Case Results

May, 2007

• LEE POOLE, JR. (CHAR) and TODD KING (CHAR) obtained summary judgment and were awarded attorneys' fees in a case where the plaintiff sought property damages following a fire in plaintiff's home.  The fire was caused by a faulty oven, and the defendant was a service technician who repaired the oven prior to the fire.  The plaintiff appealed the award of attorneys' fees, and the firm's appellate division prevailed on that issue.

• SUSAN BURKHART (RAL) obtained a dismissal of an insurance coverage action, removed to federal court, in which a claimant was seeking coverage for a large judgment obtained against an insured for allegedly failing to prevent an assault.  The claimant’s attorney voluntarily dismissed the claim after being persuaded by Ms. Burkhart that no coverage existed for the judgment under an assault and battery exclusion in the policy, which North Carolina state courts had recently enforced in a similar case, even as to claims for “negligent” failure to prevent an assault or battery.

• SUSAN BURKHART (RAL) and PAUL HOLSCHER (RAL) recently obtained summary judgment in a federal action brought against a Town for its alleged refusal to allow an allegedly untimely appeal from a decision of a Town board of adjustment.  The United States District Court held that since the Town later heard the appeal, that the plaintiff’s civil rights claim for damages was moot.

• PATRICIA L. HOLLAND (RAL), RACHEL ESPOSITO (RAL) and PAUL HOLSCHER (RAL) obtained a dismissal with prejudice of federal due process claims and a dismissal without prejudice of state due process claims against a housing authority.  The case involved a solicitation of construction bids to restore and renovate a federally subsidized housing facility under the control of the housing authority.  As a result of the solicitation, plaintiff claimed the housing authority violated its federal and state due process rights, as well as failed to conduct the solicitation in accordance with applicable state statutes and federal regulations.  The defense moved for dismissal with prejudice based upon the plaintiff's lack of standing and lack of a property right to support its due process claims.  The Court dismissed the federal claims with prejudice and dismissed the state claims without prejudice. 

• RACHEL ESPOSITO (RAL) obtained a dismissal with prejudice, plus monetary sanctions imposed upon the plaintiff, who alleged national origin and race discrimination under Title VII of the Civil Rights Act as a result of his termination of employment.  The defense argued that although the plaintiff's national origin was Puerto Rican, neither his national origin nor his race were the reason for his discharge.  Rather, it was his insubordination and hot-headed outbursts in response to his Caucasian female supervisor's directives.  The plaintiff had not only failed to follow his supervisor's instructions, but he also subsequently failed to follow Court orders regarding discovery in the case, the latter of which formed the basis for the ultimate dismissal of the case and monetary sanctions against him.

• RACHEL ESPOSITO (RAL) and MEGHAN KNIGHT (RAL) successfully resolved a dispute over unemployment benefits that were improperly paid to a Town employee.  The Employment Security Commission (ESC) sought reimbursement from the Town for the payment of those benefits.  Problematically, this particular employee had worked for the Town on substantially the same basis for many years, and had never been terminated or had his hours reduced.  It appeared that the employee had fraudulently obtained these benefits.  The Town issued a letter to the ESC, explaining the impropriety of charging such improperly paid benefits to the Town.  A check was sent with this letter in order to avoid penalties should the ESC determine that the benefits were properly paid.  However, conversations with the ESC employees made it apparent that once the Town's payment was deposited, it would take some time for the ESC to issue a refund check even if the ESC determined the benefits were erroneously paid.  The ESC employee who received the letter and check was directly contacted, and asked to hold the check without depositing it until after giving consideration to the Town's letter.  As a result, the ESC reviewed the letter, gave the Town a full credit for the improperly paid benefits, and immediately returned the undeposited check to the Town.

• MARSHALL WALL (RAL) obtained a summary judgment in a coverage case in the US District Court for the Eastern District.  Plaintiff's wife was killed in a car accident.  He claimed that he was entitled to recover UIM benefits of $1 million from her employer, since she was on the job when the accident happened.  While we agreed that she was working when the accident happened, we argued that the policy only provided coverage if she was driving a vehicle owned by her employer, which she was not.  The Court agreed and allowed our motion for summary judgment.

• ROBIN DAVIS (RAL) and PAUL HOLSCHER (RAL) recently obtained a dismissal of several unfair and deceptive trade practices claims asserted against a municipality and city employees including the City Manager, the Human Resources Director and the Finance Director in both their official and individual capacities.  The case involved a challenge to the suspension and eventual termination of a former city employee. 

• DAVID BATTEN (RAL), KATHY MILES (RAL) and MEREDITH TAYLOR (RAL) obtained summary judgment in a medical malpractice case on behalf of an emergency room physician and the physician's practice group.  The judge found that the plaintiff's experts were not qualified to testify on the issue of standard of care because either they did not have expertise in emergency room medicine or they were not familiar with the community standard of care at the time of the incident giving rise to the lawsuit.

