S.C. Defense Trial Attorneys’ Associationscdtaa.com/Resources/Documents/DefenseLine Vol 40_2_FINAL.pdf · R&D Strategic Solutions, will assist us by highlighting key jury information

S.C. D e f e n s e T r i a l A t t o r n e y s ’ A s s o c i a t i o n

SUMMER 2012

VOLUME 40

ISSUE 2

WWW.SCDTAA.COM

Summer MeetingAsheville, NCJuly 26-28

Fall Boot CampSeptember 27,2012

Greenville, SC

I N T H I S I S S U E:

• Judicial Profile of the Honorable DeAndrea Gist Benjamin

• Judicial Profile of the

Honorable Jacquelyn D. Austin

• Information on the Annual Meeting at the Sanctuary

• Update on Medicare/Medicaid Set Aside Procedures

• Federal Jurisdiction Changes

Annual MeetingThe Sanctuary at

Kiawah IslandNovember 8-11

The Shining Superstars

For those who attended Trial Superstars, youknow firsthand what the title of this article isreferencing. On April 13, 2012, some of the

finest trial lawyers in South Carolina onboth the plaintiff and defense sidesconverged on the Charleston CountyCourthouse to try a case from theSCDTAA Trial Academy fact pattern. Allof the participating lawyers were invitedto join in this trial exercise based upontheir significant trial experience andsuccess. Due to the efforts of thisoutstanding faculty, the mock trial wasspectacular. The courtroom audienceand those that tuned in via teleconfer-

ence witnessed top notched lawyers showcase theirtrial skills and all attendees left with new trial tech-niques and innovative tactics to incorporate intotheir own practices. It was also a great day for theSouth Carolina Bar because this mock trial demon-strated how both plaintiff and defense lawyers canwork together toward the worthy goal of helpingothers become better trial lawyers. The TrialSuperstars faculty is listed in this publication and Iwould like to thank each person for their participa-tion and countless hours of preparation. Judge Early,as the presiding judge, did a terrific job streamliningthe trial in an efficient and entertaining way. JudgeYoung who played the part of the Plaintiff, may haveunearthed a second career with his acting prowess.We have received glowing reports from the atten-dees, faculty and judges who attended this event.None of this could have been possible without theinvaluable hard work of our Program Chair, JamieHood. Stay tuned for further analysis and discussionof Trial Superstars in the upcoming Trial Academy,Summer Meeting and Annual Meeting. The juryconsultant company that handled the mock trial,R&D Strategic Solutions, will assist us by highlightingkey jury information for our upcoming CLEs. Wewill use video footage from the trial and jury deliber-ations in other programs throughout the remainderof the year.

On April 24, 2012 we had record attendance at ourCorporate Counsel Seminar in Columbia. In-housecounsel from across the state joined us for thiscomplimentary seminar. I would like to congratulateDavid Anderson, Duncan McIntosh and MelissaNichols for organizing a most successful CorporateCounsel seminar. Our Legislative/Judicial receptionat the Oyster Bar in Columbia followed the

Corporate Counsel seminar and was well-attendedby our members, judges and legislators. I appreciatethe hard work of Gray Culbreath and Jeff Thordhalin planning this special event.

In addition to everything else, the Association heldour Third Annual PAC Golf Tournament at SpringValley Country Club in Columbia on April 25, 2012.We had twelve teams compete this year and a goodtime was had by all. All proceeds from the tourna-ment go to our PAC fund. Many thanks to JohnstonCox and Anthony Livoti for chairing the PAC GolfTournament for the past two years.

The SCDTAA Board continues to work hard toprovide real value and exceptional benefits to ourmembers. The SCDTAA started with a bang in 2012with Trial Superstars and we expect the positivemomentum to continue throughout the year. Pleasemake plans for you and your family to join us at theSummer Meeting at the Grove Park Inn in July 26-28, 2012. We have an outstanding program plannedwith timely and relevant topics that will interest alltrial lawyers. In addition to the main CLE program,we will have special workers’ compensation break-outs on both days, including a mock appeal to the fullcommission. Other exciting events coming this yearinclude Evidence Bootcamp, Workers’ CompensationBootcamp, Product Liability CLE, Construction LawCLE, judicial receptions and of course, the AnnualMeeting at The Sanctuary. Make plans to join us!

President’s Messageby Molly H. Craig

PRESIDENT’SMESSAGE

2

“Diversity” – The condition of having orbeing composed of differing elements; theinclusion of different types of people (aspeople of different races or cultures) in agroup or organization.

Merriam-Webster Dictionary

When most people think of diversity, theythink of the inclusion of minorities in thework place or in an organization such as

the SCDTAA. While this is definitely an importantaspect of diversity, the meaning and the need fordiversity is a much broader concept. When we lookat the membership of the SCDTAA, “diverse” is not aword that comes to mind. This is something that weare committed to changing and have been for sometime. But what does this really mean? It means thatour organization should be comprised of differingelements: small firms, large firms, solo practitioners,women, younger members of the Bar, lawyers ofdifferent ethnic backgrounds and members fromevery jurisdiction in the State.

Although the goal of diversity should come aboutbecause it is the right thing to do, most firms, corpo-rations and organizations are not driven by thatmoral aspect; instead, they are driven by the benefitsderived from having diverse employees andmembers. This is not a bad thing…it is just the wayof the world. By now, most people recognize theneed for diversity. In the law firm setting in whichmost of us practice, diversity is something that isnow required by most clients, especially in the insur-ance defense context. These organizations realizethe need for representation that is more indicative ofthe world in which we live; a world that is not justblack and white. Therefore, firms promote diversityto attract and keep clients, which allows them tomake more money and, thus, derive the benefit.However, this reason alone is not enough.

Why should the SCDTAA focus on increasingdiversity in its membership? For starters, a morediverse membership gives us a broader base fromwhich we can pull ideas. Diversity is about learningfrom others who are different from us and aboutcreating an environment that encourages such learn-ing and captures the advantage of diverse perspec-tives. Instead of doing the same things we have beendoing for years, we gain a perspective from those who

have not traditionally been members ofour organization. New ideas generateexcitement and increased energy, whichare both helpful tools as our organiza-tion continues to grow. Additionally, ourjudiciary and elected officials arebecoming increasingly diverse and weroutinely invite members of both groupsto our meetings and functions, as well asrely on them to help foster the missionof the SCDTAA, which is: To promotejustice, professionalism and integrity inthe civil justice system by bringingtogether attorneys dedicated to thedefense of civil actions. By increasingdiversity we focus on a key aspect of ourmission, that is, bringing lawyerstogether.

The next logical question is, how dowe—as members of the SCDTAA—goabout increasing diversity? As we allknow, this is not a simple task. We mustwork to promote and market our organi-zation to everyone and not just thosewho look like us or with whom weroutinely practice or socialize. We mustreach out and make a concerted effort toinclude those who will benefit our orga-nization and bring in new ideas.

While diversifying our membershiphas been a goal for some time, whatbetter way to work towards that goalthan to put the issue at the forefront inThe DefenseLine! This edition includesarticles written by more women andyounger members as well as profiles oftwo female, African-American membersof our judiciary. We hope you enjoy thisedition and join us as we work toincrease diversity in our organization. Ifyou have any ideas to help us reach ourgoal, please do not hesitate to contactone of us, a member of our Board ofDirectors, or our Executive Director,Aimee Hiers. As always…we love tohear from you!

Letter From The Editorsby David A. Anderson, Jack Riordan, and Breon Walker

Jack Riordan

David A. Anderson

3

EDITORS’ PAGE

Breon Walker

Michael Freeman

The Shining Superstars

For those who attended Trial Superstars, youknow firsthand what the title of this article isreferencing. On April 13, 2012, some of the

finest trial lawyers in South Carolina onboth the plaintiff and defense sidesconverged on the Charleston CountyCourthouse to try a case from theSCDTAA Trial Academy fact pattern. Allof the participating lawyers were invitedto join in this trial exercise based upontheir significant trial experience andsuccess. Due to the efforts of thisoutstanding faculty, the mock trial wasspectacular. The courtroom audienceand those that tuned in via teleconfer-

ence witnessed top notched lawyers showcase theirtrial skills and all attendees left with new trial tech-niques and innovative tactics to incorporate intotheir own practices. It was also a great day for theSouth Carolina Bar because this mock trial demon-strated how both plaintiff and defense lawyers canwork together toward the worthy goal of helpingothers become better trial lawyers. The TrialSuperstars faculty is listed in this publication and Iwould like to thank each person for their participa-tion and countless hours of preparation. Judge Early,as the presiding judge, did a terrific job streamliningthe trial in an efficient and entertaining way. JudgeYoung who played the part of the Plaintiff, may haveunearthed a second career with his acting prowess.We have received glowing reports from the atten-dees, faculty and judges who attended this event.None of this could have been possible without theinvaluable hard work of our Program Chair, JamieHood. Stay tuned for further analysis and discussionof Trial Superstars in the upcoming Trial Academy,Summer Meeting and Annual Meeting. The juryconsultant company that handled the mock trial,R&D Strategic Solutions, will assist us by highlightingkey jury information for our upcoming CLEs. Wewill use video footage from the trial and jury deliber-ations in other programs throughout the remainderof the year.

On April 24, 2012 we had record attendance at ourCorporate Counsel Seminar in Columbia. In-housecounsel from across the state joined us for thiscomplimentary seminar. I would like to congratulateDavid Anderson, Duncan McIntosh and MelissaNichols for organizing a most successful CorporateCounsel seminar. Our Legislative/Judicial receptionat the Oyster Bar in Columbia followed the

Corporate Counsel seminar and was well-attendedby our members, judges and legislators. I appreciatethe hard work of Gray Culbreath and Jeff Thordhalin planning this special event.

In addition to everything else, the Association heldour Third Annual PAC Golf Tournament at SpringValley Country Club in Columbia on April 25, 2012.We had twelve teams compete this year and a goodtime was had by all. All proceeds from the tourna-ment go to our PAC fund. Many thanks to JohnstonCox and Anthony Livoti for chairing the PAC GolfTournament for the past two years.

The SCDTAA Board continues to work hard toprovide real value and exceptional benefits to ourmembers. The SCDTAA started with a bang in 2012with Trial Superstars and we expect the positivemomentum to continue throughout the year. Pleasemake plans for you and your family to join us at theSummer Meeting at the Grove Park Inn in July 26-28, 2012. We have an outstanding program plannedwith timely and relevant topics that will interest alltrial lawyers. In addition to the main CLE program,we will have special workers’ compensation break-outs on both days, including a mock appeal to the fullcommission. Other exciting events coming this yearinclude Evidence Bootcamp, Workers’ CompensationBootcamp, Product Liability CLE, Construction LawCLE, judicial receptions and of course, the AnnualMeeting at The Sanctuary. Make plans to join us!

President’s Messageby Molly H. Craig

PRESIDENT’SMESSAGE

2

“Diversity” – The condition of having orbeing composed of differing elements; theinclusion of different types of people (aspeople of different races or cultures) in agroup or organization.

Merriam-Webster Dictionary

When most people think of diversity, theythink of the inclusion of minorities in thework place or in an organization such as

the SCDTAA. While this is definitely an importantaspect of diversity, the meaning and the need fordiversity is a much broader concept. When we lookat the membership of the SCDTAA, “diverse” is not aword that comes to mind. This is something that weare committed to changing and have been for sometime. But what does this really mean? It means thatour organization should be comprised of differingelements: small firms, large firms, solo practitioners,women, younger members of the Bar, lawyers ofdifferent ethnic backgrounds and members fromevery jurisdiction in the State.

Although the goal of diversity should come aboutbecause it is the right thing to do, most firms, corpo-rations and organizations are not driven by thatmoral aspect; instead, they are driven by the benefitsderived from having diverse employees andmembers. This is not a bad thing…it is just the wayof the world. By now, most people recognize theneed for diversity. In the law firm setting in whichmost of us practice, diversity is something that isnow required by most clients, especially in the insur-ance defense context. These organizations realizethe need for representation that is more indicative ofthe world in which we live; a world that is not justblack and white. Therefore, firms promote diversityto attract and keep clients, which allows them tomake more money and, thus, derive the benefit.However, this reason alone is not enough.

Why should the SCDTAA focus on increasingdiversity in its membership? For starters, a morediverse membership gives us a broader base fromwhich we can pull ideas. Diversity is about learningfrom others who are different from us and aboutcreating an environment that encourages such learn-ing and captures the advantage of diverse perspec-tives. Instead of doing the same things we have beendoing for years, we gain a perspective from those who

have not traditionally been members ofour organization. New ideas generateexcitement and increased energy, whichare both helpful tools as our organiza-tion continues to grow. Additionally, ourjudiciary and elected officials arebecoming increasingly diverse and weroutinely invite members of both groupsto our meetings and functions, as well asrely on them to help foster the missionof the SCDTAA, which is: To promotejustice, professionalism and integrity inthe civil justice system by bringingtogether attorneys dedicated to thedefense of civil actions. By increasingdiversity we focus on a key aspect of ourmission, that is, bringing lawyerstogether.

The next logical question is, how dowe—as members of the SCDTAA—goabout increasing diversity? As we allknow, this is not a simple task. We mustwork to promote and market our organi-zation to everyone and not just thosewho look like us or with whom weroutinely practice or socialize. We mustreach out and make a concerted effort toinclude those who will benefit our orga-nization and bring in new ideas.

While diversifying our membershiphas been a goal for some time, whatbetter way to work towards that goalthan to put the issue at the forefront inThe DefenseLine! This edition includesarticles written by more women andyounger members as well as profiles oftwo female, African-American membersof our judiciary. We hope you enjoy thisedition and join us as we work toincrease diversity in our organization. Ifyou have any ideas to help us reach ourgoal, please do not hesitate to contactone of us, a member of our Board ofDirectors, or our Executive Director,Aimee Hiers. As always…we love tohear from you!

Letter From The Editorsby David A. Anderson, Jack Riordan, and Breon Walker

Jack Riordan

David A. Anderson

3

EDITORS’ PAGE

Breon Walker

Michael Freeman

OFFICERSPRESIDENTMolly H. CraigP.O. Box 1508, 172 Meeting StreetCharleston, SC 29401(843) 577-4435 FAX (843) [email protected]

PRESIDENT ELECTSterling G. DaviesP.O. Box 12519Columbia, SC 29211(803) 779-2300 FAX (803) [email protected]

TREASURERCurtis L. OttP.O. Box 1473Columbia, SC 29202(803) 254-2200 FAX (803) [email protected]

SECRETARYRonald K. Wray IIP.O. Box 10589Greenville, SC 29603(864) 271-5362 FAX (864) [email protected]

IMMEDIATE PAST PRESIDENTGray T. CulbreathP.O. Box 7368Columbia, SC 29202(803) 779-1833 FAX (803) [email protected]

EXECUTIVE COMMITTEETerm Expires 2012David A. AndersonWalter H. BarefootWilliam S. BrownEric K. EnglebardtJoshua L. HowardAnthony W. LivotiGraham P. PowellW. McElhaney White

Term Expires 2013A. Johnston CoxD. Jay Davis, Jr.Ryan A. EarhartE. Mitchell GriffithJames B. HoodA. Shane MasseyMelissa M. Nichols

Term Expires 2014Mark A. AllisonWilliam G. BesleyErin D. DeanJohn F. KuppensW. Edward LawsonJohn P. “Jack” RiordanBreon C.M. WalkerSarah E. Wetmore

PAST PRESIDENT COMMITTEE MEMBERWilliam A. Coates

CORPORATE COUNSEL CHAIRPERSONDuncan S. McIntosh

DRI REPRESENTATIVESamuel W. Outten

YOUNG LAWYERS PRESIDENTJared H. Garraux

EXECUTIVE DIRECTORAimee Hiers

EDITORSDavid A. AndersonJack RiordanBreon C.M. Walker

S . C . D e f e n s e Tr i a l A t t o r n e y s ’ A s s o c i a t i o n Vo l u m e 4 0 N u m b e r 2 • S u m m e r, 2 0 1 2

PRESIDENT’S MESSAGEMolly H. Craig 2

LETTER FROM THE EDITORSDavid A. Anderson, Jack Riordan, and Breon Walker 3SCDTAA DOCKETFirm Announcements & Members in the News 5

YOUNG LAWYER UPDATEJared H. Garraux 11

WORKERS’ COMP BOOT CAMP RECAPEric K. Englehardt 12

LEGISLATIVE UPDATEJeff Thordahl 13

CORPORATE COUNSEL UPDATEMelissa M. Nichols 14

JUDICIAL PROFILE: THE HONORABLE JACQUELYN D. AUSTIN 15

JUDICIAL PROFILE: THE HONORABLE DEANDREA GIST BENJAMIN 17

REFLECTIONSEdward W. Mullins, Jr. 19

TRIAL SUPERSTARSJamie Hood 21

PREPARING FOR TOMORROW: A PRACTICAL ANALYSIS OFALTERNATIVE FEE ARRANGEMENTSLaura E. Paris and N. Keith Emge, Jr. 23

SPOLIATION AND EVENT DATA PRESERVATIONJoseph W. Rohe 28

PERSONAL LIABILITY FOR LLC MEMBERS: DEFINING THE LIMITS OF LIMITED LIABILITYAndrew M. Connor 29

CHANGES TO FEDERAL JURISDICTION AND PROCEDUREC. Fredric Marcinak III 31

THE NEW AMALGAMATION IN SOUTH CAROLINA - A SHORTCUT TO CORPORATE LIABILITY?Andrew Cole 33

THE 411 ON MEDICARE SET ASIDE ARRANGEMENTSAshley Kirkham and Myada El-Sawi 39

CASE NOTES 42

VERDICT REPORTS 44

DefenseLINETHEOFFICERSPRESIDENTMolly H. CraigP.O. Box 1508, 172 Meeting StreetCharleston, SC 29401(843) 577-4435 FAX (843) [email protected]































CASE NOTES 42

VERDICT REPORTS 44
































CASE NOTES 42

VERDICT REPORTS 44
































CASE NOTES 42

VERDICT REPORTS 44

DefenseLINETHE

Drew H. Butler of Richardson Plowden selected as AWRLitigator of the Year

Richardson Plowden & Robinson, P.A. is pleased toannounce that attorney Drew Hamilton Butler is therecipient of the A. William Roberts, Jr., & Associates(AWR) Litigator of the Year award. The award waspresented to Butler by Bill Roberts, AWR CEO, at theSouth Carolina Lawyers Weekly Leaders in LawCeremony in March. Butler focuses his practice ongeneral litigation. He earned his Juris Doctor fromPennsylvania State University Dickinson School ofLaw in 2002. In addition to his practice atRichardson Plowden, for more than seven year,Butler has acted as a pro bono special prosecutor forcriminal domestic violence prosecution with theSouth Carolina Attorney General’s Office. He hasalso helped instruct classes for young lawyers inter-ested in joining the program. Recently Butler wasselected as a 2012 Rising Star by the South CarolinaSuper Lawyers® publication. He is a member of theSouth Carolina Bar, Richland County BarAssociation, Charleston County Bar Association, andthe American Bar Association. He is the past presi-dent of the Young Lawyers Division of the SouthCarolina Defense Trial Attorneys’ Association.

Collins & Lacy Attorneys Selected for South CarolinaSuper Lawyers® 2012 List, and 2012 Rising Stars List

Four Collins & Lacy, P.C. attorneys have beennamed to the 2012 list of South Carolina SuperLawyers®. Joel W. Collins, Jr., Stanford E. Lacy, JackD. Griffeth, and Michael Pitts were among thoseattorneys recently selected for inclusion in the publi-cation. Super Lawyers® is a listing of attorneys whohave attained a high degree of peer recognition andprofessional achievement. Selections are made onan annual, state-by-state basis, and the selectionprocess is multi-phased and includes peer nomina-tions, independent research and review by peerattorneys in the same practice area. Additionally,firm shareholder Andrew Cole, has been named tothe inaugural Rising Stars list for South Carolina.The Rising Stars list was established to recognize thetop up-and-coming attorneys in each state. RisingStars are attorneys, 40 years of age or younger, whohave been practicing for 10 years or less.

Nelson Mullins Riley & Scarborough expands to Nashville, TN

Nelson Mullins Riley & Scarborough is pleased toannounce the opening of their Nashville, TN office.Five recognized and experienced Tennessee attor-neys with national practices in business, technology,

real estate, corporate, and securities work will jointhe Firm to help establish and expand the office. TheNashville office will be managed by Laurence M.Papel, who concentrates his practice primarily in theareas of corporate transactions and real estate. Alsojoining the firm is Jason Epstein, a nationally recog-nized business and technology attorney who acts asoutside general counsel to companies in variousindustries. David J. White, who concentrates hispractice in the areas of corporate, municipal andstructured finance, portfolio real estate transactions,and airport and aviation-related finance and devel-opment projects, also comes to Nelson Mullins as apartner in its Nashville office. Other new partners inNashville will include Geoffrey P. Vickers, and KellyL. Worman, along with Christopher Lalonde an asso-ciate in the Firm's Nashville office.

Two Wyche Attorneys Recognized by South Carolina SuperLawyers®

Two Wyche attorneys, Wallace Lightsey and TroyTessier, were recognized in 2012 by South CarolinaSuper Lawyers®, a rating service of outstandinglawyers from more than 70 practice areas who haveobtained a high degree of peer recognition andprofessional accomplishment. Lightsey, Chair ofWyche’s Executive Committee, received specialrecognition as one of South Carolina’s top 25lawyers. The annual selections are made using arigorous multi-phased process that includes astatewide survey of lawyers, an independentresearch evaluation of candidates, and peer reviewsby practice area.

Turner Padget Attorneys Named Among South CarolinaSuper Lawyers®

Turner Padget Graham & Laney, P.A. is pleased toannounce that 12 of the firm’s shareholders havebeen named by Super Lawyers® magazine as topattorneys in South Carolina for 2012. In addition, sixattorneys are named as South Carolina Rising Stars.From Turner Padget’s Charleston office, shareholderJohn S. Wilkerson, III is recognized for his work inGeneral Litigation. Nosizi Ralephata, who wasrecently named as a shareholder of the firm, ishonored as a Rising Star for Business Litigation. Inthe firm’s Columbia office, the following shareholdersare recognized: Reginald W. Belcher for Employmentand Labor; John E. Cuttino for Civil LitigationDefense; Lanneau Wm. Lambert, Jr. for Real Estate;Curtis L. Ott for Personal Injury Defense: Products;Thomas C. Salane for Insurance Coverage; FranklinG. Shuler, Jr. for Employment and Labor; and of

5

SCDTAA Docket MEMBERNEWS

Continued on next page

OFFICERSPRESIDENTMolly H. CraigP.O. Box 1508, 172 Meeting StreetCharleston, SC 29401(843) 577-4435 FAX (843) [email protected]































CASE NOTES 42

VERDICT REPORTS 44
































CASE NOTES 42

VERDICT REPORTS 44

DefenseLINETHE

Drew H. Butler of Richardson Plowden selected as AWRLitigator of the Year

Richardson Plowden & Robinson, P.A. is pleased toannounce that attorney Drew Hamilton Butler is therecipient of the A. William Roberts, Jr., & Associates(AWR) Litigator of the Year award. The award waspresented to Butler by Bill Roberts, AWR CEO, at theSouth Carolina Lawyers Weekly Leaders in LawCeremony in March. Butler focuses his practice ongeneral litigation. He earned his Juris Doctor fromPennsylvania State University Dickinson School ofLaw in 2002. In addition to his practice atRichardson Plowden, for more than seven year,Butler has acted as a pro bono special prosecutor forcriminal domestic violence prosecution with theSouth Carolina Attorney General’s Office. He hasalso helped instruct classes for young lawyers inter-ested in joining the program. Recently Butler wasselected as a 2012 Rising Star by the South CarolinaSuper Lawyers® publication. He is a member of theSouth Carolina Bar, Richland County BarAssociation, Charleston County Bar Association, andthe American Bar Association. He is the past presi-dent of the Young Lawyers Division of the SouthCarolina Defense Trial Attorneys’ Association.

Collins & Lacy Attorneys Selected for South CarolinaSuper Lawyers® 2012 List, and 2012 Rising Stars List

Four Collins & Lacy, P.C. attorneys have beennamed to the 2012 list of South Carolina SuperLawyers®. Joel W. Collins, Jr., Stanford E. Lacy, JackD. Griffeth, and Michael Pitts were among thoseattorneys recently selected for inclusion in the publi-cation. Super Lawyers® is a listing of attorneys whohave attained a high degree of peer recognition andprofessional achievement. Selections are made onan annual, state-by-state basis, and the selectionprocess is multi-phased and includes peer nomina-tions, independent research and review by peerattorneys in the same practice area. Additionally,firm shareholder Andrew Cole, has been named tothe inaugural Rising Stars list for South Carolina.The Rising Stars list was established to recognize thetop up-and-coming attorneys in each state. RisingStars are attorneys, 40 years of age or younger, whohave been practicing for 10 years or less.

Nelson Mullins Riley & Scarborough expands to Nashville, TN

Nelson Mullins Riley & Scarborough is pleased toannounce the opening of their Nashville, TN office.Five recognized and experienced Tennessee attor-neys with national practices in business, technology,

real estate, corporate, and securities work will jointhe Firm to help establish and expand the office. TheNashville office will be managed by Laurence M.Papel, who concentrates his practice primarily in theareas of corporate transactions and real estate. Alsojoining the firm is Jason Epstein, a nationally recog-nized business and technology attorney who acts asoutside general counsel to companies in variousindustries. David J. White, who concentrates hispractice in the areas of corporate, municipal andstructured finance, portfolio real estate transactions,and airport and aviation-related finance and devel-opment projects, also comes to Nelson Mullins as apartner in its Nashville office. Other new partners inNashville will include Geoffrey P. Vickers, and KellyL. Worman, along with Christopher Lalonde an asso-ciate in the Firm's Nashville office.

Two Wyche Attorneys Recognized by South Carolina SuperLawyers®

Two Wyche attorneys, Wallace Lightsey and TroyTessier, were recognized in 2012 by South CarolinaSuper Lawyers®, a rating service of outstandinglawyers from more than 70 practice areas who haveobtained a high degree of peer recognition andprofessional accomplishment. Lightsey, Chair ofWyche’s Executive Committee, received specialrecognition as one of South Carolina’s top 25lawyers. The annual selections are made using arigorous multi-phased process that includes astatewide survey of lawyers, an independentresearch evaluation of candidates, and peer reviewsby practice area.

Turner Padget Attorneys Named Among South CarolinaSuper Lawyers®

Turner Padget Graham & Laney, P.A. is pleased toannounce that 12 of the firm’s shareholders havebeen named by Super Lawyers® magazine as topattorneys in South Carolina for 2012. In addition, sixattorneys are named as South Carolina Rising Stars.From Turner Padget’s Charleston office, shareholderJohn S. Wilkerson, III is recognized for his work inGeneral Litigation. Nosizi Ralephata, who wasrecently named as a shareholder of the firm, ishonored as a Rising Star for Business Litigation. Inthe firm’s Columbia office, the following shareholdersare recognized: Reginald W. Belcher for Employmentand Labor; John E. Cuttino for Civil LitigationDefense; Lanneau Wm. Lambert, Jr. for Real Estate;Curtis L. Ott for Personal Injury Defense: Products;Thomas C. Salane for Insurance Coverage; FranklinG. Shuler, Jr. for Employment and Labor; and of

5

SCDTAA Docket MEMBERNEWS


counsel Catherine H. Kennedy for EstatePlanningand Probate. In addition, shareholders NicholasWilliam Gladd and Carmelo (“Sam”) D. Sammataroare included as Rising Stars for Personal InjuryDefense: Products. In Florence, J. René Josey andArthur E. Justice, Jr., both shareholders, are recog-nized for Criminal Defense and Employment andLabor, respectively. Three Florence-based attorneyswere named as Rising Stars: newly appointed share-holder Pierce C. Campbell for Business Litigation;associate J. Jakob Kennedy for EmploymentLitigation: Defense; and shareholder John M. ScottIII for Estate Planning and Probate. From TurnerPadget’s Greenville office, shareholders William E.Shaughnessy, for Workers’ Compensation, andTimothy D. St. Clair, for Intellectual PropertyLitigation, are recognized among Super Lawyers®.

The Claims and Litigation Management Alliance SelectsCollins & Lacy Attorneys for Membership

Collins & Lacy, P.C. is pleased to announce thatScott Wallinger and Christian Stegmaier are thelatest Collins & Lacy attorneys selected as CLMmembers. The CLM is a nonpartisan alliancecomprised of insurance companies, corporations,Corporate Counsel, Litigation and Risk Managers,claims professionals and attorneys. Selected attor-neys and law firms are extended membership byinvitation only based on nominations from CLMFellows. Wallinger and Stegmaier join Collins & Lacyattorneys Ellen Adams and Pete Dworjanyn as SouthCarolina members of the international organization.All four attorneys are chairs of their respective prac-tice areas at Collins & Lacy and bring that diversityof experience to their involvement with CLM.

Four Smith Moore Leatherwood Attorneys Honored with“Leadership in Law” Awards

Three Smith Moore Leatherwood attorneys,Steven E. Farrar, Robert W. Pearce, Jr., and Kurt M.Rozelsky have been recognized by South CarolinaLawyers Weekly as “Leadership in Law” Awardwinners at an awards ceremony on March 15 at theFrancis Marion Hotel in Charleston. Farrar is anexperienced trial lawyer whose practice focuses oncomplex cases. He routinely works on cases involv-ing complicated business litigation, professionalliability defense and major products liability issues.Bobby Pearce has built a practice including corpo-rate law, private securities offerings, venture capital,mergers and acquisitions, real estate finance, lenderrepresentation and trademark law. Kurt Rozelsky’spractice focuses on the defense of complex litigation,including transportation matters, product liabilityclaims, and other technical and expert driven litiga-tion.

Turner Padget’s Elaine Fowler Selected Leadership in LawTurner Padget Graham & Laney, P.A. is proud to

announce that Elaine H. Fowler has been selected asa recipient of the 2012 Leadership in Law award by

the South Carolina Lawyers Weekly. The awardrecognizes those individuals whose leadership, bothin the legal profession and in the community, hasmade a positive impact on our state. Ms. Fowler is ashareholder in our Charleston office and is a formerpresident of the South Carolina Bar. She is amember of the firm’s Business Transactions Group.In addition to devoting much time to her legal career,she is committed to service in her community andserves as Vice Chair of the Sullivan’s Island PlanningCommission and on the Executive Committee of theCharleston Regional Development Alliance.

Collins & Lacy, P.C. Charleston Office is Already GrowingCollins & Lacy, P.C. is pleased to announce the

growth of their Charleston, S.C. office with the addi-tion of Lowcountry attorney. Mikell Wyman. Wymanstarted his 10-year legal career at a small firm work-ing in civil litigation, family law, residential realestate and workers’ compensation defense matters.He later joined a larger firm in its Charleston, SouthCarolina office to focus his practice solely in the areaof workers’ compensation defense. Mikell has devel-oped particular experience in the defense ofpulmonary injury/inhalation claims. Mikell gradu-ated from The Citadel with a degree in PoliticalScience and later obtained his law degree from theUniversity of South Carolina School of Law. While inlaw school, he served as an editor of the SouthCarolina Environmental Law Journal. Mikell will joinCollins & Lacy shareholders Tom Bacon andBennett Crites at the Charleston office.

Carlock, Copeland & Stair Attorney Joins Claims andLitigation Management Alliance

Carlock, Copeland & Stair, LLP is pleased toannounce that David J. Harmon has accepted anomination to join the prestigious Claims andLitigation Management Alliance (CLM). The CLM isan alliance of insurance companies, corporations,corporate counsel, litigation and risk managers,claims professionals and attorneys. CLM's goal is topromote and further the highest standards of litiga-tion management in pursuit of client defense.Attorneys and law firms are extended membershipby invitation only based on nominations from CLMFellows, in-house claims professionals. Harmon is aPartner in the firm's Charleston office focusing hispractice in the areas of environmental, constructionand professional malpractice litigation.

Turner Padget Launches Community Associations BlogTurner Padget Graham & Laney, P.A. is pleased to

announce the launch of its first blog, aimed atproviding perspective regarding the complex legalissues impacting Community Associations andPrivate Clubs. The blog, which can be accessed atwww.turnerpadget.com/blog/show/community-asso-ciations-blog, will be updated by the firm’s commu-nity association lawyers in an effort to serve as aresource for information related to issues faced by

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associations, their boards of directors and manage-ment companies. Turner Padget’s CommunityAssociations and Private Clubs attorneys routinelyrepresent large, medium and small community asso-ciations and private clubs in their formation, gover-nance and operation, including, but not limited to:advising officers and boards of directors and propertymanagers on governance issues, including fiduciaryduties, ARB issues, and preparation and revision ofcovenants, master deeds and bylaws; defending ofdirectors in litigation; developer turnover and defec-tive design/construction disputes; real estate devel-opment and financing; leases, management andother contracts; taxation; employment law; environ-mental matters, land use planning; miscellaneouslitigation; and collections.

Griffith, Sadler & Sharp, P.A. Attorneys Selected for SouthCarolina Super Lawyers®

Griffith Sadler & Sharp, P.A. attorneys E. MitchellGriffith and Mary E. Sharp have been named 2012South Carolina Super Lawyers®. The annual selec-tions are made using a rigorous multi-phased processthat includes a statewide survey of lawyers, and anindependent research evaluation of each nominee’sbackground and experience. The designation isgiven to those who have attained a high degree ofpeer recognition and professional achievement.Only five percent of the lawyers in South Carolinaare selected for inclusion in South Carolina SuperLawyers®.

Carlock, Copeland & Stair Attorneys Selected for SouthCarolina Super Lawyers® and Rising Stars®

Carlock, Copeland & Stair, LLP is proud toannounce that firm partner, Kent Stair has beenselected for inclusion on the 2012 South CarolinaSuper Lawyers® list, along with 2012 Rising Starslist honorees David W. Overstreet, Jackson H. Daniel,Amanda K. Dudgeon and Michael B. McCall. This isthe first year that Rising Stars have been selected forSouth Carolina. Rising Stars is a listing of excep-tional lawyers who are 40 years of age or under, orwho have been practicing for 10 years or less, andhave attained a high degree of peer recognition andprofessional achievement. Only 2.5 percent of thetotal lawyers in the state are honored on the RisingStars list.

Twelve Gallivan, White & Boyd, P.A. Attorneys Recognizedas Super Lawyers® and Rising Stars for 2012

Gallivan, White & Boyd, P.A. are pleased toannounce that eight Gallivan, White & Boyd, P.A.attorneys from the firm’s Greenville and Columbiaoffices have been selected for inclusion in SouthCarolina Super Lawyers® 2012. GWB attorneysappearing in the 2012 edition of South CarolinaSuper Lawyers® include W. Howard Boyd, Jr.,Deborah Casey Brown, Gray T. Culbreath, H. MillsGallivan, John T. Lay, Phillip E. Reeves , T. DavidRheney, and Daniel B. White In addition, four

Gallivan, White & Boyd attorneys have been recog-nized as South Carolina Rising Stars by SuperLawyers®. Those attorneys include: James M.Dedman, IV, W. Duffie Powers, Thomas E.Vanderbloemen, and Breon C.M. Walker.

State Defense Attorneys’ Association Selects Sullivan forMedical Malpractice Committee

The South Carolina Defense Trial Attorneys’Association has chosen Kelli Sullivan, an attorneywith McKay, Cauthen, Settana, & Stubley, P.A., toserve on the Medical Malpractice Committee. Ms.Sullivan had nine years of experience as a Plaintiff’sattorney in medical malpractice, employment litiga-tion and personal injury matters before joining TheMcKay Firm last year. Ms. Sullivan is a certifiedmediator. Her extensive knowledge of the insuranceindustry and experience as a Plaintiff’s attorneymake her uniquely suited to help clients resolve theirmost complicated cases. Her background on bothsides of complex issues is an asset to The McKayFirm and its clients. She also serves as an activemember of the Ethics Advisory Committee of theSouth Carolina Bar Association, and a volunteermediator for Magistrate’s Court cases in Richlandand Lexington Counties.

McAngus Goudelock & Courie’s Charleston Office Movesto Mt. Pleasant

The law firm of McAngus Goudelock & Courie,LLC, is pleased to announce that its Charlestonoffice is relocating to Mt. Pleasant. The new locationis located at 735 Johnnie Dodds Blvd.

For the first large firm in the Carolinas to be desig-nated as an ABA-EPA Law Office Climate ChallengePartner, a main concern in creating the new officespace was to make it as “green” and efficient aspossible. The new office, designed by architect RoyAbernathy from Jova/Daniels/Busby Architects,creates a more efficient workflow and allows morecollaborative work and interaction among employ-ees. The use of natural light, glass panels and openspaces helps to accommodate the office’s 35 employ-ees in a space that is smaller but feels just as spaciousas the previous location. MG&C chose to outfit thenew office with workstations from Evolve FurnitureGroup, which are made of recycled materials andwill be completely recyclable once they are no longerbeing used. The office received a technologicalupgrade as well. Visitors are greeted by a virtualreceptionist, which connects them to the live recep-tionist at MG&C’s headquarters in Columbia, S.C.,who can then direct visitors to a conference roomand remotely unlock doors and request hospitalityservices. The new conference rooms are all outfittedwith iPads to control the digital displays, as well asdigital, interactive panels outside the rooms thatshow the day’s schedule for that room and allowusers to create room reservations.

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counsel Catherine H. Kennedy for EstatePlanningand Probate. In addition, shareholders NicholasWilliam Gladd and Carmelo (“Sam”) D. Sammataroare included as Rising Stars for Personal InjuryDefense: Products. In Florence, J. René Josey andArthur E. Justice, Jr., both shareholders, are recog-nized for Criminal Defense and Employment andLabor, respectively. Three Florence-based attorneyswere named as Rising Stars: newly appointed share-holder Pierce C. Campbell for Business Litigation;associate J. Jakob Kennedy for EmploymentLitigation: Defense; and shareholder John M. ScottIII for Estate Planning and Probate. From TurnerPadget’s Greenville office, shareholders William E.Shaughnessy, for Workers’ Compensation, andTimothy D. St. Clair, for Intellectual PropertyLitigation, are recognized among Super Lawyers®.

The Claims and Litigation Management Alliance SelectsCollins & Lacy Attorneys for Membership

Collins & Lacy, P.C. is pleased to announce thatScott Wallinger and Christian Stegmaier are thelatest Collins & Lacy attorneys selected as CLMmembers. The CLM is a nonpartisan alliancecomprised of insurance companies, corporations,Corporate Counsel, Litigation and Risk Managers,claims professionals and attorneys. Selected attor-neys and law firms are extended membership byinvitation only based on nominations from CLMFellows. Wallinger and Stegmaier join Collins & Lacyattorneys Ellen Adams and Pete Dworjanyn as SouthCarolina members of the international organization.All four attorneys are chairs of their respective prac-tice areas at Collins & Lacy and bring that diversityof experience to their involvement with CLM.

Four Smith Moore Leatherwood Attorneys Honored with“Leadership in Law” Awards

Three Smith Moore Leatherwood attorneys,Steven E. Farrar, Robert W. Pearce, Jr., and Kurt M.Rozelsky have been recognized by South CarolinaLawyers Weekly as “Leadership in Law” Awardwinners at an awards ceremony on March 15 at theFrancis Marion Hotel in Charleston. Farrar is anexperienced trial lawyer whose practice focuses oncomplex cases. He routinely works on cases involv-ing complicated business litigation, professionalliability defense and major products liability issues.Bobby Pearce has built a practice including corpo-rate law, private securities offerings, venture capital,mergers and acquisitions, real estate finance, lenderrepresentation and trademark law. Kurt Rozelsky’spractice focuses on the defense of complex litigation,including transportation matters, product liabilityclaims, and other technical and expert driven litiga-tion.

Turner Padget’s Elaine Fowler Selected Leadership in LawTurner Padget Graham & Laney, P.A. is proud to

announce that Elaine H. Fowler has been selected asa recipient of the 2012 Leadership in Law award by

the South Carolina Lawyers Weekly. The awardrecognizes those individuals whose leadership, bothin the legal profession and in the community, hasmade a positive impact on our state. Ms. Fowler is ashareholder in our Charleston office and is a formerpresident of the South Carolina Bar. She is amember of the firm’s Business Transactions Group.In addition to devoting much time to her legal career,she is committed to service in her community andserves as Vice Chair of the Sullivan’s Island PlanningCommission and on the Executive Committee of theCharleston Regional Development Alliance.

Collins & Lacy, P.C. Charleston Office is Already GrowingCollins & Lacy, P.C. is pleased to announce the

growth of their Charleston, S.C. office with the addi-tion of Lowcountry attorney. Mikell Wyman. Wymanstarted his 10-year legal career at a small firm work-ing in civil litigation, family law, residential realestate and workers’ compensation defense matters.He later joined a larger firm in its Charleston, SouthCarolina office to focus his practice solely in the areaof workers’ compensation defense. Mikell has devel-oped particular experience in the defense ofpulmonary injury/inhalation claims. Mikell gradu-ated from The Citadel with a degree in PoliticalScience and later obtained his law degree from theUniversity of South Carolina School of Law. While inlaw school, he served as an editor of the SouthCarolina Environmental Law Journal. Mikell will joinCollins & Lacy shareholders Tom Bacon andBennett Crites at the Charleston office.

Carlock, Copeland & Stair Attorney Joins Claims andLitigation Management Alliance

Carlock, Copeland & Stair, LLP is pleased toannounce that David J. Harmon has accepted anomination to join the prestigious Claims andLitigation Management Alliance (CLM). The CLM isan alliance of insurance companies, corporations,corporate counsel, litigation and risk managers,claims professionals and attorneys. CLM's goal is topromote and further the highest standards of litiga-tion management in pursuit of client defense.Attorneys and law firms are extended membershipby invitation only based on nominations from CLMFellows, in-house claims professionals. Harmon is aPartner in the firm's Charleston office focusing hispractice in the areas of environmental, constructionand professional malpractice litigation.

