Shareholder Ray Moore, serving as local counsel, recently teamed up with Sean Keenan and Eric Schultz of Cruser & Mitchell, LLP in Atlanta. In April 2017, the legal team obtain summary judgment on behalf of their clients in a product liability case. The plaintiff alleged temporary paralysis and a substantial neck injury after he fell from an inversion table. That device had been subject of a voluntary Food and Drug Administration recall before the plaintiff’s injury. After removing the matter to federal court, Moore, Keenan and Schultz defended the case. Following two unsuccessful mediations the defense team moved for summary judgment, primarily on grounds that the plaintiff had failed to heed written warnings accompanying the device. Shortly before the case was subject to trial, United States District Judge C. Weston Houck granted summary judgment on all claims.
J.R. Murphy received a verdict from Judge J. C. Nicholson, Jr., presiding judge for the 9th Judicial Circuit Court of South Carolina, who granted a motion for summary judgment in favor of the Defendant, Progressive Direct Insurance Company, in a case involving an assertion by the Plaintiff, Johnny L. Hedges, that the offer of underinsured motorist coverage made to him during an online transaction failed to satisfy the meaningful offer requirement imposed by South Carolina statute.
Representing the Defendant, J.R. Murphy argued that the transaction did, in fact, satisfy the requirements, and the Court agreed. This ruling comes on the heels of a decision of the South Carolina Supreme Court earlier this year in the matter of Traynum v. Scavens and Progressive Direct Insurance Company in which the Court upheld a trial court decision that the offer of optional coverage by electronic means during an online transaction is a legally binding offer. Murphy, who also argued for the Defense before both the Trial Court and the Supreme Court in the Traynum matter, sees this most recent ruling as both an extension and a validation of that which the court established in Traynum.
Brent M. Boyd received a defense verdict for his client Queen’s Dozer Service, LLC in a construction defect case pending in York County, South Carolina entitled Marcy v. Pulte Home Corporation et al. This case involved claims by a homeowner against the general contractor, Pulte Home Corporation, and several of its subcontractors and a designer after the subject home experienced severe settlement and cracking. Queen’s Dozer, LLC served as one of the grading subcontractors on the project for Pulte Home Corporation. The case was submitted to arbitration, which lasted 8 days and involved 21 lay and expert witnesses.
Anthony Livoti, along with co-counsel Michael Hoffer from the Atlanta firm of Cruser Mitchell, obtained a defense verdict on a premises liability case in the Beaufort County Court of Common Pleas on February 5, 2014. The Plaintiff alleged that she received injures when stepping into a hot tub at a resort on Hilton Head Island. Plaintiff alleged that the hot tub was unreasonably dangerous and should have more steps leading to the center of the pool. The Defendants contended there was nothing dangerous or hazardous about the hot tub and that it complied with all applicable codes and industry standards. After 2 ½ days of trial testimony, the jury deliberated for thirty minutes and returned a defense verdict.
Recently, Ron Diegel and Peter Farr obtained summary judgment in a products liability case which was filed and pending in United States District Court in Columbia, S.C. In this case, the Plaintiff operated a forklift on an incline and the brakes failed. The forklift rolled down an incline, tipped over and the Plaintiff was thrown from the forklift sustaining significant permanent injuries. The forklift had been donated by the defendant textile manufacturer to the town where the Plaintiff was employed, and previously had undergone the installation of a roll bar but did not have seatbelts. Plaintiff claimed the forklift was dangerous and defective and asserted a negligence/products liability claim against the textile manufacturer. The District Court granted summary judgment to the textile manufacturer after extensive discovery and depositions. The case is currently on appeal to the United States Fourth Circuit.
In February 2012, Ron Diegel and Peter Farr obtained summary judgment in a case filed in Florence County against Coker Oil Company and its driver for an intersection collision between Coker’s diesel oil tanker truck and a vehicle operated by the Plaintiff. Though the Plaintiff contended that Coker Oil’s driver was on a blue tooth hands-free cell phone device at the time of the collision which may have been distracting to the driver, and that the Coker driver may have failed to take evasive action to avoid the collision, the Court ruled that any such finding would be speculative in nature based upon the testimony and evidence offered in the case. Coker Oil was also able to show that the Plaintiff was intoxicated and was driving while impaired at the time of the collision.
In a trial in Darlington County, Ron Diegel defended a driver against a claim made by a plaintiff that a rear-end collision resulted in permanent neck and back injuries with total damages in excess of $190,000. Several doctors testified on behalf of the plaintiff. After a three-day trial, the jury returned a verdict of $7,500 which was far below the settlement offer extended to the plaintiff prior to the start of trial.
