Mar 10, 2012 | Car Accidents, Personal Injury, Uncategorized, Wrongful Death
This SC Supreme Court case deals with the issue of trying to reform an insurance policy after a serious injury or death occurs. Here, a commercial logging truck pulled out in front of oncoming cars, and a female driver died in a horrible collision and resulting fire. The tractor-trailer was insured for the minimum limits as a “private carrier.” Given the wrongful death action that resulted, the attorneys sought to reform the policy for substantially higher insurance limits. To do so, they had to prove that the truck driver should be considered a “motor carrier” for hire. Fortunately, for the family, the serious injury lawyers were successful in having the Court recharacterize the nature of the logger’s business purpose and reformed the policy limits to $750,000. Better make sure your attorney knows and understands these complicated insurance questions. In this case, the difference was $710,000. As former insuracne defense attorneys, Art Aiken and Robert Reeves appreciate the critical language distinctions in insurance policies that can make such a difference in the ultimate outcome of a case.
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
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Raymond Bovain, Jr., as Personal Representative of the Estate of Willor Dean Bovain, Appellant,
v.
Canal Insurance, Roy R. Greene d/b/a Rusty Greene Tree Service, and John R. Frazier, Inc., Defendants,
Of Whom Canal Insurance is the Respondent.
Appeal From Richland County
G. Thomas Cooper, Jr., Circuit Court Judge
Opinion No. 26664
Heard March 5, 2009 – Filed June 8, 2009
REVERSED AND REMANDED
Carl B. Grant, of Orangeburg; and Richard A. Harpootlian and Graham L. Newman, both of Columbia, for Appellant.
Brian Dumas, of Peake Fowler & Associates, of Columbia, and Robert D. Moseley, Jr., of Smith, Moore, Leatherwood, of Greenville, for Respondent.
JUSTICE BEATTY: Raymond Bovain, Jr. brought this declaratory judgment action as the Personal Representative of the Estate of Willor Dean Bovain, his late wife, after she died in a collision with a logging truck that was insured by Canal Insurance. Bovain asserted the truck driver was a “motor carrier” and sought reformation of the insurance policy to increase its limit of coverage to $750,000 pursuant to 23A S.C. Code Ann. Regs. 38-414 (Supp. 2008) (requiring heightened insurance coverage for “motor carriers”). Canal Insurance opposed the request and sought a declaration that the $40,000 of combined limits coverage carried on the truck was sufficient under South Carolina law. Both parties moved for summary judgment.[1] The circuit court granted summary judgment to Canal Insurance, finding the truck driver was not a “motor carrier” under state law and was not subject to the insurance requirement of Regulation 38-414. Bovain appeals. We reverse and remand for entry of summary judgment in favor of Bovain.
FACTS
On September 9, 2004, Bovain’s wife died after she collided with a logging truck driven by Roy R. Greene. Greene was pulling onto Interstate 26 from the side of the road when Bovain’s wife struck him from behind. Her car burst into flames and she died at the scene.
Greene, who does business as Rusty Greene Tree Service, is in the business of hauling cut trees to various pulpwood and paper companies. At the time of the accident, Greene was picking up logs from a worksite beside Interstate 26 and planned to take them to a paper mill in Eastover, South Carolina. Greene had insurance coverage on the logging truck with Canal Insurance in a combined single liability limit of $40,000. The truck was a ten-wheeler weighing approximately 26,000 pounds that Greene had purchased used. It had an attachment on the front for moving logs.
On November 4, 2005, Bovain filed this declaratory judgment action against Canal Insurance asserting Greene was a “motor carrier” and seeking to reform the insurance policy to increase the coverage to $750,000 pursuant to 23A S.C. Code Ann. Regs. 38-414. Under Regulation 38-414, which is applicable to “motor carriers,” trucks weighing 10,000 or more pounds (GVWR)[2] that carry non-hazardous material must be insured under a policy carrying at least $750,000 of coverage. Bovain argued Greene was a motor carrier and thus was subject to the increased level of coverage required by Regulation 38-414.
Canal Insurance asserted Greene transported his own property and thus was not a motor carrier. Canal Insurance further argued that, even if Greene was a motor carrier, he was exempt from Regulation 38-414 because he was using his truck to haul cut trees. See S.C. Code Ann. Regs. 38-407(4) (Supp. 2008) (providing an exemption for “[l]umber haulers engaged in transporting lumber and logs from the forest to the shipping points in this State”).
The circuit court granted summary judgment to Canal Insurance. Bovain appeals, alleging the circuit court erred (1) in ruling the insurance policy at issue cannot be reformed to increase the limit of coverage to $750,000 pursuant to 23A S.C. Code Ann. Regs. 38-414, (2) in finding Greene was not a “motor carrier” within the purview of Regulation 38-414, and (3) in finding that, even if Greene qualified as a “motor carrier,” he fell within the “lumber hauler” exception contained in 23A S.C. Code Ann. Regs. 38-407(4) and thus was exempt from Regulation 38-414’s coverage requirement.
LAW/ANALYSIS
Rule 56(c) of the South Carolina Rules of Civil Procedure provides that a trial court may grant a motion for summary judgment “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, 378, 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.
(A) Insurance for Motor Carriers Under Regulation 38-414
Bovain first asserts the circuit court erred in finding Greene was not a “motor carrier” subject to the increased minimum insurance requirements of Regulation 38-414. We agree.
South Carolina law contains both statutes and regulations governing “motor carriers.” At issue in this case is Regulation 38-414, which provides for heightened insurance requirements for certain “motor carriers” for hire as part of a group of Economic Regulations.
Specifically, Regulation 38-414 provides that “[i]nsurance policies and surety bonds for bodily injury and property damage will have limits of liability not less than” $750,000 per incident for trucks weighing 10,0000 or more pounds GVWR that carry non-hazardous freight. 23A S.C. Code Ann. Regs. 38-414 (Supp. 2008). This regulation applies “to any person . . . or corporation which is . . . engaged as a motor carrier for hire within the State of South Carolina” unless they are otherwise exempted. 23A S.C. Code Ann. Regs. 38-401 (Supp. 2008).
A “carrier,” in the legal sense, refers to one who undertakes to transport persons or property from place to place. Huckabee Transp. Corp. v. W. Assurance Co., 238 S.C. 565, 121 S.E.2d 105 (1961); Windham v. Pace, 192 S.C. 271, 6 S.E.2d 270 (1939). The term “motor carrier” includes “both a common carrier by motor vehicle and a contract carrier by motor vehicle.” 23A S.C. Code Ann. Regs. 38-402(8) (Supp. 2008).
Statutory law also controls motor carriers. Section 58-23-20 provides: “No corporation or person . . . may operate a motor vehicle for the transportation of persons or property for compensation on an improved public highway in this State” without complying with the applicable statutory provisions and the regulations and authority of the Public Service Commission. S.C. Code Ann. § 58-23-20 (Supp. 2008) (emphasis added).
“The term ‘motor vehicle carrier’ [as used in the portion of the Code concerning the regulation of motor vehicles for compensation] means every corporation or person . . . owning, controlling, operating or managing any motor propelled vehicle . . . used in the business of transporting persons or property for compensation over any improved public highway in this State[.]” S.C. Code Ann. § 58-23-10(4) (1977) (emphasis added).
The phrase “for compensation” as used in section 58-23-20 “means a return in money or property for transportation of persons or property by motor vehicle over public highways, whether paid, received or realized, and shall specifically include any profit realized on the delivered price of cargo where title or ownership is temporarily vested during transit in the carrier as a subterfuge for the purpose of avoiding regulation under this chapter.” S.C. Code Ann. § 58-23-30 (1977).