Turner Padget Launches Community Associations BlogTurner Padget Graham & Laney, P.A. is pleased to

announce the launch of its first blog, aimed atproviding perspective regarding the complex legalissues impacting Community Associations andPrivate Clubs. The blog, which can be accessed atwww.turnerpadget.com/blog/show/community-asso-ciations-blog, will be updated by the firm’s commu-nity association lawyers in an effort to serve as aresource for information related to issues faced by

6

MEMBERNEWSCONT.

associations, their boards of directors and manage-ment companies. Turner Padget’s CommunityAssociations and Private Clubs attorneys routinelyrepresent large, medium and small community asso-ciations and private clubs in their formation, gover-nance and operation, including, but not limited to:advising officers and boards of directors and propertymanagers on governance issues, including fiduciaryduties, ARB issues, and preparation and revision ofcovenants, master deeds and bylaws; defending ofdirectors in litigation; developer turnover and defec-tive design/construction disputes; real estate devel-opment and financing; leases, management andother contracts; taxation; employment law; environ-mental matters, land use planning; miscellaneouslitigation; and collections.

Griffith, Sadler & Sharp, P.A. Attorneys Selected for SouthCarolina Super Lawyers®

Griffith Sadler & Sharp, P.A. attorneys E. MitchellGriffith and Mary E. Sharp have been named 2012South Carolina Super Lawyers®. The annual selec-tions are made using a rigorous multi-phased processthat includes a statewide survey of lawyers, and anindependent research evaluation of each nominee’sbackground and experience. The designation isgiven to those who have attained a high degree ofpeer recognition and professional achievement.Only five percent of the lawyers in South Carolinaare selected for inclusion in South Carolina SuperLawyers®.

Carlock, Copeland & Stair Attorneys Selected for SouthCarolina Super Lawyers® and Rising Stars®

Carlock, Copeland & Stair, LLP is proud toannounce that firm partner, Kent Stair has beenselected for inclusion on the 2012 South CarolinaSuper Lawyers® list, along with 2012 Rising Starslist honorees David W. Overstreet, Jackson H. Daniel,Amanda K. Dudgeon and Michael B. McCall. This isthe first year that Rising Stars have been selected forSouth Carolina. Rising Stars is a listing of excep-tional lawyers who are 40 years of age or under, orwho have been practicing for 10 years or less, andhave attained a high degree of peer recognition andprofessional achievement. Only 2.5 percent of thetotal lawyers in the state are honored on the RisingStars list.

Twelve Gallivan, White & Boyd, P.A. Attorneys Recognizedas Super Lawyers® and Rising Stars for 2012

Gallivan, White & Boyd, P.A. are pleased toannounce that eight Gallivan, White & Boyd, P.A.attorneys from the firm’s Greenville and Columbiaoffices have been selected for inclusion in SouthCarolina Super Lawyers® 2012. GWB attorneysappearing in the 2012 edition of South CarolinaSuper Lawyers® include W. Howard Boyd, Jr.,Deborah Casey Brown, Gray T. Culbreath, H. MillsGallivan, John T. Lay, Phillip E. Reeves , T. DavidRheney, and Daniel B. White In addition, four

Gallivan, White & Boyd attorneys have been recog-nized as South Carolina Rising Stars by SuperLawyers®. Those attorneys include: James M.Dedman, IV, W. Duffie Powers, Thomas E.Vanderbloemen, and Breon C.M. Walker.

State Defense Attorneys’ Association Selects Sullivan forMedical Malpractice Committee

The South Carolina Defense Trial Attorneys’Association has chosen Kelli Sullivan, an attorneywith McKay, Cauthen, Settana, & Stubley, P.A., toserve on the Medical Malpractice Committee. Ms.Sullivan had nine years of experience as a Plaintiff’sattorney in medical malpractice, employment litiga-tion and personal injury matters before joining TheMcKay Firm last year. Ms. Sullivan is a certifiedmediator. Her extensive knowledge of the insuranceindustry and experience as a Plaintiff’s attorneymake her uniquely suited to help clients resolve theirmost complicated cases. Her background on bothsides of complex issues is an asset to The McKayFirm and its clients. She also serves as an activemember of the Ethics Advisory Committee of theSouth Carolina Bar Association, and a volunteermediator for Magistrate’s Court cases in Richlandand Lexington Counties.

McAngus Goudelock & Courie’s Charleston Office Movesto Mt. Pleasant

The law firm of McAngus Goudelock & Courie,LLC, is pleased to announce that its Charlestonoffice is relocating to Mt. Pleasant. The new locationis located at 735 Johnnie Dodds Blvd.

For the first large firm in the Carolinas to be desig-nated as an ABA-EPA Law Office Climate ChallengePartner, a main concern in creating the new officespace was to make it as “green” and efficient aspossible. The new office, designed by architect RoyAbernathy from Jova/Daniels/Busby Architects,creates a more efficient workflow and allows morecollaborative work and interaction among employ-ees. The use of natural light, glass panels and openspaces helps to accommodate the office’s 35 employ-ees in a space that is smaller but feels just as spaciousas the previous location. MG&C chose to outfit thenew office with workstations from Evolve FurnitureGroup, which are made of recycled materials andwill be completely recyclable once they are no longerbeing used. The office received a technologicalupgrade as well. Visitors are greeted by a virtualreceptionist, which connects them to the live recep-tionist at MG&C’s headquarters in Columbia, S.C.,who can then direct visitors to a conference roomand remotely unlock doors and request hospitalityservices. The new conference rooms are all outfittedwith iPads to control the digital displays, as well asdigital, interactive panels outside the rooms thatshow the day’s schedule for that room and allowusers to create room reservations.

7Continued on next page

MEMBERNEWSCONT.

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Turner Padget Recognized as South Carolina Firm of theYear by Benchmark Litigation

Turner Padget Graham & Laney, P.A. is pleased toannounce its recognition by Benchmark Litigation asSouth Carolina Firm of the Year. The honor waspresented at Benchmark’s inaugural awards cere-mony on March 8, 2012 in Atlanta. Turner Padgetwas selected for the award following outstanding peerfeedback conducted by Benchmark’s research teamfrom November 2011 to January 2012. The 2012edition of Benchmark Litigation: A Definitive Guideto America’s Leading Litigation Firms and Attorneys,which was published in November 2011, namedTurner Padget as a “highly recommended firm” forlitigation in South Carolina. In addition, the publica-tion recognized nine of Turner Padget’s shareholdersas “local litigation stars.”

Nelson Mullins Awards Two S.C. Legal Aid OrganizationsGrants for Children's Issues

South Carolina Legal Services and the SouthCarolina Appleseed Legal Justice Center will eachreceive grants from Nelson Mullins Riley &Scarborough to help provide charitable legal servicesto children. The organizations will use the grants tohire summer law clerks who will work on children'sissues. SC Appleseed will hire law clerks to work on

children's hunger and education issues inCharleston, Columbia, Myrtle Beach, and Greenville.S.C. Legal services will hire interns for various chil-dren's issues. Nelson Mullins maintains a donordirected foundation fund to provide yearly assistanceto organizations that serve the legal needs of low-income children. The law firm has provided bothorganizations Fellowship grants to support attorneysworking on children's issues since the program'sinception in 1997. Nexsen Pruet Up in Ranking ofLargest U.S. Law Firms

Nexsen Pruet has moved up in The National Law Journal’sannual ranking of the largest law firms in the UnitedStates.

Nexsen Pruet comes in at 216th on the NLJ 250 for2012 - up four slots from last year’s 220 position.Only two South Carolina-based firms made the list.Each January, the NLJ surveys approximately 300U.S. law firms. This year’s survey showed thatNexsen Pruet had 184 attorneys practicing in itseight offices across the Carolinas. Nexsen Pruet hasmade The National Law Journal list of largest U.S.law firms since 2004, except for 2007.

Four Richardson Plowden Attorneys Named 2012 SouthCarolina Super Lawyers®, Four Named 2012 South

Carolina Rising StarsRichardson Plowden & Robinson, P.A., ispleased to announce that four of itsattorneys, George C. Beighley, EugeneH. Matthews, Anthony E. Rebollo, andFranklin J. Smith, Jr., have beenselected to the 2012 South CarolinaSuper Lawyers® listing. Four otherattorneys were selected to the 2012South Carolina Rising Stars listing: DrewHamilton Butler, Emily R. Gifford,Michelle Parsons Kelley, and Jocelyn T.Newman. This is the first year Beighleyhas been recognized as a South CarolinaSuper Lawyer. He was recognized for hiswork in Personal Injury Defense:Medical Malpractice. Matthews has beenrecognized as a South Carolina SuperLawyer for the last five consecutiveyears. He was recognized for his work inEmployment and Labor Law. This is thefirst year Rebollo has been selected as aSouth Carolina Super Lawyer. He hasbeen honored for his work in Tax Law.Smith has been recognized as a SouthCarolina Super Lawyer for the last fiveconsecutive years. He was honored forhis work in Construction Law. This isthe inaugural year for the SouthCarolina Rising Stars recognition. TheRising Stars addition to Super Lawyers®recognizes the top up-and-coming attor-neys in the state who are 40 years old or

younger, or who have been practicing for 10 years orless. Butler, Kelley and Newman were recognized fortheir work in General Litigation and Gifford wasrecognized for her work in Construction/Surety Law.

Rogers Townsend Attorney Selected to Editorial Board ofNational Environmental Publication

T. McRoy Shelley III, a shareholder in the firm’sColumbia office, has been selected as a member ofthe editorial board of the Environmental ClaimsJournal (ECJ). The ECJ is a quarterly journal thatfocuses on the many types of claims and liabilitiesthat result from environmental exposures. TheJournal publishes articles and updates on currentenvironmental litigation, environmental policy, tech-nical developments, environmental forensics, and onenvironmental insurance and coverage issues. As aneditorial board member, Shelley’s contribution to thejournal will include writing articles on a wide array ofenvironmental topics, reviewing and editing articlesubmissions, and providing insights on environmen-tal policy, litigation, and insurance issues. Shelleyleads Roger Townsend’s litigation department andhandles litigation involving construction, productsliability (most frequently defending claims related toconstruction materials), commercial claims, truck-ing accident, personal injury, property and casualty,environmental claims, insurance coverage, and crim-inal law.

Smith Moore Leatherwood Named Go-To Law Firm inLitigation and Labor & Employment Categories

Smith Moore Leatherwood, LLP is proud toannounce that the firm has been named a 2012 Go-To Law Firm for the Top 500 Companies for its workin two categories: Litigation and Labor &Employment. Nominated by a Fortune 500® client,Smith Moore Leatherwood was selected for thehonor by ALM after in-depth research of numerousresources, including public records, leading publica-tions and well-respected commercial databases.ALM’s list of the top Litigation law firms will befeatured in the spring 2012 edition of Litigation, astand-alone supplement distributed with the Mayeditions of Corporate Counsel and The AmericanLawyer magazines.

Turner Padget Launches Drug and Medical DevicePractice

Turner Padget Graham & Laney, P.A. is pleased toannounce the launch of its Drug and Medical Devicepractice group. The formalization of this industrygroup builds on Turner Padget’s long-standing historyof providing legal services to the pharmaceutical andmedical device industries. Turner Padget’s Drug andMedical Device attorneys have significant experiencerepresenting clients with interests in the drug andmedical device industries. The practice group willhandle complex litigation claims, intellectual prop-erty matters, fraud investigations and regulatoryactions. Attorneys within the group have experience

defending various complex pharmaceutical andmedical device product liability and related claimsfor clients, including multi-party and multi-jurisdic-tional cases. Group members’ trial skills and sophis-ticated knowledge of expert witnesses will provideclients with excellent trial support as well as strate-gic settlement guidance.

Carlock, Copeland & Stair Partner Honored as aCharleston Forty Under 40

David Overstreet, Partner in the Charleston officeof Carlock, Copeland & Stair, has been honored withthe Charleston Regional Business Journal's Fortyunder 40 Award. This annual award honors theprofessional successes and community involvementof forty people younger than 40 years of age who aremaking their mark on the region’s business commu-nity. All 40 winners were featured in the CharlestonRegional Business Journal published on March 26,2012. Overstreet focuses his practice on commerciallitigation. A significant amount of his time is spentdefending professionals, including lawyers, accoun-tants, real estate agents, and others.

Heath M. Stewart III Joins MG&C’s Columbia OfficeThe law firm of McAngus Goudelock & Courie is

pleased to announce that Heath M. Stewart III hasjoined the firm’s Columbia, S.C. office. Mr. Stewart’spractice focuses on general liability defense. Hereceived his law degree as part of the first graduatingclass of the Charleston School of Law, where heserved as part of the inaugural Honor Council. Heholds a bachelor’s degree in English from theUniversity of South Carolina. He is a member of theAmerican Bar Association, South Carolina BarAssociation and Richland County Bar Association.He is admitted to practice before all South Carolinastate courts, the U.S. District Court for the District ofSouth Carolina and the U.S. Fourth Circuit Court ofAppeals.

Collins & Lacy, P.C. Attorneys Jack Griffeth and RossPlyler Elected to South Carolina Bar Association House ofDelegates

Collins & Lacy, P.C. attorneys Jack Griffeth andRoss Plyler, both of the firm’s Greenville office, wereelected to the South Carolina Bar Association Houseof Delegates in the Thirteenth Judicial Circuit. TheHouse of Delegates acts as the legislative arm of theSouth Carolina Bar Association and convenes at leasttwice annually to establish the policy of the Bar.Counties are divided into judicial districts and allot-ted a certain number of delegates who each serve atwo-year term. Jack and Ross will each serve a two-year term with the House of Delegates effectiveimmediately.

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Turner Padget Recognized as South Carolina Firm of theYear by Benchmark Litigation

Turner Padget Graham & Laney, P.A. is pleased toannounce its recognition by Benchmark Litigation asSouth Carolina Firm of the Year. The honor waspresented at Benchmark’s inaugural awards cere-mony on March 8, 2012 in Atlanta. Turner Padgetwas selected for the award following outstanding peerfeedback conducted by Benchmark’s research teamfrom November 2011 to January 2012. The 2012edition of Benchmark Litigation: A Definitive Guideto America’s Leading Litigation Firms and Attorneys,which was published in November 2011, namedTurner Padget as a “highly recommended firm” forlitigation in South Carolina. In addition, the publica-tion recognized nine of Turner Padget’s shareholdersas “local litigation stars.”

Nelson Mullins Awards Two S.C. Legal Aid OrganizationsGrants for Children's Issues

South Carolina Legal Services and the SouthCarolina Appleseed Legal Justice Center will eachreceive grants from Nelson Mullins Riley &Scarborough to help provide charitable legal servicesto children. The organizations will use the grants tohire summer law clerks who will work on children'sissues. SC Appleseed will hire law clerks to work on

children's hunger and education issues inCharleston, Columbia, Myrtle Beach, and Greenville.S.C. Legal services will hire interns for various chil-dren's issues. Nelson Mullins maintains a donordirected foundation fund to provide yearly assistanceto organizations that serve the legal needs of low-income children. The law firm has provided bothorganizations Fellowship grants to support attorneysworking on children's issues since the program'sinception in 1997. Nexsen Pruet Up in Ranking ofLargest U.S. Law Firms

Nexsen Pruet has moved up in The National Law Journal’sannual ranking of the largest law firms in the UnitedStates.

Nexsen Pruet comes in at 216th on the NLJ 250 for2012 - up four slots from last year’s 220 position.Only two South Carolina-based firms made the list.Each January, the NLJ surveys approximately 300U.S. law firms. This year’s survey showed thatNexsen Pruet had 184 attorneys practicing in itseight offices across the Carolinas. Nexsen Pruet hasmade The National Law Journal list of largest U.S.law firms since 2004, except for 2007.

Four Richardson Plowden Attorneys Named 2012 SouthCarolina Super Lawyers®, Four Named 2012 South

Carolina Rising StarsRichardson Plowden & Robinson, P.A., ispleased to announce that four of itsattorneys, George C. Beighley, EugeneH. Matthews, Anthony E. Rebollo, andFranklin J. Smith, Jr., have beenselected to the 2012 South CarolinaSuper Lawyers® listing. Four otherattorneys were selected to the 2012South Carolina Rising Stars listing: DrewHamilton Butler, Emily R. Gifford,Michelle Parsons Kelley, and Jocelyn T.Newman. This is the first year Beighleyhas been recognized as a South CarolinaSuper Lawyer. He was recognized for hiswork in Personal Injury Defense:Medical Malpractice. Matthews has beenrecognized as a South Carolina SuperLawyer for the last five consecutiveyears. He was recognized for his work inEmployment and Labor Law. This is thefirst year Rebollo has been selected as aSouth Carolina Super Lawyer. He hasbeen honored for his work in Tax Law.Smith has been recognized as a SouthCarolina Super Lawyer for the last fiveconsecutive years. He was honored forhis work in Construction Law. This isthe inaugural year for the SouthCarolina Rising Stars recognition. TheRising Stars addition to Super Lawyers®recognizes the top up-and-coming attor-neys in the state who are 40 years old or

younger, or who have been practicing for 10 years orless. Butler, Kelley and Newman were recognized fortheir work in General Litigation and Gifford wasrecognized for her work in Construction/Surety Law.

Rogers Townsend Attorney Selected to Editorial Board ofNational Environmental Publication

T. McRoy Shelley III, a shareholder in the firm’sColumbia office, has been selected as a member ofthe editorial board of the Environmental ClaimsJournal (ECJ). The ECJ is a quarterly journal thatfocuses on the many types of claims and liabilitiesthat result from environmental exposures. TheJournal publishes articles and updates on currentenvironmental litigation, environmental policy, tech-nical developments, environmental forensics, and onenvironmental insurance and coverage issues. As aneditorial board member, Shelley’s contribution to thejournal will include writing articles on a wide array ofenvironmental topics, reviewing and editing articlesubmissions, and providing insights on environmen-tal policy, litigation, and insurance issues. Shelleyleads Roger Townsend’s litigation department andhandles litigation involving construction, productsliability (most frequently defending claims related toconstruction materials), commercial claims, truck-ing accident, personal injury, property and casualty,environmental claims, insurance coverage, and crim-inal law.

Smith Moore Leatherwood Named Go-To Law Firm inLitigation and Labor & Employment Categories

Smith Moore Leatherwood, LLP is proud toannounce that the firm has been named a 2012 Go-To Law Firm for the Top 500 Companies for its workin two categories: Litigation and Labor &Employment. Nominated by a Fortune 500® client,Smith Moore Leatherwood was selected for thehonor by ALM after in-depth research of numerousresources, including public records, leading publica-tions and well-respected commercial databases.ALM’s list of the top Litigation law firms will befeatured in the spring 2012 edition of Litigation, astand-alone supplement distributed with the Mayeditions of Corporate Counsel and The AmericanLawyer magazines.

Turner Padget Launches Drug and Medical DevicePractice

Turner Padget Graham & Laney, P.A. is pleased toannounce the launch of its Drug and Medical Devicepractice group. The formalization of this industrygroup builds on Turner Padget’s long-standing historyof providing legal services to the pharmaceutical andmedical device industries. Turner Padget’s Drug andMedical Device attorneys have significant experiencerepresenting clients with interests in the drug andmedical device industries. The practice group willhandle complex litigation claims, intellectual prop-erty matters, fraud investigations and regulatoryactions. Attorneys within the group have experience

defending various complex pharmaceutical andmedical device product liability and related claimsfor clients, including multi-party and multi-jurisdic-tional cases. Group members’ trial skills and sophis-ticated knowledge of expert witnesses will provideclients with excellent trial support as well as strate-gic settlement guidance.

Carlock, Copeland & Stair Partner Honored as aCharleston Forty Under 40

David Overstreet, Partner in the Charleston officeof Carlock, Copeland & Stair, has been honored withthe Charleston Regional Business Journal's Fortyunder 40 Award. This annual award honors theprofessional successes and community involvementof forty people younger than 40 years of age who aremaking their mark on the region’s business commu-nity. All 40 winners were featured in the CharlestonRegional Business Journal published on March 26,2012. Overstreet focuses his practice on commerciallitigation. A significant amount of his time is spentdefending professionals, including lawyers, accoun-tants, real estate agents, and others.

Heath M. Stewart III Joins MG&C’s Columbia OfficeThe law firm of McAngus Goudelock & Courie is

pleased to announce that Heath M. Stewart III hasjoined the firm’s Columbia, S.C. office. Mr. Stewart’spractice focuses on general liability defense. Hereceived his law degree as part of the first graduatingclass of the Charleston School of Law, where heserved as part of the inaugural Honor Council. Heholds a bachelor’s degree in English from theUniversity of South Carolina. He is a member of theAmerican Bar Association, South Carolina BarAssociation and Richland County Bar Association.He is admitted to practice before all South Carolinastate courts, the U.S. District Court for the District ofSouth Carolina and the U.S. Fourth Circuit Court ofAppeals.

Collins & Lacy, P.C. Attorneys Jack Griffeth and RossPlyler Elected to South Carolina Bar Association House ofDelegates

Collins & Lacy, P.C. attorneys Jack Griffeth andRoss Plyler, both of the firm’s Greenville office, wereelected to the South Carolina Bar Association Houseof Delegates in the Thirteenth Judicial Circuit. TheHouse of Delegates acts as the legislative arm of theSouth Carolina Bar Association and convenes at leasttwice annually to establish the policy of the Bar.Counties are divided into judicial districts and allot-ted a certain number of delegates who each serve atwo-year term. Jack and Ross will each serve a two-year term with the House of Delegates effectiveimmediately.

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MEMBERNEWSCONT.


Jonathan Kresken Joins Turner Padget Turner Padget Graham & Laney, P.A. is pleased to

announce that Jonathan P. Kresken has joined thefirm’s Myrtle Beach office. Mr. Kresken is a memberof Turner Padget’s Business Transactions Team andwill concentrate his practice in the areas of realestate, estate planning, estate administration, bank-ruptcy, business formation and probate litigation.Mr. Kresken most recently served as president andchief executive officer of the Waccamaw CommunityFoundation. Mr. Kresken received a B.S. from TheCitadel and his Juris Doctor from the University ofRichmond. He began practicing law in the MyrtleBeach area in 1995 and has served as an adjunctinstructor for Horry Georgetown Technical College.He has extensive experience in real estate, estateplanning, probate administration and litigationmatters.

Nexsen Pruet Attorneys Recognized By Peers; EightNamed to 2012 Super Lawyers® List for South Carolina

Nexsen Pruet is pleased to announce that twenty-four attorneys have been listed in the 2012 edition ofSouth Carolina Super Lawyers®. Those attorneyspractice in the firm’s Charleston, Columbia,Greenville and Myrtle Beach offices. Attorneys listedfrom Charleston are Cherie Blackburn, marvinInfinger, Tom Tisdale and Brad Waring. Attorneyslisted from the Columbia office are Gene Allen, DavidDubberly and Susi McWilliams. Elbert Dorn is listedfrom the Myrtle Beach office. Additionally, NikoleMergo in Columbia was listed as a “Rising Star.”

Collins & Lacy, P.C. Expands Statewide Footprint withOpening of Charleston Office

Collins & Lacy, P.C. is pleased to announce theopening of its Charleston, S.C. office. The Charlestonoffice will be home to attorneys who know theLowcountry, its businesses and its people.Shareholders Tom Bacon and Bennett Crites haveworked in the Lowcountry legal circuit for more than15 years combined. Each attorney brings a uniqueskill set to serve the needs of the business commu-nity. The office is located in the heart of DowntownCharleston at 200 Meeting Street, Suite 403,Charleston, SC 29401.

Moser and Winburn Join MG&C’s Columbia OfficeThe law firm of McAngus Goudelock & Courie is

pleased to announce that Matthew S. Moser and E.Scott Winburn have joined the firm’s Columbia, S.C.office. Both attorneys practice in the area of workers’compensation defense. Mr. Moser received his lawdegree from the University of South Carolina Schoolof Law, where he was a member of the ABA RealProperty, Probate and Trust Journal. He holds abachelor’s degree in public relations from theUniversity of North Carolina at Chapel Hill. Prior tojoining MG&C, Mr. Moser worked as an assistantsolicitor for the Sixth Circuit Solicitor’s Office. He ismember of the South Carolina Bar Association’s

Young Lawyers Division and serves on the SpecialOlympics Committee and the ProfessionalDevelopment Committee. Mr. Winburn received hislaw degree from the Charleston School of Law, andhe holds a bachelor’s degree in history from ClemsonUniversity. Prior to law school, he worked as aspecial assistant for South Carolina Governor JimHodges’ office and as a lobbyist in Columbia, S.C.After graduating from law school, Mr. Winburnserved as law clerk to the Honorable Edward B.Cottingham. He is admitted to practice law practicebefore all South Carolina state courts, the U.S.District Court for the District of South Carolina andthe U.S. Fourth Circuit Court of Appeals.

United Way names Ed Mullins 2011 Alyce Kemp DeWittAward Winner

United Way of the Midlands has honored EdMullins of Nelson Mullins Riley & Scarborough LLPas the 2011 Alyce Kemp DeWitt award winner. Theaward recognizes a volunteer whose creativity andpassion have made an extraordinary impact onUnited Way of the Midlands. The Alyce Kemp DeWittaward is United Way’s most prestigious award forlong-term service to the organization and commu-nity. In order to be eligible, an Alyce Kemp DeWittAward winner must have worked with United Wayfor a minimum of four years and made a measurableimpact on the organization. Mr. Mullins has spent hiscareer addressing human service issues and commu-nity needs both financially and with his time servingon boards, volunteering, or soliciting others intoservice and giving. Mr. Mullins is Of Counsel toNelson Mullins, which has more than 180 donors toUnited Way as well as 58 leadership givers.

Smith Moore Leatherwood Attorneys Selected forInclusion in South Carolina Super Lawyers® Magazine

Three Smith Moore Leatherwood attorneys, SteveFarrar, Rob Moseley, Jr., and Kurt Rozelsky, havebeen named top attorneys in 2012 by South CarolinaSuper Lawyers® magazine. In addition, FredricMarcinak, III has been selected as a South CarolinaRising Star of 2012.

Turner Padget’s Art Justice Recognized by United Way forLeadership and Commitment to Community

Turner Padget Graham & Laney, P.A., is pleased toannounce Arthur E. Justice, Jr., received the UnitedWay of Florence County’s Ashpy P. LowrimoreAnnual Award during the organization’s annualmeeting held April 3. The Ashpy P. Lowrimore Awardis the United Way of Florence County’s mostesteemed award given for community service.Lowrimore’s legacy in the Florence community isone of consistent service and dedication to commu-nity building for the benefit of Florence County citi-zens and families.

10

MEMBERNEWSCONT.

11

Summer is upon us, and many great events arejust on the horizon for the South CarolinaDefense Trial Attorneys’ Association. April

and May were busy months for the SCDTAA. Iappreciate all of the young lawyers who have activelyparticipated during the first part of the year, as wellas those who have offered assistance. Please remem-ber that the Young Lawyers Division now has desig-nated representatives covering the entire state. So,if you are interested in becoming involved, please getin contact with one of these reps.

In April, the SCDTAA hosted its Legislative/Judicial Reception at the Oyster Bar in Columbiaand followed it up the next day with its Annual PACGolf Tournament at the Spring Valley Country Clubin Columbia. Both events were a great success. InMay, the SCDTAA hosted the first of two lawyer bootcamps for 2012. The boot camp focused on manyrelevant issues in workers compensation law andwas well attended by young lawyers from around thestate.

Looking ahead, we have several great eventstaking place during the summer months, and Iwelcome any young lawyer looking to get involved tocontact me or a young lawyer representative aboutopportunities. On July 26th-28th, the SCDTAA willhold its Annual Summer Meeting at The Grove ParkInn in Asheville, NC. Every year the Young LawyersDivision is responsible for organizing the SilentAuction at the Summer Meeting. This year’s SilentAuction will be held on Thursday evening, July 26th.We are currently in the process of gathering items forthe Silent Auction. If you would like to contribute anitem to the auction, or if you know of someone whomay be willing to contribute, please let me know.This year, proceeds will benefit the iCivics program,the South Carolina Bar Foundation and the National

Foundation for Judicial Excellence, Ihave already contacted many of youabout assisting with the Silent Auction.However, we are always looking for goodhelp, so please contact me if you wouldlike to be a part of this event.Additionally, I strongly encourage allyoung lawyers to attend the summermeeting. It is one of the best events heldby the SCDTAA.

The Fall Boot Camp has been sched-uled for September 27th in Greenville,SC. The Fall camp will focus on evidentiary issuesand will be presented by Judge Few, Chief Judge ofthe South Carolina Court of Appeals. Additionalinformation will be forthcoming. So, be on the lookout, as you will not want to miss this event. Asalways, I will send an e-mail reminder to all younglawyers prior to the event.

Rounding out the year, the SCDTAA will host itsAnnual Meeting from November 8th-11th. Thisyear’s Annual Meeting will take place at TheSanctuary at Kiawah Island. I encourage all younglawyers to consider attending the Annual Meeting. Itis a wonderful event and always well attended by ourJudiciary. If you would like additional informationabout the Annual Meeting, please contact me, orAimee Hiers.

In closing, again, I would like to thank all of theyoung lawyers who have helped, or offered theirassistance, during the first part of the year. I will becalling on many of you over the next several weeksto help with the Silent Auction. In the meantime, ifyou would like to learn more about the SCDTAA andopportunities for involvement, please do not hesitateto contact me.

Young Lawyer Updateby Jared H. Garraux

YOUNGLAWYERUPDATE

Fall Boot Camp

September 27, 2012

Greenville, SC

Jonathan Kresken Joins Turner Padget Turner Padget Graham & Laney, P.A. is pleased to

announce that Jonathan P. Kresken has joined thefirm’s Myrtle Beach office. Mr. Kresken is a memberof Turner Padget’s Business Transactions Team andwill concentrate his practice in the areas of realestate, estate planning, estate administration, bank-ruptcy, business formation and probate litigation.Mr. Kresken most recently served as president andchief executive officer of the Waccamaw CommunityFoundation. Mr. Kresken received a B.S. from TheCitadel and his Juris Doctor from the University ofRichmond. He began practicing law in the MyrtleBeach area in 1995 and has served as an adjunctinstructor for Horry Georgetown Technical College.He has extensive experience in real estate, estateplanning, probate administration and litigationmatters.

Nexsen Pruet Attorneys Recognized By Peers; EightNamed to 2012 Super Lawyers® List for South Carolina

Nexsen Pruet is pleased to announce that twenty-four attorneys have been listed in the 2012 edition ofSouth Carolina Super Lawyers®. Those attorneyspractice in the firm’s Charleston, Columbia,Greenville and Myrtle Beach offices. Attorneys listedfrom Charleston are Cherie Blackburn, marvinInfinger, Tom Tisdale and Brad Waring. Attorneyslisted from the Columbia office are Gene Allen, DavidDubberly and Susi McWilliams. Elbert Dorn is listedfrom the Myrtle Beach office. Additionally, NikoleMergo in Columbia was listed as a “Rising Star.”

Collins & Lacy, P.C. Expands Statewide Footprint withOpening of Charleston Office

Collins & Lacy, P.C. is pleased to announce theopening of its Charleston, S.C. office. The Charlestonoffice will be home to attorneys who know theLowcountry, its businesses and its people.Shareholders Tom Bacon and Bennett Crites haveworked in the Lowcountry legal circuit for more than15 years combined. Each attorney brings a uniqueskill set to serve the needs of the business commu-nity. The office is located in the heart of DowntownCharleston at 200 Meeting Street, Suite 403,Charleston, SC 29401.

Moser and Winburn Join MG&C’s Columbia OfficeThe law firm of McAngus Goudelock & Courie is

pleased to announce that Matthew S. Moser and E.Scott Winburn have joined the firm’s Columbia, S.C.office. Both attorneys practice in the area of workers’compensation defense. Mr. Moser received his lawdegree from the University of South Carolina Schoolof Law, where he was a member of the ABA RealProperty, Probate and Trust Journal. He holds abachelor’s degree in public relations from theUniversity of North Carolina at Chapel Hill. Prior tojoining MG&C, Mr. Moser worked as an assistantsolicitor for the Sixth Circuit Solicitor’s Office. He ismember of the South Carolina Bar Association’s

Young Lawyers Division and serves on the SpecialOlympics Committee and the ProfessionalDevelopment Committee. Mr. Winburn received hislaw degree from the Charleston School of Law, andhe holds a bachelor’s degree in history from ClemsonUniversity. Prior to law school, he worked as aspecial assistant for South Carolina Governor JimHodges’ office and as a lobbyist in Columbia, S.C.After graduating from law school, Mr. Winburnserved as law clerk to the Honorable Edward B.Cottingham. He is admitted to practice law practicebefore all South Carolina state courts, the U.S.District Court for the District of South Carolina andthe U.S. Fourth Circuit Court of Appeals.

United Way names Ed Mullins 2011 Alyce Kemp DeWittAward Winner

United Way of the Midlands has honored EdMullins of Nelson Mullins Riley & Scarborough LLPas the 2011 Alyce Kemp DeWitt award winner. Theaward recognizes a volunteer whose creativity andpassion have made an extraordinary impact onUnited Way of the Midlands. The Alyce Kemp DeWittaward is United Way’s most prestigious award forlong-term service to the organization and commu-nity. In order to be eligible, an Alyce Kemp DeWittAward winner must have worked with United Wayfor a minimum of four years and made a measurableimpact on the organization. Mr. Mullins has spent hiscareer addressing human service issues and commu-nity needs both financially and with his time servingon boards, volunteering, or soliciting others intoservice and giving. Mr. Mullins is Of Counsel toNelson Mullins, which has more than 180 donors toUnited Way as well as 58 leadership givers.

Smith Moore Leatherwood Attorneys Selected forInclusion in South Carolina Super Lawyers® Magazine

Three Smith Moore Leatherwood attorneys, SteveFarrar, Rob Moseley, Jr., and Kurt Rozelsky, havebeen named top attorneys in 2012 by South CarolinaSuper Lawyers® magazine. In addition, FredricMarcinak, III has been selected as a South CarolinaRising Star of 2012.

Turner Padget’s Art Justice Recognized by United Way forLeadership and Commitment to Community

Turner Padget Graham & Laney, P.A., is pleased toannounce Arthur E. Justice, Jr., received the UnitedWay of Florence County’s Ashpy P. LowrimoreAnnual Award during the organization’s annualmeeting held April 3. The Ashpy P. Lowrimore Awardis the United Way of Florence County’s mostesteemed award given for community service.Lowrimore’s legacy in the Florence community isone of consistent service and dedication to commu-nity building for the benefit of Florence County citi-zens and families.

10

MEMBERNEWSCONT.

11

Summer is upon us, and many great events arejust on the horizon for the South CarolinaDefense Trial Attorneys’ Association. April

and May were busy months for the SCDTAA. Iappreciate all of the young lawyers who have activelyparticipated during the first part of the year, as wellas those who have offered assistance. Please remem-ber that the Young Lawyers Division now has desig-nated representatives covering the entire state. So,if you are interested in becoming involved, please getin contact with one of these reps.

In April, the SCDTAA hosted its Legislative/Judicial Reception at the Oyster Bar in Columbiaand followed it up the next day with its Annual PACGolf Tournament at the Spring Valley Country Clubin Columbia. Both events were a great success. InMay, the SCDTAA hosted the first of two lawyer bootcamps for 2012. The boot camp focused on manyrelevant issues in workers compensation law andwas well attended by young lawyers from around thestate.

Looking ahead, we have several great eventstaking place during the summer months, and Iwelcome any young lawyer looking to get involved tocontact me or a young lawyer representative aboutopportunities. On July 26th-28th, the SCDTAA willhold its Annual Summer Meeting at The Grove ParkInn in Asheville, NC. Every year the Young LawyersDivision is responsible for organizing the SilentAuction at the Summer Meeting. This year’s SilentAuction will be held on Thursday evening, July 26th.We are currently in the process of gathering items forthe Silent Auction. If you would like to contribute anitem to the auction, or if you know of someone whomay be willing to contribute, please let me know.This year, proceeds will benefit the iCivics program,the South Carolina Bar Foundation and the National

Foundation for Judicial Excellence, Ihave already contacted many of youabout assisting with the Silent Auction.However, we are always looking for goodhelp, so please contact me if you wouldlike to be a part of this event.Additionally, I strongly encourage allyoung lawyers to attend the summermeeting. It is one of the best events heldby the SCDTAA.

The Fall Boot Camp has been sched-uled for September 27th in Greenville,SC. The Fall camp will focus on evidentiary issuesand will be presented by Judge Few, Chief Judge ofthe South Carolina Court of Appeals. Additionalinformation will be forthcoming. So, be on the lookout, as you will not want to miss this event. Asalways, I will send an e-mail reminder to all younglawyers prior to the event.

Rounding out the year, the SCDTAA will host itsAnnual Meeting from November 8th-11th. Thisyear’s Annual Meeting will take place at TheSanctuary at Kiawah Island. I encourage all younglawyers to consider attending the Annual Meeting. Itis a wonderful event and always well attended by ourJudiciary. If you would like additional informationabout the Annual Meeting, please contact me, orAimee Hiers.

In closing, again, I would like to thank all of theyoung lawyers who have helped, or offered theirassistance, during the first part of the year. I will becalling on many of you over the next several weeksto help with the Silent Auction. In the meantime, ifyou would like to learn more about the SCDTAA andopportunities for involvement, please do not hesitateto contact me.

Young Lawyer Updateby Jared H. Garraux

YOUNGLAWYERUPDATE

Fall Boot Camp

September 27, 2012

Greenville, SC

12

SCDTAAEVENTS

On May 24, 2012, the SCDTAAdebuted a new CLE endeavor forits members, the Workers’

Compensation Boot Camp at the Marriottin Columbia. With an aim toward provid-ing an interesting, interactive continuingeducation experience for young practi-tioners, the Boot Camp Committeesurveyed the Workers’ Compensationcommunity for timely topics. Based onthe feedback from those who attended, itseems the committee reached its goal.

First, Committee Chair (and mediator) EricEnglebardt of Turner Padget Graham & Laney spokeon the proposed new mandatory mediation regula-tion for Workers’ Compensation claims, and providedtips on good communication in the mediation setting.He was ably assisted by CLE attendees and volunteersMyada El-Sawi of Turner Padget Graham & Laney andKatie Lyall of McAngus Goudelock & Courie, whoeach presented a mock mediation opening statementfor discussion by the group.

Next up was Michelle Yarbrough of Gallivan White& Boyd, who led a discussion with CommissionerAndrea Roche on her likes and dislikes of thecommissioners. Even the experienced workers’compensation attorneys in the room were surprisedat some of Commissioner Roche’s comments and tips.

Mary League, of Ellis Lawhorne & Sims thenhelped answer some of the most perplexing ques-tions a young lawyer faces (“how do I advise myclients?”) with her talk entitled “Case Evaluation:Tips on Letting Your Client Know What to Expect”.

Mark Allison of McAngus, Goudelock & Couriethen presented a helpful talk, “Using Social Media inDefending a Claim”. We understand there wereseveral Facebook status deletions at the end ofMark’s presentation, and that his Twitter feed pickedup many new followers.

Finally, Turner Padget’s Vernon Dunbar, a formercommissioner himself, helped the attendees learn“What in the World Should I ask this Expert?”. Thispresentation, complete with some great war stories,was a great end to an afternoon full of informative talks.

Special thanks go out to Boot Camp Co-chairsJosh Howard of Haynsworth Sinkler Boyd and JaredGarraux of Richardson Plowden & Robinson, as wellas SCDTAA Executive Director Aimee Hiers for theirhelp in making our first Workers’ CompensationBoot Camp a success. And mark your calendars forour next boot camp on September 27 in Greenvillewhen Court of Appeals Chief Judge John Few takesus through the ins and outs of Evidence Law.

Workers’ Comp Boot Campby Eric K. Englehardt

2012 Summer Meeting2012 Summer MeetingJuly 26 - 28 at The Grove Park Inn

in Asheville, North Carolina.13

LEGISLATIVEUPDATE

As the 2012 legislative Session comes to aclose, the dust has settled on the changes inthe Senate triggered by the resignation of

former Lt. Governor Ken Ard. Lt. Governor GlennMcConnell is uniquely skilled in presiding over theSenate, Senator Larry Martin never missed a beat inassuming the Chairmanship of the Senate JudiciaryCommittee, and Senator Jake Knotts has enthusias-tically embraced the role of Rules CommitteeChairman. On the House side, the retirement of longtime Chairman of the Judiciary Committee, JimHarrison, signals new leadership. It appearsRepresentative Greg Delleney from Chester will beelected the new Chairman after the fall elections.

However, as soon as the Senate changes hadbecome the norm, one of the biggest election contro-versies in recent times came to light after the filingperiod for elected offices closed on March 30th.Chaos erupted when confusion enthused over whatconstituted full compliance with the candidate filingrequirements – what forms were required and inwhat format and whether one was an incumbent ornew candidate for office. In the end there was not ajudicial remedy for those who did not comply andclose to 200 new candidates for state and local officewere eliminated from the ballot upon the SupremeCourt’s ruling. A legislative remedy was attempted,but that was quickly derailed over disagreement onhow or if there should be a fix. Needless to say, therewill be a review of the requirements before the elec-tions in two years and there will be clear publicationand instruction of the requirements. As a smallconsolation for those who were eliminated, the StateElection Commission intends to refund the filing feesto the Democratic Party and Republican Party whowill then refund the fees to the individuals.

As discussed in the last issue of The DefenseLine,the biggest issue before the General Assembly thatwill directly affect the legal community is the addi-tion of several new at-large judicial seats. ChiefJustice Jean Toal has been advocating this for yearsand the time was finally right. At the time of this arti-cle we know that there will be three new at-largecircuit court seats and at least three new at-largefamily court seats. There had been some concern bysome in the Senate that the at-large seats would goonly to the most populous counties and that newjudges were perhaps not as critical a need as othersbelieved. This caused a delay in adopting the legisla-tion. Nonetheless the Senate did approve six family

court seats and three circuit court seats.Since the House version of the bill hasthe three circuit court judges and onlythree family court judges the two versionmust be reconciled. In addition thebudget must be finalized to accommo-date the additional judges. It is likely thatthe budget will match up with the finalversion of the bill authorizing all six newjudges (H.4699).

