South Carolina Personal Injury Law Blog

Statute of Limitations for Product Liability

In South Carolina, product liability suits brought under the theories of strict liability or negligence must be filed within three years after the cause of action occurred S.C. Ann. Code § 15-3-520. A "cause of action" does not occur until the plaintiff discovers or should have discovered that they were injured by the defendant's conduct. If you do not file a lawsuit within this time, you cannot sue.

If the lawsuit is based on contract law, as in the case of a breach of warranty, you must file it within three years after the cause of action occurred. S.C. Ann. Code § 15-3-520. Similar to strict liability and negligence cases, a "cause of action" here does not occur until the plaintiff discovers, or should have discovered, that there was a breach of contract. If you do not file a lawsuit within this time, you cannot sue.

In addition to typical statutes of limitations, state legislatures have also enacted special statutes of limitations for certain types of actions to put outside time limits on certain types of lawsuits. These are referred to as statutes of repose. Statutes of repose typically place an outside limit (usually 10, 15 or 20 years) on certain types of lawsuits, regardless of when the injury is discovered. In South Carolina, injured victims cannot file a product liability suit if the product was sold 6 years before the injury S.C. Ann. Code § 15-3-545. The legislative purpose behind this law is to prevent stale claims and increased insurance rates and promote new product development by manufacturers.

At Stevens - MacPhail, P.A., we strive to obtain fair and just compensation for our clients' injuries.  Using our experience and the extensive resources available to us, we focus on achieving the best possible recovery for our clients.  In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

If you or a loved one has been injured, you can call Stevens - MacPhail, P.A. at (800) 897-8856 or (864) 598-9172 or e-mail us to schedule a meeting.  The initial consultation is free of charge, and if we agree to accept your case, we work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds.  Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.

Judge Condemns Attorneys for Outrageous Behavior

It is sometimes hard to believe how uncivil and unreasonable attorneys can act toward one another.  At least one judge has had enough of such behavior, and he let the attorneys and their clients know his thoughts of their conduct very loudly and clearly.

U.S. District Judge Sam Sparks of Austin, Texas issued an order a few years ago in which the attorneys had a history of filings and antagonistic motions full of personal insults requiring multiple discovery hearings.  It was so bad that the judge said that he feels like he is supervising kindergarten, because the lawyers involved in a civil suit in his court are acting like they never learned how to get along with others.

Judge Sparks was so outraged by the attorneys' conduct that he threatened to order the parties in that case to find new lawyers "if the lawyers in this case do not change, immediately, their manner of practice and start conducting themselves as competent to practice in the federal court."

While there are exceptions, we are fortunate here in South Carolina that the vast majority of attorneys are civil to one another and do abide by the rules, both in word and in sprit.  I cannot stand the thought of having to deal with someone acting the way that the attorneys in Judge Sparks' case were acting, and personally, I am glad that he dealt with them as harshly as he did.

The full text of Judge Sparks' Order is set forth below:

ORDER

Be it remembered on the 21st day of July 2004 and the Court took time to make its daily review of the above-captioned case, and thereafter, enters the following:

When the undersigned accepted the appointment from the President of the United States of the position now held, he was ready to face the daily practice of law in federal courts with presumably competent lawyers. No one warned the undersigned that in many instances his responsibility would be the same as a person who supervised kindergarten.

Frankly, the undersigned would guess the lawyers in this case did not attend kindergarten as they never learned how to get along well with others. Notwithstanding the history of filings and antagonistic motions full of personal insults and requiting multiple discovery hearings, earning the disgust of this Court, the lawyers continue ad infinitum.

On July 20, 2004, the Court's schedule was interrupted by an emergency motion so the parties' deposition, which began on July 20, would and could proceed until 6:30 in the evening. No intelligent discussion of the issue was accomplished prior to the filing and service of the motion, even though the lawyers were in the same room. Over a telephone conference, the lawyers, of course, had inconsistent statements as to the support of their positions. On July 20, 2004, the Court entered an order allowing the plaintiffs/counter-defendants until July 23, 2004 two days from today to answer a counterclaim. Yet, on July 21, 2004, Bodyworx.com, Inc.'s lawyers filed a motion for reconsideration of that Court order arguing the pleadings should have been filed by July 19, 2004.

The Court simply wants to scream to these lawyers, "Get a life" or "Do you have any other cases?" or "When is the last time you registered for anger management classes?" Neither the world's problems nor this case will be determined by an answer to a counterclaim, which is four days late, even with the approval of the presiding judge.

If the lawyers in this case do not change, immediately, their manner of practice and start conducting themselves as competent to practice in the federal court, the Court will contemplate and may enter an order requiring the parties to obtain new counsel.