Anthony Livoti and Ray Moore tried a serious automobile accident case in Richland County where the plaintiff suffered serious and significant injuries and liability was strongly contested. The parties tried the case on a high/low agreement on the issues of liability only. Anthony and Ray obtained a comparative negligence verdict finding the plaintiff 80 percent at fault, which resulted in the plaintiff receiving the agreed upon low figure.
In a week-long trial in Florence County, Ron Diegel defended a homeowner in a premises liability case where a workman claimed that the homeowner had created a dangerous condition by leaving a sprinkler system on which wet the workman’s ladder and caused him to fall sustaining serious injuries to his back and neck. Total damages claimed were $650,000.00. The jury returned a defense verdict.
In a case filed in Georgetown County, South Carolina, Ron Diegel and Ray Moore defended a restaurant against a claim that a dangerous step caused a patron to fall and injure his back, necessitating surgery. After considerable deposition testimony and expert discovery, the Court granted summary judgment to the restaurant finding that the step was not a dangerous condition, and even if it was, the step was not the proximate cause of the patron’s fall.
J.R. Murphy obtained summary judgment in the case of Progressive Halcyon Insurance Company v. Paige Cline, civil action number 4:05-842-25, United States District Court before the Honorable Terry Wooten. The issue before the Court was whether the adult, emancipated daughter of the named insured who, was listed as an insured driver on the vehicle but did not reside with the named insured, was entitled to UIM coverage under the vehicle while riding as a passenger in a non-owned vehicle. The defendant argued that she temporarily resided in her father’s home immediately prior to the accident, but the Court found that neither her status as a listed driver nor the fact that she occasionally resided in her father’s home prior to the accident qualified her as a Class I insured under the policy.
J.R. Murphy obtained summary judgment in the case of Progressive Specialty Ins. Co. vs. Abraham Murray, Perry Capers and Mark A. Gadsden, civil action number 2:06-161-DCN, which was pending in United States District Court before the Honorable David Norton. The Court found that an employee who violated the terms of permission granted to him by his employer could not convey permission to a third party to operate the vehicle, thereby preventing liability coverage for the injuries sustained by a passenger. The Court then went on to find that the passenger, who likewise did not have permission of the named insured to use or occupy the vehicle, did not qualify as a permissive user or “guest” under South Carolina Code §38-77-130(7) to entitle him to uninsured motorist coverage under the same policy, distinguishing this case from the recent South Carolina Court of Appeals decision in Unisun Ins. Co. v. Schmidt, 339 S.C. 362, 367, 529 S.E.2d 280 (2000).
Adam Neil obtained a defense verdict in a defamation and breach of contract case in Charleston County. The plaintiff, the former pastor of a local church, sued the chairman of the deacons. The Court directed a verdict on the breach of contract claim and the jury took only thirty minutes to return a defense verdict on the remaining claims.
John Grantland defended a fast-food restaurant in Allendale County and received a directed verdict. The plaintiff had alleged food poisoning as a result of a contaminated chicken sandwich. While the plaintiff presented medical expert testimony that the plaintiff suffered from food poisoning, the defense presented the testimony of the plaintiff’s own treating physician, who testified that the plaintiff did not have food poisoning, as well as testimony from employees regarding the preparation of the food. The trial judge granted a directed verdict on the grounds that the plaintiff had not presented any evidence of the restaurant’s negligence. At the conclusion of the trial, the clerk of court told Grantland that this was the first directed verdict in a personal injury case in Allendale County that she could recall in the last 20 years.
Adam Neil obtained a directed verdict in Lexington County in favor of a national chain hair salon in a case in which the plaintiff claimed that a cut on his neck, which was received during the haircut, ultimately became infected and lead to a case of reactive arthritis. The plaintiff made no complaint to the salon at the time of his haircut. Additionally, the plaintiff had no medical evidence to establish either that the alleged cut became infected or that the infection ultimately lead to the reactive arthritis diagnosis. The Court found that the plaintiff failed to establish the causation element of the claim and granted directed verdict in favor of the defendant. Robinson v. The Hair Cuttery.
Adam Neil obtained a defense verdict in Richland County in a case involving a rear-end automobile collision. The plaintiff claimed to have been rear-ended twice in the same accident. First by the co-defendant and again after Mr. Neil’s client rear-ended the co-defendant. Although the plaintiff testified that he only recalled one impact and that he could not identify any additional damage or injury based upon a second impact, the co-defendant claimed that Mr. Neil’s client had pushed him into the plaintiff’s car. Although the jury found in favor of the plaintiff in his case against the co-defendant, the jury exonerated Mr. Neil’s client from any fault. Lewie v. McCown.