Several attorneys with an interest in thenew seats have already begun elevatingtheir interest level at the Statehouse. There will befiling deadlines and a screening schedule posted on theJudicial Merit Selection Commission website. You cancheck that site at http://www.scstatehouse.gov/JudicialMeritPage/JMSCMainPage.php.

The 16 Jade Street LLC Opinion issued on April 4,2012 created a burst of activity in the GeneralAssembly. This is the case that dealt with the ques-tion of whether a member of a limited liabilitycompany can be held personally liable for tortscommitted while acting in furtherance of thecompany's business. The House and Senate intro-duced bills in an attempt to clarify the legislativeintent of the Limited Liability Corporation Act (S.1467 and H. 5150). Both bodies quickly passed theirrespective legislation however there has been nofurther activity on the bills. If neither of these billspass or even if one of them does pass it may warranta closer look at the need for further legislative action.

Finally it is notable that there are several attorneysmaking their first effort to run for House and SenateSeats. In some instances they are running in openseats and in some instances they are running againstincumbents. It may be worth a look at your localseats to see if this is the case near you. In one elec-tion, attorney and current Representative TomYoung from Aiken is running for the seat beingvacated by Senator Greg Ryberg. Tom is unopposedso he will make the move from one of 124 Housemembers to one of 46 Senators in November. ThatSenate Seat is adjacent to the Senate Seat of SenatorShane Massey, SCDTAA Board Member.

Legislative Updateby Jeff Thordahl, SCDTAA Lobbyist

12

SCDTAAEVENTS

On May 24, 2012, the SCDTAAdebuted a new CLE endeavor forits members, the Workers’

Compensation Boot Camp at the Marriottin Columbia. With an aim toward provid-ing an interesting, interactive continuingeducation experience for young practi-tioners, the Boot Camp Committeesurveyed the Workers’ Compensationcommunity for timely topics. Based onthe feedback from those who attended, itseems the committee reached its goal.

First, Committee Chair (and mediator) EricEnglebardt of Turner Padget Graham & Laney spokeon the proposed new mandatory mediation regula-tion for Workers’ Compensation claims, and providedtips on good communication in the mediation setting.He was ably assisted by CLE attendees and volunteersMyada El-Sawi of Turner Padget Graham & Laney andKatie Lyall of McAngus Goudelock & Courie, whoeach presented a mock mediation opening statementfor discussion by the group.

Next up was Michelle Yarbrough of Gallivan White& Boyd, who led a discussion with CommissionerAndrea Roche on her likes and dislikes of thecommissioners. Even the experienced workers’compensation attorneys in the room were surprisedat some of Commissioner Roche’s comments and tips.

Mary League, of Ellis Lawhorne & Sims thenhelped answer some of the most perplexing ques-tions a young lawyer faces (“how do I advise myclients?”) with her talk entitled “Case Evaluation:Tips on Letting Your Client Know What to Expect”.

Mark Allison of McAngus, Goudelock & Couriethen presented a helpful talk, “Using Social Media inDefending a Claim”. We understand there wereseveral Facebook status deletions at the end ofMark’s presentation, and that his Twitter feed pickedup many new followers.

Finally, Turner Padget’s Vernon Dunbar, a formercommissioner himself, helped the attendees learn“What in the World Should I ask this Expert?”. Thispresentation, complete with some great war stories,was a great end to an afternoon full of informative talks.

Special thanks go out to Boot Camp Co-chairsJosh Howard of Haynsworth Sinkler Boyd and JaredGarraux of Richardson Plowden & Robinson, as wellas SCDTAA Executive Director Aimee Hiers for theirhelp in making our first Workers’ CompensationBoot Camp a success. And mark your calendars forour next boot camp on September 27 in Greenvillewhen Court of Appeals Chief Judge John Few takesus through the ins and outs of Evidence Law.

Workers’ Comp Boot Campby Eric K. Englehardt

2012 Summer Meeting2012 Summer MeetingJuly 26 - 28 at The Grove Park Inn

in Asheville, North Carolina.13

LEGISLATIVEUPDATE

As the 2012 legislative Session comes to aclose, the dust has settled on the changes inthe Senate triggered by the resignation of

former Lt. Governor Ken Ard. Lt. Governor GlennMcConnell is uniquely skilled in presiding over theSenate, Senator Larry Martin never missed a beat inassuming the Chairmanship of the Senate JudiciaryCommittee, and Senator Jake Knotts has enthusias-tically embraced the role of Rules CommitteeChairman. On the House side, the retirement of longtime Chairman of the Judiciary Committee, JimHarrison, signals new leadership. It appearsRepresentative Greg Delleney from Chester will beelected the new Chairman after the fall elections.

However, as soon as the Senate changes hadbecome the norm, one of the biggest election contro-versies in recent times came to light after the filingperiod for elected offices closed on March 30th.Chaos erupted when confusion enthused over whatconstituted full compliance with the candidate filingrequirements – what forms were required and inwhat format and whether one was an incumbent ornew candidate for office. In the end there was not ajudicial remedy for those who did not comply andclose to 200 new candidates for state and local officewere eliminated from the ballot upon the SupremeCourt’s ruling. A legislative remedy was attempted,but that was quickly derailed over disagreement onhow or if there should be a fix. Needless to say, therewill be a review of the requirements before the elec-tions in two years and there will be clear publicationand instruction of the requirements. As a smallconsolation for those who were eliminated, the StateElection Commission intends to refund the filing feesto the Democratic Party and Republican Party whowill then refund the fees to the individuals.

As discussed in the last issue of The DefenseLine,the biggest issue before the General Assembly thatwill directly affect the legal community is the addi-tion of several new at-large judicial seats. ChiefJustice Jean Toal has been advocating this for yearsand the time was finally right. At the time of this arti-cle we know that there will be three new at-largecircuit court seats and at least three new at-largefamily court seats. There had been some concern bysome in the Senate that the at-large seats would goonly to the most populous counties and that newjudges were perhaps not as critical a need as othersbelieved. This caused a delay in adopting the legisla-tion. Nonetheless the Senate did approve six family

court seats and three circuit court seats.Since the House version of the bill hasthe three circuit court judges and onlythree family court judges the two versionmust be reconciled. In addition thebudget must be finalized to accommo-date the additional judges. It is likely thatthe budget will match up with the finalversion of the bill authorizing all six newjudges (H.4699).

Several attorneys with an interest in thenew seats have already begun elevatingtheir interest level at the Statehouse. There will befiling deadlines and a screening schedule posted on theJudicial Merit Selection Commission website. You cancheck that site at http://www.scstatehouse.gov/JudicialMeritPage/JMSCMainPage.php.

The 16 Jade Street LLC Opinion issued on April 4,2012 created a burst of activity in the GeneralAssembly. This is the case that dealt with the ques-tion of whether a member of a limited liabilitycompany can be held personally liable for tortscommitted while acting in furtherance of thecompany's business. The House and Senate intro-duced bills in an attempt to clarify the legislativeintent of the Limited Liability Corporation Act (S.1467 and H. 5150). Both bodies quickly passed theirrespective legislation however there has been nofurther activity on the bills. If neither of these billspass or even if one of them does pass it may warranta closer look at the need for further legislative action.

Finally it is notable that there are several attorneysmaking their first effort to run for House and SenateSeats. In some instances they are running in openseats and in some instances they are running againstincumbents. It may be worth a look at your localseats to see if this is the case near you. In one elec-tion, attorney and current Representative TomYoung from Aiken is running for the seat beingvacated by Senator Greg Ryberg. Tom is unopposedso he will make the move from one of 124 Housemembers to one of 46 Senators in November. ThatSenate Seat is adjacent to the Senate Seat of SenatorShane Massey, SCDTAA Board Member.

Legislative Updateby Jeff Thordahl, SCDTAA Lobbyist

The SCDTAA held its annualCorporate Counsel Seminar at theHilton Columbia Center on April

24, 2012. By all accounts, the programwas a tremendous success. Attendanceat the program has grown significantlyduring the four years the SCDTAA hasbeen offering the free CLE to in-housecounsel, reflecting growing connectionsbetween the organization and in-houseattorneys. The SCDTAA had recordattendance at this year’s seminar, with 30

attorneys registered for the event. For those unableto attend the corporate counsel event, this year’sseminar is highlighted below. Two well-receivedspeakers at the seminar, Mark Fava and StuartMauney, will be speaking at the SCDTAA’s SummerMeeting at the Grove Park Inn, so send in your regis-tration forms!

Boeing and the NLRB—a Case Study of In-HouseCounsel Coordination and Communication: MarkFava, Chief Counsel for Boeing South Carolina,described the challenges Boeing faced in opening its787 final assembly line in North Charleston, SouthCarolina, including the charge the InternationalAssociation of Machinists filed with the NLRB. Asthe opening of the Boeing facility and the NLRBcomplaint was covered by both state and nationalpress, Mark Fava’s discussion of the challenges hefaced as an in-house attorney and the strategiesBoeing employed in addressing those challenges wasfascinating. Feedback from corporate counsel afterthe seminar included comments about how helpful itwas to hear an in-house attorney describe how hehad dealt with the challenges of the job.

Public Policy Exception to Employment at Will;Social Media and Section 7 of the NLRA: Next, BrianQuisenberry presented recent developments regard-ing the public policy exception to at-will employ-ment. See the Spring 2012 volume of TheDefenseLine (available at www.SCDTAA.com) for anexcellent article on this issue. Eric Schweitzer tack-led the ways the NLRA has expanded the definitionof what constitutes concerted activity based onemployee use of social media. He noted that manyemployers’ electronic communication policies maybe overly broad and could be construed as improp-erly interfering with employee rights to self-organize.He cautioned that employers must be careful not to

prohibit employees from discussing terms and condi-tions of their employment.

Illegal Immigrants in the Work Place and New E-Verification Standards: Emily Gifford, Cliff Rollinsand Austin Smith discussed the South CarolinaImmigration and Reform Act (the “Act”), whichbecame effective January 1, 2012 and applies to allprivate employers. The Act imposes new burdens onemployers to verify the work authorization status ofa new employee. E-Verify is a free, internet-basedsystem through the U.S. Citizenship andImmigration Services that enables employers toverify the work eligibility of their employees.Employers can no longer simply accept a state-issued driver’s license or state identification card.While the Department of Justice has sued SouthCarolina and Governor Haley, challenging certainenforcement provisions in the Act, the E-verify andauthorization provisions are likely to survive thelegal challenge.

The Lawyer’s Epidemic: Depression, Suicide andSubstance Abuse: All attorneys must now completeone hour of ethics instruction devoted exclusively tosubstance abuse or mental health issues every threeyears. Stuart Mauney provided an opportunity forattendees to fulfill this requirement and learn aboutthe risks lawyers face of developing depression andsubstance abuse. Alcohol abuse and chemicaldependency may be as much as twice as prevalent inthe legal profession as in the general population. Ifyou believe you or someone you know may be strug-gling with depression or substance abuse, the follow-ing resources are available:

Lawyers Helping Lawyerstoll-free helpline: 866-545-9590

LifeFocus Counseling Services: 866-726-5252.

This service will provide a referral for a local counselor.

After the seminar, attendees were invited to a recep-tion at the Oyster Bar with the local judiciary, work-ers compensation commissioners and legislators.Many thanks to all of the speakers for making thisyear’s corporate counsel seminar such a success.

14

CORPORATECOUNSELUPDATE

Record Attendance at AnnualCorporate Counsel Seminar

by Melissa M. Nichols

Jacquelyn D. Austin attended the University ofSouth Carolina, where she graduated with aBachelor of Science in Electrical Engineering.

Judge Austin went on to attend law school at theUniversity of South Carolina School of Law and grad-uated with a Juris Doctor in 1996. While in lawschool, Judge Austin was a member of the JohnBelton O’Neal Inn of Court and the National MootCourt Team. She was also a recipient of the StudentCompleat Lawyer Award and served as StudentNotes Editor on the Environmental Law Journal.

Following law school, Judge Austin clerked for theHonorable Matthew J. Perry. Upon completing herclerkship, she entered private practice for fourteenyears, most recently with the law firm WombleCarlyle Sandridge & Rice, LLP, before being sworn inas a United States Magistrate Judge for the District ofSouth Carolina. Judge Austin spent three years ofprivate practice drafting and prosecuting UnitedStates and European patent applications and elevenyears in commercial litigation matters, includingpatent litigation and cases involving racial discrimi-nation, the Fair Housing Act, engineering design,product liability, real estate matters, and othercontract disputes.

Judge Austin has been active in the bar and in thecommunity. She served as President of the CarolinaPatent, Trademark, and Copyright Law Associationfrom 2004 through 2005, a member of the JudicialQualifications Committee from 2004 through 2011,the Greenville Bar Editor, and on a church commit-tee establishing a charter school for troubled teensand dropouts. Additionally, Judge Austin has been amember of the American Intellectual Property LawAssociation, International Trademark Association,Defense Research Institute, ABA Litigation andIntellectual Property Sections, BESLA, Trial andAppellate Advocacy Board, Jack & Jill Incorporated,and Delta Sigma Theta, Incorporated.

Q. As a new judge, what has been the biggestchallenge you face with the court system?

The biggest challenge I face is managing a muchlarger work load than I had at my previous law firm.My case load at any one time can range upwards of130 cases, with new cases being filed daily. My chal-lenge is to address each case issue that arises in atimely and efficient manner. I try to prioritize myworkload by dealing with the oldest issues ormotions first. Sometimes that strategy is thrown off

course when an issue with a more sensitive time forresponse arises. The challenge is not impossible; Ijust have to be purposeful about what I choose to doon a daily basis.

Q. What advice do you have for lawyers appear-ing in your courtroom?

All of the lawyers who have appeared before me inmy year and a half on the bench have been great. Ilove the practice of law, and I love to see it in action.Typically, if I need something from counsel before ahearing, I ask for it; and vice versa.

Q. What are the mistakes you most often seelawyers make in cases before you that could easilybe corrected?

Most of the mistakes I see are related to big-pictureissues in cases dealing with pro se litigants and pris-oners. For instance, on a number of occasions, we’vebeen ready to address motions for summary judg-ment only to see that some of the parties were neverserved or that jurisdiction may be questionable dueto a prisoner’s failure to exhaust administrativeremedies. In those instances, the parties have gottenso involved in addressing the legal issues, they’vefailed to go back to make sure all of the proceduraldetails have been resolved. Even in cases where bothparties are represented, we’ve had instances where

JUDICIALPROFILE


The Honorable Jacquelyn D. Austin

United States Magistrate Judge

15

The SCDTAA held its annualCorporate Counsel Seminar at theHilton Columbia Center on April

24, 2012. By all accounts, the programwas a tremendous success. Attendanceat the program has grown significantlyduring the four years the SCDTAA hasbeen offering the free CLE to in-housecounsel, reflecting growing connectionsbetween the organization and in-houseattorneys. The SCDTAA had recordattendance at this year’s seminar, with 30

attorneys registered for the event. For those unableto attend the corporate counsel event, this year’sseminar is highlighted below. Two well-receivedspeakers at the seminar, Mark Fava and StuartMauney, will be speaking at the SCDTAA’s SummerMeeting at the Grove Park Inn, so send in your regis-tration forms!

Boeing and the NLRB—a Case Study of In-HouseCounsel Coordination and Communication: MarkFava, Chief Counsel for Boeing South Carolina,described the challenges Boeing faced in opening its787 final assembly line in North Charleston, SouthCarolina, including the charge the InternationalAssociation of Machinists filed with the NLRB. Asthe opening of the Boeing facility and the NLRBcomplaint was covered by both state and nationalpress, Mark Fava’s discussion of the challenges hefaced as an in-house attorney and the strategiesBoeing employed in addressing those challenges wasfascinating. Feedback from corporate counsel afterthe seminar included comments about how helpful itwas to hear an in-house attorney describe how hehad dealt with the challenges of the job.

Public Policy Exception to Employment at Will;Social Media and Section 7 of the NLRA: Next, BrianQuisenberry presented recent developments regard-ing the public policy exception to at-will employ-ment. See the Spring 2012 volume of TheDefenseLine (available at www.SCDTAA.com) for anexcellent article on this issue. Eric Schweitzer tack-led the ways the NLRA has expanded the definitionof what constitutes concerted activity based onemployee use of social media. He noted that manyemployers’ electronic communication policies maybe overly broad and could be construed as improp-erly interfering with employee rights to self-organize.He cautioned that employers must be careful not to

prohibit employees from discussing terms and condi-tions of their employment.

Illegal Immigrants in the Work Place and New E-Verification Standards: Emily Gifford, Cliff Rollinsand Austin Smith discussed the South CarolinaImmigration and Reform Act (the “Act”), whichbecame effective January 1, 2012 and applies to allprivate employers. The Act imposes new burdens onemployers to verify the work authorization status ofa new employee. E-Verify is a free, internet-basedsystem through the U.S. Citizenship andImmigration Services that enables employers toverify the work eligibility of their employees.Employers can no longer simply accept a state-issued driver’s license or state identification card.While the Department of Justice has sued SouthCarolina and Governor Haley, challenging certainenforcement provisions in the Act, the E-verify andauthorization provisions are likely to survive thelegal challenge.

The Lawyer’s Epidemic: Depression, Suicide andSubstance Abuse: All attorneys must now completeone hour of ethics instruction devoted exclusively tosubstance abuse or mental health issues every threeyears. Stuart Mauney provided an opportunity forattendees to fulfill this requirement and learn aboutthe risks lawyers face of developing depression andsubstance abuse. Alcohol abuse and chemicaldependency may be as much as twice as prevalent inthe legal profession as in the general population. Ifyou believe you or someone you know may be strug-gling with depression or substance abuse, the follow-ing resources are available:

Lawyers Helping Lawyerstoll-free helpline: 866-545-9590

LifeFocus Counseling Services: 866-726-5252.

This service will provide a referral for a local counselor.

After the seminar, attendees were invited to a recep-tion at the Oyster Bar with the local judiciary, work-ers compensation commissioners and legislators.Many thanks to all of the speakers for making thisyear’s corporate counsel seminar such a success.

14

CORPORATECOUNSELUPDATE

Record Attendance at AnnualCorporate Counsel Seminar

by Melissa M. Nichols

Jacquelyn D. Austin attended the University ofSouth Carolina, where she graduated with aBachelor of Science in Electrical Engineering.

Judge Austin went on to attend law school at theUniversity of South Carolina School of Law and grad-uated with a Juris Doctor in 1996. While in lawschool, Judge Austin was a member of the JohnBelton O’Neal Inn of Court and the National MootCourt Team. She was also a recipient of the StudentCompleat Lawyer Award and served as StudentNotes Editor on the Environmental Law Journal.

Following law school, Judge Austin clerked for theHonorable Matthew J. Perry. Upon completing herclerkship, she entered private practice for fourteenyears, most recently with the law firm WombleCarlyle Sandridge & Rice, LLP, before being sworn inas a United States Magistrate Judge for the District ofSouth Carolina. Judge Austin spent three years ofprivate practice drafting and prosecuting UnitedStates and European patent applications and elevenyears in commercial litigation matters, includingpatent litigation and cases involving racial discrimi-nation, the Fair Housing Act, engineering design,product liability, real estate matters, and othercontract disputes.

Judge Austin has been active in the bar and in thecommunity. She served as President of the CarolinaPatent, Trademark, and Copyright Law Associationfrom 2004 through 2005, a member of the JudicialQualifications Committee from 2004 through 2011,the Greenville Bar Editor, and on a church commit-tee establishing a charter school for troubled teensand dropouts. Additionally, Judge Austin has been amember of the American Intellectual Property LawAssociation, International Trademark Association,Defense Research Institute, ABA Litigation andIntellectual Property Sections, BESLA, Trial andAppellate Advocacy Board, Jack & Jill Incorporated,and Delta Sigma Theta, Incorporated.

Q. As a new judge, what has been the biggestchallenge you face with the court system?

The biggest challenge I face is managing a muchlarger work load than I had at my previous law firm.My case load at any one time can range upwards of130 cases, with new cases being filed daily. My chal-lenge is to address each case issue that arises in atimely and efficient manner. I try to prioritize myworkload by dealing with the oldest issues ormotions first. Sometimes that strategy is thrown off

course when an issue with a more sensitive time forresponse arises. The challenge is not impossible; Ijust have to be purposeful about what I choose to doon a daily basis.

Q. What advice do you have for lawyers appear-ing in your courtroom?

All of the lawyers who have appeared before me inmy year and a half on the bench have been great. Ilove the practice of law, and I love to see it in action.Typically, if I need something from counsel before ahearing, I ask for it; and vice versa.

Q. What are the mistakes you most often seelawyers make in cases before you that could easilybe corrected?

Most of the mistakes I see are related to big-pictureissues in cases dealing with pro se litigants and pris-oners. For instance, on a number of occasions, we’vebeen ready to address motions for summary judg-ment only to see that some of the parties were neverserved or that jurisdiction may be questionable dueto a prisoner’s failure to exhaust administrativeremedies. In those instances, the parties have gottenso involved in addressing the legal issues, they’vefailed to go back to make sure all of the proceduraldetails have been resolved. Even in cases where bothparties are represented, we’ve had instances where

JUDICIALPROFILE


The Honorable Jacquelyn D. Austin

United States Magistrate Judge

15

jurisdiction has been questionable and we’ve had toask both parties to brief the issue before we couldproceed on the underlying motions.

Q. Who has been the biggest influence in yourlegal career? How has this person influenced you?

The most influential person, of course, was JudgeMatthew J. Perry, Jr. Judge Perry was the consum-mate example of hard work, thoughtfulness,graciousness, humility, and humor. Judge Perryloved the law, loved lawyers, and found it his duty tomake sure everyone had a fair day in his court. Ihope to emulate all that he stood for in my career.During my career as a practicing lawyer, however,I’ve had numerous influences and mentors, includingBrent Clinkscale and Sandra Miller, who both madesure I worked really hard, but also made the practicefun.

Q. As a mother of two, what advice do you havefor other working mothers out there trying tobalance personal life and legal careers?

I would first understand that balance is always amoving target and depends on what is going on inyour life and your children’s lives. My children comefirst; work will always be here. My children under-stand that I have work to do, but they are also confi-dent that if they need me, they are my priority.Balancing work life and children is such a personaldecision and will be different for everyone. Myadvice is to do what’s best for you and your family.Any law firm or business that desires your best willknow that your ability to find that balance is imper-ative to your success as a partner, associate, oremployee.

Q. What is your favorite quote?One can easily judge the character of a person by

the way they treat people who can do nothing forthem.

JUDICIALPROFILECONT.

The SCDTAA is pleased to announce the launch of a new website featurecontaining useful trial court orders in a variety of practice areas! The data-base also includes requests to charge and verdict forms organized topically.

The topics for which we are publishing and soliciting trial court ordersinclude the following:

1. the Affidavit of Merit Statute;

2. Apportionment Among Defendants;

3. Contribution;

4 Discovery; and

5. Set-Off.

This database is a special, password protected feature that is only available toSCDTAA members. To view the database, logon by inputting your emailaddress and password in the top right corner at http://www.scdtaa.com/.

This new feature will be a great resource for SCDTAA members. However, theSCDTAA is still in the process of building this database and needs your help.

Please send trial court orders, requests to charge and verdict forms to CarrieRaines at [email protected] to be included in the database. Anyone whocontributes more than five orders, jury charges or verdict forms to this data-base will be mentioned in the next issue of The DefenseLine.

16

SCDTAA Announces New Trial OrderDatabase — and Seeks Submissions!

Alife-long Columbia native, DeAndrea GistBenjamin was born in Columbia, SouthCarolina on October 4, 1972 to Donald and

Adrienne Gist. She is married to the HonorableStephen K. Benjamin, attorney and Mayor ofColumbia, South Carolina. The Benjamins have twodaughters.

Judge Benjamin attended public school inRichland County and graduated from Columbia HighSchool in 1990. She enrolled in college at WinthropUniversity in 1990 and graduated in 1994 with aBachelors of Arts. While at Winthrop, she wasinducted into the Political Science Hall of Fame andreceived the Order of the Omega.

Judge Benjamin went on to attend Law School atthe University of South Carolina and graduated witha Juris Doctor in 1997. While in Law School sheserved on the Student Government Council and wasselected as a Kellogg Child Welfare Fellow. She wasadmitted to the South Carolina Bar on November 18,1997, the SC District Court in September 2001 andthe Fourth Circuit Court of Appeals in November of2002.

Following law school, Judge Benjamin clerked forthe Honorable L. Casey Manning. Upon completingher clerkship she began her career as a Prosecutor inthe Fifth Circuit Solicitor’s Office and the AttorneyGeneral’s Office. In 2001, she joined her father’s lawfirm, Gist Law Firm, where she practiced until beingelected to the Circuit Court bench on February 2,2011.

She has served on the Juvenile Parole Board(2001-2004) and as a Municipal Judge for the City ofColumbia from July 2004 until April 2011.

Judge Benjamin has been very active in the barand in the community. She has served on the SC BarBoard of Governors, SC Bar House of Delegates, SCBar Young Lawyers Division (Chair 2006-2007),Children’s Law Committee (Chair 2010 –2011),Richland County Bar Association, SC Black LawyersAssociation, SC Women Lawyers Association, andAppleseed Legal Justice Board. As a young lawyer,Judge Benjamin, was very active in the American BarAssociation Young Lawyers Division. She served asDistrict Representative for South Carolina and theVirgin islands and served on various committees.

Judge Benjamin has served on the EdventureChildren’s Museum Board, Sexual Trauma ServicesBoard, Congaree Girl Scouts Board, Arts Council,USC Community Advisory Board, North Main Street

Redevelopment Advisory Committee, and St. JohnBaptist Church Preschool Foundation Board. She is amember of the Columbia Alumnae Chapter of DeltaSigma Theta Sorority, Inc. and Jack and Jill ofAmerica.

Judge Benjamin and her family attend St. JohnBaptist Church in Columbia, SC.

Question: The Fifth Judicial Circuit has manda-tory Mediation, how do you view mediation toresolve disputes and do you see it impacting theFifth Circuit?

Answer: Mediation is a useful method in gettingmatters resolved. It is always better to have mattersresolved by the parties when possible. It has had atremendous impact on the Common Pleas docket inRichland County. Cases are appearing on theCommon Pleas docket right at a year after the filingdate.

Question: What advice do you have for lawyersappearing in your courtroom?

Be prepared. When lawyers aren’t prepared itmakes it difficult for the parties, the court, and thejurors.

Question: Is there a particular pet peeve that youhave as it relates to conduct in your courtroom orfor practitioners before you?

Answer: I find myself to be very reasonable andrarely aggravated by much. However, I don’t likebickering amongst lawyers in the courtroom, espe-cially before the jury. I think that you can be a zeal-ous advocate for your client and still remaincourteous to the other side.

17

The Honorable DeAndrea Gist BenjaminUnited States Circuit Judge


JUDICIALPROFILE

jurisdiction has been questionable and we’ve had toask both parties to brief the issue before we couldproceed on the underlying motions.

Q. Who has been the biggest influence in yourlegal career? How has this person influenced you?

The most influential person, of course, was JudgeMatthew J. Perry, Jr. Judge Perry was the consum-mate example of hard work, thoughtfulness,graciousness, humility, and humor. Judge Perryloved the law, loved lawyers, and found it his duty tomake sure everyone had a fair day in his court. Ihope to emulate all that he stood for in my career.During my career as a practicing lawyer, however,I’ve had numerous influences and mentors, includingBrent Clinkscale and Sandra Miller, who both madesure I worked really hard, but also made the practicefun.

Q. As a mother of two, what advice do you havefor other working mothers out there trying tobalance personal life and legal careers?

I would first understand that balance is always amoving target and depends on what is going on inyour life and your children’s lives. My children comefirst; work will always be here. My children under-stand that I have work to do, but they are also confi-dent that if they need me, they are my priority.Balancing work life and children is such a personaldecision and will be different for everyone. Myadvice is to do what’s best for you and your family.Any law firm or business that desires your best willknow that your ability to find that balance is imper-ative to your success as a partner, associate, oremployee.

Q. What is your favorite quote?One can easily judge the character of a person by

the way they treat people who can do nothing forthem.

JUDICIALPROFILECONT.

The SCDTAA is pleased to announce the launch of a new website featurecontaining useful trial court orders in a variety of practice areas! The data-base also includes requests to charge and verdict forms organized topically.

The topics for which we are publishing and soliciting trial court ordersinclude the following:

1. the Affidavit of Merit Statute;

2. Apportionment Among Defendants;

3. Contribution;

4 Discovery; and

5. Set-Off.

This database is a special, password protected feature that is only available toSCDTAA members. To view the database, logon by inputting your emailaddress and password in the top right corner at http://www.scdtaa.com/.

This new feature will be a great resource for SCDTAA members. However, theSCDTAA is still in the process of building this database and needs your help.

Please send trial court orders, requests to charge and verdict forms to CarrieRaines at [email protected] to be included in the database. Anyone whocontributes more than five orders, jury charges or verdict forms to this data-base will be mentioned in the next issue of The DefenseLine.

16

SCDTAA Announces New Trial OrderDatabase — and Seeks Submissions!

Alife-long Columbia native, DeAndrea GistBenjamin was born in Columbia, SouthCarolina on October 4, 1972 to Donald and

Adrienne Gist. She is married to the HonorableStephen K. Benjamin, attorney and Mayor ofColumbia, South Carolina. The Benjamins have twodaughters.

Judge Benjamin attended public school inRichland County and graduated from Columbia HighSchool in 1990. She enrolled in college at WinthropUniversity in 1990 and graduated in 1994 with aBachelors of Arts. While at Winthrop, she wasinducted into the Political Science Hall of Fame andreceived the Order of the Omega.

Judge Benjamin went on to attend Law School atthe University of South Carolina and graduated witha Juris Doctor in 1997. While in Law School sheserved on the Student Government Council and wasselected as a Kellogg Child Welfare Fellow. She wasadmitted to the South Carolina Bar on November 18,1997, the SC District Court in September 2001 andthe Fourth Circuit Court of Appeals in November of2002.

Following law school, Judge Benjamin clerked forthe Honorable L. Casey Manning. Upon completingher clerkship she began her career as a Prosecutor inthe Fifth Circuit Solicitor’s Office and the AttorneyGeneral’s Office. In 2001, she joined her father’s lawfirm, Gist Law Firm, where she practiced until beingelected to the Circuit Court bench on February 2,2011.

She has served on the Juvenile Parole Board(2001-2004) and as a Municipal Judge for the City ofColumbia from July 2004 until April 2011.

Judge Benjamin has been very active in the barand in the community. She has served on the SC BarBoard of Governors, SC Bar House of Delegates, SCBar Young Lawyers Division (Chair 2006-2007),Children’s Law Committee (Chair 2010 –2011),Richland County Bar Association, SC Black LawyersAssociation, SC Women Lawyers Association, andAppleseed Legal Justice Board. As a young lawyer,Judge Benjamin, was very active in the American BarAssociation Young Lawyers Division. She served asDistrict Representative for South Carolina and theVirgin islands and served on various committees.

Judge Benjamin has served on the EdventureChildren’s Museum Board, Sexual Trauma ServicesBoard, Congaree Girl Scouts Board, Arts Council,USC Community Advisory Board, North Main Street

Redevelopment Advisory Committee, and St. JohnBaptist Church Preschool Foundation Board. She is amember of the Columbia Alumnae Chapter of DeltaSigma Theta Sorority, Inc. and Jack and Jill ofAmerica.

Judge Benjamin and her family attend St. JohnBaptist Church in Columbia, SC.

Question: The Fifth Judicial Circuit has manda-tory Mediation, how do you view mediation toresolve disputes and do you see it impacting theFifth Circuit?

Answer: Mediation is a useful method in gettingmatters resolved. It is always better to have mattersresolved by the parties when possible. It has had atremendous impact on the Common Pleas docket inRichland County. Cases are appearing on theCommon Pleas docket right at a year after the filingdate.

Question: What advice do you have for lawyersappearing in your courtroom?

Be prepared. When lawyers aren’t prepared itmakes it difficult for the parties, the court, and thejurors.

Question: Is there a particular pet peeve that youhave as it relates to conduct in your courtroom orfor practitioners before you?

Answer: I find myself to be very reasonable andrarely aggravated by much. However, I don’t likebickering amongst lawyers in the courtroom, espe-cially before the jury. I think that you can be a zeal-ous advocate for your client and still remaincourteous to the other side.

17

The Honorable DeAndrea Gist BenjaminUnited States Circuit Judge


JUDICIALPROFILE

Question: From your observations how has theuse of technology in the courtroom impacted trialpractice?

Answer: Technology in the courtroom makes a bigdifference in the presentation of cases. The updatedtechnology that the court has makes it more efficientfor the court also, especially having research capa-bilities at your fingertips.

I have had the opportunity to sit in some of thecircuits with new courthouses and state of the arttechnology, the tools and resources available in thecourtroom assist the lawyers in their presentationand the court in running an efficient courtroom.

Question: Who has been the biggest influence inyour legal career?

Answer: My father. Prior to taking the bench, I hadthe opportunity to practice with my father. Beingable to work hand in hand and try cases with myfather has had a great impact on my career.

Question: What factors led you to a career in thelaw?

Answer: Of course my father influenced my careerchoice, but it was not until I had the opportunitywhile in College to sit in Judge Matthew Perry’scourtroom and observe, that I decided that I wantedto attend law school and someday be a judge.

Question: Your husband is both a practicingAttorney and Mayor of our Capital City Columbia,how do you balance both work and family commit-ments?

Answer: My first priority is to my family, espe-cially my children. Steve and I are blessed to have agreat support system with four grandparents (whoare all local), family, and friends.

JUDICIALPROFILCONT.

18

You already know how valuable DRIis to your practice, with the arrivalsof The Voice each week and For

The Defense each month. Here’s howyou can get even more from DRI.With 22,000 members around the coun-try, DRI provides support and resourcesfor defense attorneys in many differenttypes of practice. Much of the work and,most important, networking of DRI isdone by its substantive law committees.

If you are not currently a member of any of the DRISubstantive Law Committees, please join now. Ifyou aren’t receiving newsletters and other valuableinformation about your practice area each month,you can tell you have not joined a committee. Youare missing out on exchanges regarding changes anddevelopments in the law, experts, colleagues forreferrals and many other useful resources to growyour practice and learning.

You can join the Committees at no cost. Almost alldistribute regular newsletters and other publicationswith information on a specific area of practice. Theyprovide to their members the opportunity to serve inleadership positions, publish and speak to attorneysin your practice area and plan first quality seminarson the current law.

Plus, if you are an in-house counsel at insurers orcorporations and you join the Corporate CounselCommittee, you can attend any DRI seminar forfree, as many as you want.

The committees allow you to network withdefense attorneys in your area of practice fromacross the country. There are also committees dedi-cated to other areas such as the Diversity, Women inthe Law and the Young Lawyers committees.

To join submit the convenient online CommitteeMembership Form available at http://www.dri.org. Ifyou have an interest in getting active in a committee,please let me know and I’ll get you connected withthe committee leaders right away.

Calling All DRI Membersby Peggy Fonshell Ward

DRI UPDATE

Question: What advice do you have

for lawyers appearing in your

courtroom?

Be prepared. When lawyers aren’t

prepared it makes it difficult for the

parties, the court, and the jurors.

19

Although Ben’s and my memories of events solong ago are being heavily taxed, I do recallthe meeting in Charleston where Ben talked

me into drinking a Greek after-dinner drink. Iremember that my head the next morning felt as if alaser beam were trained on my forehead; however, Ido recall the meeting being that of the ExecutiveCommittee.

Be that as it may, the first annual meeting I recallwas in 1969 in Columbia. We intentionally had it inColumbia and on a USC football weekend in order toattract lawyers from the lower part of the state andthe upstate. We continued that the first few years inorder to gain traction for our future animal meetings.I was in charge of the program and we had a lawyerfrom Illinois and a lawyer from Florida speak to us onProduct Liability. We had an attendance of aroundtwenty-five (25) lawyers as well as a good number oftheir spouses. Grady Kirven of Watkins Vandiver inAnderson was elected President and I was electedSecretary-Treasurer. For the next two (2) years wecontinued to have the annual meetings in Columbiawith some increased attendance each year. Duringthose years, Harold Jacobs of Nexsen, Pruet, Jacobsand Pollard in Columbia and Dana Sinkler of thethen Sinkler, Gibbes in Charleston were electedpresidents. In 1972 I was elected President. In thatyear we decided to untie ourselves from the

Columbia/USC football tandem and held the meetingin Hilton Head. We had our biggest crowd of fifty (50)lawyers and like number of spouses. It was a broadbased program dealing with many areas of practiceand had a wide array of speakers. Three (3) werefrom out-of-state: Paul Fager, the Vice President incharge of claims of Liberty Mutual, Dean Page Keatonof the University of Texas Law School, and WalterWorkman, head of litigation of the mega Texas firmof Baker & Botts. Also appearing was Dave Robinsonsenior partner in Robinson McFadden and JudgeFrances Nicholson of Greenwood in the 8th Circuit.

During this time there was some interest in havinginsurance claims men eligible to join as well asgovernment lawyers. Finally, to avoid any conflict ofinterest and to focus on our mission of improving theskills of defense attorneys on the civil side and ofleveling the playing field in civil justice system inSouth Carolina, we decided to limit membershiponly to defense attorneys in private practice. Not toolong afterwards, we dealt with the issue by establish-ing an annual summer joint meeting with the SouthCarolina Claims Association. Some of the old timersI remember who became president were DeweyOxner, Bob Carpenter, Sanders Bridges, Mark Buyck,Bruce Shaw, Bobby Hood, and Jack Barwick. WithMolly Craig being president now that makes the first

Reflectionsby Edward W. Mullins, Jr.

Editors Note: Edward W. Mullins, Jr., is of counsel to the FirmNelson Mullins Riley & Scarborough LLP. He was born inColumbia in 1936 and graduated from the University of SouthCarolina with a Bachelors of Arts degree in 1957. He earnedhis J.D. degree, cum laude in 1959 from the University of SouthCarolina where he was a member of the Order of Wig andRobe and Phi Delta Phi. He is a life long resident of Columbia,where he serves as a mediator and practices in the areas ofproduct liability, business, and general litigation. Mr. Mullins haslong held positions of leadership within his firm. An activetrial lawyer for 50 years, Mr. Mullins is Chair Emeritus of theFirm and its Litigation Department and was instrumental in thegrowth of the law firm from five attorneys to more than 400attorneys and government relations professionals with 12 officesin South Carolina, North Carolina, Georgia, Washington, DC, WestVirginia, Tallahassee, and Boston. Mr. Mullins is the recipient ofnumerous awards for service to the legal profession, including

the Robert W. Hemphill Award given by the SouthCarolina Defense Trial Attorneys' Association in1990. In 1991, he received the John WatsonWilliams Award, given by the Richland County BarAssociation for outstanding service to the RichlandBar and the local community. In 2002, he receivedthe Compleat Lawyer Award, given by theUniversity of South Carolina School of Law foroutstanding service to the law school and legalcommunity. Additionally, Mr. Mullins has beenlisted in The Best Lawyers in America and in the InternationalWho's Who of Product Liability Lawyers since their firsteditions. He was listed in the inaugural edition of SouthCarolina Super Lawyers in 2008 and was listed again from2009-2012. He served as our Association President from 1972-73. Below are his thoughts as a continuation from our previ-ous article by Ben Allston Moore, Jr.:

ARTICLE

Continued on bottom of next page

Question: From your observations how has theuse of technology in the courtroom impacted trialpractice?

Answer: Technology in the courtroom makes a bigdifference in the presentation of cases. The updatedtechnology that the court has makes it more efficientfor the court also, especially having research capa-bilities at your fingertips.

I have had the opportunity to sit in some of thecircuits with new courthouses and state of the arttechnology, the tools and resources available in thecourtroom assist the lawyers in their presentationand the court in running an efficient courtroom.

Question: Who has been the biggest influence inyour legal career?

Answer: My father. Prior to taking the bench, I hadthe opportunity to practice with my father. Beingable to work hand in hand and try cases with myfather has had a great impact on my career.

Question: What factors led you to a career in thelaw?

Answer: Of course my father influenced my careerchoice, but it was not until I had the opportunitywhile in College to sit in Judge Matthew Perry’scourtroom and observe, that I decided that I wantedto attend law school and someday be a judge.

Question: Your husband is both a practicingAttorney and Mayor of our Capital City Columbia,how do you balance both work and family commit-ments?

Answer: My first priority is to my family, espe-cially my children. Steve and I are blessed to have agreat support system with four grandparents (whoare all local), family, and friends.

JUDICIALPROFILCONT.

18

You already know how valuable DRIis to your practice, with the arrivalsof The Voice each week and For

The Defense each month. Here’s howyou can get even more from DRI.With 22,000 members around the coun-try, DRI provides support and resourcesfor defense attorneys in many differenttypes of practice. Much of the work and,most important, networking of DRI isdone by its substantive law committees.

If you are not currently a member of any of the DRISubstantive Law Committees, please join now. Ifyou aren’t receiving newsletters and other valuableinformation about your practice area each month,you can tell you have not joined a committee. Youare missing out on exchanges regarding changes anddevelopments in the law, experts, colleagues forreferrals and many other useful resources to growyour practice and learning.

You can join the Committees at no cost. Almost alldistribute regular newsletters and other publicationswith information on a specific area of practice. Theyprovide to their members the opportunity to serve inleadership positions, publish and speak to attorneysin your practice area and plan first quality seminarson the current law.

Plus, if you are an in-house counsel at insurers orcorporations and you join the Corporate CounselCommittee, you can attend any DRI seminar forfree, as many as you want.

The committees allow you to network withdefense attorneys in your area of practice fromacross the country. There are also committees dedi-cated to other areas such as the Diversity, Women inthe Law and the Young Lawyers committees.

To join submit the convenient online CommitteeMembership Form available at http://www.dri.org. Ifyou have an interest in getting active in a committee,please let me know and I’ll get you connected withthe committee leaders right away.

Calling All DRI Membersby Peggy Fonshell Ward

DRI UPDATE

Question: What advice do you have

for lawyers appearing in your

courtroom?

