July 23, 2014 South Carolina Supreme Court published opinions

Ashley II of Charleston, LLC v PCS Nitrogen, Inc.

The federal district court certified a question to the Court asking if the negligence bar to enforcing an indemnity agreement applies in the context of contribution under the federal CERCLA statute. The Court answered no reasoning that the bar aims to deter negligent conduct and CERLA liability is not fault based. It also reasoned this approach is consistent with the freedom to contract.

Weik v State

Weik sought post-conviction relief from his death sentence. The circuit court ruled that there was no prejudice from trial counsel failure to present social and family history mitigation evidence and denied his petition. The Court reversed and remanded. It held that trial counsel’s failure to even look at the mitigation evidence-including accounts of Weik’s psychotic father routinely beating him and controlling the family based on psychotic delusions of being in Vietnam-was deficient performance and prejudice existed because the true picture of Weik’s background would have changed the balance of mitigation and aggravation presented to the sentencing jury.

Ranucci v Crain

Rannuci sued Crain for medical malpractice. The circuit court dismissed her case ruling she was required to file an expert affidavit with her notice of intent to sue and a grace period did not apply. The Court of Appeals affirmed. The Court, 4-1, reversed. The majority held the expert witness affidavit statute, South Carolina Code 15-79-100 and the medical malpractice pre-litigation statute, 15-79-125, must be read together to effectuate the legislative intent particularly as 125 incorporates the provisions of 100 without reservation and deciding otherwise would result in absurd results. It noted this decision is consistent with recent decisions construing 110 and 125 in order to screen out frivolous claims while avoiding traps for the unwary which would keep meritorious claims from proceeding. It held that the statute of limitations had not run and was tolled through the appeals process, the expert affidavit was sufficient on its face and the period for mandatory mediation had not run. Thus, the case could proceed. The dissent argued that because 100 contains an exemption for cases subject to 125, the affidavit to accompany the notice of intent to sue is the only affidavit required in a medical malpractice case and thus the dismissal here was correct. It further argued that 125 already tolls the statute of limitations so the grace period is unnecessary, the legislature can require the expert affidavit at any stage and the majority approach negates the 125 pre-litigation procedure.

Wilkinson v East Cooper Community Hospital, Inc.

Wilkinson filed a notice of intent to sue under South Carolina Code 15-79-125 without an expert affidavit, but, filed one within the 45 day grace period. After the pre-litigation process mandated by 125, she field a complaint but did not file an expert affidavit with it. The circuit court dismissed for failure to file the affidavit. The Court, 4-1, reversed and remanded. The majority held that consistent with Ranucci above, the notice of intent does not need to have an affidavit accompany it if the 45 grace period in 15-79-100 applies and one is filed within the 45 day grace period. Noting that the notice and complaint are all part of the same civil case, the majority held that because 15-79-100 excludes cases subject to 125 from the affidavit requirement, there is no need to file a second affidavit with the complaint. It noted that like the Ranucci decision, this result serves the interest in deciding medical malpractice claims on their merits not through traps for the unwary litigant. The dissent argued that 125 requires the filing of an affidavit and the grace period in 100 does not apply.

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