At the time of the application, the defendant completed an “excluded driver endorsement” and listed the decedent as someone who was excluded from coverage under the policy.

Federal Court Refuses to Send South Carolina Woman’s Slip and Fall Case Back to State Court Following Removal by Defendants

Published on: May 21, 2020 | by Patrick E. Knie

When filing a South Carolina premises liability claim against a store, restaurant, or other establishment, the plaintiff may have a choice of venue – that is, a choice between multiple courts in which his or her legal action can be filed. However, there may be some situations in which the plaintiff’s choice of venue may be overridden by the opposing party. One such situation is when both a federal court and a state court have jurisdiction over a case.

If the plaintiff chooses to file his or her suit in state court, the defendant can them “remove” the case to federal court. The only way to have the action moved back to state court after removal is for the plaintiff to show that the federal court is without jurisdiction.

Facts of the Case

In a recent federal case filed by a shopper against a supermarket and others, the plaintiff originally filed suit in the Bamberg County Court of Common Pleas, alleging that she had suffered significant injuries as a result of a trip and fall accident caused by the defendants’ negligence and seeking monetary compensation for her injuries. The defendants removed the plaintiff’s action to federal court, in response to which the plaintiff filed a motion to remand the case back to state court.