Be prepared. When lawyers aren’t

prepared it makes it difficult for the

parties, the court, and the jurors.

19

Although Ben’s and my memories of events solong ago are being heavily taxed, I do recallthe meeting in Charleston where Ben talked

me into drinking a Greek after-dinner drink. Iremember that my head the next morning felt as if alaser beam were trained on my forehead; however, Ido recall the meeting being that of the ExecutiveCommittee.

Be that as it may, the first annual meeting I recallwas in 1969 in Columbia. We intentionally had it inColumbia and on a USC football weekend in order toattract lawyers from the lower part of the state andthe upstate. We continued that the first few years inorder to gain traction for our future animal meetings.I was in charge of the program and we had a lawyerfrom Illinois and a lawyer from Florida speak to us onProduct Liability. We had an attendance of aroundtwenty-five (25) lawyers as well as a good number oftheir spouses. Grady Kirven of Watkins Vandiver inAnderson was elected President and I was electedSecretary-Treasurer. For the next two (2) years wecontinued to have the annual meetings in Columbiawith some increased attendance each year. Duringthose years, Harold Jacobs of Nexsen, Pruet, Jacobsand Pollard in Columbia and Dana Sinkler of thethen Sinkler, Gibbes in Charleston were electedpresidents. In 1972 I was elected President. In thatyear we decided to untie ourselves from the

Columbia/USC football tandem and held the meetingin Hilton Head. We had our biggest crowd of fifty (50)lawyers and like number of spouses. It was a broadbased program dealing with many areas of practiceand had a wide array of speakers. Three (3) werefrom out-of-state: Paul Fager, the Vice President incharge of claims of Liberty Mutual, Dean Page Keatonof the University of Texas Law School, and WalterWorkman, head of litigation of the mega Texas firmof Baker & Botts. Also appearing was Dave Robinsonsenior partner in Robinson McFadden and JudgeFrances Nicholson of Greenwood in the 8th Circuit.

During this time there was some interest in havinginsurance claims men eligible to join as well asgovernment lawyers. Finally, to avoid any conflict ofinterest and to focus on our mission of improving theskills of defense attorneys on the civil side and ofleveling the playing field in civil justice system inSouth Carolina, we decided to limit membershiponly to defense attorneys in private practice. Not toolong afterwards, we dealt with the issue by establish-ing an annual summer joint meeting with the SouthCarolina Claims Association. Some of the old timersI remember who became president were DeweyOxner, Bob Carpenter, Sanders Bridges, Mark Buyck,Bruce Shaw, Bobby Hood, and Jack Barwick. WithMolly Craig being president now that makes the first

Reflectionsby Edward W. Mullins, Jr.

Editors Note: Edward W. Mullins, Jr., is of counsel to the FirmNelson Mullins Riley & Scarborough LLP. He was born inColumbia in 1936 and graduated from the University of SouthCarolina with a Bachelors of Arts degree in 1957. He earnedhis J.D. degree, cum laude in 1959 from the University of SouthCarolina where he was a member of the Order of Wig andRobe and Phi Delta Phi. He is a life long resident of Columbia,where he serves as a mediator and practices in the areas ofproduct liability, business, and general litigation. Mr. Mullins haslong held positions of leadership within his firm. An activetrial lawyer for 50 years, Mr. Mullins is Chair Emeritus of theFirm and its Litigation Department and was instrumental in thegrowth of the law firm from five attorneys to more than 400attorneys and government relations professionals with 12 officesin South Carolina, North Carolina, Georgia, Washington, DC, WestVirginia, Tallahassee, and Boston. Mr. Mullins is the recipient ofnumerous awards for service to the legal profession, including

the Robert W. Hemphill Award given by the SouthCarolina Defense Trial Attorneys' Association in1990. In 1991, he received the John WatsonWilliams Award, given by the Richland County BarAssociation for outstanding service to the RichlandBar and the local community. In 2002, he receivedthe Compleat Lawyer Award, given by theUniversity of South Carolina School of Law foroutstanding service to the law school and legalcommunity. Additionally, Mr. Mullins has beenlisted in The Best Lawyers in America and in the InternationalWho's Who of Product Liability Lawyers since their firsteditions. He was listed in the inaugural edition of SouthCarolina Super Lawyers in 2008 and was listed again from2009-2012. He served as our Association President from 1972-73. Below are his thoughts as a continuation from our previ-ous article by Ben Allston Moore, Jr.:

ARTICLE

Continued on bottom of next page

father-daughter presidents in our association and, ifthat were not enough, when Sterling Davies, the sonof former president Bill Davies, becomes presidentthat will make the first father-son. Sometime duringthis period the association offered firm membershipswhich allowed all the trial lawyers in that firm toboost membership numbers when talking to theLegislature. The only judges who were invited wereones that we had as speakers until our associationbecame much more active and invited many judges.

We had a defense line, but nothing resembling thisone and we had a legislative committee but not nearlyas effective as the one now with its paid lobbyist.

It has been both a refreshing and rewarding expe-rience to look way back in order to write this articleas it makes one see just how far the South CarolinaDefense Trial Attorneys’ Association has come sinceits beginning.

20

2012ANNUALMEETING

The Sanctuary onKiawah Island

November 8-11, 2012

ARTICLECONT. FROM

PAGE 19

My friendly advice to you: "don'tmiss the 2012 Annual Meetingof the South Carolina Defense

Trial Attorneys’ Association." BenjaminFranklin once said, "Wise men don't needadvice. Fools won't take it." I am confi-dent that those reading this are wise andunderstand the tremendous benefits andrewards of attending the Annual Meeting.I hope no one will follow the foolish pathand miss out on the great educationalprogram and social time with the judi-ciary and your friends in the defense bar.

The Sanctuary on Kiawah Islandprovides a fabulous and new venue for ourprogram. The Sanctuary is an amazingproperty with a combination of Southernhospitality, elegance, and relaxed atmos-phere. With the sounds of the wavessoftly breaking on the beach and the windblowing through the ocean front dunes,Kiawah provides a perfect get away for theAnnual Meeting. The world-class golfcourses and tennis facilities are also idealfor our recreational activities.

The Annual Meeting Committee isworking diligently to put together a toplevel educational program to match the 5-star accommodations of The Sanctuary.You will not want to miss the 2012 AnnualMeeting. We are excited about this year’smeeting, some format changes which wewill implement to the meeting schedule,and the new venue at The Sanctuary onKiawah Island. We look forward to seeingyou at Kiawah November 8-11, 2012.

The 2012 Annual Meeting...Don’t Miss It.by William S. Brown

After much anticipation, TrialSuperstars® exceeded allexpectations on April 13,

2012. With the Honorable Doyet A.Early presiding, the titans of the plain-tiff and defense bar faced off at theCharleston County Courthouse for aone day mock trial. The faculty triedthe Trial Academy fact pattern toverdict before both a CharlestonCounty jury and a Hampton Countyjury. The many hours of preparation and effortthat went into preparing for and executing TrialSuperstars by the faculty resulted in an outstand-ing program full of memorable learning experi-ences for the spectators. The entire program wasrecorded in real-time via webcast for those wish-ing to attend remotely, as the event sold outwithin twenty-four hours of the registration open-ing. For those in attendance, they were able toobserve the lawyers performing live and were also

21

Trial Superstarsby Jamie Hood

ARTICLE

FACULTYJUDGE:The Honorable Doyet A. Early, III,Chief Administrative Judge, Second Judicial Circuit

PLAINTIFF:Keith M. Babcock, Lewis, Babcock & Griffin, LLPRonnie L. Crosby, Peters Murdaugh Parker Eltzroth & Detrick, PAO. Fayrell Furr, Jr., Furr & HenshawS. Randall Hood, McGowan Hood & Felder LLCJames M. Griffin, Lewis, Babcock & Griffin, LLPMark Joye, Joye Law FirmRichard S. Rosen, Rosen Rosen & Hagood, LLCCarl L. Solomon, Solomon Law Group, LLCMichael E. Spears, Michael Spears, PA

DEFENDANTWilliam A. Coates, Roe Cassidy Coates & Price, PAM. Dawes Cooke, Jr., Barnwell Whatley Patterson & Helms, LLCElbert S. Dorn, Nexsen Pruet, LLCRobert H. Hood, Hood Law Firm, LLCRebecca Laffitte, Sowell Gray Stepp & Laffitte, LLCJohn T. Lay, Gallivan White & Boyd, PASamuel Outten, Womble Carlyle Sandridge & Rice, PLLCT. David Rheney, Gallivan, White & Boyd, P.A.Morgan S. Templeton, Wall Templeton & Haldrup, PAJohn Wilkerson, III, Turner Padget Graham & Laney, PA


father-daughter presidents in our association and, ifthat were not enough, when Sterling Davies, the sonof former president Bill Davies, becomes presidentthat will make the first father-son. Sometime duringthis period the association offered firm membershipswhich allowed all the trial lawyers in that firm toboost membership numbers when talking to theLegislature. The only judges who were invited wereones that we had as speakers until our associationbecame much more active and invited many judges.

We had a defense line, but nothing resembling thisone and we had a legislative committee but not nearlyas effective as the one now with its paid lobbyist.

It has been both a refreshing and rewarding expe-rience to look way back in order to write this articleas it makes one see just how far the South CarolinaDefense Trial Attorneys’ Association has come sinceits beginning.

20

2012ANNUALMEETING

The Sanctuary onKiawah Island

November 8-11, 2012

ARTICLECONT. FROM

PAGE 19

My friendly advice to you: "don'tmiss the 2012 Annual Meetingof the South Carolina Defense

Trial Attorneys’ Association." BenjaminFranklin once said, "Wise men don't needadvice. Fools won't take it." I am confi-dent that those reading this are wise andunderstand the tremendous benefits andrewards of attending the Annual Meeting.I hope no one will follow the foolish pathand miss out on the great educationalprogram and social time with the judi-ciary and your friends in the defense bar.

The Sanctuary on Kiawah Islandprovides a fabulous and new venue for ourprogram. The Sanctuary is an amazingproperty with a combination of Southernhospitality, elegance, and relaxed atmos-phere. With the sounds of the wavessoftly breaking on the beach and the windblowing through the ocean front dunes,Kiawah provides a perfect get away for theAnnual Meeting. The world-class golfcourses and tennis facilities are also idealfor our recreational activities.

The Annual Meeting Committee isworking diligently to put together a toplevel educational program to match the 5-star accommodations of The Sanctuary.You will not want to miss the 2012 AnnualMeeting. We are excited about this year’smeeting, some format changes which wewill implement to the meeting schedule,and the new venue at The Sanctuary onKiawah Island. We look forward to seeingyou at Kiawah November 8-11, 2012.

The 2012 Annual Meeting...Don’t Miss It.by William S. Brown

After much anticipation, TrialSuperstars® exceeded allexpectations on April 13,

2012. With the Honorable Doyet A.Early presiding, the titans of the plain-tiff and defense bar faced off at theCharleston County Courthouse for aone day mock trial. The faculty triedthe Trial Academy fact pattern toverdict before both a CharlestonCounty jury and a Hampton Countyjury. The many hours of preparation and effortthat went into preparing for and executing TrialSuperstars by the faculty resulted in an outstand-ing program full of memorable learning experi-ences for the spectators. The entire program wasrecorded in real-time via webcast for those wish-ing to attend remotely, as the event sold outwithin twenty-four hours of the registration open-ing. For those in attendance, they were able toobserve the lawyers performing live and were also

21

Trial Superstarsby Jamie Hood

ARTICLE

FACULTYJUDGE:The Honorable Doyet A. Early, III,Chief Administrative Judge, Second Judicial Circuit

PLAINTIFF:Keith M. Babcock, Lewis, Babcock & Griffin, LLPRonnie L. Crosby, Peters Murdaugh Parker Eltzroth & Detrick, PAO. Fayrell Furr, Jr., Furr & HenshawS. Randall Hood, McGowan Hood & Felder LLCJames M. Griffin, Lewis, Babcock & Griffin, LLPMark Joye, Joye Law FirmRichard S. Rosen, Rosen Rosen & Hagood, LLCCarl L. Solomon, Solomon Law Group, LLCMichael E. Spears, Michael Spears, PA

DEFENDANTWilliam A. Coates, Roe Cassidy Coates & Price, PAM. Dawes Cooke, Jr., Barnwell Whatley Patterson & Helms, LLCElbert S. Dorn, Nexsen Pruet, LLCRobert H. Hood, Hood Law Firm, LLCRebecca Laffitte, Sowell Gray Stepp & Laffitte, LLCJohn T. Lay, Gallivan White & Boyd, PASamuel Outten, Womble Carlyle Sandridge & Rice, PLLCT. David Rheney, Gallivan, White & Boyd, P.A.Morgan S. Templeton, Wall Templeton & Haldrup, PAJohn Wilkerson, III, Turner Padget Graham & Laney, PA


able to watch the juries’ real-timeresponses thanks to the incredible setupprovided by R&D Strategic Solutions.

Wired with individual keypads, thejurors recorded their real-time responsesto the elicited testimony and thoseresponses were visible on the monitors inthe Courthouse providing the spectatorswith a look inside the jurors’ minds.

After lengthy deliberations, theCharleston County jury returned a verdictfor the Plaintiff in the amount of $5 millionactual damages and $75,000 punitivedamages. The Hampton County jury wasa little more generous awarding $7 millionto the Plaintiff’s actual damages and$500,000 in punitive damages.

For those who missed Trial Superstars®,DVDs of the event will be available for salesoon. Much of the jury research obtainedduring the exercise will be presented inthe upcoming Summer and AnnualMeetings which you do not want to miss.

Special thanks go to Julie Armstrongand Don Michel at the Charleston CountyCourthouse who were incredibly generouswith their time and resources allowingSCDTAA to host the Trial Superstars at theCharleston County Courthouse. Thevenue provided an outstanding locationfor the event and made the entire experi-ence as realistic as possible. We are grate-ful for our sponsors including the kickoffcocktail party on Thursday evening thatwas sponsored by AW Roberts TrialSolutions who also provided the trialpresentation of the evidence.

Dixon Hughes Goodman provided lunchto the attendees, faculty and jurors andvolunteered Perry Woodside to testify asan economist on behalf of the Plaintiff.Brian Boggess of SEA Limited served as adefense biomechanical expert witness andStacy Imler with Exponent was the biome-chanical expert for the Plaintiff. JillWylerd of Litigation Presentation assistedthe participants in making the effectivedemonstrative exhibits that were seenduring the trial. Of course, many, manythanks to R&D for their tireless effort inorganizing, conducting and evaluating theentire mock trial exercise. We lookforward to having a chance to showcasethe highlights at the Summer and AnnualMeetings.

22

ARTICLECONT.

For the last 50 years, the billable hour systemhas been the default method for attorneys tobill clients for work.2 However, when asked

how they feel about the system, most attorneysexpress emotions ranging from frustration toloathing.3 Similarly, since the 2008 financial crisis,more and more clients are demanding value-basedalternatives to traditional billing.4 Today, global lawfirms are responding to these demands and exploringa variety of alternative methods to meet the needs oftheir clients and better the professional lives of theirattorneys.5

This article discusses why firms should give seri-ous consideration to alternative fee arrangement(“AFA”), what those alternative methods are, and thepractical and ethical implications of AFAs.

Why We Should Consider theAlternatives

Firms should consider billable-hour alternativesfor a number of reasons. First and foremost, weshould consider our clients. In actual practice, thereis not necessarily a correlation between the quantityand the quality of attorney work.6 A savvy attorneymay quickly secure a settlement or dismissal of acase after billing very little on the file; another attor-ney may bill millions dragging a client through yearsof litigation. The savvy attorney has acted in the bestinterests of his client but has missed out on theopportunity for several years’ worth of billable workand, potentially, significant legal fees. Unfortunately,the billable hour system, which rewards attorneys forchurning out long hours, does not always rewardsmart, economical work. Following the 2008 finan-cial crisis, corporate clients began to recognize thisphenomenon and have been demanding alternativemethods which provide them with more value fortheir dollar.7

Along those same lines, the billable hour systemcreates a certain amount of mistrust between attor-neys and clients. In a February 12, 2011 article,former ABA President Stephen Zack was quotedreminiscing about the days of billing for legal servicesrendered which, he opined, fostered real relation-ships between attorneys and client.8 However, thebillable hour can promote an almost adversarial rela-tionship between the attorney and the client.

Clients, mistrustful that a firm may notbe pushing hard enough to conclude acase, may question the necessity of each6-minute incremental task performed bythe attorney. Conversely, attorneysspend countless hours entering their bill-able time into software attempting tosecure adequate compensation for workperformed only to later have to defendthe work performed when it is called intoquestion by the client or the client’soutside billing auditor. The perpetuationof this adversarial relationship is detri-mental to both the attorney-client rela-tionship and to the reputation of thepractice.

Finally, serious consideration shouldalso be given to the effect of the billablehour system on the mental health ofattorneys. In a 2011 article in PsychologyToday, the author opined that a primarycause of the extreme depression and therecord high suicide and alcoholism ratesamong attorneys is the grueling work schedule.9

Indeed, countless studies have found that the intensework schedule required by traditional billing firmscoupled with the desire to succeed has led toepidemic career dissatisfaction in the profession.10

Even for attorneys who aren’t working under 60hour+ weekly requirements, there can be real frus-tration based on the billable limitations. The mind-lessness of constantly tracking one’s time in6-minute increments, unthinkable to a lay person,takes up large amounts of time that could be spentactually working on cases. Further, constantlychecking to ensure that the task the attorney isabout to engage in, which may be important tofurthering the case, is an approved “billable” task,can be frustrating. Given that the billable hoursystem, which rewards grinding hours above all, is atthe heart of this very real sickness in the profession,alternative methods of conducting our practicesshould be considered.

Preparing for Tomorrow: APractical Analysis of Alternative

Fee Arrangementsby Laura E. Paris and N. Keith Emge, Jr.1

ARTICLE


23

able to watch the juries’ real-timeresponses thanks to the incredible setupprovided by R&D Strategic Solutions.

Wired with individual keypads, thejurors recorded their real-time responsesto the elicited testimony and thoseresponses were visible on the monitors inthe Courthouse providing the spectatorswith a look inside the jurors’ minds.

After lengthy deliberations, theCharleston County jury returned a verdictfor the Plaintiff in the amount of $5 millionactual damages and $75,000 punitivedamages. The Hampton County jury wasa little more generous awarding $7 millionto the Plaintiff’s actual damages and$500,000 in punitive damages.

For those who missed Trial Superstars®,DVDs of the event will be available for salesoon. Much of the jury research obtainedduring the exercise will be presented inthe upcoming Summer and AnnualMeetings which you do not want to miss.

Special thanks go to Julie Armstrongand Don Michel at the Charleston CountyCourthouse who were incredibly generouswith their time and resources allowingSCDTAA to host the Trial Superstars at theCharleston County Courthouse. Thevenue provided an outstanding locationfor the event and made the entire experi-ence as realistic as possible. We are grate-ful for our sponsors including the kickoffcocktail party on Thursday evening thatwas sponsored by AW Roberts TrialSolutions who also provided the trialpresentation of the evidence.

Dixon Hughes Goodman provided lunchto the attendees, faculty and jurors andvolunteered Perry Woodside to testify asan economist on behalf of the Plaintiff.Brian Boggess of SEA Limited served as adefense biomechanical expert witness andStacy Imler with Exponent was the biome-chanical expert for the Plaintiff. JillWylerd of Litigation Presentation assistedthe participants in making the effectivedemonstrative exhibits that were seenduring the trial. Of course, many, manythanks to R&D for their tireless effort inorganizing, conducting and evaluating theentire mock trial exercise. We lookforward to having a chance to showcasethe highlights at the Summer and AnnualMeetings.

22

ARTICLECONT.

For the last 50 years, the billable hour systemhas been the default method for attorneys tobill clients for work.2 However, when asked

how they feel about the system, most attorneysexpress emotions ranging from frustration toloathing.3 Similarly, since the 2008 financial crisis,more and more clients are demanding value-basedalternatives to traditional billing.4 Today, global lawfirms are responding to these demands and exploringa variety of alternative methods to meet the needs oftheir clients and better the professional lives of theirattorneys.5

This article discusses why firms should give seri-ous consideration to alternative fee arrangement(“AFA”), what those alternative methods are, and thepractical and ethical implications of AFAs.

Why We Should Consider theAlternatives

Firms should consider billable-hour alternativesfor a number of reasons. First and foremost, weshould consider our clients. In actual practice, thereis not necessarily a correlation between the quantityand the quality of attorney work.6 A savvy attorneymay quickly secure a settlement or dismissal of acase after billing very little on the file; another attor-ney may bill millions dragging a client through yearsof litigation. The savvy attorney has acted in the bestinterests of his client but has missed out on theopportunity for several years’ worth of billable workand, potentially, significant legal fees. Unfortunately,the billable hour system, which rewards attorneys forchurning out long hours, does not always rewardsmart, economical work. Following the 2008 finan-cial crisis, corporate clients began to recognize thisphenomenon and have been demanding alternativemethods which provide them with more value fortheir dollar.7

Along those same lines, the billable hour systemcreates a certain amount of mistrust between attor-neys and clients. In a February 12, 2011 article,former ABA President Stephen Zack was quotedreminiscing about the days of billing for legal servicesrendered which, he opined, fostered real relation-ships between attorneys and client.8 However, thebillable hour can promote an almost adversarial rela-tionship between the attorney and the client.

Clients, mistrustful that a firm may notbe pushing hard enough to conclude acase, may question the necessity of each6-minute incremental task performed bythe attorney. Conversely, attorneysspend countless hours entering their bill-able time into software attempting tosecure adequate compensation for workperformed only to later have to defendthe work performed when it is called intoquestion by the client or the client’soutside billing auditor. The perpetuationof this adversarial relationship is detri-mental to both the attorney-client rela-tionship and to the reputation of thepractice.

Finally, serious consideration shouldalso be given to the effect of the billablehour system on the mental health ofattorneys. In a 2011 article in PsychologyToday, the author opined that a primarycause of the extreme depression and therecord high suicide and alcoholism ratesamong attorneys is the grueling work schedule.9

Indeed, countless studies have found that the intensework schedule required by traditional billing firmscoupled with the desire to succeed has led toepidemic career dissatisfaction in the profession.10

Even for attorneys who aren’t working under 60hour+ weekly requirements, there can be real frus-tration based on the billable limitations. The mind-lessness of constantly tracking one’s time in6-minute increments, unthinkable to a lay person,takes up large amounts of time that could be spentactually working on cases. Further, constantlychecking to ensure that the task the attorney isabout to engage in, which may be important tofurthering the case, is an approved “billable” task,can be frustrating. Given that the billable hoursystem, which rewards grinding hours above all, is atthe heart of this very real sickness in the profession,alternative methods of conducting our practicesshould be considered.

Preparing for Tomorrow: APractical Analysis of Alternative

Fee Arrangementsby Laura E. Paris and N. Keith Emge, Jr.1

ARTICLE


23

Examining the AlternativesThere are three (3) very practical methods avail-

able for defense-oriented civil litigators and severalgenerally less practical, but viable methods. Inexamining the various alternative fee arrangementscurrently used, the hybrid flat-fee with an hourly feefor trial-preparation and trial is the most practical fordefense-oriented civil litigators. The flat fee is simplythat – the client pays a set amount for particularservices rendered up until the time of trial. If thecase must be tried, an hourly rate is paid to compen-sate counsel for trial time as a contingency. Engagingin this format requires the attorney to be very knowl-edgeable as to the type of the case and the time andeffort likely required to see the case through to medi-ation and / or the start of trial.11 The contingencyaddresses the concern that if the attorney is notsuccessful, having made his best effort to settle orconclude the case prior to trial, he is still compen-sated for unforeseeable additional time expended.For attorneys who engage in discrete practices, likeconstruction litigation or medical malpractice, thereare very real advantages to this billing methodology.

Attorneys engaged in hybrid flat fee arrangementmust know precisely the tasks that need to beperformed, the discovery that needs to beconducted, and must measure the merits of the casefrom inception. To some extent, we already do thisin the litigation budgets we provide to our clients.Knowing this information in advance, they can workwith the client to agree upon a fee that will guaran-tee that compensation for the work necessary tocomplete the case. Further, for the attorney, it elim-inates pointless minute by minute task-tracking andallows counsel to focus on furthering the matter.From a client’s perspective, there is a real advantagein that there are no surprise bills; the case has beenpaid for in its entirety. The client can rest assuredthat the attorney is working diligently to concludethe case as soon as is reasonably possible – there isno incentive for the attorney to prolong the matter.Similarly, because trial is still based on an hourlybilling schedule, the client need not fear that counselwill agree to unreasonable settlements early on to tryand take a windfall. There is still incentive for coun-sel to try the case if she cannot reasonably concludethe case prior to trial.

There are disadvantages to this billing method ifattorneys are not careful. It is essential that theattorney exercise due diligence prior to accepting thecase. If there are unforeseen events that unreason-ably prolong the case, counsel may find herself work-ing on a case that is absorbing too many resources.Further, attorneys and clients need to be very clearabout the tasks and responsibilities of the attorney.If the client has unreasonable expectations as towhat lengths the attorney will go to resolve the case,there could be conflict if those client expectationsare not met. As in all attorney client relationships,what the attorney will and will not do as well as the

client’s goals should be clearly outlined and memori-alized in writing from inception. However, if prop-erly planned, the flat rate with hourly rate for trialtime can be beneficial for both the attorney and theclient.

Another useful hybrid of the flat rate billing systemis the task-based fee method.12 Like the pure flat ratesystem, this system allows the client and attorney toidentify the various stages of litigation or tasksinvolved in litigation and assign a flat rate value tothose tasks.13 This method incorporates many of thesame advantages found in the flat-rate billing system,but provides a bit more predictability for the clientand the attorney. Thus, in a flat-rate system, anattorney might assign a case a $10,000 flat ratevalue, but experience a windfall if she is able tosecure dismissal upon a simple motion. Under thetask-based fee system, if the client has broken downthe case into flat rates for various components,including a value of $5,000 for settlement negotia-tions, the attorney would be paid $5,000 for thetotality of the case. The benefit to the attorney isthat she can adjust her fees to compensate forunforeseen complications if the representationagreement allows. Like the flat rate billing system,the task based method encourages the relationshipbetween the client and the attorney because it forcesboth parties to come to an agreement as to theservices expected and the value to the client forthose services. Moreover, it removes the specter ofunnecessary prolonged litigation and encouragesforward momentum in a case.14 Finally, this methodalso eliminates needlessly tracking the attorney’smoment-by-moment progress on the case.

Contingency fees or “success” fees are a risky butviable alternative method of attorney compensation.Contingency fees are based on results. In thecontext of civil litigation, which very often concludesin settlement rather than trial, these contingenciescan be based on the settlement amount or, if tried,verdict. For example, in defending a case of attorneymalpractice, the client might provide that if the casesettles prior to trial for less than $10,000, counselshall be paid $100,000. If the case settles prior totrial for more than $10,000 but less than $25,000,counsel shall be paid $85,000. If the case is tried andthe client is found not liable, counsel shall be paid$150,000. However, if the case is tried and the clientis found liable for up to $25,000, counsel shall bepaid $100,000. Under these terms, counsel knowsshe will be compensated for the full value of herwork. However, she is encouraged to work harder onsignificant tasks as it will increase her compensation.Further, it presses counsel to honestly evaluatewhether to settle or try the case without risking herown fortunes and focus on the best interests of theclient. There is no incentive to prolong the case andthere is every incentive to seek out the best resolu-tion for the client. Again, as in the task-based andflat-fee methods, this method eliminates constantly

24

ARTICLECONT.

tracking each task accomplished by counsel. There are significant risks with using contingency

fees. As attorneys know, juries are unpredictable.An attorney can perform very valuable work, but,with the wrong jury, may not receive the compensa-tion commensurate with the value imparted to theclient. Further, firms are forced to carry the costs ofthe attorney until completion of the case. If a casecontinues for several years, this can prove to beburdensome.

As mentioned, there are a number of less popular,but still viable billing methods available to attorneysengaged in civil litigation defense work. The pure flatrate is one such method. Under the flat rate, theclient and attorney agree upon a single fee for theentirety of the case. While this does foster the attor-ney-client relationship by removing the specter ofunknown costs to the client, it can prove dangerous.If there are any unforeseen complications and theclient refuses to accept reasonable settlement offersand the case must be tried, the attorney can take aheavy financial hit. Further, it could engendermistrust on the part of the client that the attorney ispressing too hard to settle the case quickly ratherthan fully litigate viable defense. Because of the risksinvolved in the pure flat rate fee, the hybrid flat ratefee with a contingency for trial is clearly superior.

Another notable, but less practical alternative isthe hourly rate combined with a contingency. Thenormal, hourly rate is utilized for the duration of thecase and the contingency is given if and when theclient’s goal is achieved.15 While this encourages apositive attorney-client relationship in which bothparties are comfortable that the attorney is workingtowards the client’s goals and the attorney is fullycompensated for his work, it is not particularly work-able for civil litigators. In actual practice, much ofcivil litigation defense work is settled. If from theoutset the client’s goal is an all or nothing win of thecase, attorneys would likely try to press more casesfor trial – potentially against their better judgmentthat such cases should be settled. Moreover, it isunlikely that clients would agree to provide a contin-gency fee for simply settling cases – a result forwhich they are already paying the regular billablerate. Finally, under this method, the majority of thecase is worked on using the billable hourly rate; thus,the billable hourly rate plus contingency methoddoes not do much to change the status quo.

Ethical Implications of AFAs: A lawyer,being a member of the legal profession, is a representative ofclients, an officer of the legal systemand a public citizen having specialresponsibility for the quality of justice16

As in all things, when determining the billingmethod to utilize with a client, an attorney must

examine the ethical implications. There are severalrules that are of particular import depending on themethod of billing utilized. These include Rule 1.5and, to a lesser extent, Rule 1.2 of the South CarolinaRules of Professional Conduct. In discussing the ethi-cal implications of AFAs, it is essential to addressRule 1.5.17 The Rule states, “(a) A lawyer shall notmake an agreement for, charge, or collect an unrea-sonable fee or an unreasonable amount for expenses.The factors to be considered in determining thereasonableness of a fee include the following:

(1) the time and labor required, the novelty anddifficulty of the questions involved, and theskill requisite to perform the legal service prop-erly;

(2) the likelihood that the acceptance of theparticular employment will preclude otheremployment by the lawyer;

(3) the fee customarily charged in the locality forsimilar legal services;

(4) the amount involved and the results obtained; (5) the time limitations imposed by the client or

by the circumstances; (6) the nature and length of the professional rela-

tionship with the client; (7) the experience, reputation, and ability of the

lawyer or lawyers performing the services; and(8) whether the fee is fixed or contingent. (b) The scope of the representation and the basis

or rate of the fee and expenses for which theclient will be responsible shall be communi-cated to the client, preferably in writing, beforeor within a reasonable time after commencingthe representation, except when the lawyerwill charge a regularly represented client onthe same basis or rate. Any changes in thebasis or rate of the fee or expenses shall becommunicated to the client, preferably in writ-ing.

(c) A fee may be contingent on the outcome of thematter for which the service is rendered,except in a matter in which a contingent fee isprohibited by paragraph (d) or other law. Acontingent fee agreement shall be in a writingsigned by the client and shall state the methodby which the fee is to be determined, includingthe percentage or percentages that shall accrueto the lawyer in the event of settlement, trial orappeal; litigation and other expenses to bededucted from the recovery; and whether suchexpenses are to be deducted before or after thecontingent fee is calculated. The agreementmust clearly notify the client of any expensesthe client will be expected to pay. Upon conclu-sion of a contingent fee matter, the lawyer shallprovide the client with a written statementstating the outcome of the matter and, if there

25

ARTICLECONT.


Examining the AlternativesThere are three (3) very practical methods avail-

able for defense-oriented civil litigators and severalgenerally less practical, but viable methods. Inexamining the various alternative fee arrangementscurrently used, the hybrid flat-fee with an hourly feefor trial-preparation and trial is the most practical fordefense-oriented civil litigators. The flat fee is simplythat – the client pays a set amount for particularservices rendered up until the time of trial. If thecase must be tried, an hourly rate is paid to compen-sate counsel for trial time as a contingency. Engagingin this format requires the attorney to be very knowl-edgeable as to the type of the case and the time andeffort likely required to see the case through to medi-ation and / or the start of trial.11 The contingencyaddresses the concern that if the attorney is notsuccessful, having made his best effort to settle orconclude the case prior to trial, he is still compen-sated for unforeseeable additional time expended.For attorneys who engage in discrete practices, likeconstruction litigation or medical malpractice, thereare very real advantages to this billing methodology.

Attorneys engaged in hybrid flat fee arrangementmust know precisely the tasks that need to beperformed, the discovery that needs to beconducted, and must measure the merits of the casefrom inception. To some extent, we already do thisin the litigation budgets we provide to our clients.Knowing this information in advance, they can workwith the client to agree upon a fee that will guaran-tee that compensation for the work necessary tocomplete the case. Further, for the attorney, it elim-inates pointless minute by minute task-tracking andallows counsel to focus on furthering the matter.From a client’s perspective, there is a real advantagein that there are no surprise bills; the case has beenpaid for in its entirety. The client can rest assuredthat the attorney is working diligently to concludethe case as soon as is reasonably possible – there isno incentive for the attorney to prolong the matter.Similarly, because trial is still based on an hourlybilling schedule, the client need not fear that counselwill agree to unreasonable settlements early on to tryand take a windfall. There is still incentive for coun-sel to try the case if she cannot reasonably concludethe case prior to trial.

There are disadvantages to this billing method ifattorneys are not careful. It is essential that theattorney exercise due diligence prior to accepting thecase. If there are unforeseen events that unreason-ably prolong the case, counsel may find herself work-ing on a case that is absorbing too many resources.Further, attorneys and clients need to be very clearabout the tasks and responsibilities of the attorney.If the client has unreasonable expectations as towhat lengths the attorney will go to resolve the case,there could be conflict if those client expectationsare not met. As in all attorney client relationships,what the attorney will and will not do as well as the

client’s goals should be clearly outlined and memori-alized in writing from inception. However, if prop-erly planned, the flat rate with hourly rate for trialtime can be beneficial for both the attorney and theclient.

Another useful hybrid of the flat rate billing systemis the task-based fee method.12 Like the pure flat ratesystem, this system allows the client and attorney toidentify the various stages of litigation or tasksinvolved in litigation and assign a flat rate value tothose tasks.13 This method incorporates many of thesame advantages found in the flat-rate billing system,but provides a bit more predictability for the clientand the attorney. Thus, in a flat-rate system, anattorney might assign a case a $10,000 flat ratevalue, but experience a windfall if she is able tosecure dismissal upon a simple motion. Under thetask-based fee system, if the client has broken downthe case into flat rates for various components,including a value of $5,000 for settlement negotia-tions, the attorney would be paid $5,000 for thetotality of the case. The benefit to the attorney isthat she can adjust her fees to compensate forunforeseen complications if the representationagreement allows. Like the flat rate billing system,the task based method encourages the relationshipbetween the client and the attorney because it forcesboth parties to come to an agreement as to theservices expected and the value to the client forthose services. Moreover, it removes the specter ofunnecessary prolonged litigation and encouragesforward momentum in a case.14 Finally, this methodalso eliminates needlessly tracking the attorney’smoment-by-moment progress on the case.

Contingency fees or “success” fees are a risky butviable alternative method of attorney compensation.Contingency fees are based on results. In thecontext of civil litigation, which very often concludesin settlement rather than trial, these contingenciescan be based on the settlement amount or, if tried,verdict. For example, in defending a case of attorneymalpractice, the client might provide that if the casesettles prior to trial for less than $10,000, counselshall be paid $100,000. If the case settles prior totrial for more than $10,000 but less than $25,000,counsel shall be paid $85,000. If the case is tried andthe client is found not liable, counsel shall be paid$150,000. However, if the case is tried and the clientis found liable for up to $25,000, counsel shall bepaid $100,000. Under these terms, counsel knowsshe will be compensated for the full value of herwork. However, she is encouraged to work harder onsignificant tasks as it will increase her compensation.Further, it presses counsel to honestly evaluatewhether to settle or try the case without risking herown fortunes and focus on the best interests of theclient. There is no incentive to prolong the case andthere is every incentive to seek out the best resolu-tion for the client. Again, as in the task-based andflat-fee methods, this method eliminates constantly

24

ARTICLECONT.

tracking each task accomplished by counsel. There are significant risks with using contingency

fees. As attorneys know, juries are unpredictable.An attorney can perform very valuable work, but,with the wrong jury, may not receive the compensa-tion commensurate with the value imparted to theclient. Further, firms are forced to carry the costs ofthe attorney until completion of the case. If a casecontinues for several years, this can prove to beburdensome.

As mentioned, there are a number of less popular,but still viable billing methods available to attorneysengaged in civil litigation defense work. The pure flatrate is one such method. Under the flat rate, theclient and attorney agree upon a single fee for theentirety of the case. While this does foster the attor-ney-client relationship by removing the specter ofunknown costs to the client, it can prove dangerous.If there are any unforeseen complications and theclient refuses to accept reasonable settlement offersand the case must be tried, the attorney can take aheavy financial hit. Further, it could engendermistrust on the part of the client that the attorney ispressing too hard to settle the case quickly ratherthan fully litigate viable defense. Because of the risksinvolved in the pure flat rate fee, the hybrid flat ratefee with a contingency for trial is clearly superior.

Another notable, but less practical alternative isthe hourly rate combined with a contingency. Thenormal, hourly rate is utilized for the duration of thecase and the contingency is given if and when theclient’s goal is achieved.15 While this encourages apositive attorney-client relationship in which bothparties are comfortable that the attorney is workingtowards the client’s goals and the attorney is fullycompensated for his work, it is not particularly work-able for civil litigators. In actual practice, much ofcivil litigation defense work is settled. If from theoutset the client’s goal is an all or nothing win of thecase, attorneys would likely try to press more casesfor trial – potentially against their better judgmentthat such cases should be settled. Moreover, it isunlikely that clients would agree to provide a contin-gency fee for simply settling cases – a result forwhich they are already paying the regular billablerate. Finally, under this method, the majority of thecase is worked on using the billable hourly rate; thus,the billable hourly rate plus contingency methoddoes not do much to change the status quo.

Ethical Implications of AFAs: A lawyer,being a member of the legal profession, is a representative ofclients, an officer of the legal systemand a public citizen having specialresponsibility for the quality of justice16

As in all things, when determining the billingmethod to utilize with a client, an attorney must

examine the ethical implications. There are severalrules that are of particular import depending on themethod of billing utilized. These include Rule 1.5and, to a lesser extent, Rule 1.2 of the South CarolinaRules of Professional Conduct. In discussing the ethi-cal implications of AFAs, it is essential to addressRule 1.5.17 The Rule states, “(a) A lawyer shall notmake an agreement for, charge, or collect an unrea-sonable fee or an unreasonable amount for expenses.The factors to be considered in determining thereasonableness of a fee include the following:

(1) the time and labor required, the novelty anddifficulty of the questions involved, and theskill requisite to perform the legal service prop-erly;

(2) the likelihood that the acceptance of theparticular employment will preclude otheremployment by the lawyer;

(3) the fee customarily charged in the locality forsimilar legal services;

(4) the amount involved and the results obtained; (5) the time limitations imposed by the client or

by the circumstances; (6) the nature and length of the professional rela-

tionship with the client; (7) the experience, reputation, and ability of the

lawyer or lawyers performing the services; and(8) whether the fee is fixed or contingent. (b) The scope of the representation and the basis

or rate of the fee and expenses for which theclient will be responsible shall be communi-cated to the client, preferably in writing, beforeor within a reasonable time after commencingthe representation, except when the lawyerwill charge a regularly represented client onthe same basis or rate. Any changes in thebasis or rate of the fee or expenses shall becommunicated to the client, preferably in writ-ing.

(c) A fee may be contingent on the outcome of thematter for which the service is rendered,except in a matter in which a contingent fee isprohibited by paragraph (d) or other law. Acontingent fee agreement shall be in a writingsigned by the client and shall state the methodby which the fee is to be determined, includingthe percentage or percentages that shall accrueto the lawyer in the event of settlement, trial orappeal; litigation and other expenses to bededucted from the recovery; and whether suchexpenses are to be deducted before or after thecontingent fee is calculated. The agreementmust clearly notify the client of any expensesthe client will be expected to pay. Upon conclu-sion of a contingent fee matter, the lawyer shallprovide the client with a written statementstating the outcome of the matter and, if there

25

ARTICLECONT.


is a recovery, showing the remittance to theclient and the method of its determination.”

The overriding factor is whether or not the fee andexpenses are “unreasonable.” 18 This implicates boththe flat rate and flat rate plus contingency hybrid. Inthe example cited above, an attorney settles a casefor $10,000 upon a simple motion. If the total invest-ment of the attorney’s time is less than 5 hours toprepare and argue the motion, one might argue that$10,000 is “unreasonable.” However, complete andcareful disclosure to the client at the time of engage-ment accompanied by a well-written engagementagreement can mitigate the potential for disputes asto the reasonableness in case of a potential windfall.

As noted above, there are 8 factors considered bythe Court when disputes under Rule 1.5 arise. In thecase of the $10,000 windfall upon dismissal by asimple motion, factors 1, 3, and 4 will likely be seri-ously considered. Specifically, in any case, it is rarefor an attorney to secure a dismissal after only asimple motion. In such a case, it is likely that theskill of counsel played a strong role. Further, giventhat the cost to secure a dismissal in most jurisdic-tions is likely significant, the cost windfall receivedby the attorney, while not comparable to 5 hoursworth of work, is comparable to the totality of litigat-ing a case to dismissal. Finally, the 4th factordiscusses the amount involved and the resultsobtained. If the client was willing to pay $10,000 tolitigate the case in its entirety to secure dismissal,why is securing dismissal earlier any less valuable?

In any case, Rule 1.5 does not require, but recom-mends a written engagement. Proceeding in anycase without a clear engagement agreement is impru-dent. Most conflicts between counsel and clientoccur because there is a fundamental misunder-standing of the services to be rendered for the feescharged. Regardless of billing method, a well writtenengagement agreement ameliorates the likelihoodthat counsel and client are in agreement from theinception of the case.

