Mar 15, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today at 877-374-5999 for a private consultation. Or visit our website at www.rjrlaw.com.
Semi Truck Overturns Spills Lumber on I-85 in Spartanburg South Carolina
March 6th, 2012 | Author: Truck360 Staff
SPARTANBURG, S.C. – A semi truck carrying lumber overturned spilling lumber on an exit ramp of Interstate 85 on Friday morning, February 24, in Spartanburg, South Carolina.
A lumber truck overturned on the I-85 exit ramp in Spartanburg, SC on February 24, 2012 spilling lumber all over the ramp and the roadways of both interstates and causing a major traffic jam.
Spartanburg is located in Spartanburg County in the northern part of the state about 93 miles northwest of Columbia and 29 miles northeast of Greenville.
The 18 wheeler accident occurred just before 7:15 a.m. According to the South Carolina Highway Patrol, the truck was traveling on the southbound exit ramp of I-85 onto I-26 eastbound when it overturned on the exit’s curve.
Map showing location where a lumber truck overturned on the exit ramp from the southbound I-85 to the eastbound 26 in Spartanburg, SC on February 24, 2012.
The driver of the tractor trailer was identified as Ronnie Lavelle Thomas, 29, of Stillmore, Georgia. Authorities charged Thomas with driving too fast for conditions.
No injuries were reported at the time of the accident.
The incident remains under investigation at this time.
Mar 15, 2012 | Car Accidents, Personal Injury, Uncategorized, Wrongful Death
This SC Supreme Court case illustrates how every aspect of a serious injury case is aggressively defended. Here, defense lawyers wrongfully struck minority jurors during jury selection. The Court correctly reversed the case and remanded it for a new trial. But note, the lawyers had to fight all the way to the state Supreme Court and will have to try this case all over again. Better make sure your serious accident attorney is willing to go the distance and fight for you and your family. There is too much at stake to risk an inexperienced or timid lawyer.
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today at 803-548-4444 for a private consultation. Or visit our firm’s website at www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Manuel Robinson, as duly appointed Personal Representative of the Estate of Brenda Doris Robinson, deceased, Petitioner,
v.
Bon Secours St. Francis Health System, Inc. and St. Francis Hospital, Inc., d/b/a St. Francis Women’s and Family Hospital, Adrian Paul Corlette, Sr., MD, Elaine Mary Haule, MD, Donald Webster Wing, MD and Tara L. Sabatinos, PA, Respondents.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Greenville County
D. Garrison Hill, Circuit Court Judge
Opinion No. 26628
Heard January 22, 2009 – Filed April 13, 2009
REVERSED
Matthew Christian and W. Harold Christian, Jr., both of Christian Moorhead & Davis, of Greenville, for Petitioner.
Ashby W. Davis, of Davis & Snyder, of Greenville, and Gregory A. Morton, of Donnan & Morton, of Greenville, for Respondents.
PER CURIAM: We granted a writ of certiorari to review the Court of Appeals’ opinion in Robinson v. Bon Secours St. Francis Health Sys. Inc., Op. No. 2006-UP-333 (S.C. Ct. App. filed September 20, 2006). The sole issue on certiorari is whether the Court of Appeals properly upheld the trial court’s denial of Robinson’s Batson[1] motion. We reverse.
FACTS
Robinson is the personal representative of the estate of his deceased wife, Brenda, who passed away while under the care of Respondents on September 19, 2000.[2] Robinson brought wrongful death and survival actions against the hospital and treating physicians. The trial commenced on March 21, 2005.
During jury selection, counsel for the defense struck four potential jurors: three black females and one white male. The jury was ultimately composed of five white males, seven white females, one black female alternate, and one white female alternate. Robinson made a Batson motion to set aside the state’s strikes of the three black potential jurors.
In response, defense counsel explained the rationale for his strike of Juror No. 12 stating, she was “a 53-year-old black female would more identify with the 52-year-old decedent in this case than she would any other party.” Defense counsel also gave his reasons for striking the other black female jurors being that one had limited education and limited life experience due to her youth, and the other was too young and unemployed.
The trial court held the explanations given were race neutral such that Robinson had not met his burden of demonstrating purposeful discrimination; the Court of Appeals affirmed. Robinson v. Bon Secours St. Francis Health Sys. Inc., Op. No. 2006-UP-333 (S.C. Ct. App. filed September 20, 2006).
ISSUE
Did the Court of Appeals err in affirming the denial of Petitioner’s Batson motion?
DISCUSSION
The Equal Protection Clause of the Fourteenth Amendment prohibits the striking of a venire person on the basis of race or gender. McCrea v. Gheraibeh, 380 S.C. 183, 669 S.E.2d 333 (2008). A Batson hearing must be held when members of a cognizable racial group or gender are struck and the opposing party requests a hearing. State v. Adams, 322 S.C. 114, 124, 470 S.E.2d 366, 372 (1996). At the hearing, the proponent of the strike must offer a facially race-neutral explanation for the strike. Once the proponent states a race-neutral reason, the burden is on the party challenging the strike to show the explanation is mere pretext, either by showing similarly situated members of another race were seated on the jury or that the reason given for the strike is so fundamentally implausible as to constitute mere pretext despite a lack of disparate treatment. State v. Evins, 373 S.C. 404, 415, 645 S.E.2d 904, 909 (2007), cert. denied, — U.S. —-, 128 S.Ct. 662, 169 L.Ed.2d 521 (2007); McCrea v. Gheraibeh.