In the case before us, the circuit court found Greene was a private carrier, not a motor carrier, so he was not subject to the insurance requirements in Regulation 38-41uit court found “Greene is not a motor carrier for hire because he does not transport the property of others for compensation.” The circuit court stated: “Greene cuts trees, picks up trees that have been cut and abandoned to him by other tree services, and hauls and sells those trees to pulpwood and paper companies. When he sells the trees, he receives their market value, not a fee for handling them as cargo. Greene is transporting and selling his own property and is not subject to regulation as a motor carrier for hire.”
The circuit court stated because Greene is a private carrier, “he is not required to carry a certificate of authority issued by the Public Service Commission (PSC) . . . . Instead, as a private carrier, Greene is governed by the general South Carolina Financial Responsibility Act, which, at the time of the collision, only required him to maintain minimum liability limits of $15,000/$30,000/$10,000 or, in this case, combined single limits of $40,000,” citing S.C. Code Ann. § 38-77-140. The circuit court concluded that reformation of the policy issued by Canal Insurance to provide the minimum coverage for a motor carrier of $750,000 was not appropriate as “Greene complied with the law as it applies to private carriers.”
On appeal, Bovain contends the circuit court erred in finding that Greene is not a motor carrier subject to the increased limits of coverage in Regulation 38-414. Bovain asserts the temporary transfer of ownership of the logs to Greene may not be used to avoid application of the limits of coverage in Regulation 38-414.
Canal Insurance, in contrast, maintains Greene is not compensated for transporting the wood; rather, Greene owns the trees and takes them to the mills of his choice. Canal Insurance asserts “[t]he fact that Greene is paid by a timber broker [John Frazier] for providing logs to various mills and pulpwood producers does not contradict the fact that he is selling the wood as his own property . . . .”
During his deposition testimony, Greene testified that, on the date of the accident with Bovain’s wife, he had responded to a call from a tree cutting service that was removing trees under a contract with the highway department near Interstate 26. Greene testified that he was asked to pick up the wood, which he was told “was on I-26 in between the Lexington hospital and no. 1 exit going toward Charleston.” Greene had loaded his truck with cut wood on the side of Interstate 26 and then was pulling onto Interstate 26 to take it to a mill in Eastover when the collision occurred.
Greene stated he had worked with John Frazier for approximately ten years. Greene testified that he picks up wood at various locations for himself, but stated, “I just sell it through Frazier. That’s how I get rid of it.” Greene does not charge anything for picking up the wood because he plans to sell it. Greene conceded that when he took the lumber to the mills, he would not be paid at that time. Instead, Frazier would pay him based on the amount of wood procured. Greene acknowledged that Frazier “tells me where I can go with it.” Greene stated he did not talk directly to the mills, but did so only “[t]hrough Frazier.”
Greene stated he was under Frazier’s workers’ compensation coverage. In addition, Frazier loaned him money to purchase his logging trucks, including the one that was involved in this accident. Greene stated he purchased the insurance policy with a combined single limit of $40,000 as that was the absolute minimum level he could acquire based on the truck’s weight.[3]
John Frazier, a self-identified broker and timber dealer, testified in his deposition that Greene would take the wood to the mill, which would then issue a ticket, and Greene would bring the ticket to him. Frazier would then take out a percentage of the amount for “handling” and give Greene the remainder.
Frazier acknowledged that when Greene brought logs to a mill, the sale price would be credited to his [Frazier’s] account, and Greene would bring him the ticket. Frazier stated he has contracts with the paper companies and they pay him, not Greene. Frazier frequently gave “advances” to Greene, and usually kept about ten to twenty percent of the proceeds for being the “middle man” and then gave Greene the remainder. Frazier stated he usually paid Greene and others, including loggers (those he subcontracted with to cut the wood) and vendors, every Friday. Frazier stated Greene procured virtually all of the wood on his own. When asked why Greene did not just sell the wood himself, i.e., why did he need him [Frazier], Frazier conceded: “He doesn’t.” However, Frazier explained that the mills like to work with people they know, and he had a reputable company with sixty years of experience in the business so they liked doing business with him.
We find the evidence in the record indicates that Greene sold the logs in the name of John Frazier for at least ten years, that the mills paid John Frazier, not Greene, and that Frazier directed him as to which mills to sell to. Under these circumstances, Frazier is the true seller, and Greene is merely transporting the logs for the convenience of Frazier.
The fact that Greene temporarily held title to the logs does not preclude the finding that he was being paid to transport materials. See S.C. Code Ann. § 58-23-30 (1977) (The phrase “for compensation” as used in section 58-23-20 “means a return in money or property for transportation of persons or property by motor vehicle over public highways, whether paid, received or realized, and shall specifically include any profit realized on the delivered price of cargo where title or ownership is temporarily vested during transit in the carrier as a subterfuge for the purpose of avoiding regulation under this chapter.”).
Since Greene knew when he was picking up the logs that he would promptly sell them in the name of John Frazier, Greene was merely holding title temporarily until he took the logs to the mill. Thus, we conclude Greene was transporting the wood for Frazier and hold that he qualifies as a motor carrier under South Carolina law. See 13 Am. Jur. 2d Carriers § 5 (2000) (“The nature of a carrier is determined by its method of operation. Thus, it has been said that a carrier’s status is determined by what it does rather than by what it says it does.” (footnote omitted)).
(B) Exemption for Lumber Haulers in Regulation 38-407(4)
Bovain next argues the circuit court erred in determining that, “[e]ven assuming . . . Greene is a ‘motor vehicle carrier’ for hire, Greene would be exempt from the insurance requirements in Title 58 and under the regulations because he is a lumber hauler.” [R 7] Bovain asserts Canal Insurance failed to establish that the lumber hauler exemption was applicable here. We agree.
Regulation 38-407 provides for exemptions from the Economic Regulations for certain motor carriers. In particular, Regulation 38-407(4) provides an exemption for qualifying “[l]umber haulers engaged in transporting lumber and logs from the forest to the shipping points in this State.” 23A S.C. Code Ann. Regs. 38-407(4) (Supp. 2008) (emphasis added). The phrase “from the forest” is not defined in the regulation.
Bovain argued the exemption did not apply because Greene was not transporting logs “from the forest,” but was, instead, picking up logs left by a tree cutting operation that was working in an area along Interstate 26. The circuit court found Bovain was “reading the exemption in an overly-restrictive manner” and that “[t]his exemption is a ‘farm to market’ exemption and applies when an individual hauls an agricultural product from the point of production to the point of sale.”
On appeal, Bovain contends the circuit court interpreted this exemption in a manner that is inconsistent with the plain language of the regulation. Bovain asserts Greene was not a hauler engaged in transporting logs “from the forest,” and carriers such as Greene who regularly utilize the State’s highways to carry on their business are not entitled to the protection of the “farm-to-market” exemption, which was intended to exempt the infrequent transportation of agricultural products to the market, not the almost daily transportation of items for profit as done by Greene.
The burden of proving the entitlement to an exemption is on the party asserting the exemption. See Ga. Cas. & Sur. Co. v. Jernigan, 305 S.E.2d 611, 614 (Ga. Ct. App. 1983) (finding a truck owner and its insurer failed to meet their burden of showing a pulpwood truck came within the terms of an exemption from the general statutory definition of “motor contract carrier” where they did not prove the truck was engaged exclusively in the transportation of agricultural products from the forest to the mill or other place of manufacture). In this case, the burden was on Canal Insurance to prove the exemption was applicable, and there was no burden on Bovain in this regard. See id. (stating there is no burden on the opposing party).
In general, exemptions are an act of legislative grace and, as such, they are to be strictly and reasonably construed. See State v. Life Ins. Co., 254 S.C. 286, 293-94, 175 S.E.2d 203, 206-07 (1970) (noting exemptions are provided as an act of legislative grace and are to be construed strictly; a party must meet the specified conditions to obtain the benefit conferred by the exemption); see also Village of Lannon v. Wood-Land Contractors, Inc., 672 N.W.2d 275, 278 (Wis. 2003) (applying a “strict but reasonable construction” in interpreting the application of a personal property tax exemption specifically established for logging equipment).