Rule 1.2 of the South Carolina Rules ofProfessional Conduct requires that: “(a) Subject toparagraphs (c) and (d), a lawyer shall abide by aclient's decisions concerning the objectives of repre-sentation and, as required by Rule 1.4, shall consultwith the client as to the means by which they are tobe pursued. A lawyer may take such action on behalfof the client as is impliedly authorized to carry outthe representation. A lawyer shall abide by a client'sdecision whether to make or accept an offer of settle-ment of a matter..[.]

(c) A lawyer may limit the scope of the represen-tation if the limitation is reasonable under thecircumstances and the client gives informedconsent.”

This Rule is particularly important as relates to theflat fee and flat fee with contingency for trial hybridcase. Because the flat fee case is most profitable toan attorney when the case can be settled early on

with less work involved, the temptation for the attor-ney to press for settlement is high. However, in theevent the client unreasonably refuses to acceptreasonable settlement offers, the attorney can betrapped into continuing to litigate a case withoutreasonable compensation. As such, an attorneyentering into a flat fee or flat fee hybrid case shouldhave a very clear engagement letter and a goodmutual understanding with the client from inceptionas to what potential settlements the client mightoffer. Ultimately, the attorney must respect Rule 1.2and understand that the decision to settle belongs tothe client, regardless of profitability.

Another aspect of Rule 1.2 that must be addressedwhen considering AFAs is the limitations on repre-sentation. In the task-based method discussedabove, the attorney’s work is divided into discretetasks or goals to be achieved each of which is paid atan agreed upon rate. Similarly, in the case of flat rateand flat rate hybrid, a single fee is being paid for theentirety of the case. As such, the goal of the attorneywill always be to secure the best result for the clientwhile still maximizing her profit. However, the clientmay have different expectations as to the work to beprovided relative to the tasks for which he is paying.For example, under any of the aforementioned billingmethods, the attorney may deem it sufficient toengage in only basic written discovery and foregotaking any depositions. However, while unnecessaryto the success of the case, the client may expect coun-sel to take the depositions of all parties and any otherrelated witnesses. Under the flat rate, flat rate hybrid,or set rate task-based methods, the cost of taking thesedepositions might well exceed the amount the attor-ney is being paid for the work. However, given that theclient is in charge of her case, without a thoroughengagement letter and a clear understanding on thepart of both counsel and her client, the attorney mightfind herself in conflict of Rule 1.2.

In SumFor years attorneys and firms have struggled to

find beneficial alternatives to the billable hour. Tovarying degrees, the different methods promotebetter attorney-client relationships, further value-driven and success-driven litigation, and, to someextent, improve attorney career satisfaction. Inparticular, real consideration should be given to flatrate and flat rate hybrid systems which, whenentered into with open eyes and clear engagementletters, provide viable alternative methods for billingclients. Regardless of the billing method utilized,counsel should always be mindful that the agreementwith her client be fair and reasonable and respect thedictates of the model rules. However, given the ongo-ing paradigm shift towards alternative fee arrange-ments, it is essential that attorneys and firmsconsider adapting their practices to these moreclient-friendly billing methods in order to compete intomorrow’s legal market.

26

ARTICLECONT.

Footnotes1 Laura Paris is an associate in the Charleston office of

Carlock, Copeland and Stair, LLP. N. Keith Emge, Jr.“Chip” is the managing partner of the Charleston Office.Laura is a graduate of Georgia State University and St.John's University School of Law. Her practice focusesprimarily on Construction Litigation representing contrac-tors and subcontractors involved in a variety of construc-tion disputes. Chip is a graduate of Duke University andUniversity of Virginia School of Law. Chip's practicefocuses on construction and commercial litigation in addi-tion to professional liability.

2 Jonathan D. Glater, Billable Hours Giving Ground atLaw Firms, N.Y. TIMES, Jan. 30, 2009, at A1.

3 Curbing those Long, Lucrative Hours, ECONOMIST,July 22, 2010, available at http://www.economist.com/node/16646318. See also Evan Chesler, Kill the BillableHour, FORBES MAG., Dec. 18, 2008, available athttp://www.forbes.com/forbes/2009/0112/026.html.


5 Id. See also Evan Chesler, Kill the Billable Hour,FORBES MAG., Dec. 18, 2008, available athttp://www.forbes.com/forbes/2009/0112/026.html.

6 WINNING ALTERNATIVES TO THE BILLABLEHOUR, xiv–xv (James A. Calloway et al. eds., American BarAssociation 2nd ed. 2002).


8 David Boise, Is the Billable Hour Past? ABA NOW(Feb. 12, 2011) http://www.abanow.org/2011/02/is-the-billable-hour-past/.

9 Tyger Latham, The Depressed Lawyer, PSYCHOL.TODAY, May 2, 2011, at Therapy Matters, available athttp://www.psychologytoday.com/blog/therapy-matters/201105/the-depressed-lawyer.

10 Deborah L. Rhode, Balanced Lives, 2001 A.B.A.COMMISSION FOR WOMEN IN THE PROFESSION 14-15.Stephen L. Braun, Lawyers and Mental Health, HOUS-TON LAWYER, May–June 1988, available athttp://www.alabar.org/alap/articles/Lawyers_Mental_Health.pdf.

11 WINNING ALTERNATIVES TO THE BILLABLEHOUR, 125–6 (James A. Calloway et al. eds., American BarAssociation 2nd ed. 2002).

12 Id. at 136.13 Id.14 Id.. at 137.15 Id. at 133.16 SC R A CT RULE 407 RPC PREAMBLE17 WINNING ALTERNATIVES TO THE BILLABLE

HOUR, 24–25 (James A. Calloway et al. eds., American BarAssociation 2nd ed. 2002).

18 Id. at 25.

27

1. Eligibility(a) The candidate must be a member of the

South Carolina Bar and a member or formermember of the South Carolina Defense TrialAttorneys’ Association. He or she may be in activepractice, retired from active practice or a memberof the judiciary.

(b) The current officers and members of theSouth Carolina Defense Trial Attorneys’Association Executive Committee at the time theaward is made are not eligible.

2. Criteria/Basis for Selection(a) The award should be based upon distin-

guished and meritorious service to legal professionand/or the public, and to one who has been instru-mental in developing, implementing and carryingthrough the objectives of the South CarolinaDefense Trial Attorneys’ Association. The candi-date should also be one who is or has been anactive, contributing member of the Association.

(b) The distinguished service for which thecandidate is considered may consist either of

particular conduct or service over a period of time.(c) The candidate may be honored for recent

conduct or for service in the past.

3. Procedure(a) Nominations for the award should be made

by letter, with any supporting documentation andexplanations attached. A nomination shouldinclude the name and address of the individual, adescription of his or her activities in theAssociation, the profession and the community andthe reasons why the nominee is being put forward.

Nominations are due to Aimee Hiers atSCDTAA Headquarters by July 9th.

For more information contact Aimee [email protected].

SCDTAAOne Windsor Cove • Suite 305

Columbia, SC 29223

Hemphill AwardCall for Nominations

HEMPHILLAWARD

is a recovery, showing the remittance to theclient and the method of its determination.”

The overriding factor is whether or not the fee andexpenses are “unreasonable.” 18 This implicates boththe flat rate and flat rate plus contingency hybrid. Inthe example cited above, an attorney settles a casefor $10,000 upon a simple motion. If the total invest-ment of the attorney’s time is less than 5 hours toprepare and argue the motion, one might argue that$10,000 is “unreasonable.” However, complete andcareful disclosure to the client at the time of engage-ment accompanied by a well-written engagementagreement can mitigate the potential for disputes asto the reasonableness in case of a potential windfall.

As noted above, there are 8 factors considered bythe Court when disputes under Rule 1.5 arise. In thecase of the $10,000 windfall upon dismissal by asimple motion, factors 1, 3, and 4 will likely be seri-ously considered. Specifically, in any case, it is rarefor an attorney to secure a dismissal after only asimple motion. In such a case, it is likely that theskill of counsel played a strong role. Further, giventhat the cost to secure a dismissal in most jurisdic-tions is likely significant, the cost windfall receivedby the attorney, while not comparable to 5 hoursworth of work, is comparable to the totality of litigat-ing a case to dismissal. Finally, the 4th factordiscusses the amount involved and the resultsobtained. If the client was willing to pay $10,000 tolitigate the case in its entirety to secure dismissal,why is securing dismissal earlier any less valuable?

In any case, Rule 1.5 does not require, but recom-mends a written engagement. Proceeding in anycase without a clear engagement agreement is impru-dent. Most conflicts between counsel and clientoccur because there is a fundamental misunder-standing of the services to be rendered for the feescharged. Regardless of billing method, a well writtenengagement agreement ameliorates the likelihoodthat counsel and client are in agreement from theinception of the case.

Rule 1.2 of the South Carolina Rules ofProfessional Conduct requires that: “(a) Subject toparagraphs (c) and (d), a lawyer shall abide by aclient's decisions concerning the objectives of repre-sentation and, as required by Rule 1.4, shall consultwith the client as to the means by which they are tobe pursued. A lawyer may take such action on behalfof the client as is impliedly authorized to carry outthe representation. A lawyer shall abide by a client'sdecision whether to make or accept an offer of settle-ment of a matter..[.]

(c) A lawyer may limit the scope of the represen-tation if the limitation is reasonable under thecircumstances and the client gives informedconsent.”

This Rule is particularly important as relates to theflat fee and flat fee with contingency for trial hybridcase. Because the flat fee case is most profitable toan attorney when the case can be settled early on

with less work involved, the temptation for the attor-ney to press for settlement is high. However, in theevent the client unreasonably refuses to acceptreasonable settlement offers, the attorney can betrapped into continuing to litigate a case withoutreasonable compensation. As such, an attorneyentering into a flat fee or flat fee hybrid case shouldhave a very clear engagement letter and a goodmutual understanding with the client from inceptionas to what potential settlements the client mightoffer. Ultimately, the attorney must respect Rule 1.2and understand that the decision to settle belongs tothe client, regardless of profitability.

Another aspect of Rule 1.2 that must be addressedwhen considering AFAs is the limitations on repre-sentation. In the task-based method discussedabove, the attorney’s work is divided into discretetasks or goals to be achieved each of which is paid atan agreed upon rate. Similarly, in the case of flat rateand flat rate hybrid, a single fee is being paid for theentirety of the case. As such, the goal of the attorneywill always be to secure the best result for the clientwhile still maximizing her profit. However, the clientmay have different expectations as to the work to beprovided relative to the tasks for which he is paying.For example, under any of the aforementioned billingmethods, the attorney may deem it sufficient toengage in only basic written discovery and foregotaking any depositions. However, while unnecessaryto the success of the case, the client may expect coun-sel to take the depositions of all parties and any otherrelated witnesses. Under the flat rate, flat rate hybrid,or set rate task-based methods, the cost of taking thesedepositions might well exceed the amount the attor-ney is being paid for the work. However, given that theclient is in charge of her case, without a thoroughengagement letter and a clear understanding on thepart of both counsel and her client, the attorney mightfind herself in conflict of Rule 1.2.

In SumFor years attorneys and firms have struggled to

find beneficial alternatives to the billable hour. Tovarying degrees, the different methods promotebetter attorney-client relationships, further value-driven and success-driven litigation, and, to someextent, improve attorney career satisfaction. Inparticular, real consideration should be given to flatrate and flat rate hybrid systems which, whenentered into with open eyes and clear engagementletters, provide viable alternative methods for billingclients. Regardless of the billing method utilized,counsel should always be mindful that the agreementwith her client be fair and reasonable and respect thedictates of the model rules. However, given the ongo-ing paradigm shift towards alternative fee arrange-ments, it is essential that attorneys and firmsconsider adapting their practices to these moreclient-friendly billing methods in order to compete intomorrow’s legal market.

26

ARTICLECONT.

Footnotes1 Laura Paris is an associate in the Charleston office of

Carlock, Copeland and Stair, LLP. N. Keith Emge, Jr.“Chip” is the managing partner of the Charleston Office.Laura is a graduate of Georgia State University and St.John's University School of Law. Her practice focusesprimarily on Construction Litigation representing contrac-tors and subcontractors involved in a variety of construc-tion disputes. Chip is a graduate of Duke University andUniversity of Virginia School of Law. Chip's practicefocuses on construction and commercial litigation in addi-tion to professional liability.


3 Curbing those Long, Lucrative Hours, ECONOMIST,July 22, 2010, available at http://www.economist.com/node/16646318. See also Evan Chesler, Kill the BillableHour, FORBES MAG., Dec. 18, 2008, available athttp://www.forbes.com/forbes/2009/0112/026.html.


5 Id. See also Evan Chesler, Kill the Billable Hour,FORBES MAG., Dec. 18, 2008, available athttp://www.forbes.com/forbes/2009/0112/026.html.

6 WINNING ALTERNATIVES TO THE BILLABLEHOUR, xiv–xv (James A. Calloway et al. eds., American BarAssociation 2nd ed. 2002).


8 David Boise, Is the Billable Hour Past? ABA NOW(Feb. 12, 2011) http://www.abanow.org/2011/02/is-the-billable-hour-past/.

9 Tyger Latham, The Depressed Lawyer, PSYCHOL.TODAY, May 2, 2011, at Therapy Matters, available athttp://www.psychologytoday.com/blog/therapy-matters/201105/the-depressed-lawyer.

10 Deborah L. Rhode, Balanced Lives, 2001 A.B.A.COMMISSION FOR WOMEN IN THE PROFESSION 14-15.Stephen L. Braun, Lawyers and Mental Health, HOUS-TON LAWYER, May–June 1988, available athttp://www.alabar.org/alap/articles/Lawyers_Mental_Health.pdf.

11 WINNING ALTERNATIVES TO THE BILLABLEHOUR, 125–6 (James A. Calloway et al. eds., American BarAssociation 2nd ed. 2002).

12 Id. at 136.13 Id.14 Id.. at 137.15 Id. at 133.16 SC R A CT RULE 407 RPC PREAMBLE17 WINNING ALTERNATIVES TO THE BILLABLE

HOUR, 24–25 (James A. Calloway et al. eds., American BarAssociation 2nd ed. 2002).

18 Id. at 25.

27

1. Eligibility(a) The candidate must be a member of the

South Carolina Bar and a member or formermember of the South Carolina Defense TrialAttorneys’ Association. He or she may be in activepractice, retired from active practice or a memberof the judiciary.

(b) The current officers and members of theSouth Carolina Defense Trial Attorneys’Association Executive Committee at the time theaward is made are not eligible.

2. Criteria/Basis for Selection(a) The award should be based upon distin-

guished and meritorious service to legal professionand/or the public, and to one who has been instru-mental in developing, implementing and carryingthrough the objectives of the South CarolinaDefense Trial Attorneys’ Association. The candi-date should also be one who is or has been anactive, contributing member of the Association.

(b) The distinguished service for which thecandidate is considered may consist either of

particular conduct or service over a period of time.(c) The candidate may be honored for recent

conduct or for service in the past.

3. Procedure(a) Nominations for the award should be made

by letter, with any supporting documentation andexplanations attached. A nomination shouldinclude the name and address of the individual, adescription of his or her activities in theAssociation, the profession and the community andthe reasons why the nominee is being put forward.

Nominations are due to Aimee Hiers atSCDTAA Headquarters by July 9th.

For more information contact Aimee [email protected].

SCDTAAOne Windsor Cove • Suite 305

Columbia, SC 29223

Hemphill AwardCall for Nominations

HEMPHILLAWARD

28

The United States District Court forthe Middle District of Floridarecently handed down a decision

concerning spoliation of evidence as itrelated to the failure to preserve datafrom a truck’s Electronic/Engine ControlModule (ECM) following a fatal collision.Plaintiff – asserting that the defendantsfailed to preserve ECM data, whichwould provide information concerningthe vehicle’s wheel speed, acceleratorposition, braking, engine RPM, and other

data (“Snapshot data”) – moved for contempt andsanctions against the defendants on the ground thatthey spoliated evidence by failing to retain pertinentinformation. Defendants maintained that theyattempted to capture the ECM data immediatelyfollowing the accident, but did not become awareuntil later that a full download had not occurred.

On March 9, 2010, a 2000-model Kenworth tractortrailer was involved in a collision with a 1995 Dodgepick-up truck in Lee County, Florida, which resultedin the death of the pick-up’s driver. Counsel wasretained by the defendant trucking company alongwith an accident reconstruction expert within hoursof the collision. An ECM download was performed bya qualified service center; however, the techniciandownloading the ECM failed to obtain the Snapshotdata from the incident QuickStop (a QuickStopoccurs any time the vehicle decelerates quicker than8 mph/second). The company’s attorney, not beingqualified to interpret ECM data, did not recognizethe download was incomplete and simply placed theresults in his file. Testimony provided that techni-cians at the engine dealer do not normally downloadSnapshot information in the normal course. Thus, itwould be prudent for counsel to specifically directthat this information is included in any post-accidentECM download.

Nearly a year later, upon discovering the datadownload to be incomplete, the attorneys again triedto access the ECM data on the vehicle; however, anySnapshot data for the incident QuickStop had beenoverwritten by a more recent QuickStop event.Testimony by the attorneys involved was that therewas no intent to spoliate evidence or block plaintifffrom accessing the vehicle or data, and that therewas no bad faith on the part of the defendants – the

defendants did everything possible to retain andpreserve the ECM data and, upon realizing some ofthe data was missing, did everything possible torecover it.

It was not disputed that the defendants did notpreserve the Snapshot data from the ECM downloadimmediately following the accident or the data fromtheir subsequent access (it allegedly being apparentthat it was an overwrite and not related to thesubject accident). In its analysis, the Court specifi-cally noted that the attorneys were not an expert inECM downloads and were not initially aware thatdata was missing. Likewise, the defendants’ expertwas unaware additional information was obtainableor missing. Accordingly, the Court held the defen-dants did not intentionally destroy the informationand their actions or inactions did not constitutespoliation.

There were however several additional factors thatmay have played a role in the Court’s decision.There was evidence that the ECM data may not havebeen reliable and there was additional “roadway”evidence available (skid marks, etc.) to allow plain-tiff’s experts to reconstruct the accident. Althoughthe Court did not find spoliation occurred, it did notethat “the facts of this case point out the changes tothe practice of law that are occurring as informationtechnologies evolve.” To that end, “[i]t is incumbenton the Court and counsel to understand the ramifi-cations of technology, and most importantly, todetermine what it is that we may have and how dowe preserve it.” Accordingly, it is increasinglyimportant for counsel and experts to stay abreast ofdevelopments in the technology of our field andunderstand how to direct proper preservation ofelectronic data and evidence.

As a side note, up until recently, only U.S.-basedauto makers included “black box” technology intheir vehicles. However, officials have mandated thatall vehicles equipped with black box technologymanufactured after September 1, 2012 be in compli-ance with 49 C.F.R. Part 563 governing how and whatdata must be recorded.

Joseph W. Rohe is an attorney practicing in the Litigationand Transportation Industry Groups at Smith MooreLeatherwood, LLP in Greenville. He is licensed in stateand federal courts in Georgia and South Carolina.

Spoliation and Event Data Preservation:

Are you sure you downloaded that ECM?by Joseph W. Rohe

ARTICLE

On April 4, 2012, the South CarolinaSupreme Court decided 16 Jade Street,LLC, v. R. Design Construction Co., LLC, 2

holding that a member of a limited liability companycan be held personally liable for torts committedwhile acting in furtherance of the company's busi-ness. Previously, this issue had remained undecidedin South Carolina. Now, under the Jade Streetprecedent, an LLC does not provide a sweepingliability shield protecting member tortfeasors frompersonal liability.

As a result, this decision will have significant rami-fications for both attorneys and their clients. At theoutset, LLC members may need to evaluate actionstaken in furtherance of the company in light of thisnew case. Additionally, moving forward, choicesregarding the preferable mode of business formationmay need to be re-evaluated under the Jade Streetdecision.

In light of the inevitable impact of this decision,this article begins with an analysis of the decision inJade Street, undertakes a discussion of its impact onthe landscape of limited liability company law inSouth Carolina, and concludes with an overview ofpotential concerns attorneys will need to talk aboutwith their clients.

The DecisionThe Jade Street case involved a dispute over

defects discovered during the construction of acondominium building located in Beaufort, SouthCarolina. Carl Aten, a contractor engaged in build-ing spec houses, operated his business through anentity named "R. Design Construction Co., LLC" ofwhich Aten was a member. R. Design entered into anagreement with 16 Jade Street, LLC to build a four-unit condominium project. Aten, through R. Design,would act as the general contractor and would hirethe necessary sub-contractors to perform the workneeded to complete the project. One of those sub-contractors was Catterson & Sons Construction.Catterson & Sons was responsible for framing andinstalling portions of the foundation.

Soon after construction began, problems becameapparent in the work that Catterson & Sons hadperformed. Inspections revealed numerous defects.After a payment dispute, Catterson & Sons aban-doned the construction site. Aten, through R. Design,

was slow in addressing the identifieddefects and also left the job site. 16 JadeStreet, LLC hired another company tocomplete construction. During thecompletion of the project, more thansixty defects were discovered in the orig-inal work performed by R. Design andCatterson & Sons.

Jade Street then sued R. Design, Aten,Catterson & Sons, and Catterson individ-ually for negligence and breach ofimplied warranties. Jade Street alsobrought claims against R. Design and Aten for breachof contract. The case was decided by a bench trial.The circuit court found in favor of Jade Street on themajority of its claims including its claim againstAten, individually, for negligence. The court notedthat, despite the fact Aten was a member of an LLC,he could be held personally liable in tort forconstruction defects by virtue of the fact that heholds a general contractor's license. Aten subse-quently appealed the circuit court's decision andpresented arguments to the South Carolina SupremeCourt.

The issue presented to the Supreme Court askedwhether Aten, a member of an LLC, could be heldpersonally liable for negligent acts he committedwhile working for the LLC. The Supreme Courtagreed that the language of the LLC statute appearsto insulate members from personal liability. Therelevant language is found in Section 33-44-303(a) ofthe South Carolina Code which reads:

Except as otherwise provided […], the debts,obligations, and liabilities of a limited liabilitycompany, whether arising in contract, tort, orotherwise, are solely the debts, obligations, andliabilities of the company. A member ormanager is not personally liable for a debt,obligation, or liability of the company solely byreason of being or acting as a member ormanager.

However, the Court concluded that it was not theintent of the General Assembly to provide LLCmembers with broad immunity from personal liability.

In reaching its decision, the Supreme Court reliedheavily on the maxim of statutory construction

29

Personal Liability for LLCMembers: Defining the Limits of

Limited Liability by Andrew M. Connor 1

ARTICLE


28

The United States District Court forthe Middle District of Floridarecently handed down a decision

concerning spoliation of evidence as itrelated to the failure to preserve datafrom a truck’s Electronic/Engine ControlModule (ECM) following a fatal collision.Plaintiff – asserting that the defendantsfailed to preserve ECM data, whichwould provide information concerningthe vehicle’s wheel speed, acceleratorposition, braking, engine RPM, and other

data (“Snapshot data”) – moved for contempt andsanctions against the defendants on the ground thatthey spoliated evidence by failing to retain pertinentinformation. Defendants maintained that theyattempted to capture the ECM data immediatelyfollowing the accident, but did not become awareuntil later that a full download had not occurred.

On March 9, 2010, a 2000-model Kenworth tractortrailer was involved in a collision with a 1995 Dodgepick-up truck in Lee County, Florida, which resultedin the death of the pick-up’s driver. Counsel wasretained by the defendant trucking company alongwith an accident reconstruction expert within hoursof the collision. An ECM download was performed bya qualified service center; however, the techniciandownloading the ECM failed to obtain the Snapshotdata from the incident QuickStop (a QuickStopoccurs any time the vehicle decelerates quicker than8 mph/second). The company’s attorney, not beingqualified to interpret ECM data, did not recognizethe download was incomplete and simply placed theresults in his file. Testimony provided that techni-cians at the engine dealer do not normally downloadSnapshot information in the normal course. Thus, itwould be prudent for counsel to specifically directthat this information is included in any post-accidentECM download.

Nearly a year later, upon discovering the datadownload to be incomplete, the attorneys again triedto access the ECM data on the vehicle; however, anySnapshot data for the incident QuickStop had beenoverwritten by a more recent QuickStop event.Testimony by the attorneys involved was that therewas no intent to spoliate evidence or block plaintifffrom accessing the vehicle or data, and that therewas no bad faith on the part of the defendants – the

defendants did everything possible to retain andpreserve the ECM data and, upon realizing some ofthe data was missing, did everything possible torecover it.

It was not disputed that the defendants did notpreserve the Snapshot data from the ECM downloadimmediately following the accident or the data fromtheir subsequent access (it allegedly being apparentthat it was an overwrite and not related to thesubject accident). In its analysis, the Court specifi-cally noted that the attorneys were not an expert inECM downloads and were not initially aware thatdata was missing. Likewise, the defendants’ expertwas unaware additional information was obtainableor missing. Accordingly, the Court held the defen-dants did not intentionally destroy the informationand their actions or inactions did not constitutespoliation.

There were however several additional factors thatmay have played a role in the Court’s decision.There was evidence that the ECM data may not havebeen reliable and there was additional “roadway”evidence available (skid marks, etc.) to allow plain-tiff’s experts to reconstruct the accident. Althoughthe Court did not find spoliation occurred, it did notethat “the facts of this case point out the changes tothe practice of law that are occurring as informationtechnologies evolve.” To that end, “[i]t is incumbenton the Court and counsel to understand the ramifi-cations of technology, and most importantly, todetermine what it is that we may have and how dowe preserve it.” Accordingly, it is increasinglyimportant for counsel and experts to stay abreast ofdevelopments in the technology of our field andunderstand how to direct proper preservation ofelectronic data and evidence.

As a side note, up until recently, only U.S.-basedauto makers included “black box” technology intheir vehicles. However, officials have mandated thatall vehicles equipped with black box technologymanufactured after September 1, 2012 be in compli-ance with 49 C.F.R. Part 563 governing how and whatdata must be recorded.

Joseph W. Rohe is an attorney practicing in the Litigationand Transportation Industry Groups at Smith MooreLeatherwood, LLP in Greenville. He is licensed in stateand federal courts in Georgia and South Carolina.

Spoliation and Event Data Preservation:

Are you sure you downloaded that ECM?by Joseph W. Rohe

ARTICLE

On April 4, 2012, the South CarolinaSupreme Court decided 16 Jade Street,LLC, v. R. Design Construction Co., LLC, 2

holding that a member of a limited liability companycan be held personally liable for torts committedwhile acting in furtherance of the company's busi-ness. Previously, this issue had remained undecidedin South Carolina. Now, under the Jade Streetprecedent, an LLC does not provide a sweepingliability shield protecting member tortfeasors frompersonal liability.

As a result, this decision will have significant rami-fications for both attorneys and their clients. At theoutset, LLC members may need to evaluate actionstaken in furtherance of the company in light of thisnew case. Additionally, moving forward, choicesregarding the preferable mode of business formationmay need to be re-evaluated under the Jade Streetdecision.

In light of the inevitable impact of this decision,this article begins with an analysis of the decision inJade Street, undertakes a discussion of its impact onthe landscape of limited liability company law inSouth Carolina, and concludes with an overview ofpotential concerns attorneys will need to talk aboutwith their clients.

The DecisionThe Jade Street case involved a dispute over

defects discovered during the construction of acondominium building located in Beaufort, SouthCarolina. Carl Aten, a contractor engaged in build-ing spec houses, operated his business through anentity named "R. Design Construction Co., LLC" ofwhich Aten was a member. R. Design entered into anagreement with 16 Jade Street, LLC to build a four-unit condominium project. Aten, through R. Design,would act as the general contractor and would hirethe necessary sub-contractors to perform the workneeded to complete the project. One of those sub-contractors was Catterson & Sons Construction.Catterson & Sons was responsible for framing andinstalling portions of the foundation.

Soon after construction began, problems becameapparent in the work that Catterson & Sons hadperformed. Inspections revealed numerous defects.After a payment dispute, Catterson & Sons aban-doned the construction site. Aten, through R. Design,

was slow in addressing the identifieddefects and also left the job site. 16 JadeStreet, LLC hired another company tocomplete construction. During thecompletion of the project, more thansixty defects were discovered in the orig-inal work performed by R. Design andCatterson & Sons.

Jade Street then sued R. Design, Aten,Catterson & Sons, and Catterson individ-ually for negligence and breach ofimplied warranties. Jade Street alsobrought claims against R. Design and Aten for breachof contract. The case was decided by a bench trial.The circuit court found in favor of Jade Street on themajority of its claims including its claim againstAten, individually, for negligence. The court notedthat, despite the fact Aten was a member of an LLC,he could be held personally liable in tort forconstruction defects by virtue of the fact that heholds a general contractor's license. Aten subse-quently appealed the circuit court's decision andpresented arguments to the South Carolina SupremeCourt.

The issue presented to the Supreme Court askedwhether Aten, a member of an LLC, could be heldpersonally liable for negligent acts he committedwhile working for the LLC. The Supreme Courtagreed that the language of the LLC statute appearsto insulate members from personal liability. Therelevant language is found in Section 33-44-303(a) ofthe South Carolina Code which reads:

Except as otherwise provided […], the debts,obligations, and liabilities of a limited liabilitycompany, whether arising in contract, tort, orotherwise, are solely the debts, obligations, andliabilities of the company. A member ormanager is not personally liable for a debt,obligation, or liability of the company solely byreason of being or acting as a member ormanager.

However, the Court concluded that it was not theintent of the General Assembly to provide LLCmembers with broad immunity from personal liability.

In reaching its decision, the Supreme Court reliedheavily on the maxim of statutory construction

29

Personal Liability for LLCMembers: Defining the Limits of

Limited Liability by Andrew M. Connor 1

ARTICLE


which states, "[s]tatutes will not be held in deroga-tion of the common law unless the statute itselfshows that such was the object and intention of thelawmakers, and the common law will not be changedby doubtful implication." 3 Following this rule, theSupreme Court found that it was not the intent of thelegislature to abrogate the long-standing commonlaw right to sue one's tortfeasor when it passed theLLC statute. Instead, the Court ruled that thelanguage of § 33-44-303(a) was only intended toprotect LLC members against vicarious liability forthe acts of other members. As a result, the statutedoes not shield members from personal liability fortheir own actions.

Impact in South CarolinaBefore the Jade Street decision, the South

Carolina Supreme Court had not directly encoun-tered the issue of personal liability for an LLCmember’s own actions. Unlike instances where theCourt overturns previously controlling decisions, theJade Street decision does not represent a drastic seachange in South Carolina’s jurisprudence. However,the decision is no less important as it stakes outSouth Carolina’s stance on the issue of whether LLCmembers can be held personally liable for theirtortious conduct. The Court notes that a majority ofstates that have dealt with this issue have ruled thatLLC members are always liable for their own torts –even if the tort was committed while acting on behalfof the company. 4 The Jade Street decision bringsSouth Carolina in line with the majority view.

Interestingly, both North Carolina and Kentucky,two sister states in close proximity to SouthCarolina, adhere to the minority view. In Hamby v.Profile Products, L.L.C.5, the North CarolinaSupreme Court held that a member-manager of anLLC is shielded from personal liability for actscommitted while engaged in LLC business. Thisholding seems erroneous in light of the relevantNorth Carolina statute which states that LLCmembers or managers may be held personally liablefor their "own acts or conduct." 6 However, the NorthCarolina court explains that "this language appearsto simply clarify the earlier principle: the liability ofmembers or managers is not limited when they actoutside the scope of managing the LLC."7 TheKentucky Court of Appeals also takes the minorityview in Barone v. Perkins 8. In facts similar to theJade Street case, the Kentucky court held that LLCmembers are shielded from personal liability whenacting in furtherance of the LLC's business.

The South Carolina Supreme Court acknowledgedcontrary decisions in other states such as Barone v.Perkins as well as the argument that allowingpersonal liability for LLC members would eliminatethe very reason for forming an LLC – limitingpersonal liability. In doing so, the Court seems toconcede that single-member LLCs will receive noprotection for personal liability under its decision.

However, the Supreme Court referenced, but did notspecifically enumerate, "myriad other benefits avail-able to those who choose to form an LLC[.]"9

Ultimately, the Court was not persuaded that itsdecision would eliminate the relevance of the LLCbusiness structure.

In addition to following the majority view, the JadeStreet decision also harmonizes South Carolina’slaws regarding liability for LLC members and corpo-rate shareholders. This harmonization makes senseconsidering the degree of organizational similaritybetween LLCs and corporations. In fact, the Courtacknowledges that LLCs “borrow heavily” from thecorporate structure.10 The Court quotes S.C. CodeSection 33-6-220(b), which states, “a shareholder ofa corporation is not personally liable for the acts ordebts of the corporation except that he may becomepersonally liable by reason of his own acts orconduct.”11 The quoted statute clearly allows share-holders of a corporation to be held personally liablefor their own torts. This concept is mirrored by theCourt’s holding in Jade Street.

A Practical ResponseThe Court’s decision in Jade Street is important as

it clarifies the law of South Carolina regardingpersonal liability for LLC members. A careful re-ordering of client perceptions may prove necessaryas a result of Jade Street, especially given SouthCarolina's proximity to states such as North Carolinawhich adhere to the minority view. As a result, attor-neys should take steps to make current and futureclients participating in business as members of LLCsaware of the Jade Street decision.

As a first step, identify existing clients thatconduct business through an LLC and notify them ofthe Jade Street decision. Jade Street presents anopportunity to dispel any false assumptions held byyour clients regarding the scope of liability protec-tion under the LLC Act. While an LLC is a great toolfor protecting personal assets, LLC membership isnot an absolute shield against personal liability. Assuch, attorneys should explain to their clients thelimits of the liability protection afforded by doingbusiness through an LLC, especially in the case ofsole proprietorships. This will enable the client tobetter navigate through difficult business decisionswhile minimizing exposure to unnecessary risk.

Next, help current and future clients evaluate orre-evaluate their options in forming business enti-ties. The options for business formation are myriad.Partnerships, limited liability companies, limitedpartnerships, S-corporations, C-corporations, andthe list goes on. Jade Street presents an opportunityfor both the attorney and client to carefully assesswhether the client’s current business structureadequately serves the client's needs.

30

ARTICLECONT.

Continued on bottom of page 32

The recently enacted Federal CourtsJurisdiction and Venue Clarification Act of2011, P.L. 112-63 (December 7, 2011),

significantly amends the federal jurisdictionalstatutes, including provisions covering diversityjurisdiction, venue, federal question jurisdiction, andremoval. The Act was effective on January 6, 2012.The Act includes several changes that are significantfor parties seeking to litigate in Federal Court,including changes that are beneficial for partiesremoving cases to Federal Court and for obtainingjurisdiction in Federal Court.

Removal ProcedureThe Act begins by codifying the long-standing

requirement that in order for an action to beremoved to Federal Court there must be unanimityamong the defendants removing an action. Thus, inkeeping with prior case law, all defendants mustagree and join together to remove a case to FederalCourt. Importantly, however, the Act goes on to clar-ify the mechanics of the removal of a case by multi-ple defendants by resolving a split among the federalcircuits as to the procedure by which such actionsare removed. Previously, the majority of circuits hadadopted the “last served defendant rule,” whichprovided that each defendant had a separate thirty(30) days in which to remove an action from itsparticular date of service. Thus, the last serveddefendant could remove within thirty (30) days of itsdate of service and previously served defendantscould join in that removal, even though these earlierserved defendants had not removed the action toFederal Court. In contrast, other circuits, includingthe United States Court of Appeals for the FourthCircuit, adhered to the “first served defendant rule.”Under this rule, the first served defendant had theoption of removing the case within thirty (30) daysof its date of service. Any defendant served after theinitial thirty (30) days of service from the first serveddefendant had expired could not remove the actionto Federal Court. The Act adopts the “last serveddefendant rule.” Thus, in jurisdictions such as theFourth Circuit that had adopted the “first serveddefendant rule,” each party will now have thirty (30)days to remove the case to Federal Court after it hasbeen served. Any earlier-served defendants must joinin the later-served defendants’ notice of removal sothat unanimity is maintained. This change also

prevents plaintiffs’ attorneys frommanipulating the timing of service ofprocess so that defendants less likely toremove are served first. Instead, eachdefendant will now have an equal oppor-tunity to remove to Federal Court.

The Act also makes modifications tothe procedure for determining theamount in controversy. Currently, theamount in controversy in a particularcase must exceed $75,000 in order forthe case to be removable. The Act statesthat where a state court pleading does not specify anamount in controversy, or where state practicepermits a plaintiff to recover more than the amountsought, the defendants may remove to Federal Courtand file documentation along with their Notice ofRemoval to demonstrate that the amount in contro-versy exceeds $75,000. The removal will succeed ifthe defendants can show by a preponderance of theevidence that the amount in controversy exceeds$75,000. Alternatively, in this situation, the defen-dants can leave the action in state court and canremove the action at a later time if a document isproduced which indicates that the amount in contro-versy exceeds $75,000. In those circumstances, thedefendants must remove within thirty (30) days ofreceipt of the document indicating that the amountexceeds $75,000. On the other hand, where the statecourt pleadings state an amount sought in thelawsuit, that amount can be used to determine theamount in controversy and it will be conclusive as tothe amount in controversy, except in states wherestate law or procedure permits the plaintiff torecover an amount beyond the amount named in theComplaint. In those states, defendants may removethe matter to Federal Court and argue that theamount in controversy nonetheless exceeds $75,000despite the amount claimed in the Complaint.

Finally, the Act adds several provisions to amelio-rate the harshness of the one-year bar on removal ofcases to Federal Court based on diversity jurisdic-tion. Under current law, a party may not remove acase to Federal Court on the basis of diversity juris-diction if more than one year has elapsed since thedate the action was filed. The Act creates two excep-

31

Continued on top of next page

ARTICLEChanges to Federal Jurisdictionand Procedure

by C. Fredric Marcinak III

which states, "[s]tatutes will not be held in deroga-tion of the common law unless the statute itselfshows that such was the object and intention of thelawmakers, and the common law will not be changedby doubtful implication." 3 Following this rule, theSupreme Court found that it was not the intent of thelegislature to abrogate the long-standing commonlaw right to sue one's tortfeasor when it passed theLLC statute. Instead, the Court ruled that thelanguage of § 33-44-303(a) was only intended toprotect LLC members against vicarious liability forthe acts of other members. As a result, the statutedoes not shield members from personal liability fortheir own actions.

Impact in South CarolinaBefore the Jade Street decision, the South

Carolina Supreme Court had not directly encoun-tered the issue of personal liability for an LLCmember’s own actions. Unlike instances where theCourt overturns previously controlling decisions, theJade Street decision does not represent a drastic seachange in South Carolina’s jurisprudence. However,the decision is no less important as it stakes outSouth Carolina’s stance on the issue of whether LLCmembers can be held personally liable for theirtortious conduct. The Court notes that a majority ofstates that have dealt with this issue have ruled thatLLC members are always liable for their own torts –even if the tort was committed while acting on behalfof the company. 4 The Jade Street decision bringsSouth Carolina in line with the majority view.

Interestingly, both North Carolina and Kentucky,two sister states in close proximity to SouthCarolina, adhere to the minority view. In Hamby v.Profile Products, L.L.C.5, the North CarolinaSupreme Court held that a member-manager of anLLC is shielded from personal liability for actscommitted while engaged in LLC business. Thisholding seems erroneous in light of the relevantNorth Carolina statute which states that LLCmembers or managers may be held personally liablefor their "own acts or conduct." 6 However, the NorthCarolina court explains that "this language appearsto simply clarify the earlier principle: the liability ofmembers or managers is not limited when they actoutside the scope of managing the LLC."7 TheKentucky Court of Appeals also takes the minorityview in Barone v. Perkins 8. In facts similar to theJade Street case, the Kentucky court held that LLCmembers are shielded from personal liability whenacting in furtherance of the LLC's business.

The South Carolina Supreme Court acknowledgedcontrary decisions in other states such as Barone v.Perkins as well as the argument that allowingpersonal liability for LLC members would eliminatethe very reason for forming an LLC – limitingpersonal liability. In doing so, the Court seems toconcede that single-member LLCs will receive noprotection for personal liability under its decision.

However, the Supreme Court referenced, but did notspecifically enumerate, "myriad other benefits avail-able to those who choose to form an LLC[.]"9

Ultimately, the Court was not persuaded that itsdecision would eliminate the relevance of the LLCbusiness structure.

In addition to following the majority view, the JadeStreet decision also harmonizes South Carolina’slaws regarding liability for LLC members and corpo-rate shareholders. This harmonization makes senseconsidering the degree of organizational similaritybetween LLCs and corporations. In fact, the Courtacknowledges that LLCs “borrow heavily” from thecorporate structure.10 The Court quotes S.C. CodeSection 33-6-220(b), which states, “a shareholder ofa corporation is not personally liable for the acts ordebts of the corporation except that he may becomepersonally liable by reason of his own acts orconduct.”11 The quoted statute clearly allows share-holders of a corporation to be held personally liablefor their own torts. This concept is mirrored by theCourt’s holding in Jade Street.

A Practical ResponseThe Court’s decision in Jade Street is important as

it clarifies the law of South Carolina regardingpersonal liability for LLC members. A careful re-ordering of client perceptions may prove necessaryas a result of Jade Street, especially given SouthCarolina's proximity to states such as North Carolinawhich adhere to the minority view. As a result, attor-neys should take steps to make current and futureclients participating in business as members of LLCsaware of the Jade Street decision.

As a first step, identify existing clients thatconduct business through an LLC and notify them ofthe Jade Street decision. Jade Street presents anopportunity to dispel any false assumptions held byyour clients regarding the scope of liability protec-tion under the LLC Act. While an LLC is a great toolfor protecting personal assets, LLC membership isnot an absolute shield against personal liability. Assuch, attorneys should explain to their clients thelimits of the liability protection afforded by doingbusiness through an LLC, especially in the case ofsole proprietorships. This will enable the client tobetter navigate through difficult business decisionswhile minimizing exposure to unnecessary risk.

