Blog - Cranfill Sumner & Hartzog
Cases or matters referenced do not represent the law firm’s entire record. Each case is unique and must be evaluated on its own merits. The outcome of a particular case cannot be predicated upon a lawyer’s or a law firm’s past results.
ROBIN H. TERRY (Raleigh) and JENNIFER MORRIS JONES (Raleigh) succeeded in defending a claim at the North Carolina Industrial Commission where plaintiff alleged she sustained injuries to her neck and hip in addition to her compensable low back injury. Defendants disputed the causal relationship between plaintiff’s neck and hip injuries and ongoing disability. Defendants also disputed medical treatment provided by numerous unauthorized medical providers. The unauthorized medical treatment included an endoscopic microdiscectomy and foraminotomy and laser discectomy and three-level lumbar facet rhizotomy procedure. The Full Commission held plaintiff failed to establish her neck or hip condition was causally related to her June 8, 2009, work accident. The Full Commission held plaintiff was not entitled to have defendants pay for her unauthorized medical treatment, including the surgical procedure. The Full Commission held plaintiff failed to show that any disability from which she may have suffered after January 27, 2010, when medical evidence revealed plaintiff’s anxiety was stable, was related to her work accident.
JENNIFER MORRIS JONES (Raleigh) and JAYE E. BINGHAM (Raleigh) successfully defended a workers’ compensation claim involving complex medical issues and a Statute of Limitations defense through the North Carolina Court of Appeals. In Busque v. Mid-America Apartment Communities, plaintiff had pre-existing problems in both feet, including plantar fasciitis and chronic left foot pain. Plaintiff sustained a compensable left foot sprain/strain/contusion on January 18, 2003. Defendants paid medical expenses, but plaintiff missed no time from work. Defendants issued the last check for medical treatment on July 31, 2003. Plaintiff later alleged another injury May 15, 2005, but Plaintiff never reported an injury or filed a claim with the Industrial Commission. On March 8, 2006, plaintiff was diagnosed with reoccurrence of plantar fasciitis, which plaintiff contended was caused by excessive walking over several days as required by her job. Plaintiff also alleged she developed Reflex Sympathetic Dystrophy (RSD)/Complex Regional Pain Syndrome (CRPS) as a result of her 2003 injury. The Full Commission denied all of plaintiff’s claims for benefits but ordered a second opinion evaluation/second opinion on the permanent partial disability rating for the left ankle as a result of the 2003 compensable sprain/strain/contusion work injury. On appeal, not only did the Court of Appeals completely affirm the Industrial Commission’s denial of benefits, including the alleged causal relationship of RSD/CRPS to the 2003 injury, but the Court of Appeals also reversed on the issue of the second opinion evaluation, finding plaintiff’s request for the second opinion evaluation made in 2007 was barred by the Statute of Limitations. Plaintiff argued defendants should be estopped from raising this defense, as she claimed she was told by representatives of defendants they would pay for medical treatment if she could find a doctor who would treat her.
GREGG NEWTON (Raleigh) and MIKE CONNELL (Raleigh) recently won a case before the Industrial Commission – Vincent Daniel Dixon v. Rocky Mount Undergarment Company. The Full Commission affirmed the Deputy Commissioner’s original decision to deny the plaintiff’s claim. The claim involved a fall which occurred at work in April of 1986. The claim was originally denied on grounds that the plaintiff’s fall was idiopathic in nature (the plaintiff had a history of fainting spells prior to the fall in question) and therefore did not arise out of the employment. Before the claim went to hearing, however, the plaintiff requested and received a voluntary dismissal without prejudice and with leave to re-file within a year. The plaintiff did not re-file his claim until his mother did so on his behalf in February of 1998, over 10 years after the dismissal but within a few months of having been declared legally incompetent. The defendants again denied the claim on compensability grounds, but also contended that the claim was time barred as well. The plaintiff argued that the claim was not time barred, alleging that he was incompetent during the relevant intervening time period. The Full Commission affirmed the Deputy Commissioner’s original decision that the plaintiff’s claim was time barred, holding that the most reliable medical and other evidence showed that he had been legally competent for at least a year during the intervening time period. The Full Commission even went further than the Deputy Commissioner by also holding that even if the claim was not time barred, the fall was idiopathic in nature and did not arise out of the employment. The Full Commission also held that the plaintiff failed to prove that he suffered any disabling injury – physical or psychological (the plaintiff claimed the fall caused a closed head injury and also caused and/or aggravated/accelerated anxiety, depression, personality disorder and psychotic disorder as well) as a result of the fall.
GREGG NEWTON (Raleigh), ASHLEY WHITE (Raleigh), and MIKE CONNELL (Raleigh) recently won a case before the Industrial Commission -Julia Ann Haithcox v. Flynt Amtex, Inc. Deputy Commissioner Brad Donovan ruled that the plaintiff no longer suffered from any compensable work-related injury and/or condition and allowed the defendants to terminate the plaintiff’s ongoing temporary total disability (TTD) benefits. The plaintiff suffered an admittedly compensable left knee injury in a fall at work on June 6, 2008. After a lengthy orthopaedic treatment, including exploratory arthroscopic surgery, revealed no objective findings of traumatic injury, the plaintiff also claimed that she injured her neck and back in the fall and/or as a result of altered gait due to her original knee injury. The plaintiff also claimed that the pain from her accepted knee injury and/or claimed neck and back conditions caused and/or aggravated one or more disabling psychological conditions, including anxiety, depression, personality disorder, and dissociative disorder. Deputy Commissioner Donovan held that although the plaintiff was temporarily disabled as a result of her admitted left knee injury through October 7, 2008, she was no longer disabled as a result of that injury as it had been determined to be structurally sound as of that date. Deputy Commissioner Donovan also held that the plaintiff had failed to prove that her claimed neck and back conditions were related to the work accident since she did not complain of any such injuries until months after the accident and because she failed to otherwise show that they were related to her accepted knee injury. Deputy Commissioner Donovan also held that the plaintiff failed to establish that any of her claimed psychological conditions were caused or aggravated by the fall or otherwise related to her accepted knee injury. Accordingly, he allowed the defendants to terminate the plaintiff’s TTD benefits and held that defendants were not responsible for any claimed and/or additional medical treatment after October 7, 2008.
DAN HARTZOG (Raleigh) and STEPHANIE GASTON POLEY (Raleigh) successfully defended a housing authority against allegations of negligence and willful and wanton conduct. The case arose out of the wrongful death of an elderly resident of one of the housing authority properties, who was strangled to death in her apartment by a fellow resident. The deceased and the perpetrator lived on the same floor of a high-rise apartment complex designated for the elderly or disabled. While the deceased was eligible to live in the complex because of her age, the perpetrator was eligible to live in the complex because of his status as a disabled person. Issues in the case included allegations of improper screening, admission, and retention of residents by the housing authority. The Plaintiff Estate offered the testimony of multiple witnesses at trial, including residents from the high-rise apartment complex where the deceased and the perpetrator had resided, one of the police officers who responded to the deceased’s murder, the medical examiner, and three retained experts. MR. HARTZOG and MS. GASTON obtained summary judgment as to Plaintiff’s claim for punitive damages immediately before trial. After a two week jury trial, the Plaintiff asked the jury to award over $10 million in compensatory damages for funeral expenses, pain and suffering experienced by the deceased, and loss of society and companionship of the deceased to her two sons. The jury returned with a verdict of negligence against the housing authority, but only awarded the Plaintiff $132,000.
DAN HARTZOG (Raleigh) and MEGHAN KNIGHT (Raleigh) recently prevailed on a Motion to Dismiss in a case against a state licensing and disciplinary board, the board’s director, and the board’s attorney, in which the plaintiff claimed the board had negligently investigated his complaint as to two of the board’s licensees.
DAN HARTZOG (Raleigh) and KARI R. JOHNSON (Raleigh) obtained summary judgment in favor of their client, a University, in a case where the plaintiff, a student at the school, was paralyzed during an altercation at an alleged off campus fraternity party. The plaintiff asserted that the University had a duty to protect him and that this duty was breached by the University’s alleged failure to adequately monitor and control the actions of its fraternities and students at off campus parties. The University denied that it owed plaintiff a duty to protect him from the harm alleged in the case. The University also denied that it breached any obligations to its students. In ruling in the University’s favor, the trial court ruled that the University did not have a legal duty to protect the plaintiff from the conduct involved in the case.
MARSHALL WALL (Raleigh) and KARI JOHNSON (Raleigh) received a “no cause” finding from the EEOC in a claim of age discrimination against a municipality. Claimant alleged that he was not hired for a position despite being the best qualified applicant. MR. WALL and MS. JOHNSON were able to show that the town routinely hired candidates who were the claimant’s age and older for similar positions and were also able to refute his claim that his qualifications were superior to the other candidates.
MARSHALL WALL (Raleigh) won summary judgment for a municipality sued as the result of a zoning dispute with a landowner. The landowner, a trust, wanted to put a church into a commercial property that it owned, but the property was not zoned for church use. The trust sued, claiming violations of the United States Constitution and North Carolina Constitution, as well as the federal Religious Land Use and Institutionalized Persons Act “RLUIPA.” After the case was removed to the United States District Court for the Eastern District of North Carolina, the municipality prevailed on summary judgment as to all claims except the appeal of the zoning decision by its board of adjustment. The zoning decision was then affirmed by a state court judge. The landowner was represented by counsel.