An explanation for a jury strike will be deemed race-neutral unless a discriminatory intent is inherent. Purkett v. Elem, 514 U.S. 765, 768, (1995); Adams, 322 S.C. at 123, 470 S.E.2d 471 (emphasis supplied). Where the stated reason is inherently discriminatory, the inquiry ends and a pretext inquiry is obviated. McCrea, 380 S.C. at ___, 669 S.E.2d at 335. On two occasions, this Court has found the stated reason for a juror strike facially discriminatory. In Payton v. Kearse, 329 S.C. 51, 56, 495 S.E.2d 205, 208 (1998), we held a peremptory challenge based upon a characterization of the juror as a “redneck” was facially discriminatory, and therefore violative of Batson. Most recently, in McCrea, we found a solicitor’s “uneasiness” over a potential juror’s dreadlocks was insufficient to satisfy the race-neutral requirement.
Here, defense counsel stated the reason he struck the juror was that she was a “53-year-old black female” who “would more identify with the 52-year-old decedent in this case than she would any other party.” The reason is, on its face, inherently discriminatory.[3] Accordingly, the trial court erred in proceeding to the next step of the inquiry, i.e., whether the stated reason was pretextual. AccordMcCrea (trial court must first elicit race-neutral reason for strike before proceeding with pretext inquiry). We hold the trial court erred in denying Robinson’s Batson motion. The case is reversed and remanded for a new trial.
REVERSED AND REMANDED.
TOAL, C.J., WALLER, PLEICONES, BEATTY, JJ., and Acting Justice James E. Moore, concur.
[1] Batson v. Kentucky, 476 U.S. 79 (1986).
[2] Brenda Robinson was a fifty-two year old epileptic who had a shunt implanted in August 2000 to drain fluid from her brain. She went to the St. Francis Hospital Emergency Room on September 11, 2000 after a seizure where she was evaluated and discharged. As a result of this evaluation, Robinson was subsequently advised she had a urinary tract infection and was proscribed antibiotics. She went home and began having seizures several days later. She returned to the hospital on September 15, 2000, and became comatose. She died four days later.
[3] We are unpersuaded by the claim that the reason for the strike was a similarity in age, as opposed to race. At best, the age factor provides an alternate motivation for the strike. This Court, however, has specifically rejected a dual motivation analysis in the context of a Batson claim. Payton v. Kearse, 329 S.C. 51, 59, 495 S.E.2d 205, 210 (1998) (notwithstanding validity of remaining explanations, one racially discriminatory reason vitiates strike).
Mar 13, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation
This SC Supreme Court case addresses the issue of “stacking” wages. In many states, an employer is only responsible for an injured workers’ lost wages from the one job. However, under SC workers’ compensation law, you are able, in most situations, to “stack” or “combine” lost wages from other employment as well. Here, the Court was presented with the unique issue of whether someone serving jail time on the weekends could similarly stack their wages when injured at prison. Given clear legislative language against same, the Court ruled no stacking was permitted under these limited circumstances. Because the “average weekly wage” and resulting “compensation rate” are key to every financial aspect of a workers’ compensation claim, it is imperative that you get maximum credit for all possible wages and even qualifying fringe benefits. Better make sure your attorney understands this area of workers’ compensation law and is willing to fight to get you the best possible compensation rate. There is too much at stake to risk an inexperienced lawyer.
At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys. Robert J. Reeves is a former intensive care unit Registered Nurse (RN) who has actually treated patients with the same type of serious injuries he now represents in workers’ compensation cases. Both Robert J. Reeves and Arthur K. Aiken are former insurance defense attorneys who know what to anticipate and how to prepare for trial and insurance company tactics. During our twenty-two (22) years each of practicing law, we have handled virtually every type of workers’ compensation injury, including neck, back, shoulder, knee accidents, closed head / brain injury, herniated disks, bulging disks, diskectomy surgery, fusion procedures, arthroscopy, automobile accidents on the job, psychological / post traumatic stress, permanent and total disability claims, and wrongful death. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us at 803-548-4444 for a private consultation. Or visit our firm’s website at www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
James A. Smith, Respondent,
v.
Barnwell County, Employer, and South Carolina Association of Counties Self Insurance Fund, Carrier, Appellants.
Appeal from Barnwell County
Doyet A. Early, III, Circuit Court Judge
Opinion No. 26716
Heard June 10, 2009 – Filed September 8, 2009
REVERSED
Richard Kale, Jr., of Wilson, Jones, Carter & Baxley, of Greenville, for Appellants.
Andrew Nathan Safran, of Columbia, for Respondent.
Grady L. Beard and Daniel W. Hayes, both of Sowell, Gray, Stepp & Laffitte, of Columbia, for Amicus Curiae.