Next, help current and future clients evaluate orre-evaluate their options in forming business enti-ties. The options for business formation are myriad.Partnerships, limited liability companies, limitedpartnerships, S-corporations, C-corporations, andthe list goes on. Jade Street presents an opportunityfor both the attorney and client to carefully assesswhether the client’s current business structureadequately serves the client's needs.

30

ARTICLECONT.

Continued on bottom of page 32

The recently enacted Federal CourtsJurisdiction and Venue Clarification Act of2011, P.L. 112-63 (December 7, 2011),

significantly amends the federal jurisdictionalstatutes, including provisions covering diversityjurisdiction, venue, federal question jurisdiction, andremoval. The Act was effective on January 6, 2012.The Act includes several changes that are significantfor parties seeking to litigate in Federal Court,including changes that are beneficial for partiesremoving cases to Federal Court and for obtainingjurisdiction in Federal Court.

Removal ProcedureThe Act begins by codifying the long-standing

requirement that in order for an action to beremoved to Federal Court there must be unanimityamong the defendants removing an action. Thus, inkeeping with prior case law, all defendants mustagree and join together to remove a case to FederalCourt. Importantly, however, the Act goes on to clar-ify the mechanics of the removal of a case by multi-ple defendants by resolving a split among the federalcircuits as to the procedure by which such actionsare removed. Previously, the majority of circuits hadadopted the “last served defendant rule,” whichprovided that each defendant had a separate thirty(30) days in which to remove an action from itsparticular date of service. Thus, the last serveddefendant could remove within thirty (30) days of itsdate of service and previously served defendantscould join in that removal, even though these earlierserved defendants had not removed the action toFederal Court. In contrast, other circuits, includingthe United States Court of Appeals for the FourthCircuit, adhered to the “first served defendant rule.”Under this rule, the first served defendant had theoption of removing the case within thirty (30) daysof its date of service. Any defendant served after theinitial thirty (30) days of service from the first serveddefendant had expired could not remove the actionto Federal Court. The Act adopts the “last serveddefendant rule.” Thus, in jurisdictions such as theFourth Circuit that had adopted the “first serveddefendant rule,” each party will now have thirty (30)days to remove the case to Federal Court after it hasbeen served. Any earlier-served defendants must joinin the later-served defendants’ notice of removal sothat unanimity is maintained. This change also

prevents plaintiffs’ attorneys frommanipulating the timing of service ofprocess so that defendants less likely toremove are served first. Instead, eachdefendant will now have an equal oppor-tunity to remove to Federal Court.

The Act also makes modifications tothe procedure for determining theamount in controversy. Currently, theamount in controversy in a particularcase must exceed $75,000 in order forthe case to be removable. The Act statesthat where a state court pleading does not specify anamount in controversy, or where state practicepermits a plaintiff to recover more than the amountsought, the defendants may remove to Federal Courtand file documentation along with their Notice ofRemoval to demonstrate that the amount in contro-versy exceeds $75,000. The removal will succeed ifthe defendants can show by a preponderance of theevidence that the amount in controversy exceeds$75,000. Alternatively, in this situation, the defen-dants can leave the action in state court and canremove the action at a later time if a document isproduced which indicates that the amount in contro-versy exceeds $75,000. In those circumstances, thedefendants must remove within thirty (30) days ofreceipt of the document indicating that the amountexceeds $75,000. On the other hand, where the statecourt pleadings state an amount sought in thelawsuit, that amount can be used to determine theamount in controversy and it will be conclusive as tothe amount in controversy, except in states wherestate law or procedure permits the plaintiff torecover an amount beyond the amount named in theComplaint. In those states, defendants may removethe matter to Federal Court and argue that theamount in controversy nonetheless exceeds $75,000despite the amount claimed in the Complaint.

Finally, the Act adds several provisions to amelio-rate the harshness of the one-year bar on removal ofcases to Federal Court based on diversity jurisdic-tion. Under current law, a party may not remove acase to Federal Court on the basis of diversity juris-diction if more than one year has elapsed since thedate the action was filed. The Act creates two excep-

31

Continued on top of next page

ARTICLEChanges to Federal Jurisdictionand Procedure

by C. Fredric Marcinak III

tions. First, a party can remove a case to FederalCourt after one year has passed where the plaintiffacted in “bad faith” to prevent removal of the case.Second, the Act provides that if the court finds thatthe plaintiff deliberately failed to disclose the amountin controversy to prevent removal, such actionconstitutes bad faith. Currently, it is common prac-tice for attorneys who want to prevent removal of alawsuit against a citizen of a different state to includea citizen—even one whose liability to the plaintiff istenuous—of the same state of the plaintiff to defeatdiversity jurisdiction. Oftentimes, the in-state defen-dant will be dismissed from the case after the one-year prohibition against removal has been triggered.In these situations, defendants will now be able toassert that the plaintiff has acted in bad faith toprevent removal and that the action should beremovable, the one-year bar notwithstanding.

JurisdictionWith regard to federal question jurisdiction, the

Act makes one change that, upon first reading of thestatute, appears to be broader than it is. The Actstates that where a Complaint asserts a claim underfederal law and also claims under state law, the entireaction can be removed to Federal Court but that aDistrict Court “shall sever” and “shall remand” anyclaim that is not within “the original or supplemen-tal jurisdiction of the District Court.” On first blush,this appears to require that any state law claims thatare removed along with the federal claim must beremanded to District Court. However, the key phrasein the statute is the reference to supplemental juris-diction. Supplemental jurisdiction, formerly knownas ancillary or pendant jurisdiction, and currentlyembodied in 28 U.S.C. § 1367, provides that state lawclaims that are “so related to [federal] claims in theaction . . . that they form a part of the same case orcontroversy” may generally be removed to FederalCourt along with the federal claim. Thus, even underthe amendments made by the new Act, state law

claims that are related to the claim that is removedon the basis of federal jurisdiction will remain inFederal Court. Only unrelated state law claims overwhich there is no diversity jurisdiction must beremanded to state court. It is certainly unusual tofind a Complaint that pleads both related and unre-lated claims, therefore the circumstances in whichthe Act will be invoked to remand state law claims tostate court appear to be limited. However, the appar-ently broad terms in which the Act speaks are likelyto lead to confusion in that arguments for remand ofrelated state law claims are likely to be made, andthe Act must be carefully parsed and briefed to thecourts so that claims over which supplemental juris-diction exists will be maintained in Federal Court.

VenueFinally, the Act makes several changes to venue

provisions. The most important of these is thatDistrict Courts now have the ability to transfer anycivil action “to any district or division to which allparties have consented” for “the convenience of theparties and witnesses and in the interest of justice.”This statute allows the parties to consent to transferto any venue that they can agree on. Further, the Acteliminates the distinction between federal questionand diversity actions for purposes of venue andadopts a single, general venue statute.

ConclusionThe changes made by the Act are likely to elimi-

nate some of the confusion surrounding the timingand procedure for removal of actions to Federal Courtand jurisdiction in Federal Court. Overall, thesechanges will likely work to the benefit of defendantswho are seeking to have actions removed to FederalCourt. These changes will be beneficial to parties whoseek the uniformity of federal policy and procedure,the avoidance of bias in local state courts, and theease and access of electronic filing in Federal Courts.

32

ARTICLECONT. FROM

PAGE 31

ConclusionIn Jade Street, the South Carolina Supreme Court

ruled that S.C. Code § 33-44-303(a) does not protectLLC members from personal liability for their owntorts. Although not a fundamental shift in SouthCarolina jurisprudence, the Court’s opinion answersan important and novel question of South Carolinalaw. As a result, the law governing personal liabilityfor members of an LLC is brought into harmony withthe law governing corporate shareholders. Lookingforward, the decision will provide guidance for bothattorneys and clients in evaluating their options withregard to choosing a business structure to best fit theclients’ needs.

Footnotes 1 Andrew M. Connor is an associate in the Myrtle Beach

office of Nelson Mullins Riley & Scarborough, LLP. He

practices in the areas of business litigation, constructionlitigation, and premises liability.

2 16 Jade Street, LLC, v. R. Design Construction Co.,LLC, No. 27107, 2012 WL 1111466 (S.C.Sup.Ct. Apr. 4,2012).

3 Jade Street, No. 27107, 2012 WL 1111466 at *5(citing 82 C.J.S. Statutes § 534).

4 Id. at *3.5 Hamby v. Profile Products, L.L.C., 361 N.C. 630, 652

S.E.2d 231 (2007).6 See N.C.G.S. § 57C-3-30(a).7 Hamby, 361 N.C. at 637, 652 S.E.2d at 236.8 Barone v. Perkins, 2008 WL 2468792 (Ky.App.) (not

reported in S.W.3d).9 Jade Street, at *5.10 Id.11 Id.

ARTICLECONT. FROM

PAGE 30

ARTICLE

33

We are witnessing the creation of commonlaw in South Carolina. The new amalga-mation legal theory was first referenced in

a Court of Appeals case decided in 1986. Two recentcases—also from the Court of Appeals—confirm theestablishment of this new amalgamation. Althoughthere are a handful of cases that reference or seem-ingly give some analysis to this newly referencedlegal theory, the majority and most significant ofthese cases come from construction defect cases.

The “common law” is a “body of law derived fromjudicial decisions, rather than from statutes orconstitutions.”i

Historically, [the common law] is madequite differently from the Continental code.The code precedes judgments; the commonlaw follows them. The code articulates inchapters, sections, and paragraphs the rulesin accordance with which judgments aregiven. The common law on the other handis inarticulate until it is expressed in a judg-ment. Where the code governs, it is thejudge’s duty to ascertain the law from thewords which the code uses. Where thecommon law governs, the judge, in what isnow the forgotten past, decided the case inaccordance with morality and custom andlater judges followed his decision. They didnot do so by construing the words of is judg-ment. They looked for the reason whichhad made him decide the case the way hedid, the ratio decidendi as it came to becalled. Thus, it was the principle of thecase, not the words, which went into thecommon law. So historically the commonlaw is much less fettering than a code.ii

The new amalgamation theory was first used in thecase of Kincaid v. Landing Development Corp.iii

This theory played a significant role in two recentcases from the court of appeals: Pope v. HeritageCommunities, Inc.iv and Magnolia North PropertyOwners’ Association, Inc. v. Heritage Communities,Inc.v As of the drafting of this article, neither ofthese cases is final through the appellate process.vi

As a quick aside, the author recommends readingthe Pope and Magnolia North decisions for someother, important discussions about rulings on certain

evidentiary and damages questions. Forexample, the court in both casesdiscusses the case of Whaley v. CSXTransportation, Inc.ivii and its applicationof the “substantially similar” evidentiaryfact test that lead to the admission ofevidence at trial of other constructionprojects that were built by the defen-dants. Under this evidentiary issue is theinterplay between the “substantiallysimilar” admission of certain evidence attrial and the introduction of evidenceregarding punitive damages.viii Also important is thediscussion of the effect the defendants’ trial strategyhas at the directed verdict stage of the trial.iix

However, our focus is upon new amalgamation. For centuries an amalgamation meant generally

the same thing. “Amalgamation is an English termused to designate a consolidation or merger.”x It is“[t]he act of combining or uniting; consolidation,” asin the “amalgamation of two small companies toform a new corporation.”xi It is “[a] consolidation ormerger, as of several corporations.”xii That is, amal-gamation is a term understood to mean a deliberatemerger of two or more companies with the expressintent to create a new entity.

A recent search for the term “amalgamation” inSouth Carolina case law yields less than thirty caseson Westlaw. About one-third of this list uses theterm in some reference to a corporation. A majorityof the corporation-amalgamation cases were decidedin the 19th and early 20th centuries during theexpansion of the railroads. Indeed, the variousattemptedxiii and intended railroad company mergerswere created with documentation that was refer-enced generally as “articles of amalgamation andconsolidation.”xiv By 1986, use of the term “amalga-mation,” when referencing and/or describing compa-nies, was never specifically defined or analyzed. Theterm was a descriptor of the intent of two or morecompanies merging into one by either stock or assetpurchases. That is, “[w]hen two corporations mergeor consolidate, each may be said to have contributedits net assets to the newly undertaken jointventure.”xv

The new amalgamation now defines the term asthe mere blurring of legal distinctions betweencorporations and their activities. To understand the

The New Amalgamation in South Carolina -

A shortcut to corporate liability?by Andrew Cole

tions. First, a party can remove a case to FederalCourt after one year has passed where the plaintiffacted in “bad faith” to prevent removal of the case.Second, the Act provides that if the court finds thatthe plaintiff deliberately failed to disclose the amountin controversy to prevent removal, such actionconstitutes bad faith. Currently, it is common prac-tice for attorneys who want to prevent removal of alawsuit against a citizen of a different state to includea citizen—even one whose liability to the plaintiff istenuous—of the same state of the plaintiff to defeatdiversity jurisdiction. Oftentimes, the in-state defen-dant will be dismissed from the case after the one-year prohibition against removal has been triggered.In these situations, defendants will now be able toassert that the plaintiff has acted in bad faith toprevent removal and that the action should beremovable, the one-year bar notwithstanding.

JurisdictionWith regard to federal question jurisdiction, the

Act makes one change that, upon first reading of thestatute, appears to be broader than it is. The Actstates that where a Complaint asserts a claim underfederal law and also claims under state law, the entireaction can be removed to Federal Court but that aDistrict Court “shall sever” and “shall remand” anyclaim that is not within “the original or supplemen-tal jurisdiction of the District Court.” On first blush,this appears to require that any state law claims thatare removed along with the federal claim must beremanded to District Court. However, the key phrasein the statute is the reference to supplemental juris-diction. Supplemental jurisdiction, formerly knownas ancillary or pendant jurisdiction, and currentlyembodied in 28 U.S.C. § 1367, provides that state lawclaims that are “so related to [federal] claims in theaction . . . that they form a part of the same case orcontroversy” may generally be removed to FederalCourt along with the federal claim. Thus, even underthe amendments made by the new Act, state law

claims that are related to the claim that is removedon the basis of federal jurisdiction will remain inFederal Court. Only unrelated state law claims overwhich there is no diversity jurisdiction must beremanded to state court. It is certainly unusual tofind a Complaint that pleads both related and unre-lated claims, therefore the circumstances in whichthe Act will be invoked to remand state law claims tostate court appear to be limited. However, the appar-ently broad terms in which the Act speaks are likelyto lead to confusion in that arguments for remand ofrelated state law claims are likely to be made, andthe Act must be carefully parsed and briefed to thecourts so that claims over which supplemental juris-diction exists will be maintained in Federal Court.

VenueFinally, the Act makes several changes to venue

provisions. The most important of these is thatDistrict Courts now have the ability to transfer anycivil action “to any district or division to which allparties have consented” for “the convenience of theparties and witnesses and in the interest of justice.”This statute allows the parties to consent to transferto any venue that they can agree on. Further, the Acteliminates the distinction between federal questionand diversity actions for purposes of venue andadopts a single, general venue statute.

ConclusionThe changes made by the Act are likely to elimi-

nate some of the confusion surrounding the timingand procedure for removal of actions to Federal Courtand jurisdiction in Federal Court. Overall, thesechanges will likely work to the benefit of defendantswho are seeking to have actions removed to FederalCourt. These changes will be beneficial to parties whoseek the uniformity of federal policy and procedure,the avoidance of bias in local state courts, and theease and access of electronic filing in Federal Courts.

32

ARTICLECONT. FROM

PAGE 31

ConclusionIn Jade Street, the South Carolina Supreme Court

ruled that S.C. Code § 33-44-303(a) does not protectLLC members from personal liability for their owntorts. Although not a fundamental shift in SouthCarolina jurisprudence, the Court’s opinion answersan important and novel question of South Carolinalaw. As a result, the law governing personal liabilityfor members of an LLC is brought into harmony withthe law governing corporate shareholders. Lookingforward, the decision will provide guidance for bothattorneys and clients in evaluating their options withregard to choosing a business structure to best fit theclients’ needs.

Footnotes 1 Andrew M. Connor is an associate in the Myrtle Beach

office of Nelson Mullins Riley & Scarborough, LLP. He

practices in the areas of business litigation, constructionlitigation, and premises liability.

2 16 Jade Street, LLC, v. R. Design Construction Co.,LLC, No. 27107, 2012 WL 1111466 (S.C.Sup.Ct. Apr. 4,2012).

3 Jade Street, No. 27107, 2012 WL 1111466 at *5(citing 82 C.J.S. Statutes § 534).

4 Id. at *3.5 Hamby v. Profile Products, L.L.C., 361 N.C. 630, 652

S.E.2d 231 (2007).6 See N.C.G.S. § 57C-3-30(a).7 Hamby, 361 N.C. at 637, 652 S.E.2d at 236.8 Barone v. Perkins, 2008 WL 2468792 (Ky.App.) (not

reported in S.W.3d).9 Jade Street, at *5.10 Id.11 Id.

ARTICLECONT. FROM

PAGE 30

ARTICLE

33

We are witnessing the creation of commonlaw in South Carolina. The new amalga-mation legal theory was first referenced in

a Court of Appeals case decided in 1986. Two recentcases—also from the Court of Appeals—confirm theestablishment of this new amalgamation. Althoughthere are a handful of cases that reference or seem-ingly give some analysis to this newly referencedlegal theory, the majority and most significant ofthese cases come from construction defect cases.

The “common law” is a “body of law derived fromjudicial decisions, rather than from statutes orconstitutions.”i

Historically, [the common law] is madequite differently from the Continental code.The code precedes judgments; the commonlaw follows them. The code articulates inchapters, sections, and paragraphs the rulesin accordance with which judgments aregiven. The common law on the other handis inarticulate until it is expressed in a judg-ment. Where the code governs, it is thejudge’s duty to ascertain the law from thewords which the code uses. Where thecommon law governs, the judge, in what isnow the forgotten past, decided the case inaccordance with morality and custom andlater judges followed his decision. They didnot do so by construing the words of is judg-ment. They looked for the reason whichhad made him decide the case the way hedid, the ratio decidendi as it came to becalled. Thus, it was the principle of thecase, not the words, which went into thecommon law. So historically the commonlaw is much less fettering than a code.ii

The new amalgamation theory was first used in thecase of Kincaid v. Landing Development Corp.iii

This theory played a significant role in two recentcases from the court of appeals: Pope v. HeritageCommunities, Inc.iv and Magnolia North PropertyOwners’ Association, Inc. v. Heritage Communities,Inc.v As of the drafting of this article, neither ofthese cases is final through the appellate process.vi

As a quick aside, the author recommends readingthe Pope and Magnolia North decisions for someother, important discussions about rulings on certain

evidentiary and damages questions. Forexample, the court in both casesdiscusses the case of Whaley v. CSXTransportation, Inc.ivii and its applicationof the “substantially similar” evidentiaryfact test that lead to the admission ofevidence at trial of other constructionprojects that were built by the defen-dants. Under this evidentiary issue is theinterplay between the “substantiallysimilar” admission of certain evidence attrial and the introduction of evidenceregarding punitive damages.viii Also important is thediscussion of the effect the defendants’ trial strategyhas at the directed verdict stage of the trial.iix

However, our focus is upon new amalgamation. For centuries an amalgamation meant generally

the same thing. “Amalgamation is an English termused to designate a consolidation or merger.”x It is“[t]he act of combining or uniting; consolidation,” asin the “amalgamation of two small companies toform a new corporation.”xi It is “[a] consolidation ormerger, as of several corporations.”xii That is, amal-gamation is a term understood to mean a deliberatemerger of two or more companies with the expressintent to create a new entity.

A recent search for the term “amalgamation” inSouth Carolina case law yields less than thirty caseson Westlaw. About one-third of this list uses theterm in some reference to a corporation. A majorityof the corporation-amalgamation cases were decidedin the 19th and early 20th centuries during theexpansion of the railroads. Indeed, the variousattemptedxiii and intended railroad company mergerswere created with documentation that was refer-enced generally as “articles of amalgamation andconsolidation.”xiv By 1986, use of the term “amalga-mation,” when referencing and/or describing compa-nies, was never specifically defined or analyzed. Theterm was a descriptor of the intent of two or morecompanies merging into one by either stock or assetpurchases. That is, “[w]hen two corporations mergeor consolidate, each may be said to have contributedits net assets to the newly undertaken jointventure.”xv

The new amalgamation now defines the term asthe mere blurring of legal distinctions betweencorporations and their activities. To understand the

The New Amalgamation in South Carolina -

A shortcut to corporate liability?by Andrew Cole

new amalgamation, a brief history is necessary.xvi

The Kincaid case was a construction defectlawsuit involving a single family residence. TheKincaids purchased a lot from the defendant devel-oper; the lot being sold by the defendant sales andmarketing company. They then contracted with thedefendant contractor to build their home. Thedefendant developer, defendant contractor, anddefendant sales company were all sister companies.Without referencing any legal precedence, the Courtof Appeals matter-of-factly affirmed the trial court’sruling that the three defendant companies should bedeemed one entity. The court agreed with the trialcourt’s finding that the evidence revealed “an amal-gamation of corporate interests, entities, and activi-ties so as to blur the legal distinction between thecorporations and their activities.”xvii The appellatecourt provided a list of factors – with no reference toany statutes or common law - why the defendantdeveloper, sales, and construction entities should beconsidered one. The court noted that the entitieshad the same vice president, shareholders, officers,office space, point of contact for consumercomplaints, and disseminated literature thatdescribed the sales and marketing company as “ADevelopment, Construction, Sales, and PropertyManagement Company.”xviii The Kincaid court madeno reference to or findings regarding corporateforms, corporate formalities, or even piercing thecorporate veil.

The first case that actually attempted to analyzethe new amalgamation theory created by Kincaidwas Mid-South Management Co., Inc. v. SherwoodDevelopment Corp.xix This case involved a fight todetermine which corporate investors were liable fora settlement of a homeowners’ association lawsuit.Generally, one group of investors involved in a jointventure condominium project settled a constructiondefect lawsuit and then made a capital call onanother company in the joint venture to pay itsportion of the settlement. Mid-South argued that thedefendant and its parent company were liable fortheir portion of the settlement proceeds under thealternative theories of piercing the corporate veil,alter-ego, and/or amalgamation. The Court ofAppeals analyzed these three theories of corporateliability and concluded that none of them applied inthe case. Notably, this is the first case that discussednew amalgamation, and, by context, placed thetheory at an equivalent footing as the piercing andalter-ego theories.

Piercing the corporate veil is considered anextreme remedy. It should be reserved for the rarecircumstances when it would be grossly unfair toinsulate the company owners from personal liability.“If any general rule can be laid down, it is that acorporation will be looked upon as a legal entity untilsufficient reason to the contrary appears; but whenthe notion of legal entity is used to protect fraud,justify wrong, or defeat public policy, the law will

regard the corporation as an association ofpersons.”xx We need not delve into a deep discussionabout the two-part piercing the corporate veil testthat was first set forth in the Sturkie case. Suffice tosay, the first prong looks at whether the corporationacted like a corporation and the second prongrequires an analysis of whether there is “an elementof injustice or fundamental unfairness if the acts ofthe corporation be not regarded as the acts of theindividuals.”xxi “The essence of the [second prong]fairness test is simply that an individual businessmancannot be allowed to hide from the normal conse-quences of carefree entrepreneurship by doing sothrough a corporate veil.”xxii

The alter-ego theory is similar to piercing. Wherepiercing examines the relationship between thecompany and its owners, the alter-ego or instrumen-tality theory considers the relationship betweenseparate companies. “An alter-ego theory requires ashowing of total domination and control of one entityby another and inequitable consequences causedthereby.”xxiii Although control of a company byanother is the key to the alter-ego theory, “control, inand of itself, is not sufficient to find that asubservient corporation is the alter-ego of the domi-nant one.”xxiv Like piercing, the alter-ego theory“does not apply in the absence of fraud or misuse ofcontrol by the dominant entity which results in someinjustice.”xxv

The piercing and alter-ego theories set a high barfor invading the corporate veil. Both look to the levelof unfairness that is based on fraud or the equivalentmisuse of the corporate shell to shield the owners orparent company from liability. New amalgamationsets the bar much, much lower. The questiontherein is whether the conduct of multiple compa-nies is such that the legal distinctions between themare “blurred.” This step down from fraud to blurri-ness is significant. The Court of Appeals in Mid-South explains that in Kincaid “this court found asibling company liable for the obligation of anothersibling company due to the evidence revealing anamalgamation of corporate interests, entities, andactivities so as to blur the legal distinction betweenthe corporations and their activities.”xxvi Apparently,it is no longer necessary to prove a deliberate orfraudulent attempt to misuse a corporate entity, noris it necessary to prove some fundamental unfairnessif the corporate shell is honored.

Lenders have also been caught up in new amalga-mation. In Kennedy v. Columbia Lumber &Manufacturing Co., Inc.xxvii the Supreme Courtweighed in by noting that it is possible that a lendercould become so involved in the constructionprocess that it is deemed a de facto developer and/orbuilder. This occurs “when the lender becomeshighly involved with construction in a manner that isnot normal commercial practice for a lender…. [sothat] the lender may be said to be a jointventurer.”xxviii The lender would then be deemed to

34

ARTICLECONT.

have impliedly warranted the workmanship and/orthe habitability of the home construction. Althoughit did not find that the lender in Kennedy should beliable under those facts, the Supreme Court reachedits conclusion that the possible liability is real by a“see generally” reference to Kincaid that “[t]helender may be liable if it is so amalgamated with thedeveloper or builder so as to blur its legal distinc-tion.”xxix Nearly two decades later, the SupremeCourt found that the question whether a bank is so“substantially involved” in construction of a house isa question for the jury. xxx

New amalgamation analysis has appeared in otherareas of the law. In Ost v. Integrated Products,Inc.xxxi the question was raised in a workers’ compen-sation action. The issue was whether the number ofemployees of one company should be amalgamatedwith the number of employees of a sister corporationwhen determining the number of employees under astatutory employee analysis. Although the case didnot cite Kincaid, the general discussion in Ostmirrored the “amalgamation as blurriness” conclu-sion of Kincaid. The conclusion was that all theemployees should be counted and, therefore, thetotal number of employees was more than the fourperson threshold requiring workmen’s compensationcoverage. New amalgamation was also mentionedbriefly in a footnote that suggests that it could beused to prove proper service on a corporation.xxxii

The Court of Appeals does not outline elements fornew amalgamation. However, we can extrapolate ashort list of factors, which includes: (1) sharedowners/shareholders; (2) shared officers; (3) sharedoffice location; and (4) other evidence generallyshowing the companies present themselves to thepublic as having common interests. The burden toprove amalgamation should be on the party seekingthis involuntary merger.xxxiii Notably, new amalga-mation does not rely on whether the subject compa-nies were legitimate or in fact acted likecorporations.

As referenced at the outset of this article, the mostrecent applications of new amalgamation are in thePope and Magnolia North cases. Mr. Pope was theclass representative of a condominium development:The Riverwalk at Arrowhead Country Club. TheRiverwalk and Magnolia North projects are located inHorry County, South Carolina. The developer forboth projects was Heritage Communities, Inc. (HCI)and the general contractor for both projects wasBuildStar Corporation. HCI is described as theparent corporation of BuildStar. HCI was also theparent corporation of specially created seller entitiesnamed Heritage Riverwalk, Inc., and HeritageMagnolia North, Inc. for the respective projects.Although not specifically discussed in the opinions,the buildings at Riverwalk and Magnolia North weresimilar in design, being multi-family, multi-floorbuildings with exterior stairwells and commonswalkways on the fronts of the building. In short, the

buildings are the typical, non-high-rise, multi-familystructures that were constructed along the GrandStrand in the late 1990s and early 2000s.

Construction at Riverwalk started in June 1997and was completed in December 1999. There werea total of 228 units in nineteen buildings at thisproject. Construction of Magnolia North started in1998 and the project, after twenty-one buildingswere completed, was turned over to the POA inSeptember 2002. HCI and BuildStar constructedfour additional projects with varying multi-familybuilding styles during this same time period.

Unfortunately, HCI and BuildStar, along with thespecial purpose sales entities, were named as defen-dants in multiple lawsuits. At least four of the claims,in whole or in part, were tried to a verdict. ThePope/Riverwalk and the Magnolia North matters weretried during the Multi-Week Trial Docket in Januaryand May, 2009, respectively. In both cases, thePlaintiffs moved for and the trial court found thedefendant entities were amalgamated entities. Theserulings greatly simplified the respective Plaintiffs’cases. Instead of having to prove the alleged causesof action that would otherwise correspond to specificdefendants, the claims for negligence, breach ofimplied warranty of workmanlike service, andbreach of fiduciary duty were all lumped together.xxxiv

Stated another way, new amalgamation also blurredthe legal claims that were pled in the lawsuits.

Although there can be some overlap, the legalduties of a developer are different from the legalduties of a contractor, and different still from thelegal duties of a sales company. The developer’s dutysprings from its implied fiduciary relationship withthe subsequent project owners.xxxv The contractor,however, is not a fiduciary. The contractor has aduty to exercise the reasonable degree of skill usuallypossessed by a member of the building occupationand verify that the work is done in conformity withthe applicable building code and in a good and work-manlike manner.xxxvi The sales agents should refrainfrom misleading sales tactics. If all of these entitiesare amalgamated together and deemed conjoined asa single entity, then any legal distinctions of the vari-ous causes of action are lost.

South Carolina often markets itself as a businessfriendly State. One of those friendly businessnotions is that a corporate shell is intended toprotect investors and/or business owners from liabil-ity where their conduct is not so egregious that thecorporate shell should be invaded. The new amalga-mation appears to erode away some of the corporateprotections as it bypasses the traditional mecha-nisms established by the courts to attack the corpo-rate shell. The Pope and Magnolia North caseshighlight this shift in the Appellate courts away fromsome protections provided by the corporate shell.Unfortunately, it appears that this trend is expand-

35


ARTICLECONT.

new amalgamation, a brief history is necessary.xvi

The Kincaid case was a construction defectlawsuit involving a single family residence. TheKincaids purchased a lot from the defendant devel-oper; the lot being sold by the defendant sales andmarketing company. They then contracted with thedefendant contractor to build their home. Thedefendant developer, defendant contractor, anddefendant sales company were all sister companies.Without referencing any legal precedence, the Courtof Appeals matter-of-factly affirmed the trial court’sruling that the three defendant companies should bedeemed one entity. The court agreed with the trialcourt’s finding that the evidence revealed “an amal-gamation of corporate interests, entities, and activi-ties so as to blur the legal distinction between thecorporations and their activities.”xvii The appellatecourt provided a list of factors – with no reference toany statutes or common law - why the defendantdeveloper, sales, and construction entities should beconsidered one. The court noted that the entitieshad the same vice president, shareholders, officers,office space, point of contact for consumercomplaints, and disseminated literature thatdescribed the sales and marketing company as “ADevelopment, Construction, Sales, and PropertyManagement Company.”xviii The Kincaid court madeno reference to or findings regarding corporateforms, corporate formalities, or even piercing thecorporate veil.

The first case that actually attempted to analyzethe new amalgamation theory created by Kincaidwas Mid-South Management Co., Inc. v. SherwoodDevelopment Corp.xix This case involved a fight todetermine which corporate investors were liable fora settlement of a homeowners’ association lawsuit.Generally, one group of investors involved in a jointventure condominium project settled a constructiondefect lawsuit and then made a capital call onanother company in the joint venture to pay itsportion of the settlement. Mid-South argued that thedefendant and its parent company were liable fortheir portion of the settlement proceeds under thealternative theories of piercing the corporate veil,alter-ego, and/or amalgamation. The Court ofAppeals analyzed these three theories of corporateliability and concluded that none of them applied inthe case. Notably, this is the first case that discussednew amalgamation, and, by context, placed thetheory at an equivalent footing as the piercing andalter-ego theories.

Piercing the corporate veil is considered anextreme remedy. It should be reserved for the rarecircumstances when it would be grossly unfair toinsulate the company owners from personal liability.“If any general rule can be laid down, it is that acorporation will be looked upon as a legal entity untilsufficient reason to the contrary appears; but whenthe notion of legal entity is used to protect fraud,justify wrong, or defeat public policy, the law will

regard the corporation as an association ofpersons.”xx We need not delve into a deep discussionabout the two-part piercing the corporate veil testthat was first set forth in the Sturkie case. Suffice tosay, the first prong looks at whether the corporationacted like a corporation and the second prongrequires an analysis of whether there is “an elementof injustice or fundamental unfairness if the acts ofthe corporation be not regarded as the acts of theindividuals.”xxi “The essence of the [second prong]fairness test is simply that an individual businessmancannot be allowed to hide from the normal conse-quences of carefree entrepreneurship by doing sothrough a corporate veil.”xxii

The alter-ego theory is similar to piercing. Wherepiercing examines the relationship between thecompany and its owners, the alter-ego or instrumen-tality theory considers the relationship betweenseparate companies. “An alter-ego theory requires ashowing of total domination and control of one entityby another and inequitable consequences causedthereby.”xxiii Although control of a company byanother is the key to the alter-ego theory, “control, inand of itself, is not sufficient to find that asubservient corporation is the alter-ego of the domi-nant one.”xxiv Like piercing, the alter-ego theory“does not apply in the absence of fraud or misuse ofcontrol by the dominant entity which results in someinjustice.”xxv

The piercing and alter-ego theories set a high barfor invading the corporate veil. Both look to the levelof unfairness that is based on fraud or the equivalentmisuse of the corporate shell to shield the owners orparent company from liability. New amalgamationsets the bar much, much lower. The questiontherein is whether the conduct of multiple compa-nies is such that the legal distinctions between themare “blurred.” This step down from fraud to blurri-ness is significant. The Court of Appeals in Mid-South explains that in Kincaid “this court found asibling company liable for the obligation of anothersibling company due to the evidence revealing anamalgamation of corporate interests, entities, andactivities so as to blur the legal distinction betweenthe corporations and their activities.”xxvi Apparently,it is no longer necessary to prove a deliberate orfraudulent attempt to misuse a corporate entity, noris it necessary to prove some fundamental unfairnessif the corporate shell is honored.

Lenders have also been caught up in new amalga-mation. In Kennedy v. Columbia Lumber &Manufacturing Co., Inc.xxvii the Supreme Courtweighed in by noting that it is possible that a lendercould become so involved in the constructionprocess that it is deemed a de facto developer and/orbuilder. This occurs “when the lender becomeshighly involved with construction in a manner that isnot normal commercial practice for a lender…. [sothat] the lender may be said to be a jointventurer.”xxviii The lender would then be deemed to

34

ARTICLECONT.

have impliedly warranted the workmanship and/orthe habitability of the home construction. Althoughit did not find that the lender in Kennedy should beliable under those facts, the Supreme Court reachedits conclusion that the possible liability is real by a“see generally” reference to Kincaid that “[t]helender may be liable if it is so amalgamated with thedeveloper or builder so as to blur its legal distinc-tion.”xxix Nearly two decades later, the SupremeCourt found that the question whether a bank is so“substantially involved” in construction of a house isa question for the jury. xxx

New amalgamation analysis has appeared in otherareas of the law. In Ost v. Integrated Products,Inc.xxxi the question was raised in a workers’ compen-sation action. The issue was whether the number ofemployees of one company should be amalgamatedwith the number of employees of a sister corporationwhen determining the number of employees under astatutory employee analysis. Although the case didnot cite Kincaid, the general discussion in Ostmirrored the “amalgamation as blurriness” conclu-sion of Kincaid. The conclusion was that all theemployees should be counted and, therefore, thetotal number of employees was more than the fourperson threshold requiring workmen’s compensationcoverage. New amalgamation was also mentionedbriefly in a footnote that suggests that it could beused to prove proper service on a corporation.xxxii

The Court of Appeals does not outline elements fornew amalgamation. However, we can extrapolate ashort list of factors, which includes: (1) sharedowners/shareholders; (2) shared officers; (3) sharedoffice location; and (4) other evidence generallyshowing the companies present themselves to thepublic as having common interests. The burden toprove amalgamation should be on the party seekingthis involuntary merger.xxxiii Notably, new amalga-mation does not rely on whether the subject compa-nies were legitimate or in fact acted likecorporations.

As referenced at the outset of this article, the mostrecent applications of new amalgamation are in thePope and Magnolia North cases. Mr. Pope was theclass representative of a condominium development:The Riverwalk at Arrowhead Country Club. TheRiverwalk and Magnolia North projects are located inHorry County, South Carolina. The developer forboth projects was Heritage Communities, Inc. (HCI)and the general contractor for both projects wasBuildStar Corporation. HCI is described as theparent corporation of BuildStar. HCI was also theparent corporation of specially created seller entitiesnamed Heritage Riverwalk, Inc., and HeritageMagnolia North, Inc. for the respective projects.Although not specifically discussed in the opinions,the buildings at Riverwalk and Magnolia North weresimilar in design, being multi-family, multi-floorbuildings with exterior stairwells and commonswalkways on the fronts of the building. In short, the

buildings are the typical, non-high-rise, multi-familystructures that were constructed along the GrandStrand in the late 1990s and early 2000s.

Construction at Riverwalk started in June 1997and was completed in December 1999. There werea total of 228 units in nineteen buildings at thisproject. Construction of Magnolia North started in1998 and the project, after twenty-one buildingswere completed, was turned over to the POA inSeptember 2002. HCI and BuildStar constructedfour additional projects with varying multi-familybuilding styles during this same time period.

Unfortunately, HCI and BuildStar, along with thespecial purpose sales entities, were named as defen-dants in multiple lawsuits. At least four of the claims,in whole or in part, were tried to a verdict. ThePope/Riverwalk and the Magnolia North matters weretried during the Multi-Week Trial Docket in Januaryand May, 2009, respectively. In both cases, thePlaintiffs moved for and the trial court found thedefendant entities were amalgamated entities. Theserulings greatly simplified the respective Plaintiffs’cases. Instead of having to prove the alleged causesof action that would otherwise correspond to specificdefendants, the claims for negligence, breach ofimplied warranty of workmanlike service, andbreach of fiduciary duty were all lumped together.xxxiv

Stated another way, new amalgamation also blurredthe legal claims that were pled in the lawsuits.

Although there can be some overlap, the legalduties of a developer are different from the legalduties of a contractor, and different still from thelegal duties of a sales company. The developer’s dutysprings from its implied fiduciary relationship withthe subsequent project owners.xxxv The contractor,however, is not a fiduciary. The contractor has aduty to exercise the reasonable degree of skill usuallypossessed by a member of the building occupationand verify that the work is done in conformity withthe applicable building code and in a good and work-manlike manner.xxxvi The sales agents should refrainfrom misleading sales tactics. If all of these entitiesare amalgamated together and deemed conjoined asa single entity, then any legal distinctions of the vari-ous causes of action are lost.

South Carolina often markets itself as a businessfriendly State. One of those friendly businessnotions is that a corporate shell is intended toprotect investors and/or business owners from liabil-ity where their conduct is not so egregious that thecorporate shell should be invaded. The new amalga-mation appears to erode away some of the corporateprotections as it bypasses the traditional mecha-nisms established by the courts to attack the corpo-rate shell. The Pope and Magnolia North caseshighlight this shift in the Appellate courts away fromsome protections provided by the corporate shell.Unfortunately, it appears that this trend is expand-

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ARTICLECONT.

ing. During the drafting of this article, the SupremeCourt handed down another construction defectopinion titled 16 Jade Street, LLC v. R. DesignConstruction Co., LLC.xxxvii

In 16 Jade Street, the owner of a condominiumproject sued the general contractor, framing subcon-tractor, as well as the principal members of theselimited liability corporations, alleging a series ofconstruction defects. The trial resulted in a nearlyseven-figure verdict for the condominium owneragainst both of the contractor entities as well as theindividual licensee holder-member of the generalcontractor. The majority of the Supreme Courtapplied the rules of statutory construction toconclude that the South Carolina Limited LiabilityCorporation statute (Section 33-44-303(a)) “onlyprotects non-tortfeasor members from vicariousliability and does not insulate the tortfeasor himselffrom personal liability for his actions.”xxxviii Themajority opinion explains that there was “no clearintent by the General Assembly” to extend thecorporate protection to all members of the LLC.xxxxix

The dissent and some in the South Carolina Senatedisagree with this conclusion.

The holding in 16 Jade Street is likely more well-known amongst the contractors and subcontractorsof South Carolina than the Pope and Magnolia Northcases; nonetheless, the holdings in each were likelysurprising. (16 Jade Street was likely the mostsurprising to the many contractors and subcontrac-tors operating as single member or husband-wifemember limited liability corporations who now learnthey don’t have the same corporate shell protectionthey thought they had one month before.) The casesdiscussed in this article may signal a shift in thecommon law away from some corporate protections.

Where does this leave the business owners,contractors, and subcontractors operating in SouthCarolina? With unfettered clarity, it can be said thatnothing is certain. The appellate process as to theseissues grinds forward. Rehearing in 16 Jade Streetwas recently granted.xl Moreover, the Legislaturehas chimed in with a proposed Joint Resolution toclarify the specific Legislative intent that allmembers of a LLC are “shield[ed] … from personalliability for actions taken in ordinary course of busi-ness of the LLC.”xli The appeals of the new amalga-mation are just now seeking certiorari to theSupreme Court. Perhaps the best advice to thecontractors and subcontractors that are affected bythese interim opinions is to warn them to be wary ofcommingling corporate interests and to warn theperson who holds the license and/or is actually in thefield in charge of a construction site that they have abigger target on their back. By the end of the year,all of the appeals should be final and we can thenadvise our clients whether they should cringe orbreathe a sigh of relief.