MARSHALL WALL (Raleigh) and MEGHAN KNIGHT (Raleigh) reached a favorable settlement in a fire loss case. The lawsuit was filed in the United States District Court for the Eastern District of North Carolina as the result of a fire that caused more than $3,000,000 in damage to a church property. Suit was filed by the church’s insurance carrier after it paid the loss. When the case came to Cranfill Sumner & Hartzog there was already an entry of default against our client, an alarm monitoring service, but the plaintiff had filed an amended complaint. MR. WALL and MS. KNIGHT were able to answer the amended complaint and contended that by filing the amendment, the plaintiff allowed our client a second chance to answer and avoid a default. MR. WALL and MS. KNIGHT also argued that the alarm monitoring contract included caps on damages and limitations on the liability of the monitoring company. The case against our client was ultimately settled for $25,000.
MELODY JOLLY (Wilmington) successfully defended a case at the North Carolina Court of Appeals in an opinion dismissing Plaintiff’s appeal in a matter stemming from Plaintiff’s declaratory judgment action seeking $1,000,000.00 in damages for bodily injuries under a supplemental liability insurance policy purchased by Plaintiff and her husband when they rented a vehicle. MS. JOLLY obtained summary judgment at the trial court level, and Plaintiff appealed, arguing that the family member exclusion contained in the supplemental liability insurance policy violates the purpose of the North Carolina Financial Responsibility Act and is therefore void against the public policy of North Carolina. The North Carolina Court of Appeals affirmed the trial court’s entry of summary judgment in favor of the insurance company, finding that the family member exclusion contained in the supplemental liability policy is valid and enforceable and comports with the requirements of the North Carolina Financial Responsibility Act.
MICA NGUYEN WORTHY (Charlotte) succeeded in defending a claim at the North Carolina Industrial Commission involving a claimant’s allegations of a back injury unreported to his employer until after he ended his employment. Plaintiff’s attorney refused to discuss any settlement negotiations insisting that his client needed surgery and that Defendants were responsible. MS. WORTHY attacked Plaintiff’s late reporting of the alleged incident, his inconsistent testimony regarding a prior rock-climbing accident, the lack of medical causation evidence, and the lack of evidence proving ongoing disability under the Workers’ Compensation Act. The Deputy Commissioner held Plaintiff failed to prove every element of his claim and denied the claim in its entirety.
DANIEL KATZENBACH (Raleigh) obtained a defense verdict for a roofing contractor client in a week long trial in Charlotte, NC. The roofing contractor was a defendant in an action initiated by a townhome owners’ association, alleging 1.5 million dollars of construction defects at a residential townhome development. The plaintiff alleged that all of the roofs at the 29 unit development needed to be removed and replaced at a cost of over $500,000. The case was tried to a Judge, who ruled in favor of our roofing contractor, awarding the plaintiff $1.00 on the roofing issues.
JONATHAN ANDERS (Raleigh) and CLINT BYRD (Raleigh) won a case before the Full Commission of the North Carolina Industrial Commission– Desiree Torrain v. Alamance County ABC Board. Plaintiff alleged a back injury was caused by her job as an ABC Store Clerk. We presented evidence Plaintiff had a long history of pre-existing back problems. Plaintiff failed to inform her treating physician of her long history of back problems, and when presented with medical records indicating such, Plaintiff’s treating physician recanted his opinion at deposition and testified that in his opinion, Plaintiff’s herniated disc most likely predated the alleged work-related incident. Additionally, we offered DVD surveillance footage from Plaintiff’s workplace on the date of the alleged injury that revealed Plaintiff did not injure her back during her morning shift as alleged. Based on this evidence, Deputy Commissioner Holmes found that Plaintiff was not credible and denied Plaintiff’s claim on the grounds of Plaintiff’s pre-existing conditions and her failure to prove a specific traumatic incident. Plaintiff appealed Deputy Commissioner’s Hall’s decision to the Full Commission. After oral argument, the Full Commission issued an Opinion and Award unanimously affirming Deputy Commissioner Hall’s decision.
TODD KING (Charlotte) obtained summary judgment for two real estate appraisers accused of negligence, unfair and deceptive trade practices, and conspiracy by plaintiffs who purchased lots in the failed Village of Penland development. Plaintiffs claimed their loans totalled over $4,000,000. MR. KING effectively showed that the deposition testimony given by the plaintiffs effectively precluded their argument that they relied on the defendants’ appraisal reports prior to purchasing the properties.
TODD KING (Charlotte) obtained summary judgment for a real estate appraiser sued by a lender. The lender hired the appraiser to perform an appraisal prior to funding a loan for the rehabilitation and construction of a house in an upscale neighborhood. The lender brought claims for negligence and breach of contract, claiming that the appraiser overvalued the house by $200,000. Summary Judgment was obtained after MR. KING argued that certain conditions contained within the appraisal report had not been met, and that there was no evidence supporting a breach of the applicable standard of care.
KATIE WEAVER HARTZOG (Raleigh) recently won a summary judgment motion in an employment case. The trial court entered summary judgment in favor of the employer on all claims including Plaintiff’s claims of breach of contract and wrongful termination. She prevailed in arguing that Plaintiff did not have an employment contract because he was an at will employee and his claim for wrongful termination failed because he set forth no evidence of a violation of law or public policy by his former employer.
KATIE WEAVER HARTZOG (Raleigh) had an entry of summary judgment affirmed by the North Carolina Court of Appeals in a case in which Plaintiff alleged that Plaintiff’s decedent suffered injuries after tripping and falling over a curb at a shopping center. In Kelly v. Regency Centers Corp., _ N.C. App. _, 691 S.E.2d 92 (2010), the Court of Appeals held that Plaintiff’s decedent’s failure to avoid the curb, which was an open and obvious condition, constituted contributory negligence as a matter of law, in bar of her claim.
DAN HARTZOG (Raleigh) and KARI JOHNSON (Raleigh) obtained Summary Judgment in a case pending in federal court where the plaintiff claimed that the defendant municipality violated his constitutional rights by failing to provide adequate protection to him and the other residents of the municipality. The plaintiff claimed that as a result of the municipality’s failure to address one crime-ridden area in particular, the plaintiff sustained significant injuries after being assaulted by a group of men in the area. The case was pending in the Eastern District of North Carolina.
DAN HARTZOG (Raleigh) and KARI JOHNSON (Raleigh) successfully defended a municipality and several of its police officers in a case pending in federal court where the plaintiff’s son was shot and killed by the defendant police officers after he threatened the officers with a sword/knife that he had concealed in a cane. The plaintiff asserted multiple claims against the defendants including federal constitutional claims for excessive force. Plaintiff dismissed the case after the federal Magistrate Judge recommended Summary Judgment in the defendants’ favor. The Magistrate found that the officers’ use of deadly force was justified and reasonable as a matter of law. This case was pending in the Middle District of North Carolina.
LEE POOLE (Charlotte) and MELODY JOLLY (Wilmington) briefed, and MS. JOLLY argued, before the United States Court of Appeals for the Fourth Circuit on behalf of a law firm in a purported class action lawsuit seeking over $11 million in damages. The action was appealed by the putative class representatives after MR. POOLE and MS. JOLLY successfully obtained dismissal as a matter of law at the United States District Court for the Western District of North Carolina.
MATT COVINGTON (Charlotte) and NICK VALAORAS (Charlotte) won a case before Deputy Commissioner Brad Houser - Julie Silverthorne v. Allstate. Plaintiff alleged a back injury and psychological problems caused by her job as a service representative. We presented evidence Plaintiff had a long history of pre-existing back and psychological problems. Claim was denied on the grounds of Plaintiff’s pre-existing conditions and her failure to prove a specific traumatic incident or occupational disease.
DANIEL KATZENBACH (Raleigh) obtained a defense verdict for his roofing contractor client at the conclusion of a three-day arbitration proceeding. The roofing contractor was a third-party defendant in a lawsuit relating to hundreds of thousands of dollars of alleged damages at a townhouse development project.
DANIEL KATZENBACH (Raleigh) successfully represented his engineer and land surveyor client before the NC Board of Examiners and Land Surveyors. The client had been issued a notice of violation of the Board’s rules of practice based on a complaint filed with the Board by a client of the engineer and land surveyor. After a lengthy formal conference with the Board, the Board agreed to drop all charges of violation against the client.
KATIE WEAVER HARTZOG (Raleigh) obtained summary judgment on behalf of a Homeowner’s Association in a case in which a member of the Association sought to dissolve the Association and a declaratory judgment that the Association did not have the right to maintain a gate at the entrance to the Association. The Association filed a counterclaim seeking a declaratory judgment that the restrictive covenants governing the Association were broad enough to allow the Association to install and maintain a gate at the entrance to the community. After considering the arguments of counsel and the evidence, the judge ruled in favor of the Association as to all claims, including its counterclaim, and entered costs against Plaintiff.
RYAN BOLICK (Charlotte) and JANELLE LYONS (Charlotte) obtained Dismissal of all Plaintiff’s claims against a Municipality and its Board of Elections in the Eastern District of North Carolina Federal Court. Plaintiff was not promoted to Director of the Board of Elections and she filed suit alleging employment discrimination based on race, gender, and retaliation under Title VII, 42 USC §1981, §1982, and §1983 seeking compensatory and punitive damages, attorney’s fees and costs, and that Defendants be enjoined from engaging in any employment practices shown to be discriminatory and in violation of Title VII . The Court held that the Municipality and its Board of Elections had presented sufficient evidence that the decision to hire someone other than the Plaintiff was based upon legitimate non-discriminatory reasons. The Court also held that Plaintiff’s evidence was insufficient to establish that the Municipality and the Board of Elections’ reasons for their decision to hire someone other than the Plaintiff were pretext and that the real reason for the refusal to promote was discriminatory. As a result, Plaintiff’s claims were dismissed with prejudice as a matter of law.
ROBIN TERRY (Raleigh) prevailed in a claim wherein Plaintiff sought a computerized prosthetic leg replacement. Plaintiff had lost his left leg 24 years before. In 2008, Plaintiff sustained a compensable low back injury and claimed physiologic changes from the low back injury caused Plaintiff to need a new computerized prosthetic leg. Defendants provided a replacement socket but argued that Plaintiff was not entitled to replacement of the entire prosthetic since Plaintiff had previously been compensated for the leg, had been prescribed a replacement prior to his low back injury and had the means to purchase same without contribution by the workers’ compensation carrier.