Adam Neil obtained summary judgment in favor of Scottsdale Insurance Company in the United States District Court for the District of South Carolina in a breach of contract and bad faith action against the company. The case involved an allegedly defective swimming pool which was constructed by a Scottsdale insured for the plaintiff. Prior to the trial of the underlying construction defects case, Scottsdale withdrew its defense of the insured. The insured put only a nominal defense at the trial of the case (which was conducted non-jury) and the Trial Court issued an Order against Scottsdale’s insured and entered a judgment in favor of the plaintiffs. In exchange for a Covenant Not to Execute, the insured signed its rights under the insurance policy to the plaintiffs. The plaintiffs then brought suit against Scottsdale allegedly for both breach of contract and bad faith. Scottsdale defended the claim on a number of grounds including that the assignment was defective and that there were no covered damages delineated in the Order granting judgment in favor of the plaintiffs. The Federal District Court agreed finding that the entirety of the plaintiffs’ claim constituted complaints for faulty workmanship only and that there were no damages awarded for property damage which resulted from the original defective construction. Therefore, there was no covered claim under the insurance policy and, because there was no coverage, the Court found that Scottsdale had not acted in bad faith in refusing to defend its insured. Bellino v. Scottsdale Insurance Company.
Adam Neil obtained a defense verdict in a premises liability action against a local automobile dealership. The case, which was pending in Richland County, involved a plaintiff who claimed to have fallen on icy steps leading to the dealership’s office building. The employees of the dealership testified that they had been up and down those same steps several times prior to the fall without observing any ice. The jury returned a defense verdict in less than thirty minutes.
Ron Diegel defended a trucking company and its driver in a lawsuit, which alleged the company’s driver had failed to yield the right-of-way to a driver in an oncoming vehicle. Although the company’s driver admitted to having seen the oncoming vehicle before attempting to pull across the highway and later pled guilty to failure to yield the right of way, the defense was able to establish, through the use of accident reconstruction experts and toxicology experts, that the driver of the oncoming vehicle was speeding and possibly under the influence of alcohol at the time of the accident. After two days of trial and numerous motions regarding the admissibility of evidence and testimony, a favorable settlement was achieved which was well over a million dollars less than the plaintiff’s pre-trial demand.
Ron Diegel defended the South Carolina Department of Transportation in a negligence lawsuit where the plaintiffs claimed that the Department of Transportation had failed to timely install median cable barriers to prevent highway crossover collisions. In this particular case, two people died and two other people were seriously injured. The jury returned a defense verdict after concluding that the Department of Transportation did not act negligently and had complied with all applicable highway safety standards.
Brent M. Boyd obtained a defense verdict in a negligence case in Aiken County when the jury found that the plaintiff’s negligence exceeded the negligence of the defendant. The plaintiff had sustained a wrist fracture and, according to medical testimony, an approximate 30% permanent impairment. In closing arguments, the plaintiff’s attorney requested in excess of $200,000.
J.R. Murphy successfully argued an insurance coverage case involving construction defect before the Fourth Circuit Court of Appeals. Harleysville Mutual Insurance Co. v. Mungo Homes, Inc., Docket No. 04-1945 (per curium) (unpublished) arose the case as a class action lawsuit in the Summit subdivision in Columbia, South Carolina, which was built on the former Pontiac Precision Bombing Range. The claimants alleged economic loss and the loss of use of their property as a result of the failure to disclose the presence of ordnance and the failure to conduct an appropriate geological survey. After summary judgment was awarded to Harleysville by the trial court, the insured appealed. The case was consolidated with two other identical declaratory actions pending before the same federal judge. The Fourth Circuit Court of Appeals affirmed on the basis of the implied property exclusion which does not provide coverage for property that is not physically injured. Harleysville was the only insurer to raise the exclusion in its summary judgment motion or on appeal.
J.R. Murphy received summary judgment in an underinsured rejection case in which the claimant argued that the failure of the insured to physically place an “X” beside the rejection choice made the otherwise valid offer ineffective. Betty Lynn Bradburn vs. Reliant Insurance Company 04-CP-44-259 (Hon. John C. Hayes, III presiding). J.R. is hoping to have the same success on the identical issue pending before the Supreme Court on a certified question in Floyd vs. Nationwide Insurance Company 2004-CP-23-2180.
J.R. Murphy received summary judgment on an underinsured stacking case on the issue of whether the insured vehicle was “involved” in the accident in order to satisfy the requirements of South Carolina Code §38-77-160. The case involved a motorist who was involved in an initial accident, moved his vehicle out of the roadway and was standing beside the vehicle when another motorist swerved off the roadway and struck him. His vehicle was not struck or damaged by this “second” accident. The trial court granted summary judgment on the issue of stacking pursuant to the holding of Merck vs. Nationwide Mutual Insurance Company, 318 S.C. 22, 455 S.E.2d 697. The case is George Land vs. Nationwide 2004-CP-44-260 (Hon. John C. Hayes, III presiding).
