South Carolina Court of Appeals Decisions for April 1, 2015


On Wednesday, April 1, 2015, the South Carolina Court of Appeals published five opinions: Sean Fay v. Grand Strand RegionalFerguson v. Amerco U-HaulClemmons v. Lowe’s Home CentersBluffton Towne Center v. Gilleland-Prince,  and Rickerson v. Karl

Sean Fay v. Grand Strand Regional was a cross-appeal from a medical malpractice action. Sean Fay brought a wrongful death and survival action for medical malpractice against Dr. Stephen Law, an ER physician; the Grand Strand Regional Medical Center (“the Hospital”); and Dr. Young, a urologist, on behalf of his deceased wife, Kelly.

At the close of trial, the trial court granted Dr. Young’s motion for a directed verdict on public policy grounds and the jury granted a $3 million verdict against the Hospital and Dr. Law. Dr. Law and the Hospital’s motions for post-trial JNOV, new trial absolute and new trial nisi remittitur were all denied as well as Dr. Law’s motion for reconsideration.

These cross appeals followed: Sean appealed arguing that the trial court erred in granting Dr. Young’s motion for a directed verdict on public policy grounds.

Dr. Law appealed arguing that the trial court erred in (1) denying his motion for JNOV; (2) excluding evidence of Sean’s admitted extramarital affair; and (3) refusing to enroll the judgment against him using the jury’s determination of six percent negligence on his part and instead using joint and several liability.

On Sean’s appeal, the Court affirmed the trial court’s decision to grant Dr. Young’s motion finding that Sean failed to establish the existence of a doctor-patient relationship. Dr. Young never communicated with Kelly, never attempted to treat Kelly, and did not look at her records. No evidence in the record established a doctor-patient relationship.

On the first issue of  Dr. Law’s appeal, the Court affirmed the trial court’s decision finding that a jury reasonably could have found the evidence suggested Dr. Law and the other medical professionals failed to sufficiently inform the Fays of the dangerousness of a fever and a kidney stone.

As well, the Court held that the trial court did not abuse its discretion in excluding the evidence of the extra-martial affair finding that the value of the evidence was substantially outweighed by its prejudicial effect.

Finally, the Court affirmed the trial court’s decision to refuse to enroll the judgment against him using joint and several liability. It concluded that the trial court’s finding is supported by the record and confirms the law in effect at the time of the injury.

In Ferguson v. Amerco U-Haul, the Court affirmed an appeal of the Workers’ Compensation Commission.  In his appeal, George Ferguson argues that the appellate panel of the Commission erred in finding he failed to carry his burden of proving: (1) eMove, Inc. was his statutory employer; (2) he has an employee of Sean Unterkoefler d/b/a United Stand Moving (Unterkoefler); and (3) Unterkoefler employed four or more employees during the relevant period, making Unterkoefler an uninsured employer subject to the Workers’ Compensation Act.

Ferguson injured his right hand while working part time for Unterkoefler and filed for workers compensation benefits. Unterkoefler was uninsured so Ferguson sought benefits from the South Carolina Unisured Employers Fund, as well as, eMove, United Stand Moving and New Hampshire Insurance Company. Ferguson was denied benefits at the single commissioner hearing; the order was then confirmed by the Appellate Panel.

This Court looked to whether eMove had “owner” liability under § 42-1-400 of the South Carolina Code to determine if eMove would be deemed Ferguson’s “statutory employer”. After review of the record, this Court found that eMove was not Ferguson’s statutory employer and therefore not liable for workers’ compensation.

In determining whether Ferguson was an employer of Unterkoefler, the Court examined the work relationship to determine right of control. In light of the four factor test, the Court concluded that Unterkoelfer was not Ferguson’s employer.

Finally, the Court found that Unterkoefler was not an uninsured employer under the Workers Compensation Act as he did not employ four or more employees during the relevant time period as required under the Act.

Clemmons v. Lowe’s Home Centers, Inc. was an appeal from the Appellate Panel of the South Carolina Workers’ Compensation Commission. Clemmons contends the Appellate Panel erred in (1) proceeding with a  hearing to determine his permanent disability award over his objection; (2) not finding him permanently and totally disabled due to a compensable  work-related back injury; (3) not making a separate award for myelopathy as a neurological injury; (4) not making a separate award for a low back injury; and (5) assigning great weight to the medical opinion of his authorized treating physician. The Court of Appeals affirmed all decisions made by the  Appellate Panel.

In Bluffton Town Center v. Gilleland, Beth Prince (“Tenant”) appealed the master-in-equity’s order awarding Bluffton Towne Center, LLC $35,784 in rent and late fees for Tenant’s breach of a commercial lease. Tenant argued the master erred in (1) finding the lease was terminated by abandonment; (2) finding Tenant was liable for future rents under the lease; (3) considering extrinsic evidence after finding the lease unambiguous; (4) not allowing Tenant to cross-examine Paul Watson, the managing member of BTC, about specific language in the subject lease and language in two subsequent leases BTC entered into different parties; and (5) failing to recognize the lease was ambiguous.

This Court affirmed all of the holdings of the master-in-equity. The Court modified the fourth issue on appeal finding that the master did err in admitting extrinsic evidence, but concluded that such error was harmless. The Court found that the issue of ambiguity in the lease was not preserved for appellate review.

In Rickerson v. Karl, Appellant Thomas Rickerson appeals the trial court’s dismissal of his Notice of Intent to File Suit with prejudice after Rickerson failed to comply with the mandatory mediation requirement of S.C. Code §15-79-125.  This Court reversed the trial court’s decision and remanded the case. It reasoned that Rickerson showed no bad faith, misconduct, willful disobedience, or callous disregard for the rights of other litigants in failing to properly complete his Notice of Intent form or to initiate the scheduling of a mandatory mediation within the time frame. This Court acknowledged that under certain circumstances dismissal may be appropriate for failure to comply within the 120 day deadline, but did not find that dismissal with prejudice was warranted in the case at bar.

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