The words used in legislation “must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand [their] operation.” Hitachi Data Sys. Corp. v. Leatherman, 309 S.C. 174, 178, 420 S.E.2d 843, 846 (1992); see Owen Indus. Prods., Inc. v. Sharpe, 274 S.C. 193, 195, 262 S.E.2d 33, 34 (1980) (stating the general rule that a statutory exemption “must be given its plain, ordinary meaning and must be construed strictly against the claimed exemption”); State v. Hood, 49 S.C.L. (15 Rich.) 177, 185 (1868) (“Every exemption must be couched in such plain and unambiguous language as to satisfy the Court beyond doubt that the Legislature intended to create the exemption. Such a right can never arise by mere implication, and all laws granting the exemption are to be most strictly construed.” (citation omitted)).
As noted by one treatise, “forest” is synonymous with “woods,” and in its commonly understood sense, refers to an extensive area of land covered by trees:
The term “wood” is often used in the plural, with the same force as in the singular, as indicating a large and thick collection of trees. It is synonymous with “forest,” and has been so defined, although the latter term is sometimes said to imply a wood of considerable extent. Both terms are broad enough to include not only the trees but the land on which they stand. When referring to land, the term “woods” means forest lands in their natural state, as distinguished from lands cleared and enclosed for cultivation, and “forest” means a tract of land covered with trees, or a tract of woodland with or without enclosed intervals of open and uncultivated ground. 98 C.J.S. Woods and Forests § 1 (2002) (footnotes omitted).
The Supreme Court of Illinois has also found that “[a] forest is defined as a tract of land covered with trees; a wood, usually of considerable extent.” Forest Preserve Dist. v. Jirsa, 168 N.E. 690, 691 (Ill. 1929) (alteration in original); see also People v. Long Island R.R. Co., 110 N.Y.S. 512, 512 (N.Y. App. Div. 1908) (stating “[a] forest is defined as being ‘a tract of land covered with trees; a wood, usually one of considerable extent; a tract of woodland with or without [e]nclosed intervals of open and uncultivated ground’” (citation omitted)).
We find the definitions above persuasive, and believe that the plain meaning of “forest” is that it commonly refers to an area of land covered with trees, usually of considerable extent. The express language of Regulation 38-407(4) exempts those hauling lumber from a forest as the point of production. We see no reason to deviate from the plain language of the regulation.
Canal Insurance submitted an affidavit from David Findlay, the Administrator of the Motor Carrier Services Division (MCS) of the South Carolina Department of Motor Vehicles, who stated that “MCS interprets this regulation broadly as applying to persons like Greene who haul cut trees to lumber processors. These exemptions are generally referred to as farm-to-market exemptions.” (Emphasis added.) Similarly, Findlay stated that MCS interprets a statute governing the transporting of “forest products from the farm to the first market” to be applicable “to lumber haulers that haul cut trees to sell to pulpwood processors regardless of whether the trees are actually obtained from a ‘forest.’” (Emphasis added.)
MCS applies the wrong standard of construction as exemptions are to be construed narrowly, not broadly. Further, MCS is not responsible for overseeing the Economic Regulations. Consequently, its interpretation is not determinative.
Because Regulation 38-407 is meant to be a farm-to-market exception, it should apply to areas of usual harvesting, not just small areas where trees can be cut. See generally 17 Words and Phrases Forestation 43 (Supp. 2008) (citing Cascade Floral Prods., Inc. v. Dep’t of Labor & Indus., 177 P.3d 124 (Wash. Ct. App. 2006), which found that Washington’s farm labor contractor act did not apply to the brush picking industry as it was not “forestation” within the meaning of the act because the statutory definition of “forestation” required cultivation or commercial planting).
A broad interpretation of “forest” as pertaining to any site where trees are cut would eviscerate the language that the exemption applies to those hauling logs “from the forest to the shipping points in this State.” We do not believe that is a reasonable and strict construction of all of the pertinent terms of the exemption. The legislature could have easily used broader language and stated that anyone hauling lumber or logs is exempted if that were its intent. Cf. State v. Alls, 330 S.C. 528, 531, 500 S.E.2d 781, 782 (1998) (stating legislative provisions must be read as a whole and sections which are part of the same law should be construed together and each given effect, if it can be done by any reasonable construction). In this case, we conclude Canal Insurance did not meet its burden of establishing that the exemption applied here as there was no evidence that Greene was transporting lumber and logs “from the forest to the shipping points in this State.”
Having found Greene qualified as a motor carrier, and that he did not meet the requirements for exemption as a lumber hauler, we hold the policy issued by Canal Insurance should be reformed because it does not conform to the legal requirements for coverage as mandated by Regulation 38-414. See Hamrick v. State Farm Mut. Auto. Ins. Co., 270 S.C. 176, 179, 241 S.E.2d 548, 549 (1978) (“A policy of insurance issued pursuant to statutory law must at a minimum give the protection therein described. It may give more protection but not less, and a policy issued pursuant to the law which gives less protection will be interpreted by the court as supplying the protection which the legislature intended.”); Jordan v. Aetna Cas. & Sur. Co., 264 S.C. 294, 297, 214 S.E.2d 818, 820 (1975) (stating while parties are generally permitted to contract as they desire, this freedom is not absolute and insurance coverage required by law may not be omitted because statutory provisions relating to an insurance contract are part of the contract).
Although Canal Insurance argues that reformation is appropriate only for automobile insurance policies issued under the South Carolina Financial Responsibility Act, we find no reason to impose this arbitrary distinction.
Regulation 38-414 provides: “Insurance policies and surety bonds for bodily injury and property damage will have limits of liabilitynot less than” $750,000 per incident for trucks weighing 10,0000 or more pounds GVWR that carry non-hazardous freight. S.C. Code Ann. Regs. 38-414 (emphasis added). The South Carolina Legislature has mandated a level of coverage for larger vehicles in order to protect the public from the increased dangers inherent with their operation on our state’s highways. It would be unreasonable to interpret the language of Regulation 38-414 differently from the mandated coverage under the Financial Responsibility Act, as the potential for catastrophic damage is much greater with these larger vehicles. We find insurance carriers have a duty to issue policies in accordance with the mandated minimum levels of coverage and that reformation of the Canal Insurance policy to provide the mandated minimum level of coverage is appropriate.
CONCLUSION
Based on the foregoing, we hold Greene is a motor carrier as defined in the South Carolina Code and that the exemption from the Economic Regulations for lumber haulers is not applicable here. We find insurers have a duty to issue insurance in accordance with the mandate of Regulation 38-414 and conclude Bovain is entitled to reformation of the Canal Insurance policy to conform to the $750,000 minimum level of coverage required by Regulation 38-414. Accordingly, we reverse and remand for entry of summary judgment in favor of Bovain.
REVERSED AND REMANDED.
TOAL, C.J., WALLER, J. and Acting Justice James E. Moore, concur. KITTREDGE, J., concurring in part, dissenting in part in a separate opinion.
JUSTICE KITTREDGE: I concur with the majority’s holding that Roy R. Greene was, as a matter of law, a motor carrier under South Carolina law on the accident date of September 9, 2004. I respectfully dissent, however, from the legal determination that Greene may not avail himself of the exemption contained in Regulation 38-407(4). 23A S.C. Code Ann. Regs. 38-407(4) (Supp. 2008) (providing an exemption for “[l]umber haulers engaged in transporting lumber and logs from the forest to the shipping points in this State”). I do not believe the applicability or inapplicability of the exemption may be determined on the current record to the exacting summary judgment standard. I would reverse the grant of summary judgment in favor of Greene and remand to the trial court for further consideration of the claimed exemption.
[1] The remaining defendants are not parties to this appeal, so all references are solely to Canal Insurance.
[2] “GVWR” stands for Gross Vehicle Weight Rating, i.e., the maximum total weight of a vehicle and its cargo.