In a permanent and total claim wherein Plaintiff was seeking 24 hour attendant care services to be provided by Plaintiff’s family members, ROBIN TERRY (Raleigh) succeeded in limiting attendant care being provided to Plaintiff to 18 hours per day and prevailed in obtaining from the Industrial Commission and the Court of Appeals a continuation of Defendants’ right to provide said care using professional caregivers as opposed to family members. Plaintiff and his family members subsequently declined to allow professionals to provide the care recommended and additional litigation appealed through the Full Commission again confirmed Defendants’ right to provide care through professional caregivers and found the family’s refusal to allow professional caregivers into the home to be unjustified barring family members from receiving approximately one year of caregiver fees. The Full Commission ordered the family to cooperate with Defendants’ attempts to place professional caregivers into the home.
RYAN BOLICK (Charlotte) successfully appealed a denial of a Motion for Summary Judgment on behalf of a teacher based upon the doctrine of sovereign immunity. The trial court denied the defendant Teacher’s Motion for Summary Judgment holding that she had been sued in her individual capacity. On appeal, the Court of Appeals reversed this finding and held that sovereign immunity applied to the teacher as she was not sued in her individual capacity.
PATRICK FLANAGAN (Charlotte) and BRAD KLINE (Charlotte) obtained a per curiam decision from the Fourth Circuit Court of Appeals affirming the Western District of North Carolina Federal Court’s granting of Summary Judgment to a defendant municipality and police officer. Plaintiff alleged that he was subjected to an unreasonable search and seizure and was deprived of his substantive and procedural due process rights, all in violation of the Fourteenth Amendment of the United States Constitution. The complaint arose out of a traffic stop of a vehicle owned by the plaintiff and the subsequent search of the vehicle and arrest of the plaintiff for possession of a controlled substance. The case was dismissed with prejudice after the defense successfully argued that probable cause existed for the arrest and that the plaintiff failed to meet the standard for federal constitutional claims against municipalities set by Monell v. Department of Social Servs., 436 U.S. 658 (1978). Oral arguments were held before the Fourth Circuit, and the Court issued an Order in which it held that Plaintiff had failed to meet the standard required by Monell, and the decision of the lower court granting Summary Judgment had, therefore, been proper.
BRAD KLINE (Charlotte) obtained a “no-cause” finding from the NC Department of Labor regarding a Retaliatory Employment Discrimination Act claim brought by a former employee who claimed he was terminated because he had filed a worker’s compensation claim.
KATIE WEAVER HARTZOG (Raleigh) recently obtained a “No Cause” finding from the EEOC with regard to a charge of discrimination made by a former employee who claimed that her employment was terminated due to her race. MS. HARTZOG successfully argued that the charging party’s employment was terminated due to insubordination, not because of her race.
KATIE WEAVER HARTZOG (Raleigh) recently prevailed on behalf of an employer at a hearing of the Employment Security Commission when the hearing officer reversed the prior ruling that the former employee was entitled to unemployment benefits. The hearing officer determined that the former employee should be partially disqualified from benefits because his employment was terminated due to substantial fault on the part of the employee.
KATIE WEAVER HARTZOG (Raleigh) recently obtained a “No Cause” finding from the EEOC with regard to a charge of discrimination made by a former employee who claimed that her employment was terminated due to her age. The charging party, who was a person over the age of 40, claimed that she suffered from age discrimination because the position which was left vacant due to the charging party’s termination was filled by a younger person. MS. HARTZOG successfully argued that the charging party’s employment was terminated due to her poor work performance, not because of her age.
CHRIS HINNANT (Wilmington) and MELODY JOLLY (Wilmington) obtained dismissal of a $24 million lawsuit filed against Cooperative Bank of Wilmington, now First Bank, in the federal District Court for the Eastern District of Virginia. The complaint in the case – over 200 pages and 1300 paragraphs long – was filed on behalf of 130 purchasers of lots in coastal development communities in North Carolina and South Carolina, and named Cooperative as a defendant along with developers, marketers, six other mortgage lender banks, and others. The plaintiffs alleged violations by Cooperative of the Interstate Land Sales Act (ILSA), the North Carolina Unfair and Deceptive Trade Practices Act, as well as conspiracy and fraud. The seven lender banks and one developer moved for dismissal of all claims. MR. HINNANT AND MS. JOLLYproduced memoranda in support of dismissal based upon extensive research and drafting by MS. JOLLY , sorting out and analyzing complex issues of jurisdiction, statutory construction, conspiracy, and fraud raised by the lengthy complaint. On August 28 2009, U.S. District Judge Gerald Bruce Lee dismissed all claims against Cooperative and the other lending banks, with prejudice and without leave to amend.
KARI JOHNSON (Raleigh), with assistance from DAN HARTZOG, JR. (Raleigh), obtained Summary Judgment on behalf of a police department and its officers in a case pending in Superior Court where the plaintiff claimed that she was wrongfully arrested for larceny. The defendants prevailed on all of the claims which included malicious prosecution, false imprisonment, defamation, intentional infliction of emotional distress and punitive damages.
KARI JOHNSON (Raleigh) obtained Summary Judgment on behalf of a police department and its officers in a case pending in Superior Court where the plaintiff claimed that he was wrongfully arrested for driving while impaired and that his car, which was subsequently sold without his knowledge, was wrongfully seized in connection with the arrest.
KARI JOHNSON (Raleigh) prevailed in a Fourth Circuit appeal where she represented various deputies and a Sheriff’s Department in a case where the plaintiff claimed that her federal constitutional rights were violated when she was allegedly arrested without probable cause. The plaintiff also alleged that she was the victim of racial profiling.
KARI JOHNSON (Raleigh) obtained Summary Judgment in favor of a police officer in a case pending in the United States District Court (Eastern District) where the plaintiff claimed that his federal constitutional rights were violated when he was prosecuted for felonies as opposed to misdemeanors resulting in harsher habitual felon sentencing. The plaintiff had also asserted that the defendant officer provided false testimony against him before the grand jury.
KARI JOHNSON (Raleigh), with assistance from DAN HARTZOG, JR. (Raleigh), obtained Summary Judgment in favor of a municipality in a case pending in the United States District Court (Middle District) where the plaintiff claimed that his federal constitutional rights were violated when he was allegedly wrongfully arrested. The plaintiff also claimed that the municipality engaged in discriminatory practices concerning districting and the treatment of handicapped individuals.
MELODY JOLLY (Wilmington) and LEE POOLE (Charlotte) obtained dismissal as a matter of law on behalf of their client, a southeastern law firm, in a purported class action lawsuit seeking over $11 million in damages and alleging numerous claims including fraud, breach of contract, breach of fiduciary duty and violations of North Carolina’s Unfair Trade Practices Act. Suit was originally filed in state court. After removing the case to the U.S. District Court for the Western District of North Carolina pursuant to the Class Action Fairness Act, MS. JOLLY and MR. POOLE prevailed over Plaintiffs’ Motion to Remand the case back to state court. MS. JOLLY then filed a Motion to Dismiss the complaint for failure to state a claim, on the basis that Plaintiffs’ claims were all premised on violations of North Carolina State Bar ethics opinions which do not give rise to civil liability, that Plaintiffs failed to allege any duty independent of the State Bar ethics opinions and Rules of Professional Conduct, and that Plaintiffs failed to allege damages. Briefs were submitted by all parties, and the Court requested oral arguments on Defendants’ Motion to Dismiss. At the hearing, MS. JOLLY successfully argued Plaintiffs’ failure to state a claim, and Defendants’ Motion to Dismiss was granted, resulting in dismissal of Plaintiffs’ case with prejudice.
At the conclusion of a week-long jury trial, RYAN BOLICK (Charlotte) obtained a defense verdict that the officers of a municipality did not use excessive force in effectuating an arrest of the plaintiff and that the officers and the City were not liable to the plaintiff for the injuries sustained during his arrest. Plaintiff claimed that the officers battered him and allowed police dogs to bite him unnecessarily. The defense argued that the use of force by the officers and the K-9s was reasonable under the circumstances.
PATRICK FLANAGAN (Charlotte) and BRAD KLINE (Charlotte) obtained Summary Judgment on behalf of a municipality, its police chief and a police officer in the Western District of North Carolina Federal Court. Plaintiff was a former police officer who alleged libel and a deprivation of his liberty interest under 42 U.S.C. 1983. The complaint arose out of the officer’s separation from employment with the municipality’s police department and information contained in the personnel file. The case was dismissed with prejudice after the defense successfully argued that the information contained in Plaintiff’s personnel file was true and had not been published to an outside third party.
VICTORIA STREET TOLBERT (Charlotte) successfully represented a municipality, its police department, as well as four individually-named employee-defendants in an appeal filed with the Fourth Circuit Court of Appeals. Plaintiff initially filed suit in 2006 with the Eastern District of North Carolina alleging claims of race discrimination, racial harassment, retaliation, wrongful termination, as well as claims for negligent infliction of emotional distress, intentional infliction of emotional distress, and negligent supervision. In February 2008, the Eastern District of North Carolina granted Summary Judgment in favor of all Defendants and Plaintiff filed an appeal with the Fourth Circuit Court of Appeals. In March 2009, after considering the defendants’ argument, the Fourth Circuit Court of Appeals filed a judgment and order affirming the Eastern District’s grant of Summary Judgment and dismissed Plaintiff’s complaint with prejudice, ending nearly three years of contentious litigation.