• DAVID WARD (RAL) and LEIGH ANN SMITH (RAL)  After two weeks of trial in Moore County, North Carolina a jury rendered a Defense Verdict for an OB/GYN physician.  The case involved the delivery of a 36 week gestational age female, 7lbs, 7 oz, complicated by a nuchal cord and shoulder dystocia resulting in a severe left Brachial Plexus arm injury.   Plaintiffs alleged the physician caused the injury by applying excessive traction or pulling on the head during delivery.  The defense argued that the delivery was an emergency and that the physician provided excellent care.  In addition, the defense argued the injury was caused by the expulsive forces of the Mother before the physician touched the infant.

• DAN HARTZOG (RAL) and KARI JOHNSON (RAL) obtained a summary judgment in favor of the defendants, a police department and two police officers, in a wrongful death action where the plaintiff's decedent's vehicle collided with a patrol car involved in a vehicular pursuit.  The defendants argued, and the court agreed, that the appropriate standard is gross negligence and that the evidence failed to establish gross negligence on the part of the defendants as a matter of law.

• KARI JOHNSON (RAL) and DAVID WARD (RAL) obtained a dismissal of a wrongful death/medical malpractice action.  The defendant prevailed based on the statute of limitations, despite the fact that a prior action had been filed and voluntarily dismissed.  The court agreed with the defendant that the prior action was filed just to toll the statute and did not prevent a statute of limitations defense.

• JOHN MARTIN (WILM) obtained summary judgment in a medical malpractice case on behalf of a pediatrician.  The plaintiff alleged the pediatrician, along with other health care providers, failed to recognize child abuse in a 6 year old boy who had suffered a wrist fracture.  The child was discharged home, and later returned to the hospital with severe head injuries resulting from child abuse, leaving the child permanently brain damaged.  The defendants filed a motion for summary judgment on the issue of foreseeability, which the trial court granted, dismissing the case.

• JOHN MARTIN (WILM) and JOHN "BO" WALKER (RAL) obtained dismissal in a medical malpractice case against an orthopaedic surgeon.  The plaintiff alleged the surgeon failed to timely identify and treat loss of alignment at the fracture site following surgery, resulting in permanent injury.  John deposed the plaintiff's expert witness, and filed a motion to dismiss the case on the ground that the plaintiff's expert witness failed to qualify on being familiar with the standard of care.  The trial court granted the motion, dismissing the lawsuit.

• GEORGE AUTRY (RAL) STEPHANIE AUTRY (RAL) and BRADY WELLS (RAL) The new Clayton bypass took 11.5 acres of farmland from Donald and Edna Williamson.  The Department of Transportation’s initial offer was $420,000.  When that offer was declined the DOT condemned the land and filed suit.  After the land was condemned the DOT appraised the land at $957,700.  Trial began Monday, February 26, 2007 in Smithfield.   The jury returned a verdict in favor of the Williamsons on Friday of the same week after only 30 minutes of deliberation in the amount of $2,377,681. The jury awarded every penny the Williamsons had asked for.  Interest of over $300,000 has been added to the judgment.  (DOT v. Williamson, Smithfield, NC)

• JESSE M. "JAY" TILLMAN, III (CHAR) obtained a dismissal in a construction defect mold damage trial in Buncombe County, North Carolina where he defended the developer and general contractor against the personal injury, construction defect, and unfair and deceptive trade practice claims made by the plaintiff.  The plaintiff's claims of personal injury and unfair and deceptive trade practice claims were dismissed as a matter of law and the plaintiff received from the jury less than ten percent of her original $1.5 million claim.

• TODD KING (CHAR) obtained summary judgment for a substance abuse rehabilitation facility accused of negligent infliction of emotional distress, negligent hiring/retention/supervision, and punitive damages after a client staying at the facility was assaulted by another client.

• DANIEL KATZENBACH (RAL) obtained a summary judgment ruling in a case where he represented a home inspector who was being sued by homeowner plaintiffs who alleged that the home inspector did not perform his services properly and that resulted in them failing to discover extensive termite damage.  The plaintiffs were claiming over $300,000 in damages. The Court dismissed all claims against the home inspector.

• DANIEL KATZENBACH (RAL) obtained a hung jury result at trial where he represented a trucking defendant in a motor vehicle personal injury case.  The trial judge refused to send the issue of contributory negligence to the jury over the objection of Mr. Katzenbach.  The contributory negligence issue seemed to be the only realistic chance for a defense verdict.  However, the jury could not reach a consensus on the liability issues in the case. 