JUSTICE PLEICONES: This case presents the question whether an inmate injured while serving time on weekends may include his full time employment wages in addition to prison pay in determining his average weekly wage, for purposes of workers’ compensation. Because we find that the legislature intended to deny inmates the right to combine wages, we find that Respondent may not do so. We therefore reverse the circuit court’s decision to the contrary.
FACTS
After a conviction for driving under the influence, Appellant James A. Smith served time on weekends at the Barnwell County Detention Center, where he was directed to engage in various work activities.[1] Smith also worked during the week at Bowe Construction. While working at a landfill during his weekend sentence, Smith fell from a tractor and injured his back.
Barnwell County elected to cover its prisoners under the workers’ compensation program, as allowed by S.C. Code Ann. § 42-1-500 (2005). Barnwell County accepted Smith’s claim for workers’ compensation and began paying him compensation based upon an average weekly wage of $40 a week, the amount provided in S.C. Code Ann. § 42-7-65 (2005) as the average weekly wage for county and municipal prisoners. Smith then filed a Form 50 with the Workers’ Compensation Commission contending that the average weekly wage from his regular employment, which he claimed was $333.82, should also be included in determining his compensation.
Following a hearing, the single commissioner ruled that Smith could not include the average weekly wage from his regular employment. The full commission affirmed and the circuit court reversed the full commission. Barnwell County appealed.
ISSUES
| Did the circuit court err in finding that Smith is an “employee” of Barnwell County? |
| Did the circuit court err in finding that Smith may combine wages from civilian employment with the statutory average weekly wage for county prisoners? |
DISCUSSION
The amount of compensation awarded under the workers’ compensation statutes is based on the worker’s average weekly wage. S.C. Code Ann. § 42-1-40 provides the method for calculating the average weekly wage, but allows for deviation from the method “for exceptional reasons . . . .” S.C. Code Ann. § 42-1-40 (2005). This Court has held that concurrent employment is one such exceptional reason. See Foreman v. Jackson Minit Markets, Inc., 265 S.C. 164, 217 S.E.2d 214 (1975).
Barnwell County argues on appeal that Smith was not an “employee” of Barnwell County and therefore, since Smith was not working for two or more employers when the injury occurred, Smith may not recover compensation for concurrent employment. We need not reach this issue because we agree with the County that, even assuming Smith is an “employee” for workers’ compensation purposes, he may not combine wages under § 42-1-40.
Originally, the average weekly wage for prisoners was addressed in § 42-1-40, which contained the “exceptional reasons” provision.[2] In 1983, after this Court’s decision in Foreman, the General Assembly removed the inmate section from § 42-1-40 and included it in the newly-created § 42-7-65, which contains no “exceptional reasons” provision. Section 42-7-65 is entitled “Average weekly wage designated for certain categories of employees”[3] and provides in part, “[t]he average weekly wage for county and municipal prisoners is forty dollars a week.”
By removing inmates from § 42-1-40, designating a specific weekly wage for inmates, and not providing an “exceptional reasons” provision in § 42-7-65, we find that the General Assembly intended that inmates not be allowed to combine wages in determining their average weekly wage. Compare Boles v. Una Water District, 291 S.C. 282, 353 S.E.2d 286 (1987) (holding that volunteer firefighter may combine wages where firefighter’s average weekly wage was set forth in § 42-1-40). If the General Assembly had not intended such a result, there would have been no reason to remove inmates from § 42-1-40. See Cannon v. South Carolina Dep’t of Probation, Parole, and Pardon Serv., 371 S.C. 581, 430, 641 S.E.2d 429, 584 (2007), citing Denene, Inc. v. City of Charleston, 352 S.C. 208, 574 S.E.2d 196 (2002) (it must be presumed the Legislature did not intend a futile act, but rather intended its statutes to accomplish something).
Given the above, we find that the General Assembly intended to deny inmates the ability to combine wages in determining their average weekly wage. See State v. Scott, 351 S.C. 584, 588, 571 S.E.2d 700, 702 (2002) (The cardinal rule of statutory interpretation is to ascertain the intent of the legislature.). Smith is therefore limited to the average weekly wage provided by § 42-7-65.[4]
CONCLUSION
Assuming arguendo that Smith is an “employee” for purposes of the workers’ compensation statute, we find that Smith may not combine wages. The General Assembly did not intend for an inmate to be able to combine wages in determining his average weekly wage.
REVERSED.
TOAL, C.J., WALLER, BEATTY and KITTREDGE, JJ., concur.
[1] Though the record is silent as to whether Smith’s labor was mandatory or voluntary, he was apparently engaged in a voluntary program for labor on public works allowed by S.C. Code Ann. § 24-13-235 (2005).
[2] Though § 42-1-40 only specifically addressed the average weekly wage of inmates of the State of South Carolina, S.C. Code Ann. § 42-1-500 (1977) provided for worker’s compensation coverage for certain county inmates in accordance with the statutes addressing coverage for State inmates.
[3] 1983 Act No. 33, § 1; county prisoners were added in 1991 Act. No. 16, § 2.
