Mar 17, 2012 | Car Accidents, Personal Injury, Uncategorized
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 877-374-5999 for a private consultation. Or visit our firm’s website at www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Noel and Elizabeth Dillon, Appellants/Respondents,
v.
Neil Frazer, Respondent/Appellant.
Appeal From Greenville County
G. Edward Welmaker, Circuit Court Judge
Opinion No. 26629
Heard January 8, 2009 – Re-filed June 1, 2009
AFFIRMED IN PART; REVERSED IN PART
Cynthia Barrier Patterson, of Columbia, and Donald R. Moorhead, of Greenville, for Appellant/Respondents.
C. Stuart Mauney and T. David Rheney, both of Gallivan, White & Boyd, of Greenville, for Respondent/Appellant.
JUSTICE PLEICONES: This action arose out of an automobile accident in which Noel Dillon was injured due to Neil Frazer’s admitted negligence. The men were co-employees of a company located in Ontario, Canada and both were residents of Ontario. After a jury verdict for $6,000, Dillon[1] appealed the trial court’s refusal to grant a new trial absolute on damages. Frazer appealed four points, all relating to whether or not Dillon’s action should have been barred by the exclusivity statute found in Ontario workers’ compensation law. We certified the case pursuant to Rule 204(b), SCACR. We now affirm the trial court’s ruling refusing to apply Ontario law, reverse the trial court’s refusal of a new trial absolute as to damages, and remand.
FACTS
In 2002, Dillon and Frazer were employed by Massiv Die-Form (Massiv), a Canadian corporation with no facilities or place of business in South Carolina. The men were in Greenville, South Carolina working for Massiv. During their visit, Dillon and Frazer stayed at a hotel in Greenville and drove a rental car, all of which was paid for by Massiv. Both Dillon and Frazer were paid 30 minutes per day for the travel time between their hotel and the worksite. Frazer was the only employee authorized to drive the rental car.
Dillon sustained injuries in a car accident when Frazer ran a stop sign in a car in which Dillon was a passenger. Dillon was transported by ambulance to a hospital, where it was determined that he had eight fractured ribs on his right side and two on his left, a fractured sternum, a fractured clavicle, a fractured left thumb, and a punctured lung. He was admitted to the hospital where he remained for two days. Once back in Canada, Dillon received physical therapy. The remainder of his care was covered by the Canadian Health System and those costs were not sought in this action.
Due to his punctured lung, Dillon was not medically able to fly back to Canada until the Friday following his release from the hospital. He did not return to work for at least 10 weeks. Initially, Dillon returned to full-time work, but performed fewer overtime hours than prior to his injuries. Dillon testified that, prior to the accident, he worked roughly between 900 and 1,100 hours of overtime and double time each year. He stated that, after the accident, the number of hours he was able to work diminished.
Frazer admitted liability, so the only questions remaining for the jury were the amount of damages due Dillon and whether Dillon’s wife was entitled to damages for loss of consortium. All told, Dillon’s hospital care in Greenville amounted to $10,518. Dillon also claimed $320 for EMS transportation to the hospital and $1,188 in physical therapy bills. In addition to compensation for medical care, Dillon also contended that he was entitled to $509,168 in lost past and future earnings, including $101,350 in lost wages from the date of injury to the estimated trial date and $407,818 for the post-trial period, based on calculations by Dillon’s expert.
During deliberations, the jury sent questions to the judge asking whether any compensation had been paid to Dillon by a third party. The jury awarded Dillon $6,000 and found for Frazer on the consortium claim by Dillon’s wife. Dillon moved for a new trialnisi additur or in the alternative, for a new trial absolute as to damages only. The trial court granted Dillon’s motion for additur and increased the damages by $15,000, bringing the total amount of damages to $21,000. He denied all other motions.
I.
New trial absolute
Dillon argues on appeal that the trial court erred by not granting a new trial absolute as to damages. We agree.
The trial court has sound discretion when addressing questions of excessiveness or inadequacy of verdicts, and its decision will not be disturbed absent an abuse of discretion. Toole v. Toole, 260 S.C. 235, 239, 195 S.E.2d 389, 390 (1973). “The trial court must grant a new trial absolute if the amount of the verdict is grossly inadequate or excessive so as to shock the conscience of the court and clearly indicates the figure reached was the result of passion, caprice, prejudice, partiality, corruption or some other improper motive. The failure of the trial judge to grant a new trial absolute in this situation amounts to an abuse of discretion and on appeal this Court will grant a new trial absolute.” Vinson v. Hartley, 324 S.C. 389, 404-05, 477 S.E.2d 715, 723 (Ct. App. 1996). When considering a motion for a new trial based on the inadequacy or excessiveness of the jury’s verdict, the trial court must distinguish between awards that are merely unduly liberal or conservative and awards that are actuated by passion, caprice, prejudice, or some other improper motive. Elam v. S.C. Dept. of Transp., 361 S.C. 9, 602 S.E.2d 772 (2004).