Footnotes

i Black’s Law Dictionary p. 270 (7th Ed. 1999). ii Id. Black’s provides this additional explanation of the

common law by quoting this passage from Patrick B.Devlin, The Judge p. 177 (Oxford 1979) (USC Law LibraryCall No. KD7285.A75 D48 1979).

iii 289 S.C. 89, 344 S.E.2d 869 (Ct. App. 1986).iv 395 S.C. 404, 717 S.E.2d 765 (Ct. App. 2011), reh’g

den. (Dec. 12, 2011).v 2012 WL 469730 (S.C. App. Feb. 15, 2012).vi The author contacted the Clerk for the South

Carolina Supreme Court to inquire about the status of theappeals of these cases. As of the drafting of this article: thepetition for certiorari in the Pope case has been pendingsince February 11, 2012; the petition for rehearing inMagnolia North was denied on April 20, 2012 - the dead-line to file a petition for certiorari to the Supreme Courthad not been reached. The Court of Appeals described thetwo cases as “similar action[s].” See Magnolia North at*1,n.1. In fact, two of the three appellants in each case arethe same; two of the three appellate court judges—includ-ing the authoring judges of each opinion—decided thecases; the same attorneys represented the plaintiffs; thesame trial judge—the Honorable Clifton Newman—presided over the trials; and the appeals question the samelegal findings from their respective trials. The Court ofAppeals resolved the two cases the same. We will have tomonitor whether the Supreme Court chooses to weigh inon these points.

vii 362 S.C. 465, 609 S.E.2d 286 (2005).viii The author believes that some of these evidentiary

issues may be decided differently in the future in light ofthe bifurcation of punitive damages statute that was passedafter the Pope and Magnolia North trials. South CarolinaCode § 15-32-520, which statute was created by 2011 ActNo. 52, is effective for all actions that accrue on or afterJanuary 1, 2012.

ix Hint: expect more successful directed verdictmotions by plaintiffs when the defendants acknowledgethat there are some portions of the subject buildings in aconstruction defect lawsuit that require repairs since “[a]nadmission of counsel or evidence supporting less than all ofthe complaints’ specifications of negligent conduct is suffi-cient to support a directed verdict for the POA.” MagnoliaNorth at *9.

x 19 Am.Jur.2d Corporations § 2166. xi Black’s Law Dictionary p. 79 (7th ed., 1999).xii The American Heritage Dictionary p. 57 (3rd ed.,

1992).xiii The majority of the railroad cases decided in South

Carolina State and Federal courts during this time periodpontificate over possible monopolies.

xiv See: Brown v. Am. Ry. Express Co., 128 S.C. 428,123 S.E. 97 (1924) (Discussing whether a purchasing rail-road assumes the debts of the selling railroad and refer-encing the synonyms “reorganization, consolidation,amalgamation, or union.”); Ex Parte the Trustees of theGreenville Academies, 7 Rich.Eq. 471, 28 S.C.Eq. 471,1854 WL 2881 (S.C.App.Eq. 1854) (Discussing whether alay (non-religious, eleemosynary) company, a school, canmerge into, or amalgamate into, an ecclesiastical (reli-gious) corporation.); Coleman v. The Greenville &Columbia RR Co., 5 Rich. 118, 39 S.C.L. 118, 1851 WL2568 (S.C.App.L. 1851) (The term amalgamation is used todescribe the intentional merger of two railroad compa-nies); T.H. Colcock & Co. v. The Louisville, Cincinnati,

36

ARTICLECONT.

and Charleston R.R. Co., 32 S.C.L. 329, 1847 SL 2124(S.C.App.L. 1847) (Amalgamation used to describe themerger of two railroads.); Smith v. Smith, 3 Des. 557, 3S.C.Eq. 557, 1813 WL 373 (S.C. 1813) (Using the termamalgamation to describe the deliberate attempt to mergean ancient society of masons into a modern society ofmasons to create a new society of masons.); Tomlinson v.Branch, 82 U.S. 460 (U.S.Sup.Ct. 1872) (Amalgamationused to describe merger of two railroads by way of a stockexchange and/or trade.); In re Safety-Kleen Corp., 2002WL 32349819 (D.S.C. 2002) (unpublished) (Noting in thefacts that the subject corporation “represents an amalga-mation of three different entities” following as series ofname changes and mergers.); Phinizy v. Augusta & K.R.Co., 62 F. 678 (1894) (Referencing the “amalgamation andconsolidation” of a number of separate railroad lines(companies) into single railroad companies.).

xv See Fidelity-Baltimore Nat’l Bank v. U.S., 328 F.2d953, 955 (1964) (Noting the combined corporate assets donot necessarily infuse new money into the new company.“The amalgamation works a change in the assets underly-ing the stock of the stockholders of each constituent, butthere is no new capital.”); see also Rivera v. Am. Gen. Fin.Serv., Inc., 259 P.3d 803, 815 (N.Mex. 2011) (“In corporatelaw, the term ‘successor’ is a legal term of art meaning a‘corporation that, through amalgamation, consolidation, orother assumption of interests, is vested with the rights andduties of an earlier corporation.’” (quoting Black’s LawDictionary 1569 (9th ed. 2009))).

xvi See Mid-South Management Co. Inc. v. SherwoodDevelopment Corp., 374 S.C. 588, 605, 649 S.E.2d 135,144 (Ct. App. 2007), reh’g den. (Aug. 24, 2007), cert. den.(May 30, 2008) (citing Kincaid).

xvii Kincaid at 96, 344 S.E.2d at 874 (quoting the trialcourt).

xviii Id.xix 374 S.C. 588, 649 S.E.2d 135 (Ct.App. 2007), reh’g

den. (Aug. 24, 2007), cert. den. (May 30, 2008). xx Mid-South at 597, 649 S.E.2d at 140 (quoting

Sturkie v. Sifly, 280 S.C. 453, 457, 313 S.E.2d 316, 318(Ct.App. 1984)).

xxi Mid-South at 597-598, 649 S.E.2d at 140 (quotingSturkie at 457-58, 313 S.E.2d at 318).

xxii Mid-South at 598, 649 S.E.2d at 141 (quotingMultimedia Publ’g of S.C., Inc. v. Mullins, 314 S.C. 453,551, 556, 431 S.E.2d 571, 573 (1993)).

xxiii Mid-South at 603, 649 S.E.2d at 143 (quotingColleton County Taxpayers v. School District of ColletonCounty, 371 S.C. 224, 237, 638 S.E.2d 685, 692 (2006)).

xxiv Id. (citing Baker v. Equitable Leasing Corporation,275 S.C. 359, 367-68, 271 S.E.2d 596, 600 (1980)).

xxv Id. (quoting Colleton County Taxpayers at 237, 638S.E.2d at 692).

xxvi Mid-South at 605, 649 S.E.2d at 144 (quotingKincaid at 96, 344 S.E.2d at 874)).

xxvii 299 S.C. 335, 384 S.E.2d 730 (1989).xxviii Id. at 340, 384 S.E.2d at 734 (citation omitted).xxix Id. at 340-341, 384 S.E.2d at 734.xxx Kirkman v. Parex, Inc., 369 S.C. 477, 632 S.E.2d

854 (2006) (Using the language from Kennedy that reliedon the amalgamation language from Kirkman to find thatsummary judgment in favor of the lender was premature.)

xxxi 296 S.C. 241, 371 S.E.2d 796 (1988).xxxii Schenk v. National Health Care, Inc., 322 S.C.

316, 319 n.2, 471 S.E.2d 736, 737 n.2 (Ct.App. 1996), reh’gden. (June 21, 1996), cert den. (Dec. 5, 1996) (Noting,after a parenthetical reference to the new amalgamationtheory in Kincaid, that “[w]e assume the appellant[National Health Care, Inc.] and ‘National HealthcareCorporation’ [which was the entity served] are one and thesame or are so closely connected and related that judg-ment against one would bind the other.”)

xxxiii See Sturkie v. Sifly, 280 S.C. 453, 457, 313 S.E.2d316, 318 (Ct. App. 1984) (“The party seeking to have thecorporate identity disregarded has the burden of provingthat the doctrine should be applied.”)

xxxiv In both cases, the trial court directed verdicts infavor of the defendant developers on plaintiffs’ breach ofexpress warranty claims.

xxxv See Concerned Dunes West Residents, Inc. v.Georgia-Pacific Corporation, 349 S.C. 251, 562 S.E.2d633 (2002) (Discussing the developer’s duty to eithertransfer common areas to the homeowners’ association ingood repair or to provide the necessary funds to all a“reasonably good repair” of the common elements.).

xxxvi See Fields v. J. Haynes Waters Builders, Inc., 376S.C. 545, 560, 658 S.E.2d 80, 88 (Quoting from the chargethe trial judge gave to the jury, that “a builder who under-takes construction of a building impliedly represents thathe possesses and will exercise a reasonable degree of skillusually possessed by a member of the building occupation;and that a builder who undertakes to supervise theconstruction of a building is under a duty to exercisereasonable care and such supervision to see that the workis done in conformity with the applicable building codeand in a good and workmanlike manner.” (internal punc-tuation omitted)).

xxxvii 2012 WL 1111466 (Decided Apr. 4, 2012), pet.for reh’g granted (May 7, 2012).

xxxviii Id. at *6.m Justice Hearn drafted the majorityopinion, of which Justices Pleicones and Kittredgeconcurred. Justice Beatty wrote in his dissent, to whichJustice Toal concurred, that S.C. Code § 33-44-303(a) wasunambiguous and should be read to provide limited liabil-ity for all members of a Limited Liability Corporation thatare working pursuant to the charter of the company.

xxxix Id. at *5.xl Id.xli See Proposed Joint Resolution S.1416, introduced in

the Senate on April 10, 2012, and referred to the SenateCommittee on Judiciary on April 11, 2012.

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ing. During the drafting of this article, the SupremeCourt handed down another construction defectopinion titled 16 Jade Street, LLC v. R. DesignConstruction Co., LLC.xxxvii

In 16 Jade Street, the owner of a condominiumproject sued the general contractor, framing subcon-tractor, as well as the principal members of theselimited liability corporations, alleging a series ofconstruction defects. The trial resulted in a nearlyseven-figure verdict for the condominium owneragainst both of the contractor entities as well as theindividual licensee holder-member of the generalcontractor. The majority of the Supreme Courtapplied the rules of statutory construction toconclude that the South Carolina Limited LiabilityCorporation statute (Section 33-44-303(a)) “onlyprotects non-tortfeasor members from vicariousliability and does not insulate the tortfeasor himselffrom personal liability for his actions.”xxxviii Themajority opinion explains that there was “no clearintent by the General Assembly” to extend thecorporate protection to all members of the LLC.xxxxix

The dissent and some in the South Carolina Senatedisagree with this conclusion.

The holding in 16 Jade Street is likely more well-known amongst the contractors and subcontractorsof South Carolina than the Pope and Magnolia Northcases; nonetheless, the holdings in each were likelysurprising. (16 Jade Street was likely the mostsurprising to the many contractors and subcontrac-tors operating as single member or husband-wifemember limited liability corporations who now learnthey don’t have the same corporate shell protectionthey thought they had one month before.) The casesdiscussed in this article may signal a shift in thecommon law away from some corporate protections.

Where does this leave the business owners,contractors, and subcontractors operating in SouthCarolina? With unfettered clarity, it can be said thatnothing is certain. The appellate process as to theseissues grinds forward. Rehearing in 16 Jade Streetwas recently granted.xl Moreover, the Legislaturehas chimed in with a proposed Joint Resolution toclarify the specific Legislative intent that allmembers of a LLC are “shield[ed] … from personalliability for actions taken in ordinary course of busi-ness of the LLC.”xli The appeals of the new amalga-mation are just now seeking certiorari to theSupreme Court. Perhaps the best advice to thecontractors and subcontractors that are affected bythese interim opinions is to warn them to be wary ofcommingling corporate interests and to warn theperson who holds the license and/or is actually in thefield in charge of a construction site that they have abigger target on their back. By the end of the year,all of the appeals should be final and we can thenadvise our clients whether they should cringe orbreathe a sigh of relief.

Footnotes

i Black’s Law Dictionary p. 270 (7th Ed. 1999). ii Id. Black’s provides this additional explanation of the

common law by quoting this passage from Patrick B.Devlin, The Judge p. 177 (Oxford 1979) (USC Law LibraryCall No. KD7285.A75 D48 1979).

iii 289 S.C. 89, 344 S.E.2d 869 (Ct. App. 1986).iv 395 S.C. 404, 717 S.E.2d 765 (Ct. App. 2011), reh’g

den. (Dec. 12, 2011).v 2012 WL 469730 (S.C. App. Feb. 15, 2012).vi The author contacted the Clerk for the South

Carolina Supreme Court to inquire about the status of theappeals of these cases. As of the drafting of this article: thepetition for certiorari in the Pope case has been pendingsince February 11, 2012; the petition for rehearing inMagnolia North was denied on April 20, 2012 - the dead-line to file a petition for certiorari to the Supreme Courthad not been reached. The Court of Appeals described thetwo cases as “similar action[s].” See Magnolia North at*1,n.1. In fact, two of the three appellants in each case arethe same; two of the three appellate court judges—includ-ing the authoring judges of each opinion—decided thecases; the same attorneys represented the plaintiffs; thesame trial judge—the Honorable Clifton Newman—presided over the trials; and the appeals question the samelegal findings from their respective trials. The Court ofAppeals resolved the two cases the same. We will have tomonitor whether the Supreme Court chooses to weigh inon these points.

vii 362 S.C. 465, 609 S.E.2d 286 (2005).viii The author believes that some of these evidentiary

issues may be decided differently in the future in light ofthe bifurcation of punitive damages statute that was passedafter the Pope and Magnolia North trials. South CarolinaCode § 15-32-520, which statute was created by 2011 ActNo. 52, is effective for all actions that accrue on or afterJanuary 1, 2012.

ix Hint: expect more successful directed verdictmotions by plaintiffs when the defendants acknowledgethat there are some portions of the subject buildings in aconstruction defect lawsuit that require repairs since “[a]nadmission of counsel or evidence supporting less than all ofthe complaints’ specifications of negligent conduct is suffi-cient to support a directed verdict for the POA.” MagnoliaNorth at *9.

x 19 Am.Jur.2d Corporations § 2166. xi Black’s Law Dictionary p. 79 (7th ed., 1999).xii The American Heritage Dictionary p. 57 (3rd ed.,

1992).xiii The majority of the railroad cases decided in South

Carolina State and Federal courts during this time periodpontificate over possible monopolies.

xiv See: Brown v. Am. Ry. Express Co., 128 S.C. 428,123 S.E. 97 (1924) (Discussing whether a purchasing rail-road assumes the debts of the selling railroad and refer-encing the synonyms “reorganization, consolidation,amalgamation, or union.”); Ex Parte the Trustees of theGreenville Academies, 7 Rich.Eq. 471, 28 S.C.Eq. 471,1854 WL 2881 (S.C.App.Eq. 1854) (Discussing whether alay (non-religious, eleemosynary) company, a school, canmerge into, or amalgamate into, an ecclesiastical (reli-gious) corporation.); Coleman v. The Greenville &Columbia RR Co., 5 Rich. 118, 39 S.C.L. 118, 1851 WL2568 (S.C.App.L. 1851) (The term amalgamation is used todescribe the intentional merger of two railroad compa-nies); T.H. Colcock & Co. v. The Louisville, Cincinnati,

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ARTICLECONT.

and Charleston R.R. Co., 32 S.C.L. 329, 1847 SL 2124(S.C.App.L. 1847) (Amalgamation used to describe themerger of two railroads.); Smith v. Smith, 3 Des. 557, 3S.C.Eq. 557, 1813 WL 373 (S.C. 1813) (Using the termamalgamation to describe the deliberate attempt to mergean ancient society of masons into a modern society ofmasons to create a new society of masons.); Tomlinson v.Branch, 82 U.S. 460 (U.S.Sup.Ct. 1872) (Amalgamationused to describe merger of two railroads by way of a stockexchange and/or trade.); In re Safety-Kleen Corp., 2002WL 32349819 (D.S.C. 2002) (unpublished) (Noting in thefacts that the subject corporation “represents an amalga-mation of three different entities” following as series ofname changes and mergers.); Phinizy v. Augusta & K.R.Co., 62 F. 678 (1894) (Referencing the “amalgamation andconsolidation” of a number of separate railroad lines(companies) into single railroad companies.).

xv See Fidelity-Baltimore Nat’l Bank v. U.S., 328 F.2d953, 955 (1964) (Noting the combined corporate assets donot necessarily infuse new money into the new company.“The amalgamation works a change in the assets underly-ing the stock of the stockholders of each constituent, butthere is no new capital.”); see also Rivera v. Am. Gen. Fin.Serv., Inc., 259 P.3d 803, 815 (N.Mex. 2011) (“In corporatelaw, the term ‘successor’ is a legal term of art meaning a‘corporation that, through amalgamation, consolidation, orother assumption of interests, is vested with the rights andduties of an earlier corporation.’” (quoting Black’s LawDictionary 1569 (9th ed. 2009))).

xvi See Mid-South Management Co. Inc. v. SherwoodDevelopment Corp., 374 S.C. 588, 605, 649 S.E.2d 135,144 (Ct. App. 2007), reh’g den. (Aug. 24, 2007), cert. den.(May 30, 2008) (citing Kincaid).

xvii Kincaid at 96, 344 S.E.2d at 874 (quoting the trialcourt).

xviii Id.xix 374 S.C. 588, 649 S.E.2d 135 (Ct.App. 2007), reh’g

den. (Aug. 24, 2007), cert. den. (May 30, 2008). xx Mid-South at 597, 649 S.E.2d at 140 (quoting

Sturkie v. Sifly, 280 S.C. 453, 457, 313 S.E.2d 316, 318(Ct.App. 1984)).

xxi Mid-South at 597-598, 649 S.E.2d at 140 (quotingSturkie at 457-58, 313 S.E.2d at 318).

xxii Mid-South at 598, 649 S.E.2d at 141 (quotingMultimedia Publ’g of S.C., Inc. v. Mullins, 314 S.C. 453,551, 556, 431 S.E.2d 571, 573 (1993)).

xxiii Mid-South at 603, 649 S.E.2d at 143 (quotingColleton County Taxpayers v. School District of ColletonCounty, 371 S.C. 224, 237, 638 S.E.2d 685, 692 (2006)).

xxiv Id. (citing Baker v. Equitable Leasing Corporation,275 S.C. 359, 367-68, 271 S.E.2d 596, 600 (1980)).

xxv Id. (quoting Colleton County Taxpayers at 237, 638S.E.2d at 692).

xxvi Mid-South at 605, 649 S.E.2d at 144 (quotingKincaid at 96, 344 S.E.2d at 874)).

xxvii 299 S.C. 335, 384 S.E.2d 730 (1989).xxviii Id. at 340, 384 S.E.2d at 734 (citation omitted).xxix Id. at 340-341, 384 S.E.2d at 734.xxx Kirkman v. Parex, Inc., 369 S.C. 477, 632 S.E.2d

854 (2006) (Using the language from Kennedy that reliedon the amalgamation language from Kirkman to find thatsummary judgment in favor of the lender was premature.)

xxxi 296 S.C. 241, 371 S.E.2d 796 (1988).xxxii Schenk v. National Health Care, Inc., 322 S.C.

316, 319 n.2, 471 S.E.2d 736, 737 n.2 (Ct.App. 1996), reh’gden. (June 21, 1996), cert den. (Dec. 5, 1996) (Noting,after a parenthetical reference to the new amalgamationtheory in Kincaid, that “[w]e assume the appellant[National Health Care, Inc.] and ‘National HealthcareCorporation’ [which was the entity served] are one and thesame or are so closely connected and related that judg-ment against one would bind the other.”)

xxxiii See Sturkie v. Sifly, 280 S.C. 453, 457, 313 S.E.2d316, 318 (Ct. App. 1984) (“The party seeking to have thecorporate identity disregarded has the burden of provingthat the doctrine should be applied.”)

xxxiv In both cases, the trial court directed verdicts infavor of the defendant developers on plaintiffs’ breach ofexpress warranty claims.

xxxv See Concerned Dunes West Residents, Inc. v.Georgia-Pacific Corporation, 349 S.C. 251, 562 S.E.2d633 (2002) (Discussing the developer’s duty to eithertransfer common areas to the homeowners’ association ingood repair or to provide the necessary funds to all a“reasonably good repair” of the common elements.).

xxxvi See Fields v. J. Haynes Waters Builders, Inc., 376S.C. 545, 560, 658 S.E.2d 80, 88 (Quoting from the chargethe trial judge gave to the jury, that “a builder who under-takes construction of a building impliedly represents thathe possesses and will exercise a reasonable degree of skillusually possessed by a member of the building occupation;and that a builder who undertakes to supervise theconstruction of a building is under a duty to exercisereasonable care and such supervision to see that the workis done in conformity with the applicable building codeand in a good and workmanlike manner.” (internal punc-tuation omitted)).

xxxvii 2012 WL 1111466 (Decided Apr. 4, 2012), pet.for reh’g granted (May 7, 2012).

xxxviii Id. at *6.m Justice Hearn drafted the majorityopinion, of which Justices Pleicones and Kittredgeconcurred. Justice Beatty wrote in his dissent, to whichJustice Toal concurred, that S.C. Code § 33-44-303(a) wasunambiguous and should be read to provide limited liabil-ity for all members of a Limited Liability Corporation thatare working pursuant to the charter of the company.

xxxix Id. at *5.xl Id.xli See Proposed Joint Resolution S.1416, introduced in

the Senate on April 10, 2012, and referred to the SenateCommittee on Judiciary on April 11, 2012.

37

ARTICLECONT.

Beautiful spring weather greeted players andsponsors alike on April 25th for the ThirdAnnual SCDTAA PAC Golf Classic. This year

twelve teams competed in a four man scramble withwinners in gross and net categories. For the secondyear in a row, the firm of Aiken Bridges made up ofGlenn Elliott, Jay Saleeby, Buddy Arthur and Jay Leewon honors in the gross category and the Hood LawFirm won the net division.

Once again EveryWord court reporting served asthe tournament sponsor and has been a greatsupporter of the event. Thanks to all the firms whohave faithfully supported this event since its incep-tion, as well as the vendors who have served as spon-sors. This support has funded our PAC, which helpsgive the defense a voice at the legislature. We lookforward to another great event next year.

38

PAC Golf Tournament Revisited

by Anthony Livoti

PAC GOLFTOURNAMENT

MSAs are for more than just workers’ compen-sation claims these days, so defense attorneysshould be aware of Medicare’s requirements--andMedicare’s power to levy hefty fines on eitherparty for any violation.

The Medicare Secondary Payer Act wasenacted in 1981 to mitigate increasinghealthcare costs imposed on the Medicare

system. A study by the Government AccountingOffice revealed that from 1991 through 1998, thefederal government paid an estimated $40 million formedical care in workers’ compensation cases inwhich Medicare was not the primary payer.i The Acthas inverted the system and shifted responsibilityonto private insurers, as it requires Medicare benefi-ciaries to exhaust all available private insurancecoverage before resorting to their Medicare coverage.ii

Thus, private insurers covering the same treatmenthave become the “primary” payers, leaving Medicareas the “secondary” payer.iii The Act ensures thatMedicare does not pay for a beneficiary’s medicalexpenses when payment should be made by theprimary payer, which includes payment under a work-ers’ compensation plan, liability insurance policy orplan, automobile insurance policy including a self-insured plan, or under no-fault insurance.iv

If the Centers for Medicare & Medicaid Services(CMS) determines that a party has failed to provideprimary payment for medical services or has failed tosubmit reimbursement to CMS for Medicare’spayment, CMS has the authority to recoup paymentfrom the rightful primary payer and can pursuedouble damages against the carrier.v Additionally,CMS may (1) ignore the terms of the settlementagreement, (2) revoke one’s right to Medicare cover-age, or (3) make a demand or bring suit against theattorneys involved in the settlement.vi

Recommendations for SettlingLiability Claims Involving FutureMedical Payments

The first step is to determine the plaintiff’s statusas a qualified individual. The plaintiff is deemed aClass I qualified individual if he (1) is a Medicarebeneficiary, (2) is age sixty-five or older and is there-fore eligible for Medicare, (3) has been receivingSocial Security Disability benefits for twenty-four

months or longer, or (4) meets theMedicare eligibility requirements for endstage renal disease.vii The plaintiff is aClass II qualified individual if he has a“reasonable expectation” of becoming aMedicare beneficiary within thirtymonths of the date of settlement.viii Anindividual has a “reasonable expecta-tion” if he (1) is age sixty-two and a halfor older, (2) has applied for SocialSecurity Disability benefits, (3) is deniedSocial Security Disability benefits and isanticipating an appeal, or (4) has beendiagnosed with end stage renal diseasethat does not yet qualify for Medicare.ix

If the plaintiff in your case meets any ofthe above-listed criteria, you may berequired to put Medicare on notice of thesettlement.

All parties are required to protectMedicare’s interest.x However, protect-ing Medicare’s interest is not difficult in acase where the plaintiff does not meet anyof the aforementioned criteria that qual-ify him as a Class I or Class II qualifiedindividual. If the plaintiff is not a quali-fied individual, simply make a note in your case filethat lists the reasons why he does not qualify, and youwill then have the note available if CMS ever comesknocking. If the plaintiff does meet the criteriadiscussed above, you are required to protectMedicare’s interest, which will most likely involvecreating a Medicare Set Aside arrangement (MSA).CMS requires mandatory approval of all MSAs for ClassI qualified individuals with total settlement valuesgreater than $25,000 or greater than $250,000 for aClass II qualified individual.xi The “total settlementvalue” for CMS includes not only future medical carebut also costs for indemnity, attorney’s fees, and prop-erty damage. Even if your settlement does not reachthe current CMS threshold, you should go ahead andcreate a MSA to prove that you have protectedMedicare’s interest by requiring the plaintiff to usefunds designated in the MSA for medical services andproducts for which Medicare would have otherwisebeen the primary payer.

39

ARTICLEThe 411 on Medicare Set Aside Arrangements

by Ashley Kirkham and Myada El-Sawi

Ashley Kirkham

Myada El-Sawi


Beautiful spring weather greeted players andsponsors alike on April 25th for the ThirdAnnual SCDTAA PAC Golf Classic. This year

twelve teams competed in a four man scramble withwinners in gross and net categories. For the secondyear in a row, the firm of Aiken Bridges made up ofGlenn Elliott, Jay Saleeby, Buddy Arthur and Jay Leewon honors in the gross category and the Hood LawFirm won the net division.

Once again EveryWord court reporting served asthe tournament sponsor and has been a greatsupporter of the event. Thanks to all the firms whohave faithfully supported this event since its incep-tion, as well as the vendors who have served as spon-sors. This support has funded our PAC, which helpsgive the defense a voice at the legislature. We lookforward to another great event next year.

38

PAC Golf Tournament Revisited

by Anthony Livoti

PAC GOLFTOURNAMENT

MSAs are for more than just workers’ compen-sation claims these days, so defense attorneysshould be aware of Medicare’s requirements--andMedicare’s power to levy hefty fines on eitherparty for any violation.

The Medicare Secondary Payer Act wasenacted in 1981 to mitigate increasinghealthcare costs imposed on the Medicare

system. A study by the Government AccountingOffice revealed that from 1991 through 1998, thefederal government paid an estimated $40 million formedical care in workers’ compensation cases inwhich Medicare was not the primary payer.i The Acthas inverted the system and shifted responsibilityonto private insurers, as it requires Medicare benefi-ciaries to exhaust all available private insurancecoverage before resorting to their Medicare coverage.ii

Thus, private insurers covering the same treatmenthave become the “primary” payers, leaving Medicareas the “secondary” payer.iii The Act ensures thatMedicare does not pay for a beneficiary’s medicalexpenses when payment should be made by theprimary payer, which includes payment under a work-ers’ compensation plan, liability insurance policy orplan, automobile insurance policy including a self-insured plan, or under no-fault insurance.iv

If the Centers for Medicare & Medicaid Services(CMS) determines that a party has failed to provideprimary payment for medical services or has failed tosubmit reimbursement to CMS for Medicare’spayment, CMS has the authority to recoup paymentfrom the rightful primary payer and can pursuedouble damages against the carrier.v Additionally,CMS may (1) ignore the terms of the settlementagreement, (2) revoke one’s right to Medicare cover-age, or (3) make a demand or bring suit against theattorneys involved in the settlement.vi

Recommendations for SettlingLiability Claims Involving FutureMedical Payments

The first step is to determine the plaintiff’s statusas a qualified individual. The plaintiff is deemed aClass I qualified individual if he (1) is a Medicarebeneficiary, (2) is age sixty-five or older and is there-fore eligible for Medicare, (3) has been receivingSocial Security Disability benefits for twenty-four

months or longer, or (4) meets theMedicare eligibility requirements for endstage renal disease.vii The plaintiff is aClass II qualified individual if he has a“reasonable expectation” of becoming aMedicare beneficiary within thirtymonths of the date of settlement.viii Anindividual has a “reasonable expecta-tion” if he (1) is age sixty-two and a halfor older, (2) has applied for SocialSecurity Disability benefits, (3) is deniedSocial Security Disability benefits and isanticipating an appeal, or (4) has beendiagnosed with end stage renal diseasethat does not yet qualify for Medicare.ix

If the plaintiff in your case meets any ofthe above-listed criteria, you may berequired to put Medicare on notice of thesettlement.

All parties are required to protectMedicare’s interest.x However, protect-ing Medicare’s interest is not difficult in acase where the plaintiff does not meet anyof the aforementioned criteria that qual-ify him as a Class I or Class II qualifiedindividual. If the plaintiff is not a quali-fied individual, simply make a note in your case filethat lists the reasons why he does not qualify, and youwill then have the note available if CMS ever comesknocking. If the plaintiff does meet the criteriadiscussed above, you are required to protectMedicare’s interest, which will most likely involvecreating a Medicare Set Aside arrangement (MSA).CMS requires mandatory approval of all MSAs for ClassI qualified individuals with total settlement valuesgreater than $25,000 or greater than $250,000 for aClass II qualified individual.xi The “total settlementvalue” for CMS includes not only future medical carebut also costs for indemnity, attorney’s fees, and prop-erty damage. Even if your settlement does not reachthe current CMS threshold, you should go ahead andcreate a MSA to prove that you have protectedMedicare’s interest by requiring the plaintiff to usefunds designated in the MSA for medical services andproducts for which Medicare would have otherwisebeen the primary payer.

39

ARTICLEThe 411 on Medicare Set Aside Arrangements

by Ashley Kirkham and Myada El-Sawi

Ashley Kirkham

Myada El-Sawi


Closing a File: Settlement when aCMS Approved MSA is Required

Once you determine that the plaintiff is a qualifiedindividual, secure a MSA vendor to review medicalrecords and draft an allocation report. The MSAvendor will look at the plaintiff’s last two years ofmedical records and life expectancy to determine thecost of medical services and products over the plain-tiff’s life expectancy that would have been providedby Medicare if the plaintiff’s injuries were not theresult of the current admitted claim. Your vendormay also request pharmacy records to determine theamount of drugs being prescribed and filled. The next step is to discuss the administration of theMSA and determine who will be responsible for addi-tional funding of the MSA if CMS rejects the arrange-ment prepared by your vendor. You must also notifyMedicare concerning whether the MSA will be paidin a lump sum or an annuity. However, despitepaying the MSA with an annuity, “the total settle-ment value” is still the actual amount of the settle-ment, not the discounted annuity rate.xii The fundsprojected for use in the MSA are required to be keptin a separate, interest bearing account that will onlybe used to pay for medical services and devices thatwould have otherwise been covered by Medicare.xiii

CMS also requires annual account status updates.xiv

An MSA can be managed through (1) self-adminis-tration by the plaintiff, (2) professional administra-tion, or (3) trust administration.xv If the plaintiffplans to self-administer the MSA account, providehim with a list of the responsibilities for self-admin-istration and ensure that the plaintiff signs an agree-ment stating that he understands the duties, whichinclude keeping an account of all medical bills paidwith MSA funds and reporting to CMS annually. Asecond option is professional administration, whichyou should discuss with your MSA vendor or admin-istrator. The professional administrator will beresponsible for processing and paying all medicalbills through the MSA fund, as well as reporting toCMS. Based on the complexity of the MSA, you maynot need professional administration until the plain-tiff’s death. For example, you may choose profes-sional administration for a few years followed by aperiod of transition into self-administration wherethe plaintiff would still have contact with the profes-sional administrator for any questions regardingpayment from the MSA account and reporting toCMS.

Counsel must also negotiate and determine whichparty will be responsible for providing increasedfunding to the MSA if CMS responds with a highernumber than that reflected in the MSA proposal.Alternatively, you could reserve your client’s right toeither fund the additional amount or leave themedical portion of the claim open in the event thatCMS responds with a higher amount. If you havealready provided the MSA funding to the plaintiff and

your client decides to keep the medical portion ofthe claim open, you must include language in thesettlement agreement stating that the remainingMSA funds should be returned to your client.Furthermore, the agreement should include a provi-sion providing an alternative if CMS comes back witha lower amount than your MSA proposal. Such anoption may either allow the plaintiff to retain theadditional money or require the plaintiff to reim-burse your client with the additional funding of theMSA that CMS did not require.

If you are settling the claim on a denied anddisputed basis, you should have a $0 MSA prepared.If your settlement does not require CMS approval ofthe MSA, you should still have a $0 MSA prepared tokeep in your case file. Since all parties are requiredto protect Medicare’s interest, contact your MSAvendor to draft a $0 MSA in which you state yourreasons for denial (e.g., statute of limitationsdefense). Taking such steps will establish that yourclient was never the primary payer, and Medicarewould have always been the primary payer for theplaintiff’s medical services or products. If you havepaid for any medical treatment or services, discusswhy you originally began payment and why you nowbelieve that you are no longer required to pay formedical expenses (e.g., plaintiff alleged left shoulderinjury, and your client began to pay for his medicalexpenses until the surveillance video showed theclaim of accident was fraudulent). Even if yoursettlement does not currently meet the CMS reviewthreshold, all settlements of future medical caremust, nonetheless, protect Medicare’s interests.

The Harsh Consequences of Failing toProtect Medicare’s Interest

Penalties can be imposed on any entity responsi-ble for primary payment.xvi Moreover, the govern-ment, on behalf of Medicare, may file suit against anyor all entities responsible for payment with respectto the same item or service under a primary policy orplan.xvii Such entities are subject to various penal-ties. For example, the responsible party may becharged interest on the amount of the reimburse-ment from the date of notice of payments made byMedicare until reimbursement is made.xviii

Additionally, CMS may seek damages against anyentity that received payment from a primary plan orfrom the proceeds of a primary plan’s payment toany entity.xix Such entities include a beneficiary,provider, supplier, physician, attorney, state agency,or private insurer that has received a primarypayment.xx

The Act also provides for a private cause of actionto collect double damages against the primarypayer.xxi Double damages services two purposes.xxii

iThey deter and punish the disfavored conduct ofshifting costs from private insurers to Medicare.xxiii

Second, they incentivize healthcare providers tosupport and defend Medicare’s interests.xiv

40

ARTICLECONT.

Furthermore, penalties may arise not only out ofnon-compliance with the Act but also for failure tocomply with state law. For example, the Court ofAppeals for the Fourth Circuit ordered an employerto pay penalties and attorney’s fees when theemployer failed to fund the Medicare Set Asideaccount within thirty days of judicial approval of thesettlement, as required by state law.xxv

Ensuring compliance with the Act is essentialbecause violations affect all parties involved in thesettlement. As discussed previously, the carrier orself-insured may be exposed to double damages andsubject to paying future medical expenses, while theplaintiff risks having future medical care declined.Moreover, the government may also have the right torecover against the attorney handling the claim.xxvi Ifa beneficiary and his attorney receive a third partysettlement payment, the government has an inde-pendent right of recovery for reimbursement withinsixty days of receipt of the settlement proceeds.xxvii

There have been several instances where the courtshave held attorneys individually liable to Medicarefor reimbursement, plus interest on the total amountof reimbursement in cases where the attorney hassettled a third party claim and failed to reimburseMedicare.xxviii In such cases, the attorney is deemeda “recipient” of payments owed to the Governmentand is, therefore, required to reimburse Medicare.xxix

Consequently, compliance with the Act protects allparties’ interests, including the attorneys involved.

ConclusionThe Medicare Secondary Payer Act requires all

settlements of future medical care to consider andprotect Medicare’s interest. If the plaintiff is not aClass I or II qualified individual, a note to the fileexplaining why a MSA is not needed is most likelysufficient. If the plaintiff is a Class I or II qualifiedindividual but the total settlement amount does notmeet the current CMS review threshold, you shouldstill have a MSA prepared to ensure your compliancewith the Act. Moreover, if the plaintiff is a Class I orII qualified individual and the total settlementamount meets the review threshold, the MSA mustbe reviewed by CMS. Because the settlement willmost likely be executed before CMS approves orrejects the MSA, it is essential to include language inyour settlement agreement regarding the MSA. Thesettlement agreement should state that the MSA wasprepared for the purpose of protecting Medicare’sinterest and should also include language addressingthe type of administration chosen and the conse-quences that will result if CMS determines the MSAneeds more or less funding.

Protecting Medicare’s interest is essential whensettling a claim that closes future medical benefits;therefore, complying with the Act will ensure thatthe necessary steps are taken in order to protect notonly Medicare’s interest but also all involved parties’interests.

Footnotesi 166 N.J.L.J. 501 (Nov. 5, 2001).ii Bio-Medical Applications of Tenn., Inc. v. Cent.

States Southeast, 656 F.3d 277, 278 (6th Cir. 2011). iii Id. iv 42 U.S.C. § 1395y(b)(2)(A)(ii) (2012).v Id.vi U.S. v. Harris, No. 5:08CV102, 2009 U.S. Dist.

LEXIS 23956 (N.D. W. Va. Mar. 26, 2009), aff’d, U.S.v. Harris, No. 09-1485, 2009 U.S. App. LEXIS 23394(4th Cir. W. Va., Oct. 23, 2009); U.S. v. Stricker, No.VC09-BE-2423-E, 2010 U.S. Dist. LEXIS 106981(N.D. Ala. Sept. 30, 2010).

vii Centers for Medicare and Medicaid Services,http://www.cms.gov/Medicare/Coordination-of-Benefits/WorkersCompAgencyServices/wcsetaside.html.

viii Id.vix Id.x Idxi Idxii Idxiii Id. athttp://www.cms.gov/Medicare/

Coordination-of-Benefits/WorkersCompAgencyServices/administeringwcmsas.html.

xiv Id. xv Id. xvi 42 U.S.C. § 1395(y)(b)(2)(B)(iii); Cox v.

Shalala, 112 F.3d 151, 154 (4th Cir. 1997).xvii Id. xviii 42 U.S.C. § 1395(y)(b)(2)(B)(ii).xix 42 U.S.C. § 1395(y)(b)(2)(B)(iii).xx 42 C.F.R. § 411.24(g) (2012).xxi 42 U.S.C. § 1395(y)(b)(2)(B)(iii). xxiii Bio-medical Applications of Tenn., Inc., 656

F.3d at 279. xxiii Id. xxiv Idxxv Francis Macfarlane v. Schneider Nat’l Bulk

Carriers, Inc., 984 So. 2d 185, 190 (4th Cir. 2008). xxvi U.S. v. Sosnowski, 822 F. Supp. 570 (W.D.

Wis. 1993); 42 C.F.R. § 411.24(g)-(h). xxvii Id. xxviii See e.g., U.S. v. Harris, No. 5:08CV102,

2009 U.S. Dist. LEXIS 23956 (N.D. W. Va. Mar. 26,2009).

xxix See e.g., U.S. v. Stricker, No. VC09-BE-2423-E, 2010 U.S. Dist. LEXIS 106981 (N.D. Ala. Sept. 30,2010).

41

ARTICLECONT.

Closing a File: Settlement when aCMS Approved MSA is Required

Once you determine that the plaintiff is a qualifiedindividual, secure a MSA vendor to review medicalrecords and draft an allocation report. The MSAvendor will look at the plaintiff’s last two years ofmedical records and life expectancy to determine thecost of medical services and products over the plain-tiff’s life expectancy that would have been providedby Medicare if the plaintiff’s injuries were not theresult of the current admitted claim. Your vendormay also request pharmacy records to determine theamount of drugs being prescribed and filled. The next step is to discuss the administration of theMSA and determine who will be responsible for addi-tional funding of the MSA if CMS rejects the arrange-ment prepared by your vendor. You must also notifyMedicare concerning whether the MSA will be paidin a lump sum or an annuity. However, despitepaying the MSA with an annuity, “the total settle-ment value” is still the actual amount of the settle-ment, not the discounted annuity rate.xii The fundsprojected for use in the MSA are required to be keptin a separate, interest bearing account that will onlybe used to pay for medical services and devices thatwould have otherwise been covered by Medicare.xiii

CMS also requires annual account status updates.xiv

An MSA can be managed through (1) self-adminis-tration by the plaintiff, (2) professional administra-tion, or (3) trust administration.xv If the plaintiffplans to self-administer the MSA account, providehim with a list of the responsibilities for self-admin-istration and ensure that the plaintiff signs an agree-ment stating that he understands the duties, whichinclude keeping an account of all medical bills paidwith MSA funds and reporting to CMS annually. Asecond option is professional administration, whichyou should discuss with your MSA vendor or admin-istrator. The professional administrator will beresponsible for processing and paying all medicalbills through the MSA fund, as well as reporting toCMS. Based on the complexity of the MSA, you maynot need professional administration until the plain-tiff’s death. For example, you may choose profes-sional administration for a few years followed by aperiod of transition into self-administration wherethe plaintiff would still have contact with the profes-sional administrator for any questions regardingpayment from the MSA account and reporting toCMS.

Counsel must also negotiate and determine whichparty will be responsible for providing increasedfunding to the MSA if CMS responds with a highernumber than that reflected in the MSA proposal.Alternatively, you could reserve your client’s right toeither fund the additional amount or leave themedical portion of the claim open in the event thatCMS responds with a higher amount. If you havealready provided the MSA funding to the plaintiff and

your client decides to keep the medical portion ofthe claim open, you must include language in thesettlement agreement stating that the remainingMSA funds should be returned to your client.Furthermore, the agreement should include a provi-sion providing an alternative if CMS comes back witha lower amount than your MSA proposal. Such anoption may either allow the plaintiff to retain theadditional money or require the plaintiff to reim-burse your client with the additional funding of theMSA that CMS did not require.