In the event it is not clear from the above discussion, the Motion for Reconsideration is denied.

Signed this the 21st day of July 2004.

Sam Sparks
United States District Judge

Source:  "'Antagonistic Motions' Spark Retort From Judge" by Brenda Sapino Jeffreys, pubilshed at Law.com.

Automobile Insurance Company Not Allowed to Intervene in Family Court Action

Can an insurance company interject itself into a Family Court action filed to determine whether or not someone has a valid common law marriage?  The South Carolina Supreme Court answered this question by clearly stating "no" in an opinion filed yesterday, In Re Cooper.

By way of background, GEICO brought a declaratory judgment action in Circuit Court against Mr. Cooper to determine the parties’ rights pursuant to an automobile insurance policy issued to Ms. Goethe.  Specifically, Mr. Cooper claimed he was entitled to stack underinsured motorist coverage provided by Ms. Goethe's policy on the grounds that he was a Class I insured. GEICO denied Mr. Cooper’s claim, because it found that Mr. Cooper was not a Class I insured because he was neither the spouse nor resident relative of Ms. Goethe.

After GEICO denied Mr. Cooper’s claim to stack coverage, he filed an action in Family Court seeking an order validating his common law marriage to Ms. Goethe since 1991.  GEICO petitioned the Family Court to permit it to join an action pursuant to Rule 19 of the South Carolina Rules of Civil Procedure (SCRCP), or to intervene pursuant to Rule 24, SCRCP.  As grounds supporting its motion, GEICO alleged that the Family Court’s decision on the parties’ common law marriage would impact GEICO’s ability to protect its interests under the insurance policy issued to Ms. Goethe.  The Family Court denied the motion, and GEICO® appealed. 

The Supreme Court affirmed, holding that, although GEICO may be affected by the outcome of the Family Court action, its interest is insufficient to meet the requirements for joinder pursuant to Rule 19(a)(2)(i), SCRCP.  Further, it found that the Family Court did not err in denying GEICO’s petition to intervene in Cooper’s Family Court action. The subject matter of the Family Court action is the validity of a common law marriage, which does not involve a determination of insurance benefits. Accordingly, GEICO did not have standing to intervene in the Family Court action because it did not have an interest sufficiently related to the subject matter of the action.

You can read the full text of In Re Cooper by clicking HERE.

Recorded Statements and Insurance Adjusters

The following post from The Maryland Injury Lawyer Blog discusses whether or not injured parties should allow insurance adjusters to take their recorded statement:

Most insurance adjusters tell personal injury lawyers that they need a recorded statement from the lawyer's client to "firm up liability" or to "assess credibility." But providing a recorded statement is typically a "loose-tie." It rarely results in a finding on liability in favor of the accident attorney's client. Of course, this is not to say that this is always the case, but absent special circumstances, the downside far outweighs any benefits.

Defense attorneys use recorded statements to parse sound bites out of context, often giving ample fodder for cross-examination against your personal injury client at trial.

A critical caveat is in personal injury accident cases involving an uninsured or underinsured case. Because these claims are breach of contract cases, the accident lawyer's client's insurance policy almost certainly contains language making a statement to the uninsured motorist carrier a condition precedent to the accident victim's recovery under the policy.

The personal injury attorney should not assume compliance is necessarily required. This is particularly so in cases where the claim was denied. The accident lawyer should check to see when the claim was denied. If the claim was denied before the claim representative requested the recorded statement, the lawyer may have grounds for refusing a statement, claiming breach of contract. If this is the case, the lawyer should set up this claim in writing with the claims adjuster

If your client must give a statement in an uninsured motorist case, the best way to avoid disaster is to treat it as if the lawyer were prepping the client for his or her deposition. The accident attorney should discuss the client's statement with the client before he or she gives it and should generally have the client give the statement at his or her office. The lawyer should participate in the call the client makes to give a recorded statement, and should object to improper questions, remembering the ... attorneys' local rules of procedure do not apply, giving the lawyer far more latitude. Finally, let the claim representative know you insist on a copy of the statement.

Source:  "Recorded Statements" by Ronald V. Miller, Jr., published at The Maryland Injury Lawyer Blog.

How to Handle an Out-of-State Deposition

From time to time, attorneys must take the deposition of a witness located outside of their own state.  The Litigation Section of the Utah State Bar has an article which gives the following step-by-step of how to handle such situations:

1. Determine which court has jurisdiction over the deponent and then call the clerk of that court and ask how that court requires an out-of-state attorney to proceed in taking the deposition of a witness in that court's jurisdiction.
2. Determine whether you will need to issue a Subpoena to compel the deponent's attendance at the deposition or whether he/she will appear voluntarily.  If you decide to issue a Subpoena, you must determine how to get a properly issued subpoena that will be enforceable against the out-of-state deponent.
3. If your case is in Federal Court, the attorney can likely issue the Subpoena himself.  However, the process of issuing Subpoenas in state court falls into four different categories: Uniform Foreign Depositions Act States; Notice / Agreement States ; "Letters Rogatory" States; and "Miscellaneous Action" States.  (Note: These are discussed in greater detail below).
   
