Anesthetist Was an Employee of a Hospital for Purposes of Workers’ Compensation Laws

In Shatto v. McLeod Regional Medical Center, the Supreme Court reversed the Court of Appeals’ holding in Shatto v. McLeod Regional Medical Center, 394 S.C. 552, 716 S.E.2d 446 (Ct. App. 2011), and held that the certified nurse anesthetist in the case was an employee and not an independent contractor within meaning of the Workers’ Compensation laws.

Mildred Shatto was a certified nurse anesthetist hired by the McLeod Regional hospital in Florence through a nurse staffing agency, Staff Care Inc.  Shatto did not have an employment agreement with McLeod.  There were two relevant contracts: Shatto’s contract with Staff Care (“the Provider Agreement”) and Staff Care’s contract with McLeod Regional (“the Staffing Agreement”).

While helping anesthetize a patient in an operating room, Shatto fell and was injured.  She brought workers’ compensation claims against both McLeod and Staff Care.  Staff Care answered with a general denial, while McLeod at first admitted she was a hospital employee, but later amended its position denying the existence of an employment relationship.  Continue reading

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Section 29-5-440 Only Governs Payment Bonds That Directly Reference the Statute

In Hard Hat Workforce Solutions, LLC v. Mechanical Hard Hat Workforce Solutions, LLC, the supreme court held that a subcontractor did not have to comply with the requirements of S.C. Code Ann. § 29-5-440 (2000) because the payment bond did not directly reference the statute.

Edifice, Inc. was the general contractor for the construction of a new high school in York County.  Edifice hired subcontractor Walker White, Inc. to perform mechanical and plumbing work on the project.  Edifice required Walker White to furnish a payment bond, which Walker White did in the amount of $17,358,043 from Great American Insurance Company (“GAI”).  Walker White subcontracted the installation of ductwork to Mechanical HVAC Services, Inc. (“MHS”).  MHS then subcontracted with Hard Hat for temporary skilled labor on MHS’ portion of the project.  Continue reading

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Florence County’s Tax Referendum Can Be Voted on in November

In State v. County of Florence, the Department of Revenue (“DOR”) sought to enjoin the County of Florence from placing a proposed tax referendum on the November 5, 2013 ballot.  The supreme court denied the relief sought.

In 2006, Florence County held a countywide referendum to approve a one percent sales and use tax to raise $148 million for six road projects.  The voters approved the tax.  As of January 31, 2013, a projected $447.6 million had been raised by the tax, but only an amount of $35.6 million had been spent on the six roads.  The tax is set to expire on April 30, 2014.  Florence County sought to put a referendum on the ballet to reimpose the tax but for entirely different projects.  Continue reading

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Trustees Could Sue Pastor for Defamation for Statements Made at a Congregational Meeting

In Banks v. St. Matthew Baptist Church, the supreme court, in a 3-2 decision, held that the circuit court had jurisdiction over a defamation suit concerning statements made at a congregational meeting.  The statements at issue involved allegations that the Board of Trustees of St. Matthew Baptist Church (“Trustees”) mortgaged Church property to purchase apartment buildings and failed to insure and properly manage the buildings.

Clinton Brantley was pastor of St. Matthew Baptist Church in North Charleston.  At a congregational meeting, Brantley stated that the Trustees: (1) mortgaged Church property to purchase apartment buildings, (2) failed to insure the apartment buildings; (3) mismanaged funds so that money was missing; and (4) deceived him constantly.  He subsequently asked the congregation to remove the Trustees, which they did.  Continue reading

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Admission of Video Tape Hearsay Warranted Reversal

In South Carolina Department of Social Services v. Pringle, the supreme court held that a family court erred in admitting video tape hearsay where the interviewer was not a qualified person under Section 19-1-180(G) (Supp. 2012) of the South Carolina Code of Laws.

After Father and Mother divorced, two of their daughters alleged that Father sexually abused them.  The Department of Social Services (“DSS”) had the children interviewed by a child forensic interviewer.  DSS sought to introduce the video testimony of the two daughters through use of video tape under Section 19-1-180.  For the video tape testimony to be admissible under section 19-1-180(B), the family court must (1) find the child is unavailable due to a statutory reason and (2) the hearsay has “particularized guarantees of trustworthiness.” Continue reading

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A Messy Menace: Immunity under the South Carolina “Protection of Persons and Property Act”

Professor F. Patrick Hubbard
Ronald L. Motley Distinguished Professor of Tort Law

Karl Llewellyn, who was both a prominent legal philosopher and principal drafter of the Uniform Commercial Code, once noted, “Technique without morals is a menace; but morals without technique is a mess.”  The immunity established by the South Carolina “Protection of Persons and Property Act” provides an unfortunate example of the wisdom in both parts of Llewellyn’s statement: The Act is both a menace and a mess.