[3] In his affidavit, Greene stated he explained the nature of his business to his insurance agent and requested the minimum liability limits allowed by law.
Mar 10, 2012 | DUI & DWI, Uncategorized
This recent article highlights some of the controversies surrounding North Carolina’s newest and most sweeping changes to its already strict and harsh DWI laws. Let’s be frank. It is going to be very difficult to get a fair trial now in NC. The “mystery box” now rules. We are going to be convicting defendants based on “voodoo science” that even the police officers and prosecutors themselves cannot explain. The breahalyzer is a machince, not an “instrument.” And like every other machine ever invented, it has flaws and a “margin of error” in its “readings.” And, with high use and improper maintenance, it is going to make mistakes and give false readings. But, just to be clear, brand new, right out of the box, no one can fully demonstrate how it actually does what it is supposed to do. The “magical solution” upon which all results are based is made up of….well, only the manufacturer knows. The exact chemical compound is proprietary.
I agree with Bill Powers. This latest law minimizes the need for judges and juries in NC. The BA reading is all the State needs to convict now. The penalties for a first time, no accident, no injury DWI were harsh already, but now, will be financially devestating to most hard working people. Let’s also remember that the “legal limit” has steadily been arbitrarily reduced, without any significant additional research on human physiology. Originally, the legal limit was 0.15, nearly double the current standard. Then, it was 0.12, and for years and years, it was 0.10. Even now, there are calls to lower the standard again to 0.06. Apparently, no one is supposed to be able to have a glass of wine with dinner or a beer with a friend. The new law in response to a truly tragic DWI death case appears to go too far while attempting to “close loopholes.”
In our DWI practice at Reeves, Aiken & Hightower, LLP, we represent those individuals who have found themselves caught up the maze of a first time DWI arrest. Most have had a calculated number of drinks and felt that they were perfectly fine to drive home safely. They are hard working people who would never endanger their fellow citizens or put their driving privilieges at risk. It goes without saying that no one wants truly drunk drivers on our roads. However, justice requires much more than this new law mandates. Persons not guilty of actually driving while impaired are going to be convicted wrongfully and swept away in the current hysteria. The otherwise law-abiding citizens of our state can only hope that the NC appellate courts will take a more balanced and fair approach.
If you have been charged wrongfully under this new law, call us today for a private consultation at 704-499-9000. And for more information about our law firm and attorneys, please visit our website at www.rjrlaw.com.
Tougher N.C. DWI Law To Make Convictions Easier
CHARLOTTE, N.C. —
People caught drinking and driving in North Carolina will find it tougher to beat the case in court thanks to a new law that went into effect Friday.The law is one of the toughest in the country, and it makes it easier for prosecutors to get convictions in driving while impaired cases.Many people, particularly those in groups like Mothers Against Drinking and Driving, have felt that drunken drivers get caught out on the roads, only to get away in the courts.Robert Yoho supports the new law. He lost his oldest son to a drunken driver two years ago. Since then he’s been telling anyone who’ll listen about the pain caused by drinking and driving, as well as pushing for the new, tougher law that essentially makes a blood alcohol reading of 0.08 a guilty verdict.Yoho considers the change a victory for him.“Everybody knows they make that choice (to drink and drive),” he said.
But the new legislation is already raising questions.
“We’ve gone too far,” said Bill Powers, a defense attorney. “No one likes drunk driving. I don’t like drunk driving. I’m married, I have a child.”
Powers says the law goes too far because it short-circuits a legal system that is supposed to play out in the courtroom.
“Really we don’t need judges anymore. We don’t need juries anymore. They can just go to court and have to find them guilty without listening to the facts,” he said.
Bruce Lillie, an assistant district attorney, says he disagrees.
Lillie supervises the prosecutors who handle driving while impaired cases in Mecklenburg County. He says the new law is one of the toughest in the country, but it is not taking anyone’s rights out of the courtroom.
“What it’s doing is it is closing loopholes – guilty or not guilty,” he said.
Prosecutors say you can still come to court and challenge how a DWI arrest was made and whether the machine was accurate, but defense attorneys believe the legislation will probably end up before a judge on constitutional grounds. For now – it’s the law.
That new law also lists more than a hundred drugs, including prescription drugs and their basic ingredients that are enough to find a driver guilty of DWI. It also gives prosecutors the ability to challenge rulings that go against them on technicalities in DWI cases
Mar 9, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation
This SC Supreme Court case does not mention workers’ compensation, but it is clear from the facts that this plaintiff was initially injured on the job and then later sued the third party in civil court. When hurt at work, you sometimes have a second lawsuit against an entity other than your employer if their negligence causes your injuries. Here, the workers’ compensation claim would have been against the injured worker’s hospital employer. When that case was concluded, he then brought suit against the general building contractor doing renovation work at the hospital facility. In workers’ compensation claims, negligence is not an issue absent certain situations not present in this case. However, in a third party case, you have to deal with all legal issues, including who was at fault and in what degree as well as potential defenses that may come into play. As you can see, these cases are aggressively defended and ultimately remanded for a new trial because the jury verdict was clearly insufficient in light of the overall medical expenses. Cases where you have both a workers’ compensation claim and then a separate third party case can be extremely complicated. Better make sure your attorney is experienced in both areas and knows how to effectively prosecute both claims so that you get maximum recovery. This is not the time 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 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
Ronnie Lane, Respondent,
v.
Gilbert Construction Company, LTD., Appellant.
Appeal from Florence County
Thomas A. Russo, Circuit Court Judge
Opinion No. 26701
Heard May 12, 2009 – Filed August 17, 2009
AFFIRMED
Everett A. Kendall, II, of Sweeny, Wingate & Barrow, of Columbia, for Appellant.
D. Kenneth Baker, of Darlington, James H. Moss and
H. Fred Kuhn, Jr., both of Moss, Kuhn & Fleming, of Beaufort, for Respondent.
JUSTICE PLEICONES: In this premises liability action, a jury found for Respondent Ronnie Lane (Lane) in the amount of $75,000. The trial court then granted Lane’s motion for a new trial absolute, which ruling Gilbert now challenges on appeal. We affirm.
FACTS
Appellant Gilbert Construction Company LTD (Gilbert) entered into an agreement to renovate McLeod Regional Medical Center (Hospital). The renovation included work on a courtyard, accessible by an emergency exit from the building. The superintendent of Gilbert testified that during the demolition/foundation phase of the project six holes for footings were created on the site, including one in the courtyard. A number of the holes were covered, but Gilbert decided not to cover the hole in the courtyard. The superintendent explained that he believed that the area was cordoned off.
Sometime between 2:30 and 3:30 a.m. Lane, an HVAC mechanic at the Hospital working the “graveyard shift,” responded to the latest in a series of false fire alarms. Lane testified that each time the alarm was activated the alarm system automatically alerted the fire department. Since the fire department had previously responded to false alarms twice during Lane’s shift that night, he decided to walk down to tell the switchboard operator to put the system in “test mode” so that it would not automatically alert the fire department.
Lane knocked on the door to the switchboard room and, receiving no answer, chose to walk out of the emergency exit and into the courtyard in order to reach another door to the security and switchboard area. The emergency exit door was slightly ajar and when Lane opened it he saw “caution tape” hanging down on the side of the door. He then stepped out into what he described as “pitch black dark” and fell into the hole, breaking his ankle.
Lane underwent a number of surgeries to repair his ankle and missed weeks of work. All told, Lane’s medical care related to the ankle injury totaled $73,754. On cross examination, Lane admitted that he returned to work in his previous capacity as an HVAC mechanic in between his surgeries, though in sedentary work. Following his last surgery, he was assigned to a new job as a computer operator. In his new job, Lane works at a desk in shifts from 7:00 a.m. until 3:30 p.m., rather than the “graveyard” shift he worked as an HVAC mechanic.