J.R. Murphy successfully argued two permissive use cases and obtained Summary Judgment in favor of the client/insurer, Ricky N. Brown vs. Nationwide Mutual Insurance Company 03-CP-40-4292 and Progressive v. Brown, Jonathan and James Brown 2004-CP-23-3520.
The South Carolina Supreme Court recently upheld the validity of a “non-standard” rejection form used by Progressive Casualty Insurance Company in the case of Progressive Casualty Insurance Company vs. Louis Leachman 02: 03-652-18. J.R. Murphy argued the case before the Court and Adam Neil assisted in preparation of the brief.
In an automobile accident case tried in Richland County, Brent Boyd obtained a defense verdict in a claim made against a local municipality for an accident involving one of its police officers. The plaintiff claimed the officer was negligent for striking him while in pursuit of a suspected shoplifter.
In a trial held in Richland County South Carolina Ron Diegel defended the driver of an automobile involved in a wreck against a plaintiff who claimed she sustained a herniated disc in her back, a neck injury and glass in her eyes. The plaintiff also claimed she was unable to work as a result of the accident. Though the plaintiff’s treating orthopedist initially opined that the wreck caused the plaintiff’s injuries and that surgery was warranted, Ron established through cross-examination of the orthopedist at trial that the plaintiff’s testimony was inconsistent and necessarily contradicted the orthopedist’s understanding of how the wreck occurred. The orthopedist then changed his opinion and testified that the wreck may not have caused the herniated disc. After a 2 1/2-day trial, the jury returned a defense verdict.
In a case in Horry County South Carolina, Ron Diegel defended a restaurant against a claim by a plaintiff who asserted that faulty drainage and a clogged air conditioning drain line led to the accumulation of water and slippery algae in a handicapped parking space located near the doors of the restaurant. When the plaintiff arrived at the restaurant he attempted to get out in the handicapped parking spot and was on crutches from a prior unrelated injury. The plaintiff fell and claimed that he slipped in the algae that had accumulated in the parking space. The plaintiff sustained a severe ankle injury which would necessitate future surgical fusion of his ankle, and damages alleged by the plaintiff approached one million dollars. After a four-day trial, the jury returned a defense verdict after Ron established through witness testimony that the accident could not have happened the way the plaintiff said that it did.
Ron Diegel represented a retailer in a claim by a worker whose foot was run over and crushed by a forklift operator. After conducting discovery and taking depositions of the necessary witnesses, Ron moved for summary judgment on the grounds that the worker, though not an employee of Wal-Mart, was a statutory employee under SC Code of Laws Ann. 42-1-400 and was barred from pursuing the lawsuit since workers compensation was his exclusive remedy. The trial court agreed, granted summary judgment to Wal-Mart and this result was upheld by the South Carolina Court of Appeals in a reported decision, Hancock v. Wal-Mart Stores, Inc., 355 S.C. 168, 584 S.E.2d 398 (Ct. App.2003, cert. denied 2004).
In a trial in United States District Court, Ray Moore was able to obtain a defense verdict on behalf of his client who had been sued arising out of a fire that occurred at a gasoline/fueling station. The case was initially brought in state court, but after removal and several favorable rulings on Motions in Limine, including a ruling precluding proffered res gestae testimony that his client was on notice of the dangerous condition that caused the fire, the jury deliberated approximately ten minutes before delivering its unanimous defense verdict.
In a case involving an injured worker who had suffered second- and third-degree chemical burns to approximately one-third of his body, Ray Moore defended the manufacturer of a component of an allegedly defective chemical distribution system. Based on the client’s request to resolve the case immediately, Ray was able to thoroughly investigate, retain experts and favorably resolve the case at a mediation four months after opening the case.
Ray Moore argued a case before the Fourth Circuit Court of Appeals in which the Fourth Circuit affirmed dismissal of an unfair trade practices claim brought against several retailers for allegedly discontinuing the sale of a vendor’s product for retaliatory reasons. The Fourth Circuit upheld a Rule 12 (b) (6) dismissal by the United States District Court. Bessinger v. Food Lion, Inc., 305 F. Supp. 2nd 574 (D.S.C. 2003).
In a trial held in Berkeley County, Anthony Livoti represented a used-car lot against a plaintiff who claimed he was injured on the property. The plaintiff was a deliveryman making a delivery to the used car lot when he claimed that he twisted his ankle in a hole on the property. The plaintiff ultimately required three surgeries to his foot and missed substantial time from work. Anthony argued that there was no evidence that the used car lot created the hole nor had notice of the existence of the hole on the property prior to plaintiff’s injury. After the plaintiff presented his case, the trial court granted the defendant’s motion for a directed verdict.