[4] We reject Smith’s argument that S.C. Code Ann. § 42-7-65 (2005), as interpreted by Appellant, is penal in nature and so, must be strictly construed against the governmental entity seeking to enforce it. “A determination of whether a statute is civil or criminal in nature is primarily a question of statutory construction, which begins by reference to the act’s text and legislative history.” See In re Matthews, 345 S.C. 638, 648, 550 S.E.2d 311, 316 (2001). “Where the legislature has manifested its intent that the legislation is civil in nature, the party challenging that classification must provide ‘the clearest proof that the statutory scheme is so punitive in either purpose or effect as to negate the [legislature’s] intention.’” Id. In the instant case, Smith has failed to show the punitive nature of § 42-7-65, a part of the worker’s compensation act.
Mar 11, 2012 | Car Accidents, Personal Injury, Uncategorized
With spring here and summer months rapidly approaching, this article from our friends at News 14 should remind us all of the need to be safe on the water. Whether boating or skiing on Lake Wylie, Lake Norman, or Lake Murray, please be mindful of others and always follow the rules. Also, every year, people are injured or worse from those who have too much to drink while operating speed boats or personal water crafts (PWC). The attorneys at Reeves, Aiken & Hightower, LLP, wish everyone a great summer. Be Safe. Get Home.
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today at 803-548-4444 or 704-499-9000 for a private consultation. Or visit our firm’s website at www.rjrlaw.com
Suspects wanted in boat hit-and-run on Lake Wylie
By: News 14 Carolina Staff
CHARLOTTE – Police and South Carolina wildlife officials are looking for four people involved in a boating accident on Lake Wylie.
Two fishermen said they were near the Buster Boyd Bridge Saturday evening when they saw a boat heading right for them. The boat hit the fishermen, knocking one of them into the water.
Three people from the other boat also fell in, but they climbed back into their boat and took off, leaving the two fishermen stranded in the dark. The fishermen are OK, but now they’re offering their own money for information leading to an arrest.
Dan Jarrell, who lives on the lake, saw the whole thing.
“You could hear him scream for help,” Jarrell said.
He jumped in his boat to go help.
“The one boat was sitting still and the other boat was coming down stream about that speed and they hit each other,” Jarrell said. “It was loud enough to get everybody’s attention.”
Authorities describe the boat as a white 16- or 17-foot Neptune-style Walkabout, an open-bow boat. It should have very visible damage to the left front side.
The South Carolina Division of Natural Resources is checking local marinas in search of the vessel.
“So far, we haven’t come up with a boat,” Private 1st Class Jeff Vissage said.
But authorities are asking everyone to be on the lookout, because they believe the boat will show up somewhere soon.
“Maybe someone on that boat will start getting a guilty feeling and call us and say, ‘Hey, this isn’t right. I want to do the right thing.'” Vissage said.
Anyone who sees the boat should call York County Crime Stoppers at 1-877-409-4321.
Mar 10, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Wrongful Death
Below are some interesting statistics relating to alcohol related fatalities. Although this data is from 2006, it is indicative of the serious problem with drunk driving fatalities. The figures compiled speak for themselves. The highlighted statistic indicating there is an “alcohol-impaired driving fatality every 39 minutes” is the most disturbing. Despite tougher laws and better intervention by police, these numbers are not significantly improved since then. If you drink, please don’t drive. Get a friend to drive. Call a cab. Be Safe. Get Home.
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today at 803-548-4444 or 704-499-9000 for a private consultation. Or visit our firm’s website at www.rjrlaw.com
Alcohol-Impaired Driving
In 2006, 13,470 people were killed in alcohol-impaired-driving crashes. These alcohol-impaired-driving fatalities accounted for 32 percent of the total motor vehicle traffic fatalities in the United States. Traffic fatalities in alcohol-impaired-driving crashes fell by 0.8 percent, from 13,582 in 2005 to 13,470 in 2006. The 13,470 alcohol-impaired-driving fatalities in 2006 were almost the same as compared to 13,451 alcohol-impaired-driving fatalities reported in 1996.
Drivers are considered to be alcohol-impaired when their blood alcohol concentration (BAC) is .08 grams per deciliter (g/dL) or higher. Thus, any fatality occurring in a crash involving a driver with a BAC of .08 or higher is considered to be an alcohol-impaired-driving fatality. The term “driver” refers to the operator of any motor vehicle, including a motorcycle. Estimates of alcohol-impaired driving are generated using BAC values reported to the Fatality Analysis Reporting System (FARS) and imputed BAC values when they are not reported. The term “alcohol-impaired” does not indicate that a crash or a fatality was caused by alcohol impairment.
The 13,470 fatalities in alcohol-impaired-driving crashes during 2006 represent an average of one alcohol-impaired-driving fatality every 39 minutes. (Emphasis added). In 2006, all 50 States, the District of Columbia, and Puerto Rico had by law created a threshold making it illegal per se to drive with a BAC of .08 or higher. Of the 13,470 people who died in alcohol-impaired-driving crashes in 2006, 8,615 (64%) were drivers with a BAC of .08 or higher. The remaining fatalities consisted of 4,030 (30%) motor vehicle occupants and 825 (6%) were non-occupants.