An expert for Lane conducted a vocational assessment and determined that Lane was not capable of performing the job that he had prior to the injury. She further opined that Lane would only be eligible for minimum wage positions if he were to lose the position he currently has.
The jury found Lane 45% at fault and Gilbert 55% at fault and awarded $75,000 in actual damages. Lane moved for a new trial absolute which the court granted.
ISSUES
I. Did the trial court err in denying Gilbert’s motion for a directed verdict?
II. Did the trial court err in granting a new trial?
III. Did the trial court’s order granting a new trial deprive Gilbert of its right to trial by jury?
DISCUSSION
I. Did the trial court err in denying Gilbert’s motion for directed verdict?
Gilbert contends that the evidence does not support classification of Lane as an invitee and instead only supports classification as a licensee or trespasser. Furthermore, Gilbert argues that there is no evidence to show a breach of the landowner’s duty to a licensee or trespasser and therefore, Gilbert is entitled to a directed verdict. We disagree.
“A motion for directed verdict goes to the entire case and may be granted only when the evidence raises no issue for the jury as to liability.” Ecclesiastes Production Ministries v. Outparcel Assoc., LLC, 374 S.C. 483, 490, 649 S.E.2d 494, 497 (Ct. App. 2007),citing Carolina Home Builders, Inc. v. Armstrong Furnace Co., 259 S.C. 346, 358, 191 S.E.2d 774, 779 (1972).
“Under a premises liability theory, a contractor generally equates to an invitor and assumes the same duties that the landowner has, including the duty to warn of dangers or defects known to him but unknown to others.” Larimore v. Carolina Power & Light, 340 S.C. 438, 448, 531 S.E.2d 535, 540 (Ct. App. 2000).
The trial court classified Lane as an “invitee.” An invitee is a person “who enters onto the property of another by express or implied invitation, his entry is connected with the owner’s business or with an activity the owner conducts or permits to be conducted on his land, and there is a mutuality of benefit or a benefit to the owner.” Singleton v. Sherer, 377 S.C. 185, 199, 659 S.E.2d 196, 204 (Ct. App. 2008), quoting Sims v. Giles, 343 S.C. 708, 716-17, 541 S.E.2d 857, 862 (Ct. App. 2001).
Gilbert contends that Lane was not an invitee because he had no consent, either express or implied, to be in the courtyard and because his presence in the courtyard was not to the interest or advantage of Gilbert. We find that there was at least implied consent to use the area since it was immediately outside of an emergency exit. Moreover, Lane was at least partly benefiting Gilbert by attempting to have the switchboard disable the automatic alert to the fire department. Lane testified that the fire alarm repeatedly sounded during his shift. Each time the alarm sounded, the alarm system automatically notified the fire department. By instructing the switchboard to place the system in “test” mode, Lane could ensure that the business of both the Hospital and Gilbert would not be repeatedly interrupted by the sounding of the alarm, unnecessary evacuations, and arrival of fire department personnel.
Moreover, even if Lane did not provide a benefit to Gilbert, Gilbert would not be entitled to a directed verdict if Lane were classified as a licensee.
“A licensee is a person who is privileged to enter upon land by virtue of the possessor’s consent.” Neil v. Byrum, 288 S.C. 472, 473, 343 S.E.2d 615, 616 (1986). “When a licensee enters onto the property of another, the primary benefit is to the licensee, not the property owner.” Singleton, 377 S.C. at 198, 659 S.E.2d at 203.
“A landowner owes a licensee a duty to use reasonable care to discover the licensee, to conduct activities on the land so as not to harm the licensee, and to warn the licensee of any concealed dangerous conditions or activities.” Singleton, 377 S.C. at 201, 659 S.E.2d at 204. In our view, the evidence presented at trial raised a jury question as to whether or not Gilbert met the duty owed to Lane as a licensee. Therefore, even assuming Lane was a licensee, the trial judge did not err in denying the motion for a directed verdict. See Ecclesiastes Production Ministries, supra.
We find that the trial court properly classified Lane as an invitee. Moreover, even assuming Lane is not an invitee, Gilbert would not be entitled to a directed verdict. Consequently, the trial judge did not err in denying Gilbert’s motion for a directed verdict.
II. Did the trial court err in granting a new trial?
Gilbert argues that the trial court erred in granting Lane a new trial. We disagree.
In South Carolina, a trial judge may grant a new trial following a jury verdict under the Thirteenth Juror Doctrine. The doctrine “entitles the judge to sit, in essence, as the thirteenth juror when he finds ‘the evidence does not justify the verdict,’ and then to grant a new trial based solely ‘upon the facts.’” Norton v. Norfolk Southern Railway Co., 350 S.C. 473, 478, 567 S.E.2d 851, 854 (2002),citing Folkens v. Hunt, 300 S.C. 251, 387 S.E.2d 265 (1990). As the thirteenth juror, the trial judge can hang the jury by refusing to agree to the jury’s otherwise unanimous verdict. Id.
Upon review, a trial judge’s order granting or denying a new trial will be upheld unless the order is wholly unsupported by the evidence, or the conclusion reached was controlled by an error of law. Norton, 350 S.C. at 478, 567 S.E.2d at 854. This Court’s review is limited to consideration of whether evidence exists to support the trial court’s order. Id. at 478-79, 567 S.E.2d at 854. As long as there is conflicting evidence, this Court has held the trial judge’s grant of a new trial will not be disturbed. Id.
The judge is not required to explain the reasons for his decision. Id. In this case, however, the trial judge provided an explanation in the order granting the motion for a new trial. The court noted that Lane presented evidence at trial, which was “uncontested by the defendant,” of actual medical costs of $73,754, lost wages from the date of injury up until the time of trial of $17,248, and a 21% permanent impairment rating. The court also noted that the jury heard testimony from two experts opining that Lane suffered a loss of personal services to his family equivalent to $19,381, such as household chores, and is unable to perform the duties required by his prior job as an HVAC mechanic. The court concluded:
[A]fter careful review of all of the facts and circumstances of this case and other cases in the state of South Carolina, this Court believes that an amount of Seventy Five Thousand and no/100 ($75,000.00) Dollars can only be explained on the basis of passion, prejudice or caprice on the part of the jury. The jury’s verdict in this case shocks the conscience of this Court, as an award of damages, particularly the considerations, or lack thereof, of the uncontested damages presented by the Plaintiff, including a Twenty-One (21%) percent permanent impairment to health. As such, this Court finds that the jury’s verdict in this matter is grossly inadequate in light of the evidence presented.
The trial judge then granted Lane’s motion for a new trial absolute.
A. Did the trial court commit legal error in viewing certain damages as “unconstested?”
Gilbert first argues that it was legal error for the trial judge to base his order on the idea that certain damages were “uncontested.” Gilbert contends that it “did contest those damages, denying them in its Answer, by not stipulating as to damages and by questioning Lane’s claims in cross-examining various witnesses about them.” In Gilbert’s view, the trial court’s Order implied that Gilbert was required to put up witnesses to contest the claim of damages and thereby shifted the burden of proof from the plaintiff to the defendant. We disagree.
In considering a motion for a new trial, the trial judge must look to see if the evidence justifies the jury verdict. See Norton, 350 S.C. at 478, 567 S.E.2d at 854. The court, in making such an inquiry, is perfectly justified in noting whether the evidence presented to the jury was or was not challenged in front of the jury.
Moreover, the trial judge’s statement that certain evidence was “uncontested” was not factually incorrect, since the evidence in question was not challenged by Gilbert at trial, even on cross-examination. Gilbert’s counsel told the jury in his opening statement:
We are not contesting that he was injured. We are not going to challenge those areas about his life. He was injured. He has undergone a lot of medical treatment. But, there is one part of his damages that we are going to talk about. We do take exception to the future los[t] wages that you are going to hear.
As promised, Gilbert did not challenge the medical costs, lost wages prior to trial, or physical impairment rating. Instead, Gilbert chose to focus on disputing Lane’s claims for future lost wages, and succeeded as the jury awarded $0 for that particular claim.