DISCUSSION
In Kalchthaler v. Workman, 316 S.C. 499, 450 S.E.2d 621 (Ct. App. 1994), the Court of Appeals held that a party, having requested and been granted an additur, cannot complain of the amount. However, this does not preclude a party that is granted additur from appealing the trial judge’s refusal to grant a new trial absolute. Sullivan v. Davis, 317 S.C. 462, 467, 454 S.E.2d 907, 911 (Ct. App. 1995).
Dillon presented evidence of over $500,000 in damages as a result of the accident. While Frazer contested portions of Dillon’s claim, unchallenged testimony at trial established the following damages: $10,518 in medical bills, $320.00 for EMS transportation to the hospital, $1,188 in physical therapy bills, and $18,000 in lost wages and overtime pay. This totals $30,026 in undisputed damages.
We find the jury verdict of $6,000 irreconcilably inconsistent with the unchallenged evidence presented at trial. The disparity between the award and the admitted damages goes beyond a merely conservative award and suggests that the jurors were motivated by improper considerations.
This suggestion is borne out by the following three questions asked by the jury during deliberations: (1) if it could see the deposition of the human resources director for Massiv; (2) whether Dillon received any compensation while he was not working during the ten weeks after the accident; and (3) whether medical bills for the accident were paid for, and if so, by whom. The trial judge responded that those matters “are not for your concern.” The jury’s verdict demonstrates that the jury failed to follow the court’s instruction.
In Sullivan, supra, the jury sent questions to the trial judge inquiring as to what medical expenses had been covered by insurance.Id. at 466, 454 S.E.2d at 910. The jury awarded $20,000 despite the plaintiff’s medical bills totaling roughly $130,000, leading the Court of Appeals to conclude that “[t]he jurors obviously did not follow the court’s instructions to disregard insurance. . . . Therefore we must set it aside and grant a new trial absolute.” Id. at 466-67, 454 S.E.2d at 910-11. In the instant case, the record demonstrates that the jury ignored the trial court’s instruction to disregard matters relating to third party payment of medical bills.
The jury’s award of $6,000 in the face of over $30,000 in undisputed damages is grossly inadequate and demonstrates that the verdict was actuated by improper motivation. No plausible reason for the amount of the verdict has been advanced. For these reasons, the trial court erred in not granting Dillon’s motion for a new trial absolute.
II.
Application of Ontario law
Frazer argues in relation to the Ontario worker’s compensation exclusivity law, that the trial court erred: (1) in refusing to apply the exclusivity law; (2) in refusing to admit evidence on the exclusivity law; (3) in refusing to charge the jury on the exclusivity law; and (4) in denying Frazer’s motion for judgment notwithstanding the verdict based on application of the exclusivity law. Because each point hinges on the applicability of Ontario worker’s compensation law and the exclusivity law, we address these points as one and affirm on the ground that Frazer failed to plead Ontario law and so, is barred under Rules 12(b) and 8(c). See Rule 12(b), SCRCP (every defense must be asserted in the responsive pleading); Rule 8(c), SCRCP (in a responsive pleading a party “shall set forth affirmatively . . . any other matter constituting an avoidance or affirmative defense.”).[2]
Even if Frazer’s argument was preserved, we find that lex loci delicto properly governs this case. See Lister v. Nationsbank of Delaware, 329 S.C. 133,, 143, 494 S.E.2d 449, 454 (Ct. App. 1998) (In choice of law in South Carolina, the general rule is that the substantive law governing a tort action is the law of the state where the injury occurred.); Oshiek v. Oshiek, 244 S.C. 249, 136 S.E.2d 303, 305 (1964), overruled on other grounds (In tort cases, the law of the place where the injury was occasioned or inflicted governs in respect of the right of action.).
CONCLUSION
For the reasons stated above, we affirm the trial court’s refusal to apply Ontario law and reverse the denial of Dillon’s motion for a new trial absolute. Since Frazer admitted liability, we remand for a new trial on damages only.
TOAL, C.J., WALLER, BEATTY and KITTREDGE, JJ., concur.
[1] Though Elizabeth Dillon filed Notice of Appeal, she did not pursue her appeal.
[2] Frazer asserted South Carolina worker’s compensation law in his pleadings, but did not include Ontario worker’s compensation law. The trial court denied his motion to amend his pleadings to include Ontario law.
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.
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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)