KATIE WEAVER HARTZOG (Raleigh) recently obtained Summary Judgment on behalf of the owner of a shopping center in a premises liability case. Plaintiff argued that the shopping center had multiple violations of the Americans with Disabilities Act and North Carolina Accessibility Code which caused Plaintiff to trip and fall over a curb. Katie successfully argued that Plaintiff was contributorily negligent at the time of her fall and that any alleged violations of the Americans with Disabilities Act or North Carolina Accessibility Code did not proximately cause Plaintiff’s fall.
TODD KING (Charlotte) Obtained a verdict of “no negligence” in an automobile accident trial where the defendant collided with Plaintiff. Plaintiff was riding a dirt bike on the sidewalk and collided with the defendant when her car made a left turn in front of him. Plaintiff operated the dirt bike without a light, after dusk, while wearing dark clothing.
GREGG NEWTON (Raleigh) recently received a favorable decision on a workers’ compensation claim from the Court of Appeals in which Plaintiff suffered an admittedly compensable lower back injury when she slipped and fell in a freezer while retrieving some bagels on March 7, 2003. Plaintiff was treated for her accepted lower back injury through April 14, 2003, at which time she was released from care and allowed to return to work without any restrictions by her authorized treating physician. Plaintiff never returned to work for the defendant-employer, though her former job was available. Plaintiff subsequently claimed that she injured her neck in this accident, and ultimately underwent a two level cervical decompression and fusion surgery at C5-6 and C6-7 performed on February 5, 2004. Although Plaintiff subjectively related her cervical condition to the work accident of March 7, 2003 and claimed that she had complained of cervical symptoms immediately after the accident, the medical records reflected (and the Full Commission found) that with the exception of an isolated complaint of neck pain on March 2, 2003 and an isolated complaint of having a “catch” in her neck on June 16, 2003, Plaintiff did not complain of any cervical symptoms until she saw her primary care physician on September 24, 2003 – over six months after the work accident. Nevertheless, two of the physicians testified that Plaintiff’s cervical condition was related to the work accident of March 7, 2003. However, the Court of Appeals affirmed the Full Commission’s finding that the opinions of these physicians were based on an assumption not supported by the evidence (i.e. that Plaintiff developed cervical symptoms consistent with her disc herniations immediately to shortly after the work accident) and were also based solely on the purported temporal proximity of her symptoms to the work accident, contrary to established case law. As such, the Court of Appeals affirmed the Full Commission’s finding that Plaintiff’s claimed cervical condition was not causally related to the work accident of March 7, 2003. The Court of Appeals also affirmed the Full Commission’s finding that Plaintiff was not disabled as a result of any work-related injury after April 14, 2003. Clearly, any disability related to Plaintiff’s cervical condition was not compensable since the Court of Appeals upheld the Full Commission’s finding that the cervical condition was not proximately related to the work accident. Although Plaintiff’s primary care physician testified that Plaintiff was totally disabled due to both her cervical condition and her accepted lower back injury, he also admitted that Plaintiff had no objective findings with which to corroborate her subjective complaints or upon which to keep her out of work. Accordingly, the Court of Appeals upheld the Full Commission’s finding that Plaintiff was not disabled beyond April 14, 2003 as a result of any work-related injury.
BRIAN KROMKE (Wilmington) defended a compensable claim where the quadriplegic Plaintiff had a home voluntarily built by the carrier and who requires 24/7/365 attendant care from an RN and an NA to help him with every aspect of living in his own home and not in an institution. Plaintiff’s attorneys filed an expedited Hearing Request and dispensed with mediation, refusing to try and reach some agreements that would alleviate a Hearing. Plaintiff’s attorneys contended several modifications to Plaintiff’s home were necessary, despite the attendant care. They also contended roughly $700.00 in outstanding bills were unreasonably not paid by the carrier (out of a total of $3.2 million paid) and asked for attorneys fees in their pursuit of payment of the bills. The evidence illustrated that instead of helping effectuate payment of these bills over the course of roughly three years, Plaintiff’s counsel tried to “paper the file to death” and then seek attorneys fees from the IC through the hearing process. For the time period March 8, 2005 through June 25, 2008, Plaintiff’s attorneys claimed 1303.35 total hours were spent on “bill recovery” and their fee request was $86,188.50 with expenses of $5,087.19. The honorable DC Phil Baddour ordered the defense to make a number of modifications to the home on top of what AIG stipulated to provide pre-hearing and he also granted Plaintiff’s counsel attorney’s fees. On our appeal, the Full Commission wholly overturned the defense-negative portions of the DC’s O&A. AIG’s bill handling was found to be reasonable, no attorney’s fees were ordered to the plaintiff and the IC even ordered Plaintiff’s counsel to stay out of all aspects of bill handling. Plaintiff’s attorneys did not appeal.
NICK VALAORAS (Charlotte) Plaintiff alleged exposure to asbestos while working for our employer among other companies and claimed total disability. Case went to hearing and Deputy Commissioner ruled Plaintiff was exposed to asbestos but was not last injuriously exposed during his employment with our client, Power Plant Maintenance. Plaintiff was not awarded total disability but only lung damage compensation. Case was appealed to Full Commission and the Full IC affirmed the decision but also awarded Plaintiff ongoing total disability. The case is now on appeal to the Court of Appeals.
MARSHALL WALL (Raleigh) had a trial in Martin County Superior Court in which Plaintiff was driving a tractor on a rural highway when he was struck by a commercial vehicle and thrown into a ditch. He was flown to a trauma center after the accident. His primary injury was a tibial plateau fracture. He claimed that he would need knee replacement surgery in the future, although this had not been performed. Liability was clear and was admitted before trial. Plaintiff’s counsel asked the jury for more than $200,000 in damages. The jury awarded $65,000.
REGAN TOUPS (Wilmington) won Summary Judgment in a homeowner’s association lawsuit that was filed by several property owners against their Association, their Board of Directors, and the remaining property owners in the community. The neighborhood at issue is a waterfront community that provides water access and docking capabilities to owners both on and off the water. A canal and turning basin were dredged by the developers to create the water access, and a bulkhead was installed around the dredged area to make sure the water area remained navigable. Plaintiffs filed a declaratory judgment action and asked the Court to invalidate a significant assessment that was passed to replace the bulkhead. Plaintiffs also asked the Court to judicially declare what each property owner should be required to pay for the bulkhead, claiming those who live on the water should pay more than those property owners who live off the water. A partial Summary Judgment was filed by the defendants, and the Court entered a declaratory judgment in their favor declaring that all property owners are to be equally assessed to repair, maintain and replace the bulkhead under their covenants unless a vote is passed by the owners to vary an assessment.
JENNIFER MORRIS JONES (Raleigh) received a favorable Full Commission decision in a workers’ compensation claim in which Plaintiff, a general maintenance mechanic for a major Triangle area university, contended that he sustained a work-related left thumb injury when he allegedly reached for his two-way radio in an awkward manner. As a general maintenance mechanic, Plaintiff used his two-way radio approximately four to five times per day. Plaintiff testified that he normally grabbed his radio straight on. In the day in question, Plaintiff testified that for some unknown reason, he reached around to pick it up, allowing his thumb to make contact on the opposite side of the radio from where his thumb usually made contact with the radio. He immediately felt a cramp in his arm and his left thumb was limp. Deputy Commissioner Griffin concluded that Plaintiff sustained a compensable left thumb injury and awarded benefits. On appeal, the Full Commission determined that Plaintiff had not sustained an injury by accident, as there were no unusual circumstances that led Plaintiff to reach for his radio in a manner different from his usual manner. The Full Commission denied Plaintiff’s claim for benefits.
AMY PFEIFFER (Raleigh) won a case at the Deputy Commissioner level in which Plaintiff had an admittedly compensable cervical spine injury for which she has received ongoing medical and indemnity compensation since 1992. In the interim, Plaintiff has developed low back pain and has had several dizzy spells, both of which she attributed as being directly related to the cervical spine injury. Plaintiff argued in front of Deputy Commissioner Houser that she was entitled to medical treatment for these issues, including a brain scan and an echocardiogram. Plaintiff also sought attendant care for help around her house, and wanted her employer to fund a life care plan, despite one never having been ordered or even recommended by a treating physician. Deputy Commissioner Houser denied all of Plaintiff’s claims as not being related to the initial compensable injury.
HOLLAND FERGUSON (Charlotte) Deputy Commissioner Harris found that Plaintiff’s claim was barred by N.C.G.S. 97-22 due to her lack of reasonable excuse for the delay in reporting her claim. Plaintiff waited over six months and her excuse for the delay was that she “did not know it was work related” or thought that her back pain was related to a kidney problem. However, she had been treating with her chiropractor for several months by the time she report the injury. The Full Commission affirmed the determination of Deputy Commissioner Harris.
HOLLAND FERGUSON (Charlotte) Deputy Commissioner Stanback found that Plaintiff’s claim was not compensable for various reasons, including her lack of credibility in the report of injury; her attempt to pass a drug screen using false pretenses; her failure to return to suitable light duty employment and her failure of the post-accident drug screen. The Full Commission affirmed Deputy Commissioner Stanback’s determination denying her claim for workers’ compensation benefits.
STEPHANIE GASTON POLEY (Raleigh) successfully defended a motor vehicle negligence case in Wake County District Court. At trial, Plaintiff alleged he made a U-turn on a green arrow, and that his vehicle was struck from the rear by the Defendant’s vehicle after he completed his turn. Defendant contended she was traveling straight through the intersection on a steady green light and that she did not see Plaintiff’s vehicle until immediately prior to the accident. Defendant testified that a vehicle in the lane to her left partially obstructed her view of traffic. There was testimony from the investigating police officer that the left turn signal for Plaintiff’s lane of travel sometimes emits a steady green light and sometimes emits a green lead. After submission of the issues to the jury, the jury returned a defense verdict, finding no negligence on the part of the Defendant. Plaintiff moved for a new trial on the grounds that there was no competent evidence to support the verdict and that the verdict was contrary to the greater weight of the evidence. The trial court denied Plaintiff’s Motion for a new trial, and Plaintiff appealed to the North Carolina Court of Appeals. Following briefing of the issues and a hearing without oral argument, the Court of Appeals affirmed the trial court’s denial of Plaintiff’s Motion for a new trial.