4. Make the logistical arrangements necessary to ensure your deposition will run smoothly, such as book travel arrangements, determine whether your client or a client representative will attend the deposition with you, locate suitable accommodations, and coordinate with the witness's local counsel, if any, and opposing counsel if he or she wishes to attend the deposition.
5. Schedule the location for the deposition and arrange for a court reporter to be present.  It is also advisable to discuss  any special deposition requirements, like videotaping or simultaneous computer transcription, with your court reporter to avoid any unwanted surprises later.
6. If you are also issuing a subpoena duces tecum, try to arrange for production of the documents well before the date of the deposition, so that you will have time to review the documents prior to the deposition.

As referenced above, states fall into four categories with regard to their Subpoena requirements:

• Uniform Foreign Depositions Act States 

The Uniform Foreign Depositions Act generally provides, with some variations among the states that have adopted it, as follows:

Whenever any mandate, writ or commission is issued from any court of record in any foreign jurisdiction, or whenever upon notice or agreement it is required to take the testimony of a witness in this state, the witness may be compelled to appear and testify in the same manner and by the same process as employed for taking testimony in matters pending in the courts of this state.

The Uniform Depositions Act has been adopted by thirteen jurisdictions: Florida, Georgia, Louisiana, Maryland, Nevada, New Hampshire, Ohio, Oklahoma, South Dakota, Tennessee, Virginia, the U.S. Virgin Islands, and Wyoming.2 Moreover, several other states that have not officially adopted the Uniform Foreign Depositions Act have enacted similar statutes: California, Nebraska, New York, Rhode Island, South Carolina, and Texas.

To take a deposition in one of these states, you simply sign and file in the witness's state the same Notice of Deposition you use in deposing a witness located in Utah. You likewise issue the same subpoena you use for a Utah deposition. You must arrange valid service of that subpoena on the witness under Utah law, which means finding a suitable agent to personally serve the subpoena on the witness. Once again the internet comes to the rescue. A good resource for locating a process server in another state is the National Association of Process Servers.

Once you have issued your subpoena and served the witness, you should, if practicable, make contact with the witness (unless, of course, the witness is represented by counsel) and determine whether the witness will attend the deposition. If you have reason to believe the witness will not attend, despite service of the subpoena, prudence dictates that you make contact with the court in the home state of the witness and prepare to file a motion to compel. While these Uniform Foreign Deposition Act states will enforce your subpoena, you will probably still need to hire local counsel to bring the enforcement proceeding.

The advantages of proceeding in a Uniform Foreign Depositions Act state are obvious: ease of administration, low cost to clients, and the foreign court's promise to enforce your subpoena. With a reluctant witness, however, you may still need to hire local counsel to get the foreign court to enforce your subpoena.

• Notice / Agreement States

Fourteen jurisdictions have enacted court rules or statutes that allow either a judge or the clerk of court to issue a subpoena based upon only a Notice of Deposition filed in the trial state or an agreement of the parties that the witness shall be deposed. Those states are: Alabama, Delaware, the District of Columbia, Idaho, Minnesota, Montana, New Mexico, North Carolina, North Dakota, Ohio, Oregon, South Carolina, Tennessee, and Utah.

In these states, it may or may not be necessary to officially petition the witness's state court (see infra). In any event, to take a deposition of a witness in one of these states, you should plan to file your Notice of Deposition with the Utah court, then provide a copy of that Notice to the witness's home state court. In states that do not require that you petition the court for issuance of a subpoena, you may be able to simply write a letter to the clerk of court or the court itself, enclosing a copy of the Notice of Deposition (or of the agreement of the parties to take the witness's deposition) and ask that the clerk or court issue the necessary subpoena.

Obviously, once the subpoena is issued, you proceed as described above, obtaining proper service of process on the witness, either under your state's law or under the laws of the witness's home state. And again, if the witness is reluctant, you will need to hire local counsel to ask the court to enforce the subpoena.

• "Letters Rogatory" States

While only Alabama, Arkansas, and Kentucky have statutes or rules in place explicitly requiring out-of-state attorneys to obtain a writing from the trial state court asking the home state court to issue a subpoena, several states' clerks and attorneys believe that this procedure is still required in their state. For example, sometimes you may be required to get a judge in your state to sign a "Commission to Take Out-of-State Deposition" to be filed in another state's court by an attorney admitted in that state, before that court will issue a subpoena, despite the fact that the other state may have adopted a liberal out-of-state depositions statute.

