August 14, 2013 South Carolina Supeme Court published opinions

Bardsley v Government Employees Insurance Company

A drunk driver drove into Bardsley’s home killing her husband. After settling her wrongful death suit, she sought underinsured motorist property coverage from GEICO which refused. The trial court ordered GEICO to pay Bardsley the full amount of the coverage. The Court, with two justices concurring only in result, reversed. The majority held that the policy was not ambiguous merely because the phrase “other valid and collectible insurance” in the other insurance provision was not defined in the policy as terms are given their ordinary meaning and requiring insurance companies to define every terms would be absurd. The majority held that the other insurance provision did not violate public policy as state law does nto require any underinsured motorist coverage for property damage and in any event Bardsley was not denied overage she was entitled to as her homeowners insurance covered her property damage. Finally, the majority held that the collateral source rule did nto provide coverage as the rule only applies to wrongdoers/tortfeasers, the wrongdoer here was the drunk driver, underinsured motorist insurance is a source independent of the wrongdoer under South Carolina case law and applying the rule to underinsured motorist coverage would give wrongdoers a windfall contrary to the underlying purpose of the rule.

State v Logan

Logan objected to the giving of a South Carolina Supreme Court approved circumstantial evidence charge in his sexual assault and robbery trial. The Court, with two justices concurring in result only, affirmed. The majority held that the jury instruction was proper as the cases relied upon by Logan involved whether there was sufficient circumstantial evidence t6o survive a directed verdict motion not the weight to be given by the jury to circumstantial evidence as opposed to direct evidence. The majority, however, for the benefit of the bench and bar went on and adopted a new requirement that if requested by a defendant the trial court must charge the jury that if the government is relying on circumstantial evidence all the circumstances must be consistent with each other and when taken as a whole point conclusively to the guilt of the accused beyond a reasonable doubt. Tee majority adopted this requirement to clarify the state’s burden and the jury’s framework to evaluate the circumstantial evidence. The concurring judges would have left the law as is and not adopted the new charge.

State v Provet

Provet moved to suppress cocaine discovered in his rental car. The trail court denied his motion and the South Carolina Court of Appeals affirmed. The Court, with one justice concurring in result only, affirmed. It held that traffic violations provided reasonable cause to stop Provet and clarified that off topic questioning is allowed so long as the traffic stop is not materially extended and declared any language in South Carolina case law to the contrary to be superseded. Here, the ten minute stop was appropriate for the issuance of a warning ticket. The majority also held that the officer had reasonable suspicion of drug trafficking based on the totality of the circumstances including Provet’s excessive nervousness, his claims as to his route which directly contradicted the officer’s personal observations, his claims of unemployment yet being able to pay for hotel, vehicle and gas and the presence of several air fresheners. The majority finally held that the record supported the trail court’s ruling that Provet gave consent to a search of this vehicle as his license was returned, weapons were not drawn, the drug dog was inside the police car and no threatening tone was used.

Cape Romain Contractors, Inc. v Wando E., LLC

Cape sued to enforce a mechanic’s lien for work done on a construction project involving a dock. Wando E. and the contractor moved to compel arbitration. The trial court ruled the project had an insufficient impact on interstate commerce and denied the motion. The Court reversed. It held that the project involved interstate commerce as it used raw materials from Ohio, Cape consulted with out of state consultants, materials were transported on the navigable portions of the Wando River and the Army Corps of Engineers issued a permit to build thus using the channels and instrumentalities of interstate commerce. Maritime construction projects have a substantial impact on interstate commerce providing an additional trigger for the Act. The court also held that the contractor had standing to bring the motion to compel and Wando had the third party beneficiary contractual right to join in an arbitration where, as here, the lien arose out of acts undertaken pursuant to the contract.

Babb v Lee County Landfill, SC, LLC

Babb and other landowners Sued Lee for odors coming onto their properties. After the jury returned a verdict in favor of Babb and the other owners, the federal district court certified several questions to the Court. The Court unanimously answered the questions as follows: 1. The proper measure of damages for temporary trespass and nuisance cases is the loss of rental value as these torts protect property interest not personality interest. Additionally, allowing recovery=y for the annoyance from odors would allow double recovery and essentially create a new tort. 2. Orders are intangible and thus claims for orders coming onto property sound in nuisance. The court rejected the alternative view that odors are microscopic particles and thus should be treated as trespass given the automatic damages in trespass actions and the need to impose a substantiality prong to limit claims to actual interference with property. Additionally, the traditional tangible intrusion standard is more easily administrable, gives better guidance as to what is and is not a trespass and keeps trespass and nuisance separate. 3. Negligence claims can arise form orders entering property, but, they would only succeed if all four elements, duty breach causation and damages are proven and mere annoyance is not sufficient to prove damages. 4 Whether expert testimony is necessary to prove a breach of duty in an odor case is elf tot the sound discretion of the trial court as it would depend on the circumstances.

Crouch Construction Company, Inc. v Causey

Crouch moved to set aside an arbitration award based on evident partiality and the trial court granted the motion based on an undisclosed, unknown relationship between an employee of an engineering firm involved in the underlying transaction and a partner of the attorney arbitrator. The Court reversed. It held that under South Carolina code 15-48-130(a)(2), more than the appearance of bias or violations of eh arbitrators ethics code, relied upon by the trial court here, is required. Adopting the majority rule from federal arbitration cases, the court held that “evident partiality” requires objective facts from which a reasonable person would have to conclude the arbitrator was partial to the other party. To analyze the issue, the court adopted four factors the extent and character of the arbitrator’s interest, the directness of the relationship with the allegedly favored party, the connection between the relationship and the
arbitration and the proximity in time of the relationship. Here, none of the factors indicate bias as the relationship between the employee and the partner was unknown at the time of the arbitration, remote at best, unconnected to any party to the arbitration and the employee did not work at the firm at the time of the construction project. The Court thus reversed and remanded for an order confirming the award.

In the Matter of Allen Riley Holmes, Jr

Holmes consented to a definite suspension based on his arrest for heroin possession and his admitted drug addiction. The Court accepted the agreement, suspended Holmes for nine months retroactive to his interim suspension in January 2012. Holmes was ordered to enter into a contract with lawyers helping Lawyer’s, get treatment for three years make reports and only practice in a firm or organization for one year.

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