STEPHANIE GASTON POLEY (Raleigh) successfully obtained Summary Judgment for the owner of a hotel in a premises liability case. Plaintiff alleged that she slipped on an area of wet carpet in her hotel room. After deposing Plaintiff as well as Plaintiff’s roommate at the hotel, Defendant moved for Summary Judgment on multiple grounds. Defendant argued that viewing the evidence in the light most favorable to Plaintiff, Plaintiff had at least equal, if not superior, knowledge of the allegedly defective condition of the carpet prior to the accident. As such, Defendant argued it had no duty to warn or protect Plaintiff from the allegedly dangerous condition. After consideration of all matters of record and the arguments of counsel, the Court granted Defendant’s Motion for Summary Judgment as to all claims.
DAN HARTZOG (Raleigh) and STEPHANIE GASTON POLEY (Raleigh) successfully obtained Summary Judgment in a defamation and misrepresentation case. Plaintiff, a radiologist, alleged that statements made by Defendant, an orthopedic surgeon, resulted in a lawsuit being filed against him for medical malpractice and fraud. Defendant denied making any alleedly defamatory or false statements regarding Plaintiff. After deposing Plaintiff and Defendant, as well as the claimant and claimant’s attorneys in the underlying medical malpractice action, Defendant moved for Summary Judgment. The Court found that taking the evidence in the light most favorable to Plaintiff, any allegedly defamatory statements made by Defendant were made to claimant’s attorneys in preparation of claimant’s medical malpractice lawsuit, and thus, were subject to an absolute privilege. The Court entered Summary Judgment on all claims in favor of the defendant.
STEPHANIE GASTON POLEY (Raleigh) successfully represented a car rental company (“Rental Company”) in a motor vehicle negligence case. Defendant driver, represented by separate counsel, was allegedly operating the rental vehicle at the time of the accident. In his complaint, Plaintiff alleged that Rental Company owned the vehicle operated by the defendant driver, but Plaintiff failed to allege any independent acts of negligence on the part of Rental Company. A Motion for Summary Judgment was filed pursuant to 49 U.S.C. 30106 on behalf of Rental Company. The morning of the Summary Judgment hearing, Plaintiff took a dismissal without prejudice of his claims against Rental Company. The remaining Defendants later settled the case and obtained a global release and dismissal with prejudice of all Defendants, including Rental Company.
HOLLAND FERGUSON (Charlotte) successfully defended a claim where Plaintiff alleged that she sustained a back injury while working in the warehouse for her employer. Defendants presented evidence from several witnesses that Plaintiff had never reported an injury, hadn’t missed work until a few months later, no investigation of an injury could be conducted by Defendant-Employer due to her delay and that no one was even aware of Plaintiff’s claim for 6 months. Further, defense evidence showed that Plaintiff had not even reported a work-related event to any of her medical providers and stated at the hearing that she thought her back pain was related to a kidney problem (even though she had been seen by a chiropractor for months). Deputy Commissioner Harris bifurcated the hearing and found that Plaintiff’s claim was barred by N.C.G.S. 97-22 due to a lack of reasonable excuse for delaying reporting her claim. Due to this determination, Defendants didn’t have to go through the expense of depositions and the claim was denied outright by both Deputy Commissioner Harris and the Full Commission.
RYAN BOLICK (Charlotte), at the conclusion of a week long jury trial, obtained a defense verdict that the officers of a municipality did not use excessive force in effectuating an arrest of the Plaintiff and that the officers and the City were not liable to the Plaintiff for the injuries sustained during his arrest. The Plaintiff claimed that the officers battered him and allowed police dogs to bite him unnecessarily. The defense argued that the use of force by the officers and the K-9s was reasonable under the circumstances.
HOLLAND FERGUSON (Charlotte) successfully defended a claim where Plaintiff alleged that she sustained an injury to her back and knee as a result of two falls while working for Defendant-Employer as a laborer. Defendants presented evidence that she was not credible in her report of injury to her supervisor as well as her physician. Further, she had previously attempted to pass a drug screen using false pretenses and witnesses testified for Defendants regarding this event. She also tested positive for drugs following the accident and while the claim was not denied for this reason, the positive drug test result was the reason that her light duty work restrictions could not be accommodated- she was terminated pursuant to company policy. Plaintiff’s counsel argued that the drug test was not valid and was truly the sole reason for the denial of the claim but Defendants were able to prove that the drug test was valid through testimony of the director of the drug testing facility. Deputy Commissioner Stanback denied Plaintiff’s claim for benefits and the Full Commission affirmed this determination.
BOB SUMNER (Raleigh), LEE POOLE (Charlotte), and JAYE BINGHAM (Raleigh) obtained a defense verdict of no negligence in favor of an international antiques and collectibles show producer, following a two week jury trial. The plaintiff, a vendor, sought over $1 million in damages, after he claimed some of his merchandise was stolen from a show. The defense argued that the security and procedures at the show were in place and operational, and there was no negligence on the part of the defendants.
DAN HARTZOG (Raleigh) and KARI JOHNSON (Raleigh) obtained a favorable opinion from the North Carolina Court of Appeals in a case involving claims against a municipality and its police officers for a death that occurred during a vehicular police pursuit. In the case, the decedent’s estate alleged that the officer’s conduct during the pursuit amounted to gross negligence. The Court of Appeals disagreed and affirmed Summary Judgment in the defendants’ favor.
HOLLAND FERGUSON (Charlotte) successfully defended a claim where Plaintiff alleged that he sustained a head injury as a result of his employment. Defendants presented evidence that Plaintiff actually sustained an alcohol withdrawal related seizure while working for Defendants and argued that case law precluded finding that this event was compensable because his injuries were not causally related to his employment. Further, Plaintiff was not restricted from work and as of February 2008 was offered suitable light duty employment, which he refused. Deputy Commissioner Stephenson found that Plaintiff’s claim was denied on both grounds.
KARI JOHNSON (Raleigh), with assistance from DAN HARTZOG, JR. (Raleigh) obtained a favorable ruling from the Fourth Circuit in a case where Plaintiff claimed that his constitutional rights were violated when he was charged by the defendant officer with various charges stemming from three separate incidents of sexual assault. The Fourth Circuit affirmed Summary Judgment in favor of the defendant police officer based on qualified immunity.
KARI JOHNSON (Raleigh) obtained Summary Judgment on behalf of the defendants, a Sheriff and various deputies, in a case pending in the Eastern District of North Carolina wherein Plaintiff claimed that she was arrested without probable cause and was the victim of racial profiling.
DANIEL KATZENBACH (Raleigh) successfully obtained Summary Judgment on behalf of his client, an architectural firm, in Federal Court in the Middle District of North Carolina. The architectural firm had been sued for professional malpractice on a commercial project with alleged damages of over $1 million. MR. KATZENBACH successfully argued that Plaintiff had failed to forecast sufficient evidence of any breach of the applicable standard of care by the architectural firm, and the Court granted Summary Judgment in favor of the firm.
TODD KING (Charlotte) obtained a defense verdict in a trial involving breach of warranty and lemon law claims against a national car manufacturer. Plaintiff alleged that the car had a vibration at speeds of 70-75 m.p.h. The defense admitted that the vibration existed, but disagreed with Plaintiff’s description of its severity. The defense also alleged that the vibration was an inherent characteristic of the car and, therefore, no defect existed.
MELODY JOLLY (Wilmington) obtained a voluntary dismissal with prejudice of a premises liability action against a municipality in which Plaintiff sought damages for injuries suffered when he slipped on ice allegedly created by Defendant’s failure to maintain a fire hydrant. Plaintiff’s attorney voluntarily dismissed the action with prejudice after MS. JOLLY filed a Motion for Summary Judgment and supporting memorandum, arguing that the City did not owe Plaintiff a duty because it was not the fire hydrant that created the dangerous condition and also arguing that Plaintiff was contributorily negligent in failing to take precautions to ensure his own safety.
MEGHAN KNIGHT (Raleigh) obtained a favorable ruling from North Carolina Department of Labor regarding a Wage and Hour Act complaint filed by a former employee who, upon her resignation, claimed she was entitled to an extraordinary amount of pay for unused vacation.
JONATHAN ANDERS (Raleigh) obtained favorable decisions from the North Carolina Industrial Commission in two cases involving alleged pulmonary occupational diseases. The cases are Ray v. Mountaire Corp. and McNeill v. Mountaire Corp. In both cases, live haul drivers contended that their exposure to chicken proteins, feathers, and droppings caused them to develop the condition of hypersensitivity pneumonitis, a condition that can result in inflammation of lung passageways, permanent scarring and permanent reduction in breathing capacity. In Ray, the Commission ruled in Mountaire’s favor in part due to the fact that a pulmonary function testing revealed no abnormality within a month after Ray was terminated from Mountaire for falsifying his job application. In McNeill, the Commission ruled in Mountaire’s favor in part due to the fact that Plaintiff suffered from Coccidyodomicosis that resulted in his hospitalization and disability. Cocci is a fungal infection that can be contracted only in the Southwestern US, which is where Plaintiff drove trucks before going to work at Mountaire. The Commission also found in both Ray and McNeill that neither Plaintiff proved that their job duties significantly contributed to their contraction of their alleged conditions.