• DAVID RHOADES (RAL) successfully defended a workers' compensation claim.  The plaintiff worked in a plant making tires for a number of years and for the past couple of years had transferred to an inspection position where she actually walked more.  She alleged that having to stand on concrete all day performing her job for approximately 18 years led to the development of right foot problems for which she had been taken out of work.  There was no evidence of a specific injury or accident at work.  Defendants put forth evidence that although plaintiff worked on her feet most of the day, the employer had provided ergonomic mats at her work station, insured that she was moving around the machines consistently so she was not actually standing in one position and verified that her most recent positions required more walking.  Plaintiff also was overweight and had other congenital conditions.  Plaintiff had seen a number of physicians, including podiatrists and orthopedic surgeons.  Plaintiff underwent two surgeries and had several diagnoses of her condition.   Defendants retained an expert to review records and testify as to plaintiff's condition and on causation. The Commission ultimately held that plaintiff failed to prove the elements of an occupational disease and denied her claim.  Plaintiff has appealed, and the appeal is pending at the Full Commission.

• DAVID RHOADES (RAL) successfully defended a workers' compensation claim.  The plaintiff worked in a factory and suffered a compensable left knee injury in 2000.   Plaintiff underwent three surgeries on the knee and ultimately returned to work with the same employer.  Plaintiff last saw his treating physician in August 2003.  Defendants paid all permanent partial disability owed on a Form agreement approved in May 2004.   Plaintiff ultimately filed a Form 18M in January 2006 signed by the treating physician.  Defendants objected to the Form 18M and the matter was referred for a hearing.  At the hearing, plaintiff acknowledged that he had not returned to his treating physician since August 2003 or any other physician with respect to his knee.  Plaintiff also testified that he had not taken any medications for his knee since the last time he saw his treating physician.   Plaintiff's supervisor testified that he had worked with plaintiff and had not seen any problems in plaintiff performing his job.  Plaintiff's treating physician testified that when he signed the Form 18M he did not have the information that plaintiff had not been having problems and had not needed medical treatment for the knee since August of 2003.  Based on the additional information, the treating physician testified that plaintiff was not at a substantial risk of needing future medical treatment, although he was still at some risk based on the injuries and surgery and characterized any risk as moderate or even lower.  The Deputy Commissioner found that the evidence presented showed that there was not a substantial risk of the necessity of future medical compensation for the knee injury and denied future medical treatment.  Plaintiff did not appeal.

• DAVID RHOADES (RAL) successfully defended a workers' compensation claim.  The plaintiff was a temporary employee employed by a temporary employment agency.  Mr. Rhoades represented the Company to which plaintiff was assigned to work.  Plaintiff had worked for the Company for about a year.  The Company approached plaintiff about being hired as a full time employee.  The Company usually hired full time employees from the temporary workers.  The process for hiring someone full time included a pre-employment physical and drug screen by the Company's approved physician.  The physical was scheduled by the Company on plaintiff's personal time and plaintiff had to provide her own transportation.  If the pre-employment physical was passed, the Company would then make a final determination to hire and additional paperwork would be signed at that time.  Until then, plaintiff was not a full-time employee and was still a temporary employee of the temporary employment agency.  There were occasions when employees were not hired, even after passing the physical.  Plaintiff went to the physical and upon returning from the pre-employment physical, plaintiff was involved in a motor vehicle accident and was injured.  The temporary employment agency acknowledged that injuries arising out of work of the Company were covered for workers' compensation by the temporary agency.  The Company argued that they did not have workers' compensation coverage for the injury as there was no employer-employee relationship.  The Deputy Commissioner found that there was no employment relationship between the Company and plaintiff and no conditional offer of employment had been made.  He found that plaintiff was an employee of the temporary employment agency.  The Deputy found that the pre-employment physical furthered plaintiff's employment with the Company and therefore was covered by the workers' compensation coverage provided by the temporary employment agency.  The Deputy Commissioner found that the Company benefited from the hiring of temporary workers and specifically from plaintiff's activity in that they could find good employees to hire through the temporary employment agency.  The temporary employment agency benefited as the process where the Company could hire the temporary workers prolonged the business relationship between the two companies.  Also the temporary agency benefited as it made the agency more attractive to other workers in that the temporary positions could turn into permanent positions with the Company.  The temporary employment agency will likely appeal.

• A non-insured employer was recently referred to JONATHAN ANDERS (RAL).  This Employer/Owner had been in business as a pet shop since 1979 without workers’ compensation coverage.   His agent in 1979 told him he did not need workers’ compensation coverage as he was licensed by the Department of Agriculture, and did not have 10 or more employees (G.S. 97-2 provides agriculture employers are not required to carry workers’ compensation insurance unless there are 10 or more employees). 

Years later, a different insurance agent wrote the employer’s business liability coverage but never suggested workers’ compensation insurance.  In 2005, an employee fell and broke her wrist.  Her average weekly wage was approximately $100.  She was offered light duty at the cash register but said she could not perform the same with her left hand only.  She never returned to work and never again had any contact with the Employer until she hired an attorney in 2006.  The attorney recently withdrew as her attorney.  The Industrial Commission set the case for hearing on its Non-Insured docket and the Attorney General's Office got involved on the issue of the penalty for being non-insured.  The Employer contacted the Attorney General's Office immediately upon notice of his non-insured status and promptly obtained coverage.