The national rate of alcohol-impaired-driving fatalities in motor vehicle crashes in 2006 was 0.45 per 100 million vehicle miles of travel.
In 2006, 1,794 children age 14 and younger were killed in motor vehicle crashes. Of those 1,794 fatalities, 306 (17%) occurred in alcohol-impaired driving crashes.
Children riding in vehicles with drivers who had a BAC level of .08 or higher counted for half (153) of these deaths. Another 45 children age 14 and younger who were killed in traffic crashes in 2006, were pedestrians or cyclists who were struck by drivers with a BAC of .08 or higher.
www.NHTSA.gov
DOT HS 810 801
(Updated March 2008)
Mar 10, 2012 | Car Accidents, Nursing Home Abuse, Personal Injury, Uncategorized, Wrongful Death
Although this SC Supreme Court case addressed a service of process exception given some extraordinary circumstances, the facts of the case show a typical scenario faced by families with relatives who must be placed into an assisted living facility. As we age, we become more dependent and vulnerable to injury. At first, our friends and family try to help. But eventually, it may reach the point where professional care is necessary for their own safety. Sadly, nursing home cases are becoming more common as our population grows older. Many nursing homes are simply not staffed appropriately to care for the residents in their charge. And, nursing home residents are older and more frail than ever. It is shocking how quickly someone can become dehydrated and malnourished and then get a decubitus ulcer or bedsore. If not treated quickly and monitored properly, the small reddened area can become serious and life-threatening, resulting in septicemia or sepsis and then premature death. Better make sure your nursing home abuse attorney has actually handled these complex cases and understands the medical issues involved. Otherwise, a jury may not fully appreciate how bedsores form and can progress so rapidly to death. Robert J. Reeves is a former Intensive Care Unit Registered Nurse (RN) who has actually treated patients with severe bedsores who became septic. He can answer your family’s questions first and then explain to a jury what happened to your loved one.
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, we understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us at 803-548-4444 today for a private consultation. Or visit our firm’s website at www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Floree Hooper, as Personal Representative of the Estate of Albert L. Clinton, Deceased, Petitioner,
v.
Ebenezer Senior Services and Rehabilitation Center, Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from York County
S. Jackson Kimball, III, Circuit Court Judge
Opinion No. 26748
Heard September 17, 2009 – Filed December 14, 2009
REVERSED AND REMANDED
John S. Nichols, of Bluestein, Nichols, Thompson & Delgado, of Columbia, and Robert V. Phillips, of McGowan, Hood, Felder & Johnson, of Rock Hill, for Petitioner.
R. Gerald Chambers and R. Hawthorne Barrett, both of Turner, Padget, Graham & Laney, of Columbia, for Respondent.
JUSTICE BEATTY: Floree Hooper (“Hooper”), acting as Personal Representative of the Estate of Albert L. Clinton, brought this action alleging claims for wrongful death and survival against Ebenezer Senior Services and Rehabilitation Center (“Ebenezer”). The trial court granted summary judgment in favor of Ebenezer, finding the claims were untimely asserted. The South Carolina Court of Appeals affirmed. Hooper v. Ebenezer Senior Servs. & Rehab. Ctr., 377 S.C. 217, 659 S.E.2d 213 (Ct. App. 2008). This Court granted Hooper’s petition for a writ of certiorari. We now reverse and remand.
I. FACTS
The facts, in the light most favorable to Hooper, are as follows.[1] Ebenezer was a nursing home located in York County. In February 2003, Albert L. Clinton was placed at Ebenezer by his family. When he was admitted, Clinton had been diagnosed with short- and long-term memory deficits and impaired decision-making ability. Ebenezer was on notice that Clinton was at risk for the development of decubitus ulcers[2] and that he had to be given proper nutrition and be repositioned every two hours to avoid this condition.
Within three weeks of his admission to Ebenezer, Clinton developed severe decubitus ulcers. In April 2003, Clinton was admitted to Piedmont Medical Center in Rock Hill, South Carolina, where he was diagnosed with dehydration, hypernatremia[3], and severe decubitus ulcers. As a result of the allegedly negligent treatment at Ebenezer, Clinton was transferred to another long-term care facility in May 2003. Clinton died on May 15, 2003.
On February 6, 2006, Hooper filed with the York County Court of Common Pleas a summons and complaint in which she alleged substandard care and treatment rendered by Ebenezer contributed to Clinton’s death. She asserted claims for wrongful death and survival. It is undisputed by the parties that the statute of limitations on these claims began to run upon Clinton’s death on May 15, 2003 and expired three years later on May 15, 2006. See, e.g., S.C. Code Ann. § 15-3-530 (2005) (providing a three-year statute of limitations period for the claims enumerated therein).
According to an affidavit prepared by Hooper’s attorney and supporting documents, in order to effectuate service Hooper’s attorney called the number for Ebenezer and was told that the business had been sold and it was now “Agape Rehabilitation.” Hooper’s attorney drove by the building where Ebenezer had been located and saw a sign identifying the premises as “Agape Rehabilitation of Rock Hill.”