The trial court committed no error in noting that certain damages were “uncontested” in its order granting a new trial.
B. Is there evidence to support the trial court’s order?
Gilbert contends that the trial court erred in granting a new trial because there is no evidence to support the order. We disagree.
On a special verdict form, the jury awarded $75,000 in actual damages of which it attributed $0 to future diminished earning capacity. Gilbert argues that the jury properly declined to award earning capacity since, at the time of trial, Lane was employed in a job that paid better than his previous job. Gilbert also posits reasons why the jury might choose to reduce the awards for pre-trial personal services, pain and suffering, and medical bills.[1]
Gilbert’s points are not entirely without merit. However, the question before this Court on appeal is whether the trial court’s decision to grant a new trial is wholly unsupported by the evidence. See Norton, 350 S.C. at 478, 567 S.E.2d at 854. In the instant case, Lane presented evidence of $73,754 in medical bills and $17,248 in lost wages up to the time of trial, neither of which was challenged by Gilbert. Lane also presented evidence that Lane has a 21% physical impairment, experienced pain and suffering related to the accident, and suffered a loss of personal services to his family of $19,381. We find the trial court’s decision order granting a new trial is supported by the evidence.
III. Was Gilbert denied its right to a trial by jury?
Gilbert contends that to grant a new trial after the jury verdict was “de facto to deny Gilbert its constitutional right to trial by jury.” In short, Gilbert contends that the Thirteenth Juror Doctrine is unconstitutional under the South Carolina constitution. We disagree.
The Thirteenth Juror Doctrine is a well-established in South Carolina as the standard for granting a new trial. See Norton, 350 S.C. 477, 567 S.E.2d at 854. This Court has reviewed the doctrine on several occasions and has refused to abolish it. Id. at 478, 567 S.E.2d at 854.
The right to trial by jury is a fundamental right. See Wright v. Colleton County School Dist., 301 S.C. 282, 291, 391 S.E.2d 564, 570 (1990). As such, any abridgement of that right is subject to strict scrutiny. See City of Beaufort v. Holcombe, 369 S.C. 643, 632 S.E.2d 894 (Ct. App. 2006). To meet strict scrutiny, a law or policy must meet a compelling state interest and be narrowly tailored to effectuate that interest. See In re Treatment and Care of Luckabaugh, 351 S.C. 122, 140-41, 568 S.E.2d 338, 347 (2002).
The Thirteenth Juror Doctrine does not abridge the right to a trial by jury since the effect of a trial judge’s decision to grant a new trial is to allow another jury trial. Therefore, the parties are not deprived of a trial by jury.
We affirm the trial court’s exercise of power under the Thirteenth Juror Doctrine.
CONCLUSION
The trial court did not err in declining to grant a directed verdict for Gilbert based on Lane’s status for purposes of premises liability. Furthermore, the trial court did not err in granting a new trial under the Thirteenth Juror Doctrine, nor is the doctrine unconstitutional. Therefore, the decision of the trial court is
AFFIRMED.
WALLER, BEATTY, KITTREDGE, JJ., and Acting Justice James E. Moore, concur.
[1] Gilbert contends that the jury may have reduced the amount of damages based on medical bills because (1) though the bills were introduced, there was no testimony that they had been paid, and (2) the jury could have reasonably concluded from Lane’s answer that the summary of medical expenses was correct “to my knowledge” that Lane did not know how much he had been billed, or actually paid for medical expenses.
Mar 8, 2012 | DUI & DWI, Uncategorized
This SC Supreme Court case addresses the distinction between the criminal and DMV aspects of a DUI arrest. On the criminal side, a failure to follow the implied consent statute will result in exclusion of evidence at trial. On the DMV side, however, the Court declined to reach a similar outcome. The critical difference involves “rights” which must be protected during a criminal proceeding versus the “privilege” of operating a motor vehicle which can be regulated by the Department of Motor Vehicles (DMV). Even if the criminal charges are ultimately defeated, there may still be civil consequences on your ability to drive. Better make sure your DUI attorney understands these crucial elements and how they interact. There is too much at stake to risk an inexperienced criminal lawyer.
At Reeves, Aiken & Hightower LLP, our seasoned attorneys have over 70 years of combined trial experience in both civil and criminal courts. We focus our criminal practice on DUI and DWI cases in both South Carolina and North Carolina and are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both states and are aggressive criminal trial attorneys. We are not afraid to go to Court and often do. Don’t settle for a lawyer who only wants to reduce your DUI charges to reckless driving. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other 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
Suchart Taylor, Petitioner,
v.
South Carolina Department of Motor Vehicles, Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Berkeley County
R. Markley Dennis, Jr., Circuit Court Judge
Opinion No. 26637
Heard October 8, 2008 – Filed April 20, 2009
AFFIRMED
C. Bradley Hutto, of Williams & Williams, of Orangeburg, C. Rauch Wise, of Greenwood, Desa Ballard and P. Christopher Smith, Jr., both of West Columbia, and Michael Sean O’Neal, of N. Charleston, and Reese I. Joye, of Joye Law Firm, of N. Charleston, for Petitioner.
General Counsel Frank L. Valenta, Jr., Deputy General Counsel Philip S. Porter, and Assistant General Counsel Linda A. Grice, all of Columbia, for Respondent.
JUSTICE WALLER: We granted a writ of certiorari to review the Court of Appeals’ opinion in Taylor v. SC Dep’t of Motor Vehicles, 368 S.C. 33, 627 S.E.2d 751 (Ct. App. 2006). We affirm.
FACTS
Petitioner, Suchart Taylor, was involved in an automobile collision on I-26 in Berkeley County. A police officer arrived on the scene to find Taylor in his pickup truck being treated by paramedics. The officer smelled alcohol inside the vehicle and, when he attempted to speak with him, Taylor seemed disoriented and had heavy mouth injuries; he was unable to stand or perform field sobriety tests.
Taylor was taken to the emergency room, where he was advised of his Miranda rights and arrested for DUI. The officer determined Taylor’s mouth injuries would prevent him from taking a breath test, so he requested a blood sample. The officer read the implied consent form aloud to Taylor, but did not provide him with a written copy of the form. Taylor refused the blood sample and refused to sign the implied consent form; he was therefore issued a notice that his driver’s license would be suspended for ninety days.
Taylor filed for an administrative hearing to challenge the license suspension. The hearing officer upheld the suspension. Taylor petitioned for judicial review contending the license suspension was invalid because he had not been provided with a written copy of the implied consent law, as required by S.C. Code Ann. § 56-5-2951 (2006). The trial court agreed and reversed the license suspension. The Court of Appeals reversed the trial court’s ruling; it held Taylor was not prejudiced by the lack of a written copy of the implied consent form because he was read those rights aloud.
ISSUE
Did the Court of Appeals properly hold that Taylor was not prejudiced by the lack of written notice of the implied consent law?
DISCUSSION
The Implied Consent Statute, S.C. Code Ann. § 56-5-2950(a) (2006), provides that a person who drives a motor vehicle in South Carolina is considered to have given consent to chemical tests of his breath, blood, or urine to determine whether the person was driving a motor vehicle while under the influence of alcohol, drugs, or a combination of alcohol and drugs. The statute provides, in pertinent part:
No tests may be administered or samples obtained unless the person has been informed in writing that:
(1) he does not have to take the test or give the samples, but that his privilege to drive must be suspended or denied for at least ninety days if he refuses to submit to the tests and that his refusal may be used against him in court;
(2) his privilege to drive must be suspended for at least thirty days if he takes the tests or gives the samples and has an alcohol concentration of fifteen one hundredths of one percent or more;
(3) he has the right to have a qualified person of his own choosing conduct additional independent tests at his expense;
(4) he has the right to request an administrative hearing within thirty days of the issuance of the notice of suspension; and
(5) if he does not request an administrative hearing or if his suspension is upheld at the administrative hearing, he must enroll in an Alcohol and Drug Safety Action Program.