The plaintiff had a bad back, bilateral carpel tunnel syndrome, and residual wrist problems.  She claimed she had not returned to work with any employer since June of 2005.  The Attorney General could have assessed a penalty in excess of $90,000 as it could document no coverage dating back to 2002.  Mr. Anders met with plaintiff at the hearing, as well as with a Deputy Attorney General, and a Deputy Commissioner.  Prior to hearing, Mr. Anders settled the workers’ compensation case with the plaintiff for $1,000 plus payment of unpaid medical expenses and obtained informal approval of this settlement from the Deputy Commissioner in the plaintiff's presence.  Mr. Anders then obtained the Deputy Attorney General's agreement to reduce the penalty to $1,500, all to the relief of the Employer.

• ROBIN DAVIS (RAL), ANN ESTRIDGE (RAL) and NORWOOD BLANCHARD, III (WILM) obtained a favorable ruling from the Fourth Circuit Court of Appeals.  The Fourth Circuit determined that two police department employees were entitled to qualified immunity as to plaintiff’s claim that she was terminated in retaliation for exercising her First Amendment right to complain about perceived sexual harassment in the police department.  The Fourth Circuit rejected this claim finding that it had not been clearly established that plaintiff’s complaints were a matter of public concern.  Accordingly, the Fourth Circuit dismissed the free speech retaliation claim as to the individually named defendants.

• ANN ESTRIDGE (RAL) and PAUL HOLSCHER (RAL) obtained a “no cause” finding from the Equal Employment Opportunity Commission (EEOC).  A female police officer filed an EEOC charge alleging that she was discriminated against on the basis of her gender when she was allegedly coerced into resigning instead of facing termination.  Following review of the position statements and supporting documents submitted on behalf of the Town, the EEOC found no basis for these allegations and issued a no cause finding.

• ANN ESTRIDGE (RAL) and ROBERT JONES, JR. (WILM) obtained a favorable ruling from the Fourth Circuit Court of Appeals in an ERISA matter.  On appeal, plaintiff contended that she had been improperly denied life insurance benefits provided by her deceased husband’s employer.  The Fourth Circuit rejected this argument and found that plaintiff was not entitled to the benefits on the basis of an intoxication exclusion in the policy.

• ANN ESTRIDGE (RAL) obtained a dismissal of plaintiff’s claims for breach of fiduciary duty and punitive damages claims.  A student, through his legal representative, sued a former teacher alleging that he was injured as a result of a fall in a bathroom.  The student was physically and mentally disabled and alleged that the fall occurred because he was allegedly not being supervised properly while in the bathroom.  The trial court rejected plaintiff’s claims for breach of fiduciary duty and punitive damages, finding that the claims could not survive a Motion to Dismiss.

• ANN ESTRIDGE (RAL), ALYCIA LEVY (RAL), and MEGHAN KNIGHT (RAL) obtained dismissals of two separate lawsuits arising out of the same incident on the basis of governmental immunity.  As alleged in the Complaints, an eight year old student lost control of his bicycle and fell into the path of a school bus and was critically injured.  Two of the student’s siblings witnessed the accident.  Two lawsuits were initiated.  The first lawsuit sought wrongful death benefits, and the second lawsuit sought emotional distress benefits on behalf of the siblings that witnessed the incident.  At the hearings in this matter, the trial court concluded that exclusions in the Board of Education’s coverage agreement applied.  Because there were exclusions from coverage, the Court determined that the Board of Education had not waived its sovereign immunity.  Because the Board of Education had not waived its sovereign immunity, the case was dismissed.

• ANN ESTRIDGE (RAL) and ROBERT JONES, JR. (WILM) obtained a dismissal in federal court of several of plaintiff’s claims.  Plaintiff, an African-American, brought a lawsuit against a Town alleging that he was subjected to a hostile work environment based on his race in violation of Title VII.  Plaintiff also contended that he was retaliated against in violation of Title VII.  Plaintiff further alleged that the Town violated his equal protection and due process rights.  The trial court dismissed all of these claims.  Additionally, the trial court dismissed the plaintiff’s state law claims for wrongful discharge in violation of public policy and defamation. 

• VAN BARNETTE (RAL) recently prevailed in a bench trial in a motor vehicle case.  Plaintiff suffered injuries as a result of a collision with a vehicle which crossed the center line on a two-lane road.  Defendant alleged that the plaintiff was contributorily negligent for failing to operate his headlights after sunset.  Defendant presented evidence from eyewitnesses that the accident occurred at approximately 5:45pm on a December evening.  The defendant testified that he felt it was dark enough to require headlights.  One witness testified that she "flashed" the plaintiff to warn him to turn on his headlights just moments before the collision.  The witness testified that she had her headlights on and almost did not see the plaintiff.  Mr. Barnette also cited a North Carolina statute requiring that headlights be operated from sunset to sunrise along with information from a local airport confirming that sunset had occurred at approximately 5:12pm that day.   Therefore, plaintiff was operating his vehicle without headlights more than 30 minutes beyond the statutorily required time.  The judge found that plaintiff was contributorily negligent and was therefore denied any recovery.