When taking a deposition in one of these states, you must obtain a writing from your state's court in which your action is pending, addressed to the witness's home state court, asking that court to issue a subpoena for your deposition. These documents are sometimes called "Letters Rogatory," sometimes called "Commissions," or sometimes simply "Request to Issue Subpoena."  Your state's trial judges are generally amenable to signing these requests.

The advantage to this method is that, because you have a direct communication from your state's judge to the out-of-state court, you should not have to hire an attorney who is licensed to practice law in the state where your deponent resides, at least not until you need to enforce the subpoena upon a reluctant witness. Until then, you can simply send the Letters Rogatory or other similar document directly to the out-of-state court, preferably with a cover letter explaining what you would like and perhaps a draft subpoena for the court to issue. Working closely with the clerk of the out-of-state court is crucial to making this process work smoothly.

And again, once your subpoena is issued, you arrange for service on the witness, contact the witness to determine whether the witness will attend the deposition, and hire local counsel to enforce the subpoena if the witness is reluctant.

• "Miscellaneous Action" States

At least 20 states require that you hire an attorney licensed to practice law in that state to file a miscellaneous action in the court with jurisdiction over your deponent. These states are: Alabama, Alaska, Arizona, Arkansas, Connecticut, the District of Columbia, Hawaii, Illinois, Kansas, Kentucky, Michigan, Missouri, New Jersey, New Mexico, North Carolina, Oklahoma, Pennsylvania, Vermont, Washington, and West Virginia. 

Once that action is filed, the attorney you have hired must in most cases file a motion asking the court to issue a subpoena to your deponent. You can often save money here by drafting the pleadings yourself and having out-of-state counsel simply review, sign, and file them.

When trying to locate out-of-state counsel, younger associates at medium-sized litigation firms in the same city as the court can be particularly helpful.  Young associates often are willing to take the time to assist an out-of-state attorney in the hopes of someday obtaining referral business. The internet is, once again, a good source for locating these young associates.

Obviously, the disadvantage to this method is the time and expense required to locate and hire out-of-state counsel, as well as the time involved in filing the miscellaneous action and motion and getting an order signed and subpoena issued. Nevertheless, if the state in which your deponent resides requires this procedure, you and the client will have to make sure the deposition sought is worth the time and expense involved.

Source:  "How to Take an Out-of-State Deposition" by Victoria C. Fitlow, published in the Utah Bar Journal.  Thanks to Dave Stratton of the Insurance Defense Blog for his post about this article.

How NOT to Behave in Court

As posted on my South Carolina Family Law Blog:

The SC Court of Appeals has affirmed a trial court's decision to hold a party in contempt of court for (a) making an obscene finger gesture to his attorney after the hearing concluded and (b) using profanity directed at the judge.  While most people would certainly not act as outrageously as the man in this case, it serves as a good reminder that parties should always be on their best behavior in Court.

In this case, the party apparently "flipped off” the attorney and then told the judge “f**k you, you bastard.”  Even after being held in contempt and sentenced to serve a year in jail for his contemptous actions, the party was still not finished.  On his way out of the courtroom, he apparently fought with the deputies, only to be brought back in to be chastised by the judge.   For his antics, the judge sentenced him to two, six-month sentences for contempt, to be served consecutively consecutively to each other, for a total of one year in jail.

The Court of Appeals held that all courts have the inherent power to punish for contempt to preserve order and maintain decorum in judicial proceedings.  Contemptuous conduct in the presence of the court is direct contempt, and South Carolina courts have taken an expansive view of the “presence” and “court” requirements to encompass all elements of the judicial system, not just the mere physical presence of the judge or courtroom.  No warning of possible contempt is necessary.

In his appeal, the party argued that his sentence should be vacated because he was entitled to a jury trial.  The United States Supreme Court has held that petty crimes can generally be tried without a jury trial, but serious crimes require a jury trial if the accused requests one.  The distinction between a "petty" and "serious" crime is generally determined by the maximum punishment assigned by the legislature.  Crimes with punishments of six months or less are presumably “petty,” while crimes with punishments greater than six months are presumably “serious.”

In this case, the Court of Appeals noted that the two consecutive six-month sentences are the equivalent of a one-year sentence, which would normally entitle a defendant to a jury trial if he or she requested one.  However, the party in this case never requested a jury trial, and he never objected to the imposition of the contempt sentences without a jury trial.  For those reasons, the appellate court found that this issue was not preserved for appellate review, and it affirmed the trial court's sentences for contempt.

You can read the full opinion in Rhoad v. State by clicking HERE.