The attorney searched the website for the South Carolina Secretary of State and found Ebenezer was listed as a business in good standing with a registered agent (Jack G. Hendrix, Jr.) located at 1415 Richland Street, Columbia, South Carolina. On February 8, 2006, the attorney forwarded the pleadings to the Richland County Sheriff’s Office for service upon the agent at the designated Columbia address. At the end of February or the beginning of March, the attorney received an Affidavit of Non-Service from the Richland County Sheriff’s Office stating service was not successful because the agent had moved to an unknown address.
The attorney then hired a private investigator, who found a personal address for the agent. On March 21, 2006, the attorney mailed the pleadings to the Richland County Sheriff’s Office for a second attempt at service upon the agent. On April 10, 2006, the Richland County Sheriff’s Office returned the pleadings and advised the attorney that the address was in Lexington County and therefore was not within its jurisdiction.
Immediately thereafter on April 13, 2006, approximately one month before the three-year statute of limitations was due to expire, the attorney forwarded the pleadings to the Lexington County Sheriff’s Office for service upon the registered agent. The attorney made numerous follow-up calls to the Lexington County Sheriff’s Office to determine the status of service and each time was told that the agent was being served and that he would be notified when service was complete. On June 12, 2006, after the statute of limitations had run, the attorney received an Affidavit of Non-Service from the Lexington County Sheriff’s Office informing him that they had, in fact, been unable to effect service on the agent because “per [a] neighbor [the] agt [agent] left his wife a year ago [and it is] unknown where he lives now.”
According to the attorney, he then hired a private investigator to try to serve Agape Rehabilitation. An Affidavit of Service and supporting documents indicate service was accomplished on June 15, 2006 by a process server upon Janet Inkelaar, who indicated that she was the Administrator of Agape Rehabilitation and that she was authorized to accept service on behalf of Ebenezer. Inkelaar stated Ebenezer had been taken over by Agape Rehabilitation of Rock Hill in December 2004, but the two businesses were “affiliated.”
Ebenezer moved to dismiss Hooper’s action on the basis service was not completed before the running of the three-year statute of limitations of section 15-3-530, nor within the time limits of Rule 3(a)(2) of the South Carolina Rules of Civil Procedure (SCRCP), which requires that service be made within the statute of limitations or, if made thereafter, that it be made within 120 days of filing the summons and complaint. Ebenezer alleged Hooper’s decedent died on May 15, 2003; therefore, the three-year statute of limitations expired on May 15, 2006. In this case, the summons and complaint were filed on February 6, 2006[4] and service was not effected until June 15, 2006, which was after the running of the statute of limitations and more than 120 days after filing of the summons and complaint.
The parties submitted affidavits and other materials, so the trial court converted the motion into one for summary judgment.[5] The trial court granted summary judgment to Ebenezer, finding Hooper’s action was not timely commenced because service did not occur within the statute of limitations or within 120 days of filing the summons and complaint as required by Rule 3(a)(2), SCRCP.
The trial court rejected Hooper’s argument that the 120-day period should not begin running until the last day of the statute of limitations, finding this conflicts with the clear and unambiguous wording of Rule 3(a)(2). The trial court also rejected Hooper’s arguments that the statute of limitations should be equitably tolled or that Ebenezer should be equitably estopped from asserting the statute of limitations based on its failure to accurately list its registered agent for service of process with the Secretary of State as required by state law.
The Court of Appeals affirmed. Hooper v. Ebenezer Senior Servs. & Rehab. Ctr., 377 S.C. 217, 659 S.E.2d 213 (Ct. App. 2008). We granted Hooper’s petition for a writ of certiorari to review the decision of the Court of Appeals.
II. LAW/ANALYSIS
A. Standard of Review
Rule 56(c) of the South Carolina Rules of Civil Procedure provides that a trial court may grant a motion for summary judgment only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c), SCRCP.
“In determining whether any triable issues of fact exist, the court must view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the non-moving party.” Brockbank v. Best Capital Corp., 341 S.C. 372, 378-79, 534 S.E.2d 688, 692 (2000). An appellate court reviews the granting of summary judgment under the same standard applied by the trial court under Rule 56(c), SCRCP. Id. at 379, 534 S.E.2d at 692.
B. Equitable Tolling
On appeal, we first consider Hooper’s argument that the statute of limitations should be equitably tolled for the delay in service that occurred while Hooper was trying to serve Ebenezer’s nonexistent agent. Hooper asserts she was entitled to rely upon the public records and Ebenezer’s failure to name a viable registered agent with the South Carolina Secretary of State as required by state law thwarted her repeated attempts to effect service. Hooper asserts that, under all the circumstances, it would be inequitable for Ebenezer to be allowed to benefit from its conduct by obtaining a complete dismissal of her claims. We agree.
“‘Tolling’ refers to suspending or stopping the running of a statute of limitations; it is analogous to a clock stopping, then restarting.” 51 Am. Jur. 2d Limitation of Actions § 169 (2000). “Tolling may either temporarily suspend the running of the limitations period or delay the start of the limitations period.” Id.
