South Carolina Personal Injury Law Blog

South Carolina Appellate Court Rejects Nursing Facility’s Attempt to Force Deceased Patient’s Estate into Arbitration

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

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

Facts of the Case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Facts of the Case

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

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

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

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

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

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

Facts of the Case

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

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

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

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

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

Facts of the Case

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

South Carolina Court of Appeals Affirms Workers’ Compensation Tribunal’s Decision in Temporary Worker’s Case

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

Under South Carolina workers’ compensation law, a person who is hurt at work may be entitled to payment of certain benefits. These include medical care, temporary total disability, and permanent partial disability in many cases. If an employee disagrees with his or her award, there are steps that can be taken to appeal the administrative law judge’s ruling. On appeal, the employee has the burden of convincing the reviewing court that an error was made by the workers’ compensation commission.

Facts of the Case

In a recent unreported case, the plaintiff allegedly injured his left foot while working for the defendant, a temporary staffing agency. He filed a claim for workers’ compensation benefits against the defendant and its workers’ compensation insurance carrier (also a defendant in his suit). Displeased with the holding of the South Carolina Workers’ Compensation Commission regarding his claim, the plaintiff sought review from the appellate court.

The Court’s Ruling

In his appeal to the South Carolina Court of Appeals, the plaintiff argued some 19 issues, including averments that a single commissioner had violated his rights by failing to enforce certain subpoenas, failing to accept deposition testimony, and providing insufficient notice of the review hearing. After considering each of the issues raised by the plaintiff on appeal, the court affirmed the commission’s decision. With regard to four of the issues presented by the plaintiff, the court held that the appellate panel had not erred in reviewing only the specific issue that the appeal panel ordered to be remanded at the remand hearing. As to four other additional issues raised by the plaintiff, the court of appeals determined that such issues had not been properly preserved for review by an appellate court. The court also sided with the defendants on the issue of whether the appellate panel had acted properly in refusing to extend the time for oral arguments.

Federal Court in South Carolina Grants Summary Judgment to Grocery Store in Slip and Fall Case

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

In a South Carolina premises liability case, it is the plaintiff’s burden to prove that a dangerous condition on another’s property caused injury to him or her. The plaintiff must also prove that the defendant either directly caused the condition or that, in the exercise of due diligence, the defendant should have discovered and corrected the condition.

In many slip and fall cases, the defendant will argue that it is entitled to judgment as a matter of law because the plaintiff has not met his or her initial burden of proof. In other words, the defendant asks the court to rule in its favor prior to trial because, even if everything the plaintiff has said in his or her complaint is true, the defendant cannot be held liable under the law. Talking to a lawyer early on and securing evidence such as photographs of the accident scene, video surveillance, and statements from eyewitnesses can be helpful in seeing that the plaintiff has his or her day in court.

Facts of the Case

In a recent case filed in the United States District Court for the District of South Carolina, Columbia Division, the plaintiff was a woman who filed suit against the defendant grocery store, seeking monetary compensation for a torn meniscus in her knee that she allegedly suffered when she slipped and fell in a “brown substance” (which looked like, and may have been, pudding) on the store’s floor while pushing her shopping cart through the dairy aisle in August 2015 . The defendant filed a motion for summary judgment, arguing that it was entitled to judgment as a matter of law because there was no competent evidence proving that it placed the brown substance on the floor or that it had actual or constructive notice of the allegedly dangerous condition.

South Carolina Appellate Court Holds That Automobile Liability Insurer Owes No Coverage for Infant Child’s Death from Complications of Hypothermia After Being Left in Father’s Truck

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

A successful legal claim following a serious personal injury or loved one’s wrongful death requires several steps. First and foremost in any South Carolina personal injury lawsuit, the party seeking to recover money damages for another’s failure to act in a reasonably prudent manner must be able to prove that the defendant breached a duty of care owned to the plaintiff, thereby proximately causing him or her legal damages.

While the plaintiff will not be able to recover money damages without proof of the elements of negligence, it is equally true that proof of negligence will not necessarily result in a successful judgment or settlement. One reason for this is that most defendants in negligence cases do not have the independent means to compensate the negligence victim or his or her family.

Rather, most individuals (and businesses and governmental entities, as well) rely heavily on liability insurance coverage to pay out any monies that are ultimately decided (or agreed) are due the accident victim. Without insurance coverage, fair compensation is unlikely, even in an obvious case of negligence.

South Carolina Supreme Court Says that PIP Cannot Be Offset by Workers’ Compensation Benefits

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

In many South Carolina car accident cases, there is only one real issue: the amount of damages to which the injured party is entitled to receive from the at-fault defendant’s motor vehicle liability insurer.

Sometimes, however, there are other issues, such as how the payment of benefits under other insurance policies – including workers’ compensation insurance, personal injury protection, etc. – factor into the equation. When such dispute cannot be settled among the parties, it is up to the courts to decide.

Facts of the Case

In a recent case, the plaintiff was a woman who was reportedly injured in a work-related motor vehicle accident. Her employer’s workers’ compensation insurance carrier paid some $40,000 in medical expenses related to the accident. After the defendant automobile accident insurance company refused to pay the plaintiff’s personal injury protection (PIP) limit of $5000, the plaintiff and her husband filed suit, asserting claims for breach of contract and bad faith refusal to pay insurance benefits.