If you are settling the claim on a denied anddisputed basis, you should have a $0 MSA prepared.If your settlement does not require CMS approval ofthe MSA, you should still have a $0 MSA prepared tokeep in your case file. Since all parties are requiredto protect Medicare’s interest, contact your MSAvendor to draft a $0 MSA in which you state yourreasons for denial (e.g., statute of limitationsdefense). Taking such steps will establish that yourclient was never the primary payer, and Medicarewould have always been the primary payer for theplaintiff’s medical services or products. If you havepaid for any medical treatment or services, discusswhy you originally began payment and why you nowbelieve that you are no longer required to pay formedical expenses (e.g., plaintiff alleged left shoulderinjury, and your client began to pay for his medicalexpenses until the surveillance video showed theclaim of accident was fraudulent). Even if yoursettlement does not currently meet the CMS reviewthreshold, all settlements of future medical caremust, nonetheless, protect Medicare’s interests.

The Harsh Consequences of Failing toProtect Medicare’s Interest

Penalties can be imposed on any entity responsi-ble for primary payment.xvi Moreover, the govern-ment, on behalf of Medicare, may file suit against anyor all entities responsible for payment with respectto the same item or service under a primary policy orplan.xvii Such entities are subject to various penal-ties. For example, the responsible party may becharged interest on the amount of the reimburse-ment from the date of notice of payments made byMedicare until reimbursement is made.xviii

Additionally, CMS may seek damages against anyentity that received payment from a primary plan orfrom the proceeds of a primary plan’s payment toany entity.xix Such entities include a beneficiary,provider, supplier, physician, attorney, state agency,or private insurer that has received a primarypayment.xx

The Act also provides for a private cause of actionto collect double damages against the primarypayer.xxi Double damages services two purposes.xxii

iThey deter and punish the disfavored conduct ofshifting costs from private insurers to Medicare.xxiii

Second, they incentivize healthcare providers tosupport and defend Medicare’s interests.xiv

40

ARTICLECONT.

Furthermore, penalties may arise not only out ofnon-compliance with the Act but also for failure tocomply with state law. For example, the Court ofAppeals for the Fourth Circuit ordered an employerto pay penalties and attorney’s fees when theemployer failed to fund the Medicare Set Asideaccount within thirty days of judicial approval of thesettlement, as required by state law.xxv

Ensuring compliance with the Act is essentialbecause violations affect all parties involved in thesettlement. As discussed previously, the carrier orself-insured may be exposed to double damages andsubject to paying future medical expenses, while theplaintiff risks having future medical care declined.Moreover, the government may also have the right torecover against the attorney handling the claim.xxvi Ifa beneficiary and his attorney receive a third partysettlement payment, the government has an inde-pendent right of recovery for reimbursement withinsixty days of receipt of the settlement proceeds.xxvii

There have been several instances where the courtshave held attorneys individually liable to Medicarefor reimbursement, plus interest on the total amountof reimbursement in cases where the attorney hassettled a third party claim and failed to reimburseMedicare.xxviii In such cases, the attorney is deemeda “recipient” of payments owed to the Governmentand is, therefore, required to reimburse Medicare.xxix

Consequently, compliance with the Act protects allparties’ interests, including the attorneys involved.

ConclusionThe Medicare Secondary Payer Act requires all

settlements of future medical care to consider andprotect Medicare’s interest. If the plaintiff is not aClass I or II qualified individual, a note to the fileexplaining why a MSA is not needed is most likelysufficient. If the plaintiff is a Class I or II qualifiedindividual but the total settlement amount does notmeet the current CMS review threshold, you shouldstill have a MSA prepared to ensure your compliancewith the Act. Moreover, if the plaintiff is a Class I orII qualified individual and the total settlementamount meets the review threshold, the MSA mustbe reviewed by CMS. Because the settlement willmost likely be executed before CMS approves orrejects the MSA, it is essential to include language inyour settlement agreement regarding the MSA. Thesettlement agreement should state that the MSA wasprepared for the purpose of protecting Medicare’sinterest and should also include language addressingthe type of administration chosen and the conse-quences that will result if CMS determines the MSAneeds more or less funding.

Protecting Medicare’s interest is essential whensettling a claim that closes future medical benefits;therefore, complying with the Act will ensure thatthe necessary steps are taken in order to protect notonly Medicare’s interest but also all involved parties’interests.

Footnotesi 166 N.J.L.J. 501 (Nov. 5, 2001).ii Bio-Medical Applications of Tenn., Inc. v. Cent.

States Southeast, 656 F.3d 277, 278 (6th Cir. 2011). iii Id. iv 42 U.S.C. § 1395y(b)(2)(A)(ii) (2012).v Id.vi U.S. v. Harris, No. 5:08CV102, 2009 U.S. Dist.

LEXIS 23956 (N.D. W. Va. Mar. 26, 2009), aff’d, U.S.v. Harris, No. 09-1485, 2009 U.S. App. LEXIS 23394(4th Cir. W. Va., Oct. 23, 2009); U.S. v. Stricker, No.VC09-BE-2423-E, 2010 U.S. Dist. LEXIS 106981(N.D. Ala. Sept. 30, 2010).

vii Centers for Medicare and Medicaid Services,http://www.cms.gov/Medicare/Coordination-of-Benefits/WorkersCompAgencyServices/wcsetaside.html.

viii Id.vix Id.x Idxi Idxii Idxiii Id. athttp://www.cms.gov/Medicare/

Coordination-of-Benefits/WorkersCompAgencyServices/administeringwcmsas.html.

xiv Id. xv Id. xvi 42 U.S.C. § 1395(y)(b)(2)(B)(iii); Cox v.

Shalala, 112 F.3d 151, 154 (4th Cir. 1997).xvii Id. xviii 42 U.S.C. § 1395(y)(b)(2)(B)(ii).xix 42 U.S.C. § 1395(y)(b)(2)(B)(iii).xx 42 C.F.R. § 411.24(g) (2012).xxi 42 U.S.C. § 1395(y)(b)(2)(B)(iii). xxiii Bio-medical Applications of Tenn., Inc., 656

F.3d at 279. xxiii Id. xxiv Idxxv Francis Macfarlane v. Schneider Nat’l Bulk

Carriers, Inc., 984 So. 2d 185, 190 (4th Cir. 2008). xxvi U.S. v. Sosnowski, 822 F. Supp. 570 (W.D.

Wis. 1993); 42 C.F.R. § 411.24(g)-(h). xxvii Id. xxviii See e.g., U.S. v. Harris, No. 5:08CV102,

2009 U.S. Dist. LEXIS 23956 (N.D. W. Va. Mar. 26,2009).

xxix See e.g., U.S. v. Stricker, No. VC09-BE-2423-E, 2010 U.S. Dist. LEXIS 106981 (N.D. Ala. Sept. 30,2010).

41

ARTICLECONT.

42

Fairchild v. SCDOT, Palmer Constructionand Palmer, Op. No. 27112 (S.C. April 11,2012)

This matter arose from an automobile accident on95 South in March, 2001. Just prior to the accident,a SCDOT dump truck with an attached trailer pulledover to the left side of the road in order to turnaround and enter northbound traffic. However, theback of the trailer allegedly protruded at least partlyinto the left southbound lane. Several cars ahead ofthe Plaintiff’s minivan noticed the SCDOT vehicleand moved to the right. Plaintiff sought to do thesame, initially “flashing” her brakes and continuingto brake as she moved to the right. Unfortunately,she was struck from behind by a construction truckcausing the Plaintiff’s minivan to flip and roll over.Though the SCDOT vehicle was never physicallyinvolved, Plaintiff brought suit against SCDOT andthe construction truck (Palmer ConstructionCompany) along with its driver, Mr. Palmer. Beforetrial, Plaintiff apparently entered into a CovenantNot to Sue with SCDOT which was dismissed as aparty. Though Plaintiff sought actual and punitivedamages, the trial court granted defendant’s motionfor a directed verdict regarding punitives, statingthere was no evidence of reckless conduct by thedefendant driver. However, the trial court alsoconcluded that two statutes relating to traffic safetywere implicated and gave a charge regarding thesame for both 56-5- 1520(a) Traveling Too Fast forConditions and 56-5-1930(a) Following Too Closely.The jury returned a verdict in favor of the Plaintiff for$720,000. Both parties appealed. The Court ofAppeals affirmed in part, reversed in part andremanded. Thereafter, Defendant Palmer’s Petitionfor a Writ of Certiorari was granted.

In its analysis, the Supreme Court addressed fourissues:

(1) Punitive Damages. At trial, the court hadgranted the Defendant’s Motion for Directed Verdictas to punitive damages claiming there was noevidence of reckless conduct by the defendant driver.However, having charged the two driving statutes, itwas clear that violations of such statute were impli-cated. Therefore, the Court of Appeals, citing longstanding precedent, held that the violation of astatute constitutes negligence per se which is someevidence of recklessness and willfulness and there-fore requires submission of the issue of punitivedamages to the jury. Justice Beatty’s opinion reiter-ated the same, opining that such should be submit-

ted to a jury when evidence susceptible of more thanone reasonable inference exists. Moreover, it is notthe duty of the trial court to weigh the testimony inruling for a motion for directed verdict. The opinionrecounted the ample evidence that existed for whichrecklessness might be found. Therefore, theSupreme Court affirmed the Court of Appeals’ deci-sion that the trial court erred in excluding punitivedamages. The court did kindly remind that theDefendant would retain the opportunity to challengethe propriety of any resulting punitive damage awardand the trial court had the authority to review theaward and if found inappropriate or excessive, exer-cise its discretion to order a new trial or a remitter.

(2) Intervening Negligence of Third Party.Defendant Palmer also alleged Court of Appeals errorin determining the trial court should have chargedthe jury on intervening negligence of third parties.Plaintiff had submitted multiple instructions toremind that the negligence of a third party will notexcuse the negligence of the original wrongdoer ifsuch ought to have been foreseen in the exercise ofdue care. Plaintiff specifically sought an instructionthat the aggravation of an injury resulting from thenegligent act of a treating physician was part of theimmediate and direct damages which naturally flowfrom the original injury. The Court of Appeals foundthe trial court’s declination of the instruction to beerror since the defense had implied that over-medication rather than the original injury was thesource of many of the Plaintiff’s alleged ailments.Given that the defense had actually called an expertwitness to testify regarding Plaintiff’s headaches andthe use of OxyContin, etc., the Court of Appeals, aswell as the Supreme Court, felt that in such circum-stance, where the treatment and medical conditionwere the focus of so much testimony, the trial court’sfailure to give the requested charge on interveningacts of third parties was error.

(3) Independent Medical Examination. Finally,defendant Palmer contended the Court of Appealserred in holding that the trial court did not abuse itsdiscretion in denying a Motion for an IME. At trial,following the motion for an IME, Plaintiff did notoppose the IME itself but objected to the specifiedexamining doctor due to his preexisting relationshipwith the defense. Plaintiff asserted that: this doctorhad been named as an expert witness and paid aretainer months before; that the doctor had already

Case NotesSummaries prepared by Jack Riordan

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CASENOTES

examined Plaintiff’s medical records sent to him bythe defendant and formed opinions about Plaintiff’sconditions prior to the IME; that this doctor wasexpected to testify as a defense witness and had beenreferred to the defendant by yet another defensewitness retained to question the extent of thePlaintiff’s injuries. Given the Plaintiff’s objections,the trial court denied Defendant’s motion for thisspecific doctor to perform the IME. However, whenan alternative list of physicians was requested, thedefense apparently informed the court that theywere unwilling to pay for an IME by any other physi-cian. The trial court concluded that, given this elec-tion by the defendant, there was no alternative otherthan to deny the motion in full.

With both parties agreeing that this was a novelissue in the State of South Carolina, close examina-tion of Rule 35 was conducted. The Supreme Courtthereafter determined that under the plain languageof Rule 35(a) the defendant does not have a unilat-eral right to select the examining physician; rather,the court alone has the right to make the appoint-ment. Moreover, a “reasonable objection,” simplymeans the reason for the objection must not be friv-olous. The court determined that the better rule wasthat a physician should not be affiliated with eitherparty in order to serve the purposes of Rule 35.Therefore, the Supreme Court found that thePlaintiff’s reasonable objection was sufficient basisfor the court’s discretionary exercise and was amplysupported by the record.

Grier, PR of the Estate of Fee v. AMISUB,Op. No. 27118 (S.C. May 2, 2012)

This matter concerns the sufficiency of the affi-davit of an expert witness to be filed with the Noticeof Intent to File Suit in regard to a medical malprac-tice allegation.

The deceased was admitted to the PiedmontMedical Center in Rock Hill, South Carolina inJanuary, 2008 for a host of ailments and remained atPiedmont until September of 2008. At that time hewas discharged to another facility for future care.However, he was readmitted to Piedmont 12 dayslater and he remained there until his death inFebruary, 2009.

Prior to bringing the wrongful death and survivalaction against Piedmont stemming from allegedmedical malpractice, the Plaintiff filed the notice ofintent to file as required by Section 15-79-125(a). Itwas claimed that Piedmont’s failure to monitor andtreat the deceased for bedsores and sepsiscontributed to his death. Along with the notice wasthe affidavit from a nurse with experience treatingbedsores and their complications. In the affidavit,the nurse opined, based upon her review of themedical records, that Piedmont breached its duty ofcare towards the decedent in multiple respects andthat these breaches contributed to decedent’s death.

The defense filed a Motion to Dismiss, claiming the

nurse was ill qualified to render an opinion as tocause of death and therefore the affidavit did notcontain a competent causation opinion. The circuitcourt agreed that the nurse was ill qualified to opineas to cause of death. In additionally holding that therequirements of the tort reform act mandated ashowing of proximate cause in the affidavit, defen-dant’s motion to dismiss was granted. While the trialcourt allowed Plaintiff 30 days to submit a “qualify-ing” affidavit, Plaintiff failed to do so and insteadinitiated appeal.

On appeal, while the Plaintiff conceded that thenurse was not qualified to render a causation opin-ion, it was maintained that the pre-suit affidavit didnot require an opinion as to proximate cause.Thereafter, Justice Hearns’ opinion applying purestatutory interpretation, found §15-79-125(a) toprovide no specifics as to the expert affidavit. Thestatute instead refers to §15-36-100 but it merelyrequires: “an affidavit of an expert witness whichmust specify at least one negligent act or omissionclaimed to exist and the factual basis for each claimbased on the available evidence at the time of thefiling of the affidavit.”

Given that no party alleged the statutes at issue tobe ambiguous, the plain language was applied. Giventhat the term “negligent act or omission” had consis-tently referenced only a breach of duty and nevercausation, it was found that no causation wasrequired by the tort claims act affidavit statute.Finding under well established principles of statutoryinterpretation that the General Assembly did notintend any further requirement, the court deter-mined they were in no position to go further them-selves. Read plainly and strictly, §15-79-125(a)simply requires the contemporaneous filing of boththe notice and the affidavit - with the affidavitsubject to the requirements established by §15-36-100. Given that §15-36-100 merely requires the affi-davit to specify at least one negligent act or omission,no causation requirement can be found.

Despite Piedmont’s “implicit legislative intent”argument, the Court again reminded that the statuteis unambiguous and the Court was thereforeconfined to what the statute stated, not what it oughtto state. Finally, it was found that Piedmont had notshown how the application of the plain languagewould lead to results so patently absurd it could nothave been intended by the General Assembly.

Accordingly, the decision of the circuit court wasreversed. The court did remind that the holding inno way would limit the Plaintiff’s burden to comeforward with expert testimony to support the meritsof her claims, if necessary later in the litigationprocess.

42

Fairchild v. SCDOT, Palmer Constructionand Palmer, Op. No. 27112 (S.C. April 11,2012)

This matter arose from an automobile accident on95 South in March, 2001. Just prior to the accident,a SCDOT dump truck with an attached trailer pulledover to the left side of the road in order to turnaround and enter northbound traffic. However, theback of the trailer allegedly protruded at least partlyinto the left southbound lane. Several cars ahead ofthe Plaintiff’s minivan noticed the SCDOT vehicleand moved to the right. Plaintiff sought to do thesame, initially “flashing” her brakes and continuingto brake as she moved to the right. Unfortunately,she was struck from behind by a construction truckcausing the Plaintiff’s minivan to flip and roll over.Though the SCDOT vehicle was never physicallyinvolved, Plaintiff brought suit against SCDOT andthe construction truck (Palmer ConstructionCompany) along with its driver, Mr. Palmer. Beforetrial, Plaintiff apparently entered into a CovenantNot to Sue with SCDOT which was dismissed as aparty. Though Plaintiff sought actual and punitivedamages, the trial court granted defendant’s motionfor a directed verdict regarding punitives, statingthere was no evidence of reckless conduct by thedefendant driver. However, the trial court alsoconcluded that two statutes relating to traffic safetywere implicated and gave a charge regarding thesame for both 56-5- 1520(a) Traveling Too Fast forConditions and 56-5-1930(a) Following Too Closely.The jury returned a verdict in favor of the Plaintiff for$720,000. Both parties appealed. The Court ofAppeals affirmed in part, reversed in part andremanded. Thereafter, Defendant Palmer’s Petitionfor a Writ of Certiorari was granted.

In its analysis, the Supreme Court addressed fourissues:

(1) Punitive Damages. At trial, the court hadgranted the Defendant’s Motion for Directed Verdictas to punitive damages claiming there was noevidence of reckless conduct by the defendant driver.However, having charged the two driving statutes, itwas clear that violations of such statute were impli-cated. Therefore, the Court of Appeals, citing longstanding precedent, held that the violation of astatute constitutes negligence per se which is someevidence of recklessness and willfulness and there-fore requires submission of the issue of punitivedamages to the jury. Justice Beatty’s opinion reiter-ated the same, opining that such should be submit-

ted to a jury when evidence susceptible of more thanone reasonable inference exists. Moreover, it is notthe duty of the trial court to weigh the testimony inruling for a motion for directed verdict. The opinionrecounted the ample evidence that existed for whichrecklessness might be found. Therefore, theSupreme Court affirmed the Court of Appeals’ deci-sion that the trial court erred in excluding punitivedamages. The court did kindly remind that theDefendant would retain the opportunity to challengethe propriety of any resulting punitive damage awardand the trial court had the authority to review theaward and if found inappropriate or excessive, exer-cise its discretion to order a new trial or a remitter.

(2) Intervening Negligence of Third Party.Defendant Palmer also alleged Court of Appeals errorin determining the trial court should have chargedthe jury on intervening negligence of third parties.Plaintiff had submitted multiple instructions toremind that the negligence of a third party will notexcuse the negligence of the original wrongdoer ifsuch ought to have been foreseen in the exercise ofdue care. Plaintiff specifically sought an instructionthat the aggravation of an injury resulting from thenegligent act of a treating physician was part of theimmediate and direct damages which naturally flowfrom the original injury. The Court of Appeals foundthe trial court’s declination of the instruction to beerror since the defense had implied that over-medication rather than the original injury was thesource of many of the Plaintiff’s alleged ailments.Given that the defense had actually called an expertwitness to testify regarding Plaintiff’s headaches andthe use of OxyContin, etc., the Court of Appeals, aswell as the Supreme Court, felt that in such circum-stance, where the treatment and medical conditionwere the focus of so much testimony, the trial court’sfailure to give the requested charge on interveningacts of third parties was error.

(3) Independent Medical Examination. Finally,defendant Palmer contended the Court of Appealserred in holding that the trial court did not abuse itsdiscretion in denying a Motion for an IME. At trial,following the motion for an IME, Plaintiff did notoppose the IME itself but objected to the specifiedexamining doctor due to his preexisting relationshipwith the defense. Plaintiff asserted that: this doctorhad been named as an expert witness and paid aretainer months before; that the doctor had already

Case NotesSummaries prepared by Jack Riordan

CASENOTES

43

CASENOTES

examined Plaintiff’s medical records sent to him bythe defendant and formed opinions about Plaintiff’sconditions prior to the IME; that this doctor wasexpected to testify as a defense witness and had beenreferred to the defendant by yet another defensewitness retained to question the extent of thePlaintiff’s injuries. Given the Plaintiff’s objections,the trial court denied Defendant’s motion for thisspecific doctor to perform the IME. However, whenan alternative list of physicians was requested, thedefense apparently informed the court that theywere unwilling to pay for an IME by any other physi-cian. The trial court concluded that, given this elec-tion by the defendant, there was no alternative otherthan to deny the motion in full.

With both parties agreeing that this was a novelissue in the State of South Carolina, close examina-tion of Rule 35 was conducted. The Supreme Courtthereafter determined that under the plain languageof Rule 35(a) the defendant does not have a unilat-eral right to select the examining physician; rather,the court alone has the right to make the appoint-ment. Moreover, a “reasonable objection,” simplymeans the reason for the objection must not be friv-olous. The court determined that the better rule wasthat a physician should not be affiliated with eitherparty in order to serve the purposes of Rule 35.Therefore, the Supreme Court found that thePlaintiff’s reasonable objection was sufficient basisfor the court’s discretionary exercise and was amplysupported by the record.

Grier, PR of the Estate of Fee v. AMISUB,Op. No. 27118 (S.C. May 2, 2012)

This matter concerns the sufficiency of the affi-davit of an expert witness to be filed with the Noticeof Intent to File Suit in regard to a medical malprac-tice allegation.

The deceased was admitted to the PiedmontMedical Center in Rock Hill, South Carolina inJanuary, 2008 for a host of ailments and remained atPiedmont until September of 2008. At that time hewas discharged to another facility for future care.However, he was readmitted to Piedmont 12 dayslater and he remained there until his death inFebruary, 2009.

Prior to bringing the wrongful death and survivalaction against Piedmont stemming from allegedmedical malpractice, the Plaintiff filed the notice ofintent to file as required by Section 15-79-125(a). Itwas claimed that Piedmont’s failure to monitor andtreat the deceased for bedsores and sepsiscontributed to his death. Along with the notice wasthe affidavit from a nurse with experience treatingbedsores and their complications. In the affidavit,the nurse opined, based upon her review of themedical records, that Piedmont breached its duty ofcare towards the decedent in multiple respects andthat these breaches contributed to decedent’s death.

The defense filed a Motion to Dismiss, claiming the

nurse was ill qualified to render an opinion as tocause of death and therefore the affidavit did notcontain a competent causation opinion. The circuitcourt agreed that the nurse was ill qualified to opineas to cause of death. In additionally holding that therequirements of the tort reform act mandated ashowing of proximate cause in the affidavit, defen-dant’s motion to dismiss was granted. While the trialcourt allowed Plaintiff 30 days to submit a “qualify-ing” affidavit, Plaintiff failed to do so and insteadinitiated appeal.

On appeal, while the Plaintiff conceded that thenurse was not qualified to render a causation opin-ion, it was maintained that the pre-suit affidavit didnot require an opinion as to proximate cause.Thereafter, Justice Hearns’ opinion applying purestatutory interpretation, found §15-79-125(a) toprovide no specifics as to the expert affidavit. Thestatute instead refers to §15-36-100 but it merelyrequires: “an affidavit of an expert witness whichmust specify at least one negligent act or omissionclaimed to exist and the factual basis for each claimbased on the available evidence at the time of thefiling of the affidavit.”

Given that no party alleged the statutes at issue tobe ambiguous, the plain language was applied. Giventhat the term “negligent act or omission” had consis-tently referenced only a breach of duty and nevercausation, it was found that no causation wasrequired by the tort claims act affidavit statute.Finding under well established principles of statutoryinterpretation that the General Assembly did notintend any further requirement, the court deter-mined they were in no position to go further them-selves. Read plainly and strictly, §15-79-125(a)simply requires the contemporaneous filing of boththe notice and the affidavit - with the affidavitsubject to the requirements established by §15-36-100. Given that §15-36-100 merely requires the affi-davit to specify at least one negligent act or omission,no causation requirement can be found.

Despite Piedmont’s “implicit legislative intent”argument, the Court again reminded that the statuteis unambiguous and the Court was thereforeconfined to what the statute stated, not what it oughtto state. Finally, it was found that Piedmont had notshown how the application of the plain languagewould lead to results so patently absurd it could nothave been intended by the General Assembly.

Accordingly, the decision of the circuit court wasreversed. The court did remind that the holding inno way would limit the Plaintiff’s burden to comeforward with expert testimony to support the meritsof her claims, if necessary later in the litigationprocess.

Type of Action: Medical Malpractice

Injuries alleged: wrongful death and survival action

Name of Case: Susan B. Carter as PersonalRepresentative of the Estate of Dean W. Carter,deceased v. Upstate Cardiology, P.A., Douglas S.Head, M.D., Arrhythmia Consultants, P.A., andRobert W. Hull, M.D.

Court: (include county): Circuit Court-GreenvilleCounty

Case number: 09-CP-23-1700

Name of Judge: The Honorable Lettita H. Verdin

Amount: Defense Verdict

Date of Verdict: March 21, 2012

Attorneys for defendant (and city):Molly H. Craig, James B. Hood, T. Happel Scurry,Charleston, South Carolina

Description of the case: The Plaintiff filed amedical malpractice action against an electrophysi-ologist and his practice in connection with the deathof a fifty-two year old man following the implantationof an implantable cardioverter defibrillator ("ICD").The Decedent had a previous history of a myocardialinfarction and occluded LAD six years prior toimplantation. During a nuclear stress test in 2006,the Decedent experienced ventricular tachycardiaand was referred to the electrophysiologist for ICDimplantation due to the risk of sudden death from alethal arrhythmia. Prior to the implantation, theDecedent experienced new onset atrial fibrillation ofunknown duration. The Plaintiff alleged the doctorwas negligent in failing to treat the atrial fibrillationwhich caused the heart arrhythmia to continueresulting in twenty shocks from the ICD the day afterhospital discharge and ultimately causing thepatient's death. To counter the temporal relationshipbetween the implantation and the death, the defensepresented expert testimony that the cause of thedeath was an unpredictable and unpreventablepulmonary embolus related to the Decedent's under-lying cardiac problems and not the shocks from theICD. The case was tried for a week and a half and thejury returned a defense verdict for the electrophysi-ologist and his practice.



Name of Case: Hope Dangerfield, as PersonalRepresentative of the Estate of Linda Dangerfield,deceased v. James M. Ravenel, M.D. and CharlestonGastroenterology Specialists, PA

Court: (include county): Circuit Court-CharlestonCounty


Name of Judge: The Honorable Deadra L. Jefferson


Date of Verdict: May 18, 2012

Attorneys for defendant (and city): Robert H. Hood, Molly H. Craig, Brian E. Johnson,Charleston, South Carolina

Description of the case:The Estate filed a medicalmalpractice action against a gastroenterologist andhis practice alleging negligence in the failure to diag-nose chronic mesenteric ischemia. The decedentwas referred to the Defendant gastroenterologist byher primary care physician in December 2004 forcomplaints of abdominal pain and she treated withthe Defendants on six occasions from December 30,2004 to November 30, 2005. The decedent did notreturn to the gastroenterologist after November,2005. The patient subsequently treated with anumber of physicians before traveling to an Arizonatreatment facility for eating disorders in July, 2006.While a patient at the facility, the decedent had twoevaluations at the local hospital and ultimately, onAugust 16, 2006, a CT angiogram was performedfollowed by balloon dilation and stent placement.Upon return to South Carolina, the patient wastreated at MUSC for surgical revascularization andmanagement of mesenteric ischemia. Multiple oper-ations followed related to complications of the initialsurgery and the patient died on April 28, 2007 atMUSC.

The Plaintiff’s expert witnesses alleged theDefendants breached the applicable standard of carein failing to order imaging studies directed at thepatient’s abdominal vasculature between May andNovember 2005 and, had the condition been diag-nosed and treated at that time, the patient mostlikely would have survived. The Defendantspresented testimony that the patient had symptomsof a number of gastrointestinal disorders, includingirritable bowel syndrome, and the patient attributed

44

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45

her weight loss to other stressors. The Defendantsalso established chronic mesenteric ischemia is adiagnosis of exclusion and the tests ordered duringthe course of treatment were reasonable and appro-priate to rule out more common disorders.Additionally, the patient did not return to thegastroenterologist to notify him she continued to loseweight after November 2005 as instructed. Finally,the Defendants disputed causation presenting testi-mony that imaging studies, if ordered in 2005, wouldnot have diagnosed chronic mesenteric ischemiagiven the negative results of the initial CT Scan of thepatient in August 2006. The jury returned a verdictfor the Defendants on the standard of care after delib-erating for approximately three hours.

Type of Action: Federal EmployersLiability Act (FELA)/Personal Injury

Injuries alleged: Burst fracture with permanent disability

Name of Case: Jerry E. Morris v. Norfolk SouthernRailway Company

Court: (include county): Buncombe CountySuperior Court, Asheville, NC

Case number: 2011-CV-2088

Name of Judge: The Honorable Michael E. Powell

Amount: $250,000.00 reduced by Plaintiff’s ownnegligence (pure comparative under federal statute)of 51% to $122,500.00.


Last Demand: $550,000.00

Last Offer: $150,000.00

Attorneys for defendant (and city): Christopher M. Kelly, Gallivan, White & Boyd, P.A.,Charlotte, North Carolina.

Description of the case:Plaintiff was run over by a hy-rail gang truck travel-ing on railroad tracks and suffered a burst fracture(fracture in three places) of the T3 vertebrae, frac-tured sternum, five broken ribs, broken fibula, shoul-der surgery and left knee replacement surgery.Plaintiff alleged permanent disability. Parties stipu-lated that plaintiff suffered $137,304.00 in past lostwages. Plaintiff asked jury for $1 million for past andfuture pain and suffering.

Type of Action: Automobile Accident with admittedliability.

Injuries alleged: Torn pectoralis muscle; pain inleft shoulder and arm; medical specials of $6,198.00.

Name of Case: Arlene Kirby v. Larry D. JenningsCourt: (include county): Circuit Court –

Orangeburg CountyCase number: 2010-CP-38-01082Name of Judge: The Honorable Diane S. GoodsteinAmount: $13,198.00 for PlaintiffDate of Verdict: February 28, 2012Last Demand: $24,000.00Last Offer: $18,000.00Attorneys for defendant (and city):

Breon C. M. Walker, Gallivan, White & Boyd, P.A.,Columbia, South Carolina.

Description of the case:Plaintiff was attempting toenter Canon Bridge Road from her private drivewayas Defendant was approaching from the oppositedirection. Defendant veered off of the roadway,collided with several mailboxes, and then collidedwith Plaintiff’s vehicle. Defendant testified that hedozed off immediately prior to the collision.

Type of Action: Premises LiabilityInjuries alleged: Injuries to back and bruised kidney

Name of Case: Gino McCoy v. Wolfe Company,Inc., and Mazzie Madden

Court: (include county): Circuit Court – RichlandCounty


Name of Judge: The Honorable R. Lawton McIntosh

Amount: Defense verdict

Date of Verdict: December 1, 2011

Last Demand: n/a

Last Offer: n/a

Attorneys for defendant (and city): A.Johnston Cox, Gallivan, White & Boyd, P.A.,Columbia, South Carolina.

Description of the case: Plaintiff alleged injuries toback and kidneys after allegedly tripping in a sinkhole in the backyard of a property managed byDefendant Wolfe Company, Inc.



Name of Case: Susan B. Carter as PersonalRepresentative of the Estate of Dean W. Carter,deceased v. Upstate Cardiology, P.A., Douglas S.Head, M.D., Arrhythmia Consultants, P.A., andRobert W. Hull, M.D.



Name of Judge: The Honorable Lettita H. Verdin



Attorneys for defendant (and city):Molly H. Craig, James B. Hood, T. Happel Scurry,Charleston, South Carolina

Description of the case: The Plaintiff filed amedical malpractice action against an electrophysi-ologist and his practice in connection with the deathof a fifty-two year old man following the implantationof an implantable cardioverter defibrillator ("ICD").The Decedent had a previous history of a myocardialinfarction and occluded LAD six years prior toimplantation. During a nuclear stress test in 2006,the Decedent experienced ventricular tachycardiaand was referred to the electrophysiologist for ICDimplantation due to the risk of sudden death from alethal arrhythmia. Prior to the implantation, theDecedent experienced new onset atrial fibrillation ofunknown duration. The Plaintiff alleged the doctorwas negligent in failing to treat the atrial fibrillationwhich caused the heart arrhythmia to continueresulting in twenty shocks from the ICD the day afterhospital discharge and ultimately causing thepatient's death. To counter the temporal relationshipbetween the implantation and the death, the defensepresented expert testimony that the cause of thedeath was an unpredictable and unpreventablepulmonary embolus related to the Decedent's under-lying cardiac problems and not the shocks from theICD. The case was tried for a week and a half and thejury returned a defense verdict for the electrophysi-ologist and his practice.



Name of Case: Hope Dangerfield, as PersonalRepresentative of the Estate of Linda Dangerfield,deceased v. James M. Ravenel, M.D. and CharlestonGastroenterology Specialists, PA

Court: (include county): Circuit Court-CharlestonCounty


Name of Judge: The Honorable Deadra L. Jefferson



Attorneys for defendant (and city): Robert H. Hood, Molly H. Craig, Brian E. Johnson,Charleston, South Carolina

Description of the case:The Estate filed a medicalmalpractice action against a gastroenterologist andhis practice alleging negligence in the failure to diag-nose chronic mesenteric ischemia. The decedentwas referred to the Defendant gastroenterologist byher primary care physician in December 2004 forcomplaints of abdominal pain and she treated withthe Defendants on six occasions from December 30,2004 to November 30, 2005. The decedent did notreturn to the gastroenterologist after November,2005. The patient subsequently treated with anumber of physicians before traveling to an Arizonatreatment facility for eating disorders in July, 2006.While a patient at the facility, the decedent had twoevaluations at the local hospital and ultimately, onAugust 16, 2006, a CT angiogram was performedfollowed by balloon dilation and stent placement.Upon return to South Carolina, the patient wastreated at MUSC for surgical revascularization andmanagement of mesenteric ischemia. Multiple oper-ations followed related to complications of the initialsurgery and the patient died on April 28, 2007 atMUSC.

The Plaintiff’s expert witnesses alleged theDefendants breached the applicable standard of carein failing to order imaging studies directed at thepatient’s abdominal vasculature between May andNovember 2005 and, had the condition been diag-nosed and treated at that time, the patient mostlikely would have survived. The Defendantspresented testimony that the patient had symptomsof a number of gastrointestinal disorders, includingirritable bowel syndrome, and the patient attributed

44

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VERDICTREPORTS

45

her weight loss to other stressors. The Defendantsalso established chronic mesenteric ischemia is adiagnosis of exclusion and the tests ordered duringthe course of treatment were reasonable and appro-priate to rule out more common disorders.Additionally, the patient did not return to thegastroenterologist to notify him she continued to loseweight after November 2005 as instructed. Finally,the Defendants disputed causation presenting testi-mony that imaging studies, if ordered in 2005, wouldnot have diagnosed chronic mesenteric ischemiagiven the negative results of the initial CT Scan of thepatient in August 2006. The jury returned a verdictfor the Defendants on the standard of care after delib-erating for approximately three hours.

Type of Action: Federal EmployersLiability Act (FELA)/Personal Injury

Injuries alleged: Burst fracture with permanent disability

Name of Case: Jerry E. Morris v. Norfolk SouthernRailway Company

Court: (include county): Buncombe CountySuperior Court, Asheville, NC

Case number: 2011-CV-2088

Name of Judge: The Honorable Michael E. Powell

Amount: $250,000.00 reduced by Plaintiff’s ownnegligence (pure comparative under federal statute)of 51% to $122,500.00.



Last Offer: $150,000.00

Attorneys for defendant (and city): Christopher M. Kelly, Gallivan, White & Boyd, P.A.,Charlotte, North Carolina.

Description of the case:Plaintiff was run over by a hy-rail gang truck travel-ing on railroad tracks and suffered a burst fracture(fracture in three places) of the T3 vertebrae, frac-tured sternum, five broken ribs, broken fibula, shoul-der surgery and left knee replacement surgery.Plaintiff alleged permanent disability. Parties stipu-lated that plaintiff suffered $137,304.00 in past lostwages. Plaintiff asked jury for $1 million for past andfuture pain and suffering.

Type of Action: Automobile Accident with admittedliability.

Injuries alleged: Torn pectoralis muscle; pain inleft shoulder and arm; medical specials of $6,198.00.

Name of Case: Arlene Kirby v. Larry D. JenningsCourt: (include county): Circuit Court –

Orangeburg CountyCase number: 2010-CP-38-01082Name of Judge: The Honorable Diane S. GoodsteinAmount: $13,198.00 for PlaintiffDate of Verdict: February 28, 2012Last Demand: $24,000.00Last Offer: $18,000.00Attorneys for defendant (and city):

Breon C. M. Walker, Gallivan, White & Boyd, P.A.,Columbia, South Carolina.

Description of the case:Plaintiff was attempting toenter Canon Bridge Road from her private drivewayas Defendant was approaching from the oppositedirection. Defendant veered off of the roadway,collided with several mailboxes, and then collidedwith Plaintiff’s vehicle. Defendant testified that hedozed off immediately prior to the collision.

Type of Action: Premises LiabilityInjuries alleged: Injuries to back and bruised kidney

Name of Case: Gino McCoy v. Wolfe Company,Inc., and Mazzie Madden



Name of Judge: The Honorable R. Lawton McIntosh


Date of Verdict: December 1, 2011

Last Demand: n/a

Last Offer: n/a

Attorneys for defendant (and city): A.Johnston Cox, Gallivan, White & Boyd, P.A.,Columbia, South Carolina.

Description of the case: Plaintiff alleged injuries toback and kidneys after allegedly tripping in a sinkhole in the backyard of a property managed byDefendant Wolfe Company, Inc.

Type of Action: Motorcycle/Automobile Accident

Injuries alleged: Broken leg that required severalsurgeries; MRSA infection; $254,126.49 in medicalspecials; $657,825.00 in lost wages

Name of Case: Troy A. Reason, Sr. v. Spring ValleyAir Conditioning, Inc.



Name of Judge: The Honorable Alison R. Lee


Date of Verdict: January 19, 2012

Last Demand: None

Last Offer: None

Attorneys for defendant (and city): John T. Lay, Jr., and Breon C. M. Walker, Gallivan,White & Boyd, P.A., Columbia, South Carolina.

Description of the case:Plaintiff alleged that he was traveling on a motorcy-cle behind a van owned by Defendant Spring ValleyAir Conditioning, Inc., when the van “suddenly with-out warning” stopped in the middle of Highway 1,without a turn signal or any other warning as to thedriver’s intention to stop. Plaintiff alleged that hehad to slam on brakes to avoid colliding withDefendant’s van, and that his motorcycle slid underthe rear of Defendant’s vehicle, but never madecontact with Defendant’s vehicle.

Type of Action: Trip and Fall/Premises Liability

Injuries alleged: Head injury

Name of Case: Anetta Van Haagen v. Starbucks



Name of Judge: The Honorable Eddie Welmaker




Last Offer: $0

Attorneys for defendant (and city): T. DavidRheney, Gallivan, White & Boyd, P.A., Greenville,South Carolina.

Description of the case:Trip and fall. Plaintiffstopped at a Starbucks on Pelham Road while travel-ing from a trade show in Atlanta to her home inMaryland. After getting out of her car she tripped andfeel over a wheel stop in the lane next to her.Plaintiff initially claimed she had a brain injury withvarious symptoms since the accident. However, in aruling on a motion in limine, the judge allowed her tosay only that she had a head injury since there wasnot going to be a doctor that would testify that shehad a brain injury.

46

VERDICTREPORTS

T R I A L A C A D E M Y A great success! Look for a recap in the next

issue of The DefenseLine

Spring

S U M M E R M E E T I N GJuly 26-28

The Grove Park InnAsheville, NC

Summer

Fall

2012

A N N U A L M E E T I N GNovember 8-11The SanctuaryKiawah Island, SC

Type of Action: Motorcycle/Automobile Accident

Injuries alleged: Broken leg that required severalsurgeries; MRSA infection; $254,126.49 in medicalspecials; $657,825.00 in lost wages

Name of Case: Troy A. Reason, Sr. v. Spring ValleyAir Conditioning, Inc.



Name of Judge: The Honorable Alison R. Lee


Date of Verdict: January 19, 2012

Last Demand: None

Last Offer: None

Attorneys for defendant (and city): John T. Lay, Jr., and Breon C. M. Walker, Gallivan,White & Boyd, P.A., Columbia, South Carolina.

Description of the case:Plaintiff alleged that he was traveling on a motorcy-cle behind a van owned by Defendant Spring ValleyAir Conditioning, Inc., when the van “suddenly with-out warning” stopped in the middle of Highway 1,without a turn signal or any other warning as to thedriver’s intention to stop. Plaintiff alleged that hehad to slam on brakes to avoid colliding withDefendant’s van, and that his motorcycle slid underthe rear of Defendant’s vehicle, but never madecontact with Defendant’s vehicle.

Type of Action: Trip and Fall/Premises Liability

Injuries alleged: Head injury

Name of Case: Anetta Van Haagen v. Starbucks



Name of Judge: The Honorable Eddie Welmaker




Last Offer: $0

Attorneys for defendant (and city): T. DavidRheney, Gallivan, White & Boyd, P.A., Greenville,South Carolina.

Description of the case:Trip and fall. Plaintiffstopped at a Starbucks on Pelham Road while travel-ing from a trade show in Atlanta to her home inMaryland. After getting out of her car she tripped andfeel over a wheel stop in the lane next to her.Plaintiff initially claimed she had a brain injury withvarious symptoms since the accident. However, in aruling on a motion in limine, the judge allowed her tosay only that she had a head injury since there wasnot going to be a doctor that would testify that shehad a brain injury.

46

VERDICTREPORTS

T R I A L A C A D E M Y A great success! Look for a recap in the next

issue of The DefenseLine

Spring

S U M M E R M E E T I N GJuly 26-28

The Grove Park InnAsheville, NC

Summer

Fall

2012

A N N U A L M E E T I N GNovember 8-11The SanctuaryKiawah Island, SC

PRST STDUS POSTAGE

PAIDCOLUMBIA SCPERMIT 1204

South Carolina Defense Trial Attorneys’ Association1 Windsor Cove, Suite 305Columbia, SC 29223

ADDRESS SERVICE REQUESTED

Annual MeetingThe Sanctuary at Kiawah Island

November 8-11