S.C. Code Ann. § 56-5-2950(a). (Emphasis supplied). Subsection 56-5-2950(e) provides that the failure to follow policies or procedures set forth in § 56-5-2950 will result in the exclusion from evidence of any tests results, “if the trial judge or hearing officer finds that such failure materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure.” Notably, neither section (a) nor section (e) addresses the issue of license suspension for the failure to comply with the procedures set forth therein.
S.C. Code Ann. § 56-5-2951(a), governs the Department of Motor Vehicle’s (DMV) suspension of a driver’s license for refusing to submit to a test or for certain levels of alcohol concentration. The statute states that the DMV “shall suspend the driver’s license . . . of . . . a person who drives a motor vehicle and refuses to submit to a test provided for in Section 56-5-2950;” the statute gives an offender thirty days in which to request an administrative hearing. S.C. Code Ann. § 56-5-2951 (B) (2). The hearing must be held within thirty days and is limited to a determination of whether the person:
(1) was lawfully arrested or detained;
(2) was advised in writing of the rights enumerated in Section 56-5-2950;
(3) refused to submit to a test pursuant to Section 56-5-2950; or
(4) consented to taking a test pursuant to Section 56-5-2950 (and several conditions relating to administration of the test).
S.C. Code Ann. § 56-5-2951(F) (1-4). We find nothing in section 56-5-2951 which mandates re-issuance of the driver’s license if one, or all of the above factors is not met. If the Legislature had intended the lack of written notice (or any other factor) to be a fatal defect, it could have said so in the statute. Giannini v. SC Dep’t of Transportation, 378 S.C. 573, 664 S.E.2d 450 (2008) (if Legislature had intended certain result in a statute it would have said so). Accord S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 523, 613 S.E2d 544, 549 (Ct. App. 2005) (requirements for suspension for refusal to consent do not include written notice of implied consent statute).
We hold the criterion in § 56-5-2951(f) are simply factors which the DMV may consider in determining whether to uphold a suspension, i.e., a prejudice analysis. Given that nothing in § 56-5-2951 provides for mandatory re-issuance of a driver’s license upon review of these factors, we find an examination of the four factors with an eye toward prejudice is the proper inquiry. Accordingly, the Court of Appeals properly applied a prejudice analysis. Given that it is undisputed Taylor was advised of the implied consent warning, the Court of Appeals properly found he suffered no prejudice from the officer’s lack of written notice. Accordingly, the Court of Appeals’ opinion is affirmed.
AFFIRMED.
TOAL, C.J., and Acting Justice Billy A. Tunstall, concur. BEATTY, J., dissenting in a separate opinion in which PLEICONES, J., concurs.
JUSTICE BEATTY: I respectfully dissent. Section 56-5-2950(a) of the South Carolina Code specifically states no tests may be administered or samples obtained unless the person has been informed in writing of certain provisions of the section. S.C. Code Ann. § 56-5-2950(a). It is undisputed that Taylor was not “informed in writing.” In my view, the Department of Motor Vehicles cannot suspend a driver’s license because driver refused to take a test that the law enforcement officer was not authorized to administer.
The South Carolina Legislature specifically set forth a pre-condition that must be met before any tests may be administered. Section 56-5-2950 is unambiguous and its meaning and intent are clear. The Court may not simply ignore it. I would reverse the decision of the Court of Appeals.
PLEICONES, J., concurs.
Mar 7, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation, Wrongful Death
This SC Supreme Court case dealt with a legal issue of whether there was “substantial evidence” to support the Full Commission findings. However, there is a great illustration of how complex heart attack cases are analyzed in workers’ compensation. Heart attack cases are treated differently than other on the job injuries. To be compensable as a worker’s compensation accident, a claimant must prove that it is induced by unexpected strain or overexertion in the performance of the duties or by unusual and extraordinary conditions of employment. These cases are always serious, sometimes fatal. As a result, they are aggressively defended by insurance carriers. As a former intensive care unit Registered Nurse (RN), Robert Reeves has actually worked in “open heart recovery” and understands the medical issues involved. And, as a workers’ compensation attorney, he has handled heart attack cases and knows what has to be proven in order to win. Better make sure your attorney understands these complicated workers’ compensation standards and is willing to fight for you and your family. 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 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
Thomas D. Jordan, Petitioner,
v.
Kelly Company, Inc., Employer, and Zenith Insurance Company, Carrier, Respondents.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Horry County
B. Hicks Harwell, Jr., Circuit Court Judge
Opinion No. 26611
Heard January 6, 2009 – Filed March 9, 2009
AFFIRMED
David James Canty, of Myrtle Beach, and James L. Hills, of Hills & Hills, of Myrtle Beach, for Petitioner.
Christian Stegmaier and Peter H. Dworjanyn, both of Collins & Lacy, of Columbia, for Respondents.
CHIEF JUSTICE TOAL: In this workers’ compensation case, the single commissioner found Petitioner’s injury compensable and awarded benefits, but the full commission reversed. The circuit court reversed the full commission and reinstated the single commissioner’s decision awarding benefits. The court of appeals reversed the circuit court, finding that substantial evidence in the record supported the full commission’s decision. Jordan v. Kelly Co. Inc., Op. No. 2007-UP-010 (S.C. Ct. App. filed January 11, 2007). We granted a writ of certiorari to review the court of appeals’ decision. We affirm
Factual/Procedural Background
Petitioner Thomas Jordan was employed as a driver by Respondent Kelly Company, Inc., a hauling company specializing in transporting heavy equipment. On January 11, 2003, following the completion of a long haul route from Virginia to Texas, Petitioner suffered a heart attack. Petitioner filed a claim for workers’ compensation benefits and alleged that the heart attack was proximately caused by unusual and extraordinary duties during this haul.
At the hearing, Petitioner testified that on Wednesday, January 8, 2003, Kelly Company sent him to pick up a large piece of equipment in Virginia and transport it to Texas by Friday, January 10, 2003. Because the equipment had not been loaded, Petitioner departed seven hours past schedule, leaving him only two hours of travel time on Wednesday.[1] Additionally, Petitioner testified that the required permits were not ready for him when he left Virginia and he therefore had to drive without the permits until he could pick up copies at a truck stop. On Thursday, Petitioner drove from North Carolina to Alabama, and on Friday he drove from Alabama to Louisiana. Petitioner informed a dispatcher that he would not be able to deliver the equipment to Texas by the Friday deadline, but the dispatcher informed Petitioner that the deadline was extended to 12:00 p.m. Saturday. When Petitioner arrived in Texas on Saturday morning, he was unable to take the exit that his permit required him to take because the exit was under construction. As a result, he had to deviate from his route through downtown Houston. Petitioner made the delivery at 11:57.
Petitioner testified that he began experiencing symptoms associated with a heart attack during the haul and on Saturday night. He further testified that the haul was extremely stressful because he was forced to leave Virginia and travel without the required permits and to drive illegally through downtown Houston without a special permit or police escort.
The single commissioner found that Petitioner’s heart attack was precipitated by unusual and extraordinary conditions of his employment on the trip. The full commission reversed and found that Petitioner was performing his job duties as a long haul driver in the ordinary and usual manner. The circuit court reversed the full commission’s decision and reinstated the award of benefits. The court of appeals reversed the circuit court and held that that substantial evidence in the record supported the full commission’s decision denying benefits.
We granted Petitioner’s request for a writ of certiorari to review the court of appeals’ decision, and Petitioner presents the following issue for review:
Did the court of appeals err in finding substantial evidence in the record exists to support the full commission’s findings?