PAT FLANAGAN (Charlotte), RYAN BOLICK (Charlotte), and MELODY JOLLY (Wilmington) successfully defended an appeal by Plaintiffs to the North Carolina Court of Appeals of the entry of Summary Judgment in favor of a municipality. Summary Judgment was granted in favor of the municipality in the Superior Court case in which two subcontractors died while working on a water line project owned by the municipality. The estates of these 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. Plaintiffs’ counsel sought damages in this suit in excess of $10 million. The Court of Appeals affirmed the Superior Court’s entry of Summary Judgment in favor of Defendant.
RYAN BOLICK (Charlotte) successfully defended an appeal by Plaintiff to the North Carolina Court of Appeals of entry of Summary Judgment in favor of a corporate defendant and its employee. Summary Judgment was granted in favor of Defendants in the Superior Court case in which 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 practices. 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. The Court of Appeals affirmed the Superior Court’s entry of Summary Judgment in favor of Defendants.
PATRICK FLANAGAN (Charlotte) and BRAD KLINE (Charlotte) obtained Summary Judgment on behalf of a municipality and police officer in the Western District of North Carolina Federal Court. Plaintiff alleged that he was subjected to an unreasonable search and seizure and was deprived of his substantive and procedural due process rights, all in violation of the Fourteenth Amendment of the United States Constitution. The complaint arose out of a traffic stop of a vehicle owned by the plaintiff and the subsequent search of the vehicle and arrest of the plaintiff for possession of a controlled substance. The case was dismissed with prejudice after the defense successfully argued that probable cause existed for the arrest and that the plaintiff failed to meet the standard for federal constitutional claims against municipalities set by Monell v. Department of Social Servs., 436 U.S. 658 (1978).
ROBB RUBIN (Charlotte) and BRAD KLINE (Charlotte) obtained Summary Judgment on behalf of two individually named members of a corporation that owned and operated various sandwich shops. Plaintiff alleged that she contracted Salmonella javiana food poisoning from a sandwich she ate at one of the restaurants owned and operated by the corporation. However, Plaintiff filed her complaint against the individual members of the corporation and did not name the corporation as a defendant in her complaint. The case was dismissed after the defense successfully argued that Plaintiff’s complaint failed to name the proper party defendant; that any Motion to Amend the complaint would not “relate back” to the original complaint; and, that any Motion to Amend would therefore be futile due to the running of the statute of limitations.
Kenneth Baker v. CCCC: Plaintiff sustained a compensable back injury in 2000. Defendants accepted liability and paid medical and indemnity benefits. Plaintiff returned to work for the Insured and Defendants made several attempts to pay Plaintiff for the rating. Plaintiff refused to enter into a Form 21 agreement or clincher. Defendants requested a Hearing to determine what permanent partial disability benefits were due. Just weeks prior to the Hearing, Plaintiff informed Defendants that he had received additional treatment, including surgery, and would be asking the Commission to approve this unauthorized treatment. Deputy Commissioner Gillen found Defendants rebutted the Parsons/Perez presumption and denied Plaintiff’s claim for medical compensation; Plaintiff’s recovery was limited to the rating.
Carl Kingston v. Lyon Constr.: Plaintiff alleged he contracted mesothelioma as a result of exposure to asbestos during his employment. Two different carriers provided coverage for Lyon Construction during Plaintiff’s employment period, PMA Group and Penn National. While Penn National was the last carrier on the risk for Lyon Construction, Deputy Commissioner Glenn found that Plaintiff was last injuriously exposed to asbestos during PMA Group’s coverage period.
Douglas Cooke v. First Choice Paints: Plaintiff, a painter, fell off a roof on September 21, 2005. Defendants accepted liability for Plaintiff’s injury to his right hip and provided medical and indemnity compensation. In May 2007, Plaintiff alleged that he also injured his low back in the fall and sought medical treatment which was denied by Defendants. Deputy Commissioner Glenn found Plaintiff presented insufficient evidence to establish the original work incident caused his low back condition.
Harold Hayes v. Weldon Steel: Defendants accepted liability for Plaintiff’s neck strain on October 3, 2005 and provided medical treatment and indemnity compensation. Plaintiff returned to work for the Insured and alleged a second injury on March 2, 2006. Plaintiff then went to work for another Employer and alleged a third injury on January 17, 2007. Defendants denied Plaintiff’s claims for the March 2006 and January 2007 incidents. Deputy Commissioner Griffin found Plaintiff failed to prove that he sustained a compensable injury on March 2, 2006 or January 17, 2007; Plaintiff’s recovery was limited to a 5% rating issued after the October 2005 incident.
Belinda Harrison, Administrator of the Estate of J.C. Taylor, deceased, Employee v. HBD Industries: Plaintiff alleged deceased employee contracted asbestosis and lung cancer as a result of exposure to asbestos during his employment. Deputy Commissioner Glenn found that deceased employee was not injuriously exposed to asbestos, that he did not contract any asbestos-related disease and that his death was not caused by occupational exposure to asbestos. Plaintiff appealed to the Full Commission. Commissioners Sellers, Mavretic and McDonald affirmed the denial of benefits.
Furnell Peaks v. Duke University: Plaintiff sustained a compensable injury to his right knee on May 12, 1998. Defendant accepted liability for this claim and provided indemnity and medical compensation. On February 9, 2006, Plaintiff fell at home injuring his right wrist. Plaintiff alleged that his fall was caused by his right knee giving out and therefore was a compensable consequence of the original work injury. Defendants denied liability for the wrist injury. Deputy Commissioner Baddour found Plaintiff failed to prove that his fall on February 9, 2006 was caused by or was a direct and natural result of the original compensable injury on May 12, 1998.
ROB GRIFFIN (Raleigh) and JENNIFER WELCH (Raleigh) successfully moved to set aside an entry of default against an alleged underinsured motorist carrier in Johnston County Superior Court. After obtaining the order setting aside the default entry, MR. GRIFFIN and MS. WELCH then successfully obtained a dismissal of the entire case against the carrier on the grounds that there was no UIM coverage available under the policy.
ROB GRIFFIN (Raleigh) and CHIP CAMPBELL (Raleigh) obtained a Rule 12(b)(6) dismissal of a punitive damages claim in a wrongful death suit in Alamance County Superior Court. The estate of the decedent sought punitive damages from the defendant corporation’s driver, who was legally intoxicated and was also killed in the accident. The dismissal of the punitive damages claim against the defendant estate assisted MR. GRIFFIN and MR. CAMPBELL in obtaining favorable settlements in the wrongful death claim and a companion suit in Guilford County involving a catastrophic injury to the passenger of the other vehicle in the same accident.
LEE POOLE, JR. (Charlotte) and TODD KING (Charlotte) 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 (Raleigh) 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.
MARSHALL WALL (Raleigh) 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.
DAVID WARD (Raleigh) 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 (Raleigh) and KARI JOHNSON (Raleigh) 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.
JOHN MARTIN (Wilmington) 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 (Wilmington) 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 (Raleigh), STEPHANIE AUTRY (Raleigh), and BRADY WELLS (Raleigh) 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)
DANIEL KATZENBACH (Raleigh) 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 (Raleigh) 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 (Raleigh) 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 (Raleigh) 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 (Raleigh) 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.
JONATHAN ANDERS (Raleigh) successfully settled a workers’ compensation claim that involved the Industrial Commission and the Attorney General’s office. An 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.
LARRY BAKER (Charlotte) 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 (Charlotte) and RYAN BOLICK (Charlotte) 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 (Charlotte) 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 (Charlotte) and BRAD KLINE (Charlotte) 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 JOLLY (Wilmington) 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 JOLLY (Wilmington) and LEE POOLE, JR. (Charlotte) 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.
COLLEEN SHEA (Wilmington) and MEREDITH BERARD 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, Ms. Shea 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. Ms. Berard 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 (Wilmington) 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 (Wilmington) 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 was 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 (Wilmington) and REGAN TOUPS (Wilmington) 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.
DONNA RASCOE (Raleigh) 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 WELCH (Raleigh) 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.
- 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.
JOHN MARTIN (Wilmington) was successful at the North Carolina Court of Appeals, when the Court affirmed the trial court’s granting of Summary Judgment. Plaintiff was a child seen in a hospital for a fractured wrist. After treatment he was discharged home, and two months later brought back to the Hospital with severe head injuries, as a result of which the child is a quadriplegic. DSS found that the injuries were due to child abuse from a live-in boyfriend. Plaintiff alleged that the healthcare providers who saw and treated the child for the wrist fracture were negligent, and should have suspected and pursued an investigation and reported the abuse to DSS, all of which would have prevented the child abuse. The Court of Appeals affirmed the trial court’s granting of defendants’ Motion for Summary Judgment and dismissal of the case, holding that Plaintiff failed to establish that any alleged negligence was a proximate cause of the injuries.
DAN HARTZOG (Raleigh) obtained summary judgment on behalf of their client, a national real estate investment group and apartment owner, in Wake County Superior Court in a negligent security case arising out of the brutal rape and murder of a tenant at their apartment complex. The case had been designated as an “exceptional case” pursuant to Rule 2.1 and had already undergone over 2 weeks of trial when the plaintiff took a voluntary dismissal following a ruling from the Court prohibiting a portion of plaintiff’s security expert’s testimony. The plaintiff re-filed the lawsuit, pursuant to Rule 41, and Mr. Hartzog successfully argued that the rape and murder of the plaintiff was not foreseeable to the apartment owner, nor was the crime preventable. The evidence showed that the perpetrator was a serial killer who stalked the tenant and who took numerous trophy items with him from the crime scene.
MEGHAN KNIGHT (Raleigh) 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.
ROBIN TERRY (Raleigh) succeeded in defending a claim at the North Carolina Industrial Commission involving a claimant’s allegations that she had developed Post Traumatic Stress Disorder as a result of being assaulted by a co-worker on the employer’s premises. MS. TERRY proved that although some employer representatives knew about the alleged assault, that Plaintiff had not properly notified the employer of the injury in a timely fashion and that she was therefore barred from benefits. The Commission also found that the incident did not arise from Plaintiff’s employment and that her diagnosis of PTSD was not related to any incident at work.