• NORWOOD BLANCHARD, III (WILM) recently obtained summary judgment in favor of a local Town and its Police Chief in a wrongful termination lawsuit brought by an officer who was discharged from the Town’s police department.  The officer claimed that he was discharged in retaliation for speaking with a newspaper reporter about a potential wage and hour lawsuit against the Town and for accusing a Town Councilman of wrongfully accessing the personnel files of certain Town employees.  After conducting a hearing, the U.S. District Judge ruled that the plaintiff’s First Amendment rights had not been violated and granted summary judgment in favor of the defendants.

• NORWOOD BLANCHARD, III (WILM) recently obtained a favorable ruling in another wrongful termination lawsuit against a local Town brought in federal court by a former police officer.  The plaintiff, a white male, was terminated after being caught at a female friend’s home several miles outside of Town late at night, while he was on duty.  He filed suit claiming, among other things, that his constitutional right to equal protection was violated because the Town had arbitrarily punished him more severely than other officers whom he claimed had engaged in allegedly similar misconduct.  Mr. Blanchard filed a motion to dismiss that equal protection claim, asserting that the plaintiff’s own allegations showed that his termination was not “arbitrary” in any constitutional fashion.  The U.S. District Judge agreed and granted the Town’s partial motion to dismiss.  

• ROBERT JONES, JR. (WILM) and ROBIN DAVIS (RAL) successfully moved the court to dismiss claims of wrongful termination and violation of North Carolina public policy that had been filed against a municipal police chief.

• LARRY BAKER (CHAR) successfully defended a claim for back injury where the plaintiff testified he sustained an initial injury, followed by a second injury two weeks later. The Deputy Commissioner determined that plaintiff's allegations were not credible because plaintiff had prior back problems and did not report the second incident.

• PAT FLANAGAN (CHAR) and RYAN BOLICK (CHAR) recently obtained summary judgment in favor of a municipality in a case in which two subcontractors died while working on a water line project owned by the municipality.  The estates of the subcontractors filed claims for wrongful death alleging that the municipality was negligent in failing to follow appropriate safety procedures and standards and that the municipality was strictly liable under Chapter 143 of the North Carolina General Statutes due to its alleged failure to discover underground storage tanks near the site of the subcontractors’ deaths.  Prior to the dismissal of these claims, plaintiffs’ counsel sought damages in this suit in excess of $10 million.

• RYAN BOLICK (CHAR) obtained summary judgment in favor of a corporate defendant and its employee.  Defendants complained to plaintiff and her employer regarding her poor work performance over a period of approximately six months.  As a result of these complaints, plaintiff was removed from her position.  Plaintiff sued defendants for defamation per se, tortious interference with contract, punitive damages and unfair and deceptive trade practice.  In dismissing the action, the judge found that the complaints were not made with malice and that defendants were privileged to make such statements as they were made to protect a business interest. 

• RYAN BOLICK (CHAR) and BRAD KLINE (CHAR) obtained a dismissal on behalf of a municipal client in the Middle District of North Carolina Federal Court.  Plaintiff alleged she had been discriminated against based upon her sex and retaliated against because she complained about a violation of her civil rights.  In dismissing plaintiff’s Title VII claims, the Court held that it did not have subject matter jurisdiction over the claims filed as plaintiff failed to file her lawsuit within ninety days of the issuance of a Right to Sue letter as required by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq.

• MELODY CANADY (CHAR) successfully argued and obtained dismissal as a matter of law at the pleading level of the majority and most serious of fifteen claims against a volunteer fire department and one of its members individually in an action brought by a former member.  Among the claims dismissed were breach of contract, blacklisting, negligent supervision and retention, wrongful discharge, and intentional infliction of emotional distress. 

• MELODY CANADY (CHAR) and LEE POOLE, JR (CHAR) obtained a dismissal of all claims against the manufacturer and distributor of cranes, which were allegedly defective. The plaintiff alleged violations of the Uniform Commercial Code as well as products liability claims. The defense filed a pre-Answer Motion to Dismiss arguing statute of limitations defenses and plaintiff's failure to state any claim for relief.  Based on the brief and oral arguments, the court granted the defense's motion and dismissed the case with prejudice.

January, 2007

•  PATRICIA L. HOLLAND, NORWOOD BLANCHARD and RACHEL ESPOSITO obtained a dismissal of a federal lawsuit against a local municipality, its Chief of Police, Police Captain and Town Manager, where two former police officers had filed suit alleging wrongful discharge under Title VII of the Civil Rights Act (race and sex discrimination) and related constitutional claims, as well as a host of other state tort claims (including defamation, invasion of privacy, emotional distress).  The defense filed a pre-Answer Motion to Dismiss arguing immunity defenses, statute of limitations arguments and plaintiffs' failure to state any claim for relief.  The court granted the defense's motion, dismissing the case from federal court.