South Carolina law provides for tolling of the applicable limitations period by statute in certain circumstances. See S.C. Code Ann. § 15-3-30 (2005) (stating exceptions to the running of the statute of limitations when the defendant is out of the state); id. § 15-3-40 (providing exceptions for persons under a disability, including being underage or insane).
In addition to these statutory tolling mechanisms, however, “[i]n order to serve the ends of justice where technical forfeitures would unjustifiably prevent a trial on the merits, the doctrine of equitable tolling may be applied to toll the running of the statute of limitations.” 54 C.J.S. Limitations of Actions § 115 (2005). “Equitable tolling is a nonstatutory tolling theory which suspends a limitations period.” Ocana v. Am. Furniture Co., 91 P.3d 58, 66 (N.M. 2004).
Equitable tolling is judicially created; it stems from the judiciary’s inherent power to formulate rules of procedure where justice demands it. Rodriguez v. Superior Court, 98 Cal. Rptr. 3d 728 (Ct. App. 2009). “Where a statute sets a limitation period for action, courts have invoked the equitable tolling doctrine to suspend or extend the statutory period ‘to ensure fundamental practicality and fairness.’” Id. at 736 (citation omitted).
The party claiming the statute of limitations should be tolled bears the burden of establishing sufficient facts to justify its use. Ocana, 91 P.3d at 65; see also 54 C.J.S. Limitations of Actions § 115 (“The party who seeks to invoke equitable tolling bears the devoir of persuasion and must, therefore, establish a compelling basis for awarding such relief.”).
It has been observed that “[e]quitable tolling typically applies in cases where a litigant was prevented from filing suit because of an extraordinary event beyond his or her control.” Ocana, 91 P.3d at 66. However, jurisdictions have considered tolling in a variety of contexts and have developed differing parameters for its application.[6] See, e.g., Irby v. Fairbanks Gold Mining, Inc., 203 P.3d 1138, 1143 (Alaska 2009) (“Under the doctrine of equitable tolling, when a party has more than one legal remedy available, the statute of limitations is tolled while the party pursues one of the possible remedies.”); Abbott v. State, 979 P.2d 994, 998 (Alaska 1999) (“Federal precedent equitably tolls the limitations period in three circumstances: (1) where the plaintiff has actively pursued his or her judicial remedies by filing a timely but defective pleading; (2) where extraordinary circumstances outside the plaintiff’s control make it impossible for the plaintiff to timely assert his or her claim; or (3) where the plaintiff, by exercising reasonable diligence, could not have discovered essential information bearing on his or her claim.” (footnotes omitted)); Kaplan v. Morgan Stanley & Co., ___ A.2d ___, ___ (Vt. 2009) (2009 WL 2401952) (“Equitable tolling applies either where the defendant is shown to have actively misled or prevented the plaintiff in some extraordinary way from discovering the facts essential to the filing of a timely lawsuit, or where the plaintiff has timely raised the same claim in the wrong forum.” (citing Beecher v. Stratton Corp., 743 A.2d 1093, 1098 (Vt. 1999)); cf. Machules v. Dep’t of Admin., 523 So. 2d 1132, 1134 (Fla. 1988) (stating the doctrine of equitable tolling, unlike equitable estoppel, does not require deception or misrepresentation by the defendant; rather, it serves to ameliorate the harsh results that sometimes flow from a strict, literalistic application of administrative time limits).
In our view, the situations described above do not constitute an exclusive list of circumstances that justify the application of equitable tolling. “The equitable power of a court is not bound by cast-iron rules but exists to do fairness and is flexible and adaptable to particular exigencies so that relief will be granted when, in view of all the circumstances, to deny it would permit one party to suffer a gross wrong at the hands of the other.” Hausman v. Hausman, 199 S.W.3d 38, 42 (Tex. App. 2006). Equitable tolling may be applied where it is justified under all the circumstances. We agree, however, that equitable tolling is a doctrine that should be used sparingly and only when the interests of justice compel its use.
We have previously tolled a statute of limitations based on equitable considerations. In Hopkins v. Floyd’s Wholesale, 299 S.C. 127, 382 S.E.2d 907 (1989), a workers’ compensation case, we tolled the running of the statute of limitations for the time that the employee was induced by the employer to believe the claim would be taken care of without filing a claim (the “reliance period”). In reaching this result, we considered two methods of treating the claim: (1) requiring that the claim be filed a “reasonable time” after the reliance period, or (2) tolling the statute of limitations during the reliance period. Id. at 129, 382 S.E.2d at 908-09. We held the better rule was to toll the running of the statute of limitations during the reliance period, as this “rule estopping employers from asserting the statute of limitation[s]” provided greater certainty and gave the employee the greatest benefit of the equitable rule. Id.at 130, 382 S.E.2d at 909.
