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April 2021 Fourth Circuit Tort & Insruance Instances of Curiosity | Nexsen Pruet, PLLC

From time to time Marc Manos, member of Nexsen Pruet, elected chairman of the SC Bar Torts and Insurance Practice Section Council Committee, sheds light on some of the recent Fourth Court of Appeals cases focusing on tort and insurance law.

In the following, the cases of tort and insurance selected for March 2021 are listed with links to the reports of the Fourth Circle to which reference is made.

Lokhova v. Halper

No. 20-1437 (4th Cir. April 15, 2021) (PUBLISHED) SIGN UP Plaintiff, a Russian-born academic, alleged news reports stating that she was a Russian spy who had an affair with General Flynn be slanderous in order to compromise him. Articles first published more than a year prior to filing the lawsuit were banned by Virginia’s one year defamation statute of limitations, even if viewed less than a year prior to hyperlinking or republication. The one-time publication rule makes the first publication a defamatory publication and initiates the statute of limitations. Additional publications may advocate a higher claim for damages, but are not new cases of defamation. The two statements within the limitation period could not be challenged. The first stated General Flynn paid undue attention to a foreign graduate student attending a dinner. Even if a reader might suspect that the plaintiff was the named graduate student, the statement only accused General Flynn of improper conduct. The plaintiff attempted to attribute tweets by an NBC advisor to NBC News, but did not allege any facts showing any vicarious liability on the part of NBC for the tweets of the person who was not a named defendant. Summary verdict upheld for all defendants.

View the case here.

Bow ins. What. v. Berkley Nat’l Ins. What.

No. 19-1773 (4th Cir. Apr. 13, 2021) (Unpublished) DAMAGE / DEFECT DISTRIBUTION Arch paid to settle a personal injury claim from a plaintiff who alleged injury was caused by an explosion that occurred when a cigarette was lit next caused by an active naturopath was well gassed. The plaintiff, an employee of Stric-Lan, sued HG Energy (insured by Arch and Steadfast) for negligence in failing to maintain a secure job and Stric-Lan (insured by Berkley) under the West Virginia intentional statute . Stric-Lan provided HG Energy with on-site services under a contract that provided for compensation and HG Energy was additionally insured under Stric-Lan’s liability insurance. HG Energy demanded compensation from Stric-Lan. Stric-Lan submitted the claim to Berkley. Stric-Lan and Berkley refused. Defense costs and comparative costs for Arch and Steadfast were $ 6,150,000. The district court issued a summary judgment for Berkley and Stric-Lan. The district court wrongly relied on the repeal of the West Virginia Joint and several Liability Act and its replacement with a Comparative Debt Act, enacted two years after the underlying lawsuit was filed. The Employee Compensation Act made Stric-Lan, as the plaintiff’s employer, legally immune to lawsuits. The district court also erred by saying the contract did not require compensation because Stric-Lan was not named in the lawsuit. The contract obliges Stric-Lan to compensate HG Energy if Stric-Lan has partially caused the injury. The judgment was overturned and remitted for further proceedings to determine whether Stric-Lan was at least partially the cause of the underlying damage, which triggered his liability for damages.

View the case here.

Livingston v SC Dept. of Soc. Services

No. 20-1552 (4th Cir. Apr. 20, 2021) (Unpublished) SECTION 1983, MALIZIOUS PROSECUTION Infant twins of the complaining parents who were seen in a hospital emergency room suffered from multiple fractures. The parents informed DSS and law enforcement that no one else had access to the infants. Two examining doctors found that the infants had been mistreated through assault. The husband confessed and was arrested, and the couple’s three children were placed in protective custody. Years later, another group of doctors found that the mother and twins had a rare genetic disorder that resulted in weak and fragile bones. A court found that the state coerced the man’s confession. The state stopped law enforcement and DSS returned the children to their parents. Both the 1983 section and the malicious prosecutor’s allegations required the absence of a likely cause. The district court granted the government defendants’ motion for an interim judgment. The Fourth Circle affirmed. The Fourth Court failed to achieve admissibility of the husband’s confession in civil matters as the findings of the two doctors (one of whom was a child abuse detection specialist) provided sufficient evidence of the likely cause at the time of arrest and deportation. The later medical findings could not be taken into account.

View the case here.

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