• RACHEL ESPOSITO resolved three women's complaints involving sexual harassment and sex discrimination implicating their male supervisor.  An on-site investigation was conducted, the male supervisor was counseled and recommended for targeted management training, and the women were pleased with the outcome.  The statute of limitations for filing any Charge of Discrimination with the Equal Employment Opportunity Commission has now expired, and the employer avoided a potential lawsuit by resolving the matters in-house.

• RACHEL ESPOSITO obtained a dismissal with prejudice of a federal lawsuit against a staffing agency/employer where the plaintiff alleged national origin discrimination under Title VII of the Civil Rights Act and asserted a wage loss claim.  The plaintiff claimed that he was discriminated against based upon his Puerto Rican national origin when the defendant terminated his employment.  There was an unfortunate personality conflict between him and his Caucasian female supervisor where he had challenges in taking orders from her and had consequently been insubordinate on numerous occasions.  Ultimately, in his lawsuit, he failed to properly respond to discovery and violated the Federal Rules of Civil Procedure.  The defense moved for dismissal with prejudice based upon the plaintiff's series of discovery violations and based upon the absence of merit to plaintiff's allegations.  The Court dismissed the action with prejudice, and a motion for sanctions and recovery of the defense's attorney's fees is currently pending. 

• BILL POLLOCK, RACHEL ESPOSITO, PAUL HOLSCHER and MEGHAN KNIGHT obtained a dismissal of a negligence action against a local board of education, where the plaintiffs also asserted constitutional claims.  The case involved a shop-class accident where a high school student was badly burned as a result of an oxygen tank regulator explosion that occurred while the student was preparing to weld.  Early on in the case, the defense moved to dismiss the constitutional claims, and plaintiffs' counsel, after having been served with our brief in support of the motion, agreed to dismiss the constitutional claims.  Subsequently, after discovery, the defense moved for Summary Judgment, and the motion was accompanied by a series of affidavits.  One key affidavit was submitted by a Vocational Education expert from North Carolina State University who attested to the school board's and the teacher's safety precautions and their having met all applicable safety standards.  Plaintiffs' counsel, rather than appearing for the defense's motion for Summary Judgment hearing, took a voluntary dismissal on the eve of the hearing.

• RACHEL ESPOSITO successfully defended a Charge of Discrimination alleging race discrimination and retaliatory discharge, and the defense obtained a favorable No Cause determination from the Equal Employment Opportunity Commission (EEOC).  The petitioner alleged that he had been fired in retaliation for having issued complaints about his Caucasian supervisor using objectionable language in the workplace, and complaints about having received unfair disciplinary action based upon his race, African-American.  However, the defense argued that the petitioner's employment ended based upon his insubordinate, insolent and threatening behavior at work; behavior that resulted in a co-worker's complaint about the petitioner that she felt physically threatened by his manic tirades at work.  After being issued with his Right to Sue letter from the EEOC, the petitioner secured counsel in order to file a lawsuit.  The defense issued a letter threatening the petitioner and his counsel with sanctions in the event that either of them elected to file a lawsuit.  Fortunately, the lawsuit was never filed and the statute of limitations has now expired.

• COLLEEN SHEA and MEREDITH TAYLOR won an appeal at the Court of Appeals in a nursing home medical malpractice case.  Due to out of state counsel for plaintiff's egregious discovery violations and failure to properly designate her expert witnesses, Colleen filed a Motion to Strike Plaintiff's Expert Witnesses.  The trial court allowed the Motion to Strike and also sanctioned counsel for plaintiff for a sum over $26,000 in costs and fees.  The plaintiff then appealed the Order to the Court of Appeals.  MEREDITH TAYLOR submitted an outstanding brief outlining the history of the matter and vigorously argued for the lower court's decision to be affirmed.  On December 5, 2006, a unanimous panel agreed and affirmed the lower court's sanctions.

• COLLEEN SHEA in our Wilmington office obtained Summary Judgment in a wrongful death medical malpractice case against an area hospital.  The plaintiff alleged that the hospital nurses were negligent for failing to keep the physicians informed of the plaintiff's declining condition which resulted in the plaintiff developing necrotizing fasciitis, being hospitalized for six months and eventually passing away.  Colleen was able to demonstrate that the plaintiff's experts were not qualified to give standard of care opinions against the hospital and was that the co-defendant physicians were not agents of the hospital.  The Court granted our Motion for Summary Judgment and the case was dismissed. 

• COLLEEN SHEA and BO WALKER in our Wilmington office obtained an early Voluntary Dismissal from a plaintiff in a premises liability action against a local health care provider.  An elderly patient fell sustaining serious injuries.  Colleen and Bo were able to aggressively address discovery issues presented by plaintiff early in the lawsuit and prior to being heard on a Motion for Summary Judgment, the plaintiff dismissed the lawsuit.