MELODY JOLLY (WILM) won a Motion to Dismiss and obtained a full dismissal with prejudice of a negligence and negligence per se action seeking compensatory and punitive damages from her client, a metal recycling and scrap yard, in connection with their handling of Plaintiff’s vehicle. Plaintiff’s vehicle was stolen from his home by an unidentified criminal, sold to the scrap yard by the unidentified criminal and damaged when the scrap yard subsequently picked up the vehicle for scrapping. Plaintiff claimed that the scrap yard was negligent in failing to verify the identity of the seller of the vehicle. MS. JOLLY successfully argued in her motion that the statute cited in support of Plaintiff’s claim of negligence per se is not a public safety statute and therefore did not support a claim of negligence per se, the Plaintiff’s allegations of negligence failed to state a claim, and the claim for punitive damages was inappropriate and unwarranted.
LEE POOLE (Charlotte) and MELODY JOLLY (Wilmington) briefed, and MS. JOLLY argued, before the United States Court of Appeals for the Fourth Circuit on behalf of a law firm in a purported class action lawsuit seeking over $11 million in damages. The action was appealed by the putative class representatives after MR. POOLE and MS. JOLLY successfully obtained dismissal as a matter of law at the United States District Court for the Western District of North Carolina.
On behalf of an insurance carrier, MARSHALL WALL (Raleigh) pursued a commercial insured who was improperly underreporting payroll in order to significantly lower workers’ compensation premiums. MR. WALLwon Summary Judgment for breach of contract but continued to press claims for unfair trade practices and fraud. Ultimately the insured’s answer was stricken for discovery violations. After a judge denied the insured’s motion to set aside this order, the case was resolved and the insured paid virtually all of the money owed.
NICK VALAORAS (Charlotte) won a recent workers’ compensation case in which Plaintiff suffered a compensable eye injury while working part time for a major home improvement store (Employer). As a result of his injury, he was also unable to go back to work at his full-time job as an air traffic controller. Employer has been paying him wage loss based on his AWW and CR with Employer but he claimed wage loss based on the difference between his full-time and part-time jobs. Such an outcome would have entitled Plaintiff to the maximum weekly CR due to his high salary as an air traffic controller. Deputy Commissioner Rowell ruled in favor of Employer and has allowed them to continue paying benefits based on his AWW and CR with Employer.
KARI JOHNSON (Raleigh) obtained Summary Judgment on behalf of the defendants, a Sheriff and various deputies, in a case pending in the Eastern District of North Carolina wherein Plaintiff claimed that she was arrested without probable cause and was the victim of racial profiling.
JONATHAN ANDERS (Raleigh) successfully settled a workers’ compensation claim that involved the Industrial Commission and the Attorney General’s office. An 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.
COLLEEN SHEA (Wilmington) obtained Judgment on the Pleadings on behalf of their client, a regional elevator installer, in a wrongful death case arising out of the death of an 11 year old girl who was crushed when she became wedged between the residential elevator car and the elevator shaft wall. Suit was originally filed against the general contractor and the installer, and after several months of contested discovery, Ms. Shea successfully obtained a dismissal in the case based on the general contractor’s intervening and superseding negligence. After obtaining a settlement with the general contractor, the child’s Estate subsequently re-filed suit against the installer. Ms. Shea filed a Motion for Judgment on the Pleadings grounded on the doctrines of judicial and collateral estoppel, which was granted, resulting in dismissal of Plaintiffs’ case with prejudice.
MICHELLE CONNELL (Raleigh) successfully defended an appeal before the N.C. Court of Appeals which involved a challenge to a separation agreement. Marks v. Marks. The parties entered into a written separation agreement which was executed in accordance with the North Carolina statutes. Subsequently, defendant agreed to pay an additional amount to assist plaintiff with school and other financial debts over and above the separation agreement. Defendant paid a substantial amount of his oral financial plead before stopping payments. Plaintiff sued for breach of contract of the oral promises allegedly made by defendant. The trial court granted summary judgment in favor of defendant. Plaintiff appealed. The Court of Appeals agreed with the defendant, holding that the only enforceable separation agreement was the agreement written and executed by the parties. Any oral separation agreement made between the parties after the date of separation, as in this case, is void as a matter of law.
MICHELLE CONNELL (Raleigh) in a case of first impression, successfully overturned the trial court’s decision in an appeal to the N.C. Court of Appeals in which the trial court denied custody to a boyfriend who had raised minor child as his own. Best v. Gallop. Plaintiff sought custody in the form of visitation of the minor child who was the adopted daughter of defendant. Plaintiff acted as if he were the minor child’s father both financially and emotionally since her birth to such an extent that third parties believed plaintiff to be the father of the minor child. When defendant ended the relationship with plaintiff, he sought visitation with the minor child. The trial court stated that defendant had not waived her constitutionally protected rights as a parent to the care custody and control of the minor child; therefore, plaintiff was not entitled to visitation. Plaintiff appealed. The Court of Appeals disagreed with the trial court and reversed the trial court’s decision holding that defendant had in fact lost her constitutionally protected rights as a parent by creating a de facto family with plaintiff. Plaintiff was granted custody in the form of visitation. Ms. Connell then successfully defended against defendant’s petition for discretion review to the N.C. Supreme Court.
MICHELLE CONNELL (Raleigh) successfully sought a civil contempt order against defendant for his failure to abide by the court’s order. Snoke (Vance) v. Snoke. Plaintiff and defendant entered into multiple consent orders in which defendant was to pay plaintiff, inter alia, in monthly installments for debts resulting from the sale of the marital residence. After multiple requests of defendant to honor the orders of the court, plaintiff filed a motion for order to appear and show cause why defendant should not be held in contempt of court. The court found that the defendant was willfully in contempt of court and had the ability to comply with the court order. As a result, defendant was order to be confined until such time that he complied with the orders.
JOHN MARTIN (Wilmington) and REGAN TOUPS (Wilmington) received a defense verdict in a medical malpractice case on behalf of a surgeon. The plaintiff alleged the surgeon failed to properly perform a vascular procedure, which resulted in acute renal failure and end stage renal disease. John and Regan had three surgeon experts from Wilmington, Charlotte and Asheville testify on behalf of the surgeon. After two and a half weeks of trial, the jury returned a defense verdict in less than thirty minutes.
REGAN TOUPS (Wilmington) received a favorable decision from the Fourth Circuit Court of Appeals in a products liability case in which she was representing Defendant Fast Food Restaurant. Plaintiff aspirated on part of a Defendant’s plastic eating utensil, which was discovered by Plaintiff’s doctors in 2009 after several years of suffering from bouts of pneumonia. Plaintiff claimed the utensil fragment had to have been in a hamburger purchased from Defendant’s restaurant, although Plaintiff did not know when it was inhaled, and had no recollection of any unusual events while consuming Defendant’s products. Plaintiffs’ Complaint included two claims including a negligence claim and implied warranty claim. The U.S. District Court for the Eastern District of NC granted summary judgment in Defendant’s favor finding Plaintiff did not have enough adequate circumstantial evidence to move forward on either claim. In an unpublished opinion, the Fourth Circuit affirmed the District Court’s decision.
DAN HARTZOG (Raleigh) and CHIP CAMPBELL (Raleigh) obtained summary judgment in favor of their clients in a negligent/inadequate security case in which plaintiff, a young working father, was paralyzed after being shot outside of a restaurant. Dan and Chip represented the national restaurant franchisor and landowner where the incident occurred. Plaintiff’s well known security expert (an expert our firm has used in defending other inadequate security cases) described the prior crimes in the immediate area of plaintiff’s shooting as the worst he had ever seen so that plaintiff’s shooting, in his opinion, was reasonably foreseeable and that reasonable security measures had not been taken at the restaurant prior to plaintiff’s shooting. Plaintiff’s lowest demand to our clients was $5,000,000.
CHIP CAMPBELL (Raleigh) obtained a favorable award defending personal injury claims in a UIM 3 panel binding arbitration. The award was half of plaintiff’s lowest demand and less than the amount offered to settle the case before arbitration.
CHIP CAMPBELL (Raleigh) obtained a dismissal of a personal injury lawsuit in favor of his clients, a bar and its bouncer. Plaintiff alleged that the bouncer used excessive force in removing plaintiff from the bar causing permanent injuries including a broken wrist. Plaintiff asserted various negligence claims against Chip’s clients including negligent hiring, retention and supervision. Additionally, plaintiff alleged punitive damages for the alleged assault and battery. All claims were dismissed and Plaintiff was assessed cost for discovery violations.
PAUL DERRICK (Raleigh) Rudy Smith, et al. v. Union Grove Volunteer Fire Department, et al. This was a class action lawsuit in which a putative class of approximately 110 members claimed that the department and members of its board of directors breached a fiduciary duty to enroll them in the pension fund and to make monthly contributions to the fund on their behalf. We defended on the basis that no fiduciary relationship existed between the parties in the first place and, therefore, neither the department nor its board members had any legal obligation to either enroll the plaintiffs in the pension fund or to make monthly contributions on their behalf. The court agreed with our position and granted our motion for summary judgment, dismissing the lawsuit in its entirety. Civil Action No. 10-CVS-3439, Iredell County (N.C.) Superior Court.