In Schriber v. Anonymous, 848 N.E.2d 1061 (Ind. 2006), a widow brought medical malpractice and wrongful death claims arising out of the death of her husband. The widow encountered difficulties in effecting timely service because the defendant, a healthcare facility, failed to file a certificate of assumed name for its business designation and to conspicuously post its facility license in public view as required by state law. Id. at 1063. The Indiana Supreme Court, while deciding the case on another basis, observed that the proper procedure should have been for the court to judicially toll the expiration of the applicable limitations period for the time that the defendant’s actions hindered the plaintiff’s discovery of the proper entity name and thus delayed her attempt to effect service. Id. at 1063-64.
In the current appeal, we find Ebenezer’s failure to properly list its registered agent for service with the Secretary of State as required by state law hindered Hooper’s pursuit of service.[7] Although Ebenezer argues it is entitled to the dismissal of Hooper’s action because she should have pursued alternative means of service, such as publication or service upon the Secretary of State, nowhere in Ebenezer’s arguments does it acknowledge the obvious fact that the need for alternative means of service was caused by Ebenezer’s own failure to supply the correct information regarding its agent to the Secretary of State as required by law. In fact, as Hooper noted in her brief, though several years had passed, Ebenezer still had not supplied the name of an appropriate agent for service of process to the Secretary of State at the time this case was initially brought before our Court. Hooper was entitled to rely on the public records and she diligently pursued service on what turned out to be a nonexistent agent. Thus, it is not equitable that Ebenezer be the beneficiary of the drastic consequence of a dismissal.
Moreover, it is important to note that a party utilizes these alternative methods of service only after first exercising reasonable or due diligence to effect service on an individual or agent. See e.g., S.C. Code Ann. §§ 15-9-710 & -730 (2005) (providing that when an individual or corporate agent, respectively, cannot be located in this State after the exercise of due diligence, service may be had by publication once this fact has been established by affidavit to the satisfaction of the court); id. § 33-44-111 (2006) (stating if an agent for a limited liability company cannot be found after the exercise of reasonable diligence, service may be had upon the Secretary of State).
In this case, Hooper first tried to effect service upon the agent named by Ebenezer at the address it supplied to the Secretary of State. When that was unsuccessful, Hooper hired a private investigator, who found a personal address for the agent. Hooper contacted the Lexington County Sheriff’s Department on numerous occasions and was told that service was being made. She was not notified until one month after the running of the statute of the limitations that service had been unsuccessful because the whereabouts of the agent could not be determined.
Hooper finally was able to effect service after the statute of limitations had run, only after she exercised reasonable and due diligence to serve Ebenezer’s agent. Under Rule 3(a)(2), SCRCP, even if the limitations period has run, service may still be effected if it is accomplished within 120 days of filing of the summons and complaint. Unfortunately, Hooper was approximately one week past the 120 days. Thus, under the unique circumstances of this case, we conclude it is appropriate to equitably toll the statute of limitations for the time Hooper spent in pursuit of Ebenezer’s nonexistent agent.
Finally, we note that public policy and the interests of justice weigh heavily in favor of allowing Hooper’s claim to proceed. The statute of limitations’ purpose of protecting defendants from stale claims must give way to the public’s interest in being able to rely on public records required by law.
CONCLUSION
As a matter of law and public policy, we reverse the trial court’s grant of summary judgment in favor of Ebenezer and remand for further proceedings consistent with this opinion.[8]
REVERSED AND REMANDED.
TOAL, C.J., WALLER and PLEICONES, JJ., concur. KITTREDGE, J., concurring in result only.
[1] On a motion for summary judgment, the evidence and all reasonable inferences must be viewed in the light most favorable to the non-moving party. Bovain v. Canal Ins., 383 S.C. 100, 678 S.E.2d 422 (2009).
[2] Commonly referred to as bed sores. Webster’s Third New International Dictionary 588 (2002).
[3] An excessive amount of sodium in the blood. Dorland’s Illustrated Medical Dictionary 741 (25th ed. 1974).
[4] Ebenezer states in its materials that filing of the summons and complaint occurred on February 8, 2006, but this appears to be a scrivener’s error.
[5] See, e.g., Baird v. Charleston County, 333 S.C. 519, 511 S.E.2d 69 (1999) (allowing a motion to dismiss to be treated as a motion for summary judgment where the trial court considers materials outside the pleadings and the parties have a reasonable opportunity to respond to the materials).
[6] We note that in the jurisdictions referenced above that discuss tolling a limitations period when a plaintiff is prevented from filing a complaint, filing generally marks the time for commencement of an action. See, e.g., Alaska R. Civ. P. 3(a) (Alaska); Rule 1-003 NMRA (New Mexico); V.R.C.P. 3 (Vermont); see also Fed. R. Civ. P. 3 (federal rules).
[7] Under South Carolina law, corporations and limited liability companies must designate and continuously maintain an agent for service of process. See S.C. Code Ann. § 33-5-101 (2006) (corporations); id. § 33-44-108 (limited liability companies).
[8] Based on our holding, we need not reach Hooper’s remaining arguments regarding the 120-day provision of Rule 3(a)(2), SCRCP and equitable estoppel. However, we note that, at oral argument, Hooper’s counsel conceded the appropriateness of the ruling of the Court of Appeals regarding the application of Rule 3(a)(2), SCRCP.