• JOHN MARTIN and REGAN TOUPS were granted Summary Judgment in a Section 1983 case filed by a prisoner against a number of individuals, including the prison's physician. The prisoner claimed the physician denied him appropriate and timely medical treatment for his ongoing complaints of back pain following a back injury. The federal court granted the Motion and dismissed the action, which was affirmed by the Court of Appeals.

• NORWOOD BLANCHARD and ROBERT JONES obtained Summary Judgment in Federal Court on behalf of a county government in collective action in which Plaintiff class claimed that the county had not paid them appropriate overtime in violation of the Fair Labor Standards Act.

• ANN ESTRIDGE and ROBERT JONES obtained a dismissal of several of Plaintiff's discrimination claims in Federal Court in the Eastern District of North Carolina.

• HOUSTON FOPPIANO and MEREDITH TAYLOR were recently able to get a significant ruling in the North Carolina Business Court. The plaintiff sued under the Telephone Consumer Protection Act, alleging that the defendant violated the act by sending him an unsolicited advertisement by fax.  The act provides statutory damages of $500 for each violation, which can be trebled to $1500 if the violation was willful and knowing.  More importantly, the plaintiff sought to have the case certified as a class action, claiming that the class should be comprised of all 4800 owners of fax numbers to whom the fax was sent.  If certified, the class could have exposed the defendant to a potential judgment of $2.4 million, or $7.2 million if the damages were trebled.  However, after extensive briefing and oral argument, Judge Albert Diaz of the North Carolina Business Court denied the plaintiff's Motion for Class Certification in a 20-page opinion. 

• BOB SUMNER and GLORIA BECKER successfully defended a trucking company in a 2 week jury trial and obtained a defense verdict against a construction company's workers' compensation lien and property damage claim arising out of a highway construction workplace accident.

• DONNA RASCOE, of our Raleigh office, recently prevailed in a motion for a preliminary injunction in federal district court.  In a long-running dispute with a school district, the parents of a disabled student sought an injunction requiring the district to fund a private residential placement for the student pending the outcome of an underlying lawsuit.  The parents have contended for some time that the school district failed to provide appropriate special education services and that the district should therefore pay for a private placement.  In this preliminary injunction motion, the parents offered letters from several physicians and two expert witnesses asserting that the student would suffer irreparable harm if he was not placed in the parents’ chosen program.  In response, the school district offered the testimony of its teachers, therapists and administrators who explained that the student’s educational needs could be met in the district and that any difficulties the student was having was caused by the parents’ prior lack of cooperation with the school district, including their decision to remove him from school.  Judge Bill Osteen of the Middle District of North Carolina ruled in favor of the school district and denied the parents’ request for a preliminary injunction placing the student in the private facility.

• JENNIFER ADDLETON won Summary Judgment in a premises liability case in Washington County.

• BILL POLLOCK and JENNIFER ADDLETON just won at the Court of Appeals in a case where the trial court had stricken our employer negligence defense from our answer in a wrongful death case. Details of this case are below:

• The court of appeals case was a wrongful death case where our client was sued by an individual allegedly killed while working on a job on which we were a subcontractor. The plaintiff/employee's family was paid workers' compensation benefits by his employer, so we alleged the employer's negligence in our answer under NCGS 97-10.2, which, if successful, would entitle us to an offset in the amount of the workers' compensation benefits paid.

• The employer "waived" its subrogation lien according to a Compromise Settlement Agreement approved by the Industrial Commission, but then entered into a separate agreement with the administratrix of the estate, whereby the employer stood to recoup $12,500 in the event the estate recovered against us (the third party). The employer moved to strike our employer negligence defense, claiming it had waived its lien, therefore, there could be no offset under NCGS 97-10.2. The trial court granted the employer's motion and struck our employer negligence defense from the answer, effectively preventing us from possibly getting a reduction in any damages awarded against us in the amount of $92k.
• We appealed the decision to the Court of Appeals, and the trial court's decision was reversed in a unanimous decision.

• As to the Summary Judgment, the plaintiff allegedly fell in a hole on our client's property and sustained personal injuries which she claimed made her totally disabled. Plaintiff indicated she was seeking $150k from our client for her injuries.

• We moved for Summary Judgment on the basis that our client did not own or occupy the property on which plaintiff allegedly fell, therefore plaintiff failed to establish that the defendant owed her a duty of reasonable care. We further moved on the basis that, even if we did owe a duty of care, plaintiff presented no evidence that we created the allegedly dangerous condition, or that we knew or should have known about the condition and failed to do anything about it. The trial court granted our Summary Judgment motion and the case was dismissed.