PAUL DERRICK (Raleigh) Harty v. Luihn Four, Inc. Plaintiff, a resident of South Florida, sued our fast-food industry client based on alleged violations of Title III of the Americans with Disabilities Act stemming from architectural barriers to access by disabled persons. He sought an injunction requiring our client to remedy the alleged violations at a restaurant in North Carolina, as well as substantial legal fees. We moved to dismiss the lawsuit, arguing that the plaintiff was not entitled to seek an injunction in North Carolina because, as a Florida resident, there was no reasonable likelihood that he would suffer any future harm caused by the company at the particular restaurant in question. Thus, he had no standing to file the lawsuit. The court agreed with our position and dismissed the case on the basis that, even though the plaintiff had filed hundreds of similar lawsuits throughout the United States in order to require businesses to comply with the ADA’s access requirements, he nonetheless lacked the standing necessary to seek injunctive relief in this case because his connection to the store in North Carolina was, at best, based on nothing more than his desire to bring a lawsuit against it. Civil Action No. 5:10-cv-107, U. S. District Court for the Eastern District of North Carolina.
PAUL DERRICK (Raleigh) Duane Minnick v. County of Currituck (N.C.), et al. Plaintiff was a firefighter/paramedic who alleged that he was discharged because of his efforts in forming and being the president of a union and because he was outspoken regarding matters of public concern. We defended on the basis that our clients were never the plaintiff’s employer, that the plaintiff could not show any unlawful animus toward unions or toward individuals who engage in protected speech, and that, in any event, the adverse actions taken against the plaintiff were caused by his own misconduct. The court granted our motion for summary judgment and dismissed the lawsuit in its entirety. Civil Action No. 2:10-cv-17, U. S. District Court for the Eastern District of North Carolina.
PAUL DERRICK (Raleigh) Collins v. Sapphire Coal Co., et al. Plaintiff worked as a “roof bolter” in one of the company’s coal mines in Kentucky. His job involved continuous work in a confined area that rarely was more than 45 inches high; consequently, he, like many other miners, filed several workers’ compensation claims for injuries received over the several years that he worked for the company. Coincidentally, the land on which the plaintiff’s home sat was damaged by the company’s underground drilling operations; rather than taking the company up on its offer to work out an agreeable settlement, the plaintiff sued the company for damages to his land. Exercising its rights under Kentucky state law, the company discharged the plaintiff for filing the lawsuit. Plaintiff then filed a second lawsuit, alleging that he was actually terminated in retaliation for having filed several workers’ compensation claims. After several hearings on the matter, the trial court granted our motion for summary judgment, finding that there was no evidence that the discharge was connected to the workers’ comp claims. The judgment ultimately was upheld by the Kentucky Court of Appeals. Civil Action No. 08-CI-10, Letcher County (Ky.) Circuit Court.
PAUL DERRICK (Raleigh) Johnson v. Crossroads Ford, Inc. Plaintiff was the Director of Sales and Service for our client, one of the largest Ford dealerships in the United States, and was discharged for violating a company rule that prohibits employees from attempting to sell their personal vehicles to dealership customers without first getting the approval of management. Although the customers in question acknowledged that the plaintiff had entered into a transaction with them for the sale of his personal car and, in fact, plaintiff admitted that he had bragged to numerous co-workers about having “done the deal” without management’s prior approval, he nonetheless alleged that he was discharged because he was 60 years old. Because there was no evidence that the plaintiff’s termination was at all motivated by his age, we moved for summary judgment. The court agreed with our position and dismissed the lawsuit. Civil Action No. 11-CVS-2711, Wake County (N.C.) Superior Court.
PAUL DERRICK (Raleigh) Payne, et al. v. Macy’s Retail Holdings, Inc. Plaintiff, a resident of South Florida, sued our retail industry client based on alleged violations of Title III of the Americans with Disabilities Act stemming from architectural barriers to access by disabled persons. She sought an injunction requiring our client to remedy the alleged violations at a store in North Carolina, as well as substantial legal fees. We took the position that the plaintiff was not entitled to seek an injunction in North Carolina because, as a Florida resident, there was no reasonable likelihood that she would suffer any future harm caused by the company at the particular store in question. Thus, she lacked the “standing” necessary to file the lawsuit in the first place. The court agreed with our position and dismissed the case on the basis that, even though the plaintiff was a “tester” who had filed hundreds of similar lawsuits throughout the United States in order to require businesses to comply with the ADA’s access requirements, she nonetheless lacked the standing necessary to seek injunctive relief because her connection to the store in North Carolina was, at best, based on nothing more than her desire to bring a lawsuit against it. Civil Action No. 1:11-cv-877, U. S. District Court for the Middle District of North Carolina.
BENTON TOUPS (Wilmington) prevailed on a Motion to Dismiss in a case pending in Federal Court in the Eastern District of NC. Toups represented the defendant, a supplemental insurance provider. The plaintiff, a member of the Longshoreman’s International Association union, purchased a supplemental insurance policy from our client after a presentation by a sales agent to union members at the union hall. The plaintiff thereafter sustained an on-the-job injury which kept him out of work, and he sought disability benefits under the policy. When his claim was denied, he filed suit in state court for breach of contract and unfair and deceptive trade practices. Toups successfully removed the case to federal court and moved to dismiss on grounds that: (1) Plaintiff’s state law claims are preempted by ERISA; and (2) the policy at issue did not provide for disability benefits. The court called for oral arguments, which took place on February 13th. After extensive arguments concerning the application of ERISA, the court sided with the defendant and found ERISA did preempt the plaintiff’s state law claims. The court also agreed that, to the extent the plaintiff had stated a claim under ERISA, that claim should be dismissed because the policy at issue did not provide for the type of benefits sought by the plaintiff.
DAN HARTZOG, JR. (Raleigh) Wright v. City of Laurinburg – Obtained a defense verdict on all claims in a federal lawsuit brought a former Police Lieutenant who was terminated a few days after he was announced as the next Police Chief for the City of Laurinburg. After making the announcement, the City learned that he was under investigation by the SBI for paying for sex. After being informed of this by the DA, the City placed him on administrative leave. During that time, the local newspaper reported on the matter on a regular basis, and learned that he was under investigation by the SBI. The City Manager declined to comment on the specifics, but did confirm that he was under investigation. The plaintiff was ultimately terminated several months of administrative leave. Plaintiff subsequently filed a lawsuit asserting a number of claims, including violations of due process and equal protection, defamation, and negligent and intentional infliction of emotional distress against the City and the former City Manager. A Motion for Judgment on the Pleadings was filed, and following oral argument, the court dismissed all claims with the exception of a due process liberty interest claim and the claim for intentional infliction of emotional distress. Following discovery, a Motion for Summary Judgment was filed which resulted in dismissal of the intentional infliction of emotional distress claim. The case proceeded to trial on the due process liberty interest claim. Following a week-long trial, the trial judge granted a directed verdict as to the claims against the City Manager, and the jury returned with a full defense verdict as to the claims against the City.
DAN HARTZOG, JR. (Raleigh) Dunn v. City of Roxboro Obtained dismissal of all claims in a lawsuit brought by a former police officer for the City of Roxboro. The officer had been fired from the City for attending court for a personal matter while on duty, arriving late on three occasions, and failing to fill out the paperwork needed for a warrant before submitting a statement saying a warrant had been obtained. He later applied for employment at a number of different police departments, including the City of Durham. As part of the application process, the City of Durham sent a form to be completed which requested a statement of the reasons for separation from employment. The Human Resources Officer stated that the officer had been fired for “failing to show up for work and for falsifying paperwork.” Plaintiff sued the City and the Human Resources Director for defamation, unfair deceptive trade practices, and punitive damages. An answer was filed along with several relevant documents, and a Motion for Judgment on the Pleadings was filed on the grounds that the statement was true, that the Plaintiff was a public official and could not overcome the NY Times v. Sullivan actual malice standard, and that the matter did not involve “commerce,” which is required for an unfair and deceptive trade practices claim. Following oral argument, the motion was granted and all claims were dismissed.
DAN HARTZOG, JR. (Raleigh) Cherry v. Pitt County Health Department Obtained a defense ruling in an administrative hearing at the Office of Administrative Hearings (OAH). This case involved an employee fired for excessive phone and internet use. Plaintiff alleged that she was actually fired in retaliation for her use of FMLA leave, and due to a disability (cancer) known to her employer. She alleged that she was discriminated against when she was placed on performance improvement plans which she was required to follow, and which prevented her from taking breaks she needed through the day. She alleged that she denied reasonable accommodations for her disability, and ultimately fired because she had to take time off to go to her doctor. Following a two day hearing at OAH, the administrative law judge ruled that the employer had not retaliated against the Plaintiff for taking FMLA leave, and had just cause to terminate her employment based on poor performance.
DAN HARTZOG, JR. (Raleigh) Wood v. Town of Warsaw Obtained summary judgment in an age discrimination case brought by the former police chief against the Town of Warsaw under the Age Discrimination in Employment Act (ADEA). The former police chief was terminated at age 65. He alleged that he was terminated due to his age, and claimed that the Town Manager told him during his termination meeting that the Town Board wanted “younger blood” in the Chief’s officer. He further alleged that the Mayor commented that the Town needed a “younger Chief” during his grievance appeal to the Town Board. Following discovery, the Town moved for summary judgment, which was granted on the grounds that the ex-chief was unable to establish age discrimination.
DAN HARTZOG, JR. (Raleigh) Hudson v. City of Roanoke Rapids Obtained summary judgment on all claims in a lawsuit brought by a fire fighter for the City of Roanoke Rapids. The case involved a fire fighter who was terminated after a loaded gun was discovered in his locker on City grounds. Plaintiff alleges that it was common practice for firefighters to possess firearms on city property, and alleged that the real reason for his termination was retaliation for complaints he had made to city council members about the fire department, and the fire chief in particular. Following his grievance, the Plaintiff was reinstated at a lower pay grade and his termination was converted into unpaid leave. He brought a lawsuit against the City and various City officials claiming wrongful discharge in violation of public policy, and violations of his free speech rights under the U.S. and N.C. Constitutions. Following discovery, the Defendants moved for summary judgment, which was granted on the grounds that Plaintiff was unable to establish a causal connection between his alleged protected speech and the decision to terminate his employment.