Standard of Review
In workers’ compensation cases, the full commission is the ultimate fact finder. Shealy v. Aiken County, 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000). This Court must affirm the findings of fact made by the full commission if they are supported by substantial evidence. Lark v. Bi-Lo, Inc., 276 S.C. 130, 136, 276 S.E.2d 304, 307 (1981). Substantial evidence is not a mere scintilla of evidence, but evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the agency reached. Tiller v. Nat’l Health Care Ctr., 334 S.C. 333, 338, 513 S.E.2d 843, 845 (1999).
Law/Analysis
Petitioner argues that the court of appeals erred in holding that substantial evidence in the record exists to support the full commission’s findings. We disagree.
A claimant may recover workers’ compensation benefits if he sustains an “injury by accident arising out of and in the course of the employment.” S.C. Code Ann. § 42-1-160 (2006). The general rule is that a heart attack is compensable as a worker’s compensation accident if it is induced by unexpected strain or overexertion in the performance of the duties of a claimant’s employment or by unusual and extraordinary conditions of employment. Hoxit v. Michelin Tire Corp., 304 S.C. 461, 464, 405 S.E.2d 407, 409 (1991).
In our view, the court of appeals correctly held that substantial evidence in the record supported the full commission’s finding that Petitioner was not performing his job duties under unusual or extraordinary conditions of his employment. Although Petitioner testified that the haul was extremely stressful, Petitioner’s boss and co-worker testified that the Kelly Company did not impose deadlines and that it was not unusual for employees to deviate from their routes due to construction. Petitioner admitted that he had left without permits on prior deliveries and that when this would happen, he would pick up a faxed copy of the permits at the nearest truck stop. Furthermore, evidence in the record showed that Petitioner smoked cigarettes, had abused alcohol, suffered from high blood pressure, and had a family history of heart disease.
Although the record contains conflicting evidence, this Court is not in a position to weigh the evidence presented in workers’ compensation hearing. See Shealy, 341 S.C. at 455, 535 S.E.2d at 442 (holding that the final determination of witness credibility and the weight to be accorded evidence is reserved to the full commission, and it is not the task of an appellate court to weigh the evidence as found by the full commission). Accordingly, we hold that substantial evidence in the record supports the full commission’s finding that Petitioner’s heart attack was not induced by unexpected strain or overexertion in the performance of the duties of his employment or by unusual and extraordinary conditions of employment.
Conclusion
For the foregoing reasons, we affirm the court of appeals’ decision denying benefits.
WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur.
[1] Petitioner testified that drivers are only allowed to transport heavy equipment during daylight hours.
Mar 6, 2012 | DUI & DWI, Uncategorized
This SC Supreme Court case addresses an issue we encounter routinely as we practice in both South Carolina and North Carolina. Whenever you are arrested for DUI in one state, that arrest is supposed to be communicated back to your “home” state. If you refuse to submit to the breathalyzer, your driving privileges are immediately suspended for six (6) months in SC and twelve (12) months in NC. In order to regain your license, you may have to resolve the various requirements in both states. This case stands for the proposition that due process and fundamental fairness applies to this interest. Although the Courts make a critical distinction between “rights” in criminal courts and “privileges” in civil DMV hearings, the characterizations are rendered moot when it comes to the legal proceedings involved in both forums. Better make sure your DUI attorney understands these crucial differences and is willing to fight for you in court. There is too much at stake to risk an inexperienced lawyer.
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THE STATE OF SOUTH CAROLINA
In The Supreme Court
Charles R. Hipp, III, Respondent,
v.
South Carolina Department of Motor Vehicles, Appellant.
Appeal from Charleston County
Michael G. Nettles, Circuit Court Judge
Opinion No. 26588
Heard December 4, 2008 – Filed January 26, 2009
AFFIRMED
General Counsel Frank L. Valenta, Jr., Deputy General Counsel Philip S. Porter, and Assistant General Counsel Linda A. Grice, all of Blythewood, for Appellant.
Michael A. Timbes, of Thurmond, Kirchner & Timbes, of Charleston, for Respondent.
PER CURIAM: South Carolina Department of Motor Vehicles (SCDMV) appeals the order of the circuit court enjoining it from suspending the driver’s license of Respondent Charles R. Hipp, III (Respondent) as a consequence of Respondent’s 1993 Georgia conviction for driving under the influence (DUI). We affirm.
FACTS
Respondent was arrested and pled guilty to DUI in the State of Georgia in 1993. At the time of the arrest, Respondent was a South Carolina resident attending college in South Carolina, and a driver licensed by the South Carolina Department of Motor Vehicles (SCDMV). As a result of his plea, Respondent paid a fine to the State of Georgia and fulfilled other conditions required by Georgia. In 2005, twelve years after his conviction, Respondent received notice from the SCDMV that his South Carolina driver’s license was being suspended as a consequence of his 1993 Georgia DUI conviction. Respondent filed a declaratory judgment action asking the court to enjoin suspension of his license. The circuit court issued an order enjoining the SCDMV from suspending Respondent’s driver’s license.
ISSUE
Did the circuit court err in enjoining the suspension of Respondent’s driver’s license?
STANDARD OF REVIEW
“Actions for injunctive relief are equitable in nature.” Shaw v. Coleman, 373 S.C. 485, 492, 645 S.E.2d 252, 256 (Ct. App. 2007). In actions in equity this Court may find facts in accordance with its own view of the preponderance of the evidence. Id.
ANALYSIS
The circuit court cited three grounds for enjoining suspension of Respondent’s driver’s license: (1) that the applicable statute is ambiguous; (2) the doctrine of laches; and (3) that suspension twelve years after conviction violates the “fundamental fairness” required by due process. We find the circuit court’s conclusion as to fundamental fairness to be persuasive and so, affirm.[1]
A person’s interest in his driver’s license is property that a state may not take away without satisfying the requirements of due process. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed2d 90 (1971). Due process is violated when a party is denied fundamental fairness. City of Spartanburg v. Parris, 251 S.C. 187, 191, 161 S.E.2d 228, 230 (1968).
This Court addressed facts similar to those in the case at hand in State v. Chavis, 261 S.C. 408, 200 S.E.2d 390 (1973). While we found fundamental fairness was not violated by suspension after a one-year delay, we allowed that there might be circumstances under which it could be soundly held that the State had no right to suspend a driver’s license after a lengthy delay. Id. at 411, 200 S.E.2d at 391. We find in the instant case the extreme circumstances contemplated by Chavis.
While we do not intend to set forth a bright line rule, we find that imposition of a suspension after more than twelve years delay, where Respondent bears no fault for the delay, is manifestly a denial of fundamental fairness.[2] Though neither dispositive nor directly applicable to the instant case, we note that Title 56 of the South Carolina Code, which addresses “Motor Vehicles,” is replete with ten-year limitations for purposes of sentence enhancement and keeping record of convictions. See, e.g., S.C. Code Ann. §§ 56-1-746 (for purposes of determining a prior offense for sentence enhancement of alcohol-related offenses, only convictions within ten years of the date of the most recent violation are considered prior offenses); 56-1-1340 (violation convictions shall be entered in the records of the SCDMV for a period of ten years); 56-5-2940 (for sentence enhancement of convictions for operating motor vehicle under influence of alcohol or drugs, only those violations which occurred within ten years preceding date of last violation constitute prior violations); 56-5-1990 (in determining time of suspension of driver’s license, only violations which occurred within ten years of the last violation shall constitute prior violations).
CONCLUSION
We agree with the circuit court that under the unique circumstances of this case, the attempted suspension of Respondent’s driver’s license twelve years after conviction constitutes a denial of fundamental fairness. The order enjoining suspension is therefore
AFFIRMED.
TOAL, C.J., WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur.
[1] Having found the circuit court’s decision supported by its finding that Respondent was denied fundamental fairness, we do not address the remaining grounds. See Wilson v. Moseley, 327 S.C. 144, 147, 488 S.E.2d 862, 864 (1997).
[2] It should be noted that neither Respondent nor SCDMV is at fault for the delay. The unexplained delay in reporting the 1993 violation appears to be solely attributable to the inaction of the State of Georgia.