• VAN BARNETTE, of our Raleigh office, recently won a Motion to Dismiss for lack of subject matter jurisdiction in the U.S. District Court for the Eastern District of North Carolina.  Plaintiff, a North Carolina resident, alleged that the defendants (a fast food restaurant franchise owner and a well known fast food chain corporation) were negligent in connection with preparation of food products which led to plaintiff finding a bloody band-aid in his cheeseburger sandwich while dining in a fast food restaurant in Virginia.  Because of defendants’ alleged negligence, plaintiff claimed that he suffered physical and mental injuries (including possible exposure to HIV/AIDS) and requested damages in the amount of $2 million in his complaint.  Defendants moved for a dismissal arguing that while the restaurant itself existed in Virginia, the franchise owner was a North Carolina corporation.  Therefore, defendants argued that complete diversity did not exist in the case and that federal jurisdiction was improper due to the franchise owner defendant being a North Carolina corporation.  Plaintiff attempted to defeat the motion to dismiss by dismissing its case against the North Carolina franchise owner while maintaining its case against the national fast food chain.  The court was not persuaded by this action and agreed with defendants’ argument that plaintiff’s complaint clearly established that the court lacked jurisdiction and that the plaintiff could not repudiate its own pleading by attempting to dismiss his case against an essential party.  The case was subsequently filed in North Carolina state court where the case against the national fast food chain was dismissed base upon evidence that it was not a real party in interest.

• ANN ESTRIDGE obtained a dismissal of claims for negligent infliction of emotional distress, intentional infliction of emotional distress, and negligent supervision.  Plaintiff, a former employee, alleged that she had been harassed by a co-worker and pursued various state law theories of liability.  These claims were dismissed by the trial court.

• ANN ESTRIDGE obtained a dismissal of plaintiff’s claims for emotional distress, negligence, Title VII sex discrimination, Title VII race discrimination, and a 42 U.S.C. § 1983 claim for an alleged violation of Plaintiff’s constitutional right to equal protection and due process of law.  Plaintiff served as an elementary school principal.  When performance concerns arose, plaintiff resigned instead of facing an investigation and suspension.  Plaintiff brought suit alleging that her resignation was coerced. 

• ANN ESTRIDGE and MEREDITH TAYLOR obtained a favorable ruling from the North Carolina Court of Appeals.  Plaintiffs filed an action seeking compensatory damages alleging that a high school principal was negligent when he forcefully removed a student from a dance.  The student was injured and brought suit.  The Court of Appeals affirmed that the principal was not liable because he was entitled to the protection of public official immunity.

• ANN ESTRIDGE obtained a favorable ruling from an Employment Security Commission Appeals Referee.  An Adjudicator had found that the claimant was entitled to unemployment benefits.  The employer appealed.  After a hearing, the Appeals Referee found that the claimant was not entitled to unemployment benefits for 13 weeks.

• ANN ESTRIDGE and ROBERT JONES obtained a dismissal of plaintiff’s negligence claim against a public high school principal.  Plaintiff brought suit alleging that the principal was liable for negligent supervision when one student was allegedly sexually molested by another student.  The trial court dismissed the claim on the basis that the principal was entitled to public official immunity. 

Land Condemnation

Our land condemnation group, which practices eminent domain law and consists of attorneys George Autry, Stephanie Autry, and Brady Wells, has obtained several favorable settlements and verdicts for our clients recently.

• After a four-day trial in Johnston County, a jury returned a favorable verdict for our clients who own a family farm.  Although DOT took only one-tenth of an acre of land, we argued that the new Clayton Bypass would ruin any desirable residential development of their farm.  With our appraiser’s number at $330,000, and DOT’s appraiser’s number at $92,000, the jury returned a verdict of $317,000 (with interest).  DOT’s highest offer to settle the claim before trial was only $130,000.  (DOT v. Ray)

• In another Clayton Bypass claim in Johnston County involving a family farm, we achieved a favorable settlement when we convinced DOT to pay $417,195 for taking ten acres of land.  DOT’s initial offer was only $105,300.  (DOT v. Banks)

• Over the past year, we have obtained several favorable settlements for clients being affected by two light rail projects -- one in Charlotte and one in the Triangle.  In one case involving the total taking of a 6.7-acre parcel of land, the Charlotte Area Transit System (CATS) agreed to pay our client 1.058 million after initially offering them only $510,000.  (CATS v. Reitzel)  In another case, and a week before trial, the Triangle Transit Authority (TTA) agreed to pay 1.11 million after initially offering only $470,000 for the partial taking of a bus facility in Durham.  (TTA v. Southern Leasing)

• We represented a golf course near Charlotte which had found itself in the path of the Charlotte Outer Loop.  DOT thought that losing four holes of an eighteen-hole golf course was worth only $690,000.  We finally convinced DOT that there wasn’t much of a market for fourteen-hole golf courses, and they agreed to pay 1.65 million in lieu of going to trial.  DOT also threw in 40 additional acres of land to our client as part of the deal.  (DOT v. Oak Hill)