I.          Summary

The Menace.  The Act is a menace because the substantive rules that provide a basis for the immunity place too little weight on the value of life compared to other values.  For example, the Act authorizes a person to shoot a friend with intent to kill if the friend, who had left his cell phone at the person’s house, pushes his way into the house after being told not to come in at this time.

The Mess.  The South Carolina Legislature created the mess by adopting an immunity from criminal prosecution and civil action without providing a remedy procedure for determining whether a defendant is entitled to an immunity.  The South Carolina Supreme Court’s efforts to address this mess have themselves been messy.  More specifically, one or both opinions concerning the immunity are inconsistent, rely on authority that is clearly unconstitutional, and fail to provide adequate guidance concerning the procedure at a pretrial hearing on the issue of immunity.  Moreover, a denial of the immunity will never be appealable in any meaningful sense because such an appeal could only occur in the case of a conviction, in which case the appeal is too late to prevent prosecution and, as a practical matter, would focus on whether the state had satisfied its burden of showing guilt beyond a reasonable doubt rather than on whether the immunity applied. Continue reading

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Improper Search and Seizure Leads to Exclusion of Drug Evidence

In State v. Gamble, the supreme court held that the trial judge erred in admitting heroin into evidence because the State did not prove that the search and seizure was legally performed.

The police used a confidential informant (“CI”) to gain information about Gamble’s drug activities.  Prior to trial, the CI died.  The State moved to bar reference to the CI because he was unnecessary to the trafficking case.  Although the defense counsel indicated that he would not make reference to the CI, he expressed concern about the State’s ability to demonstrate probable cause for the search of Gamble’s car and his arrest.  The trial court denied the motion, but assured the State that it would not allow the CI’s absence to confuse the jury.   Continue reading

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Same-Sex Couple Filed a Federal Lawsuit to Attack South Carolina’s Defense of Marriage Act and Ban on Gay Marriage

The State reports that a same-sex couple filed a federal lawsuit challenging the 1996 law and the constitutional amendment that ban same-sex marriages in South Carolina.  The couple was married in Washington, D.C. in 2012, but currently resides in Lexington County.

According to the State, the “lawsuit says the U.S. Constitution guarantees Bradacs and Goodwin the right to have the same rights as married heterosexual couples and that South Carolina’s exclusion of same-sex couples ‘adversely impacts the plaintiffs and same-sex couples across South Carolina by excluding them from the many legal protections available to spouses.’” Continue reading

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Same-Sex Couples Legally Married in another State or Country but Domiciled in South Carolina Can File Joint Returns for Federal Tax Purposes

In Revenue Ruling 2013-17, 2013- ___ I.R.B. ___ (Aug. 30, 2013), the Internal Revenue Service decided that same-sex married couples can file joint tax returns even if they are domiciled in a State that does not recognize same-sex marriage, like South Carolina, so long as they were lawfully married.  In addition, this Ruling states that the words “spouse,” “husband,” “wife,” and “husband and wife” are gender neutral terms for purposes of federal tax law.

 Thus, it does not matter for federal tax purposes that a couple’s marriage is not recognized in South Carolina.  See S.C. Const. Art. XVII, section 15; S.C. Code Ann. § 20-1-15 (1996).  So long as the couple was married in a State (which includes foreign jurisdictions) that lawfully permits same-sex marriage, the couple can file a joint tax return and receive the same benefits of opposite sex married couples.  Under this Ruling, South Carolina same-sex couple can also file amended tax returns within the applicable statute of limitations to receive the benefits of the Ruling.

 This Ruling is a follow up to the United States v. Windsor decision which was discussed in a post entitled: “The Impact (If Any) of Windsor and Perry on South Carolina’s Definition of Marriage.”

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An LLC Member’s Personal Liability Returns to the Realm of Uncertainty in South Carolina

Written by Jonathan Knicely

Last year, in 16 Jade Street, LLC v. R. Design Const. Co., LLC, the supreme court determined that the Limited Liability Company Act “only protects non-torfeasor [LLC] members from vicarious liability and does not insulate the tortfeasor himself from personal liability for his actions.”

Carl Aten and his wife were the only two members of R. Design Const. Co., LLC.  R. Design was hired to serve as the general contractor for a four-unit condominium complex in Beaufort, SC.  As the general contractor, Aten’s main responsibilities were to supervise the project and set the design standards.  After problems arose involving AAC block construction and framing, the structural engineer was called in to inspect the project.  The inspection revealed four defects, but Aten gave assurances that the problems would be fixed.  R. Design and Aten eventually left the project without fixing anything, and an inspection conducted after R. Design’s departure revealed thirty-four additional defects. Continue reading

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