December 2020 Torts & Insurance coverage Fourth Circuit Instances of Curiosity | Nexsen Pruet, PLLC

At regular intervals, Nexsen Pruet member Marc Manos, member of the SC Bar Torts and Insurance Practice Section Council, sheds light on some current cases of the Fourth Circle Court of Appeal that focus on tort and insurance law.

The types and insurance cases selected for December 2020 are listed below.

Krembel versus United States of America

No. 19-6774 (4th Cir. December 1, 2020) (unpublished) FEDERAL TORT CLAIMS ACT The court has issued a summary judgment on the defendants. Doctors providing medical care to prisoners at the Buntner Federal Correctional Institute have done so under an independent contractual agreement with the government. If an independent contractor committed the alleged tort, the United States has not waived its sovereign immunity under the Federal Tort Claims Act. The case should have been dismissed due to a lack of factual jurisdiction according to the Fed. R. Civ. P. 12 (b) (1) to avoid procedural effects on the potential claim against the independent contractor. The decision below has been changed without prejudice to a rule 12 (b) (1) dismissal.

Carlton & Harris Chiropractic, Inc. v PDR Network, LLC

No. 16-2185 (4th Cir. 7 December 2020) (published) TELEPHONE CONSUMER PROTECTION ACT (TCPA), CLASS ACTION. PDR Network faxes Carlton & Harris and offers a free Physician’s Desk Reference eBook. The district court ruled that a fax must be offered for sale or rental or any other commercial purpose in violation of the TCPA after performing a chevron analysis and finding that a Federal Communications Commission (FCC) regulation , in which unsolicited fax offers were given, does not have to be taken into account by free goods or services violating the TCPA. The district court dismissed the case, finding that a fax offer for a free e-book had no commercial purpose. A previous appeal went to the US Supreme Court and was referred back to the Fourth Circle. The Fourth Circle found that the FCC Rule was interpretative, not legislative, and so the courts were not required to apply it under Hobbs Law. 28 USCA § 2342 (1). Additionally, the district court shouldn’t have done a chevron deference analysis, as that level of deference only applies to one final rule – a legal regulation. Gonzales v. Oregon, 546, US 243,255 (2006). A non-binding rule of interpretation by an enforcement authority may still be recognized by the courts, but the appropriate framework for the analysis is set out in Skidmore v Swift & Co., 323, US 134, 140 (1944). According to this analysis, the weight courts attach to an agency’s interpretation “depends on it[s] on the thoroughness in [the agency’s] Consideration, the validity of his argument, his consistency with earlier and later statements, and all the factors that make him persuasive. “Skidmore, 323 US at 140. A rule of interpretation is only entitled to respect if it is persuasive. The Fourth Court ordered the District Court to do a Skidmore analysis of the rule and re-examine the dismissal motion.

Ayala versus United States of America

No. 19-1862 (4th Cir. December 2, 2020) (published) FEDERAL TORT CLAIMS ACT, DISCRETIONARY FUNCTION EXCEPTION, IMMIGRATION. The plaintiff, born in El Salvador in 1978, came to the United States as a young child. His parents divorced in 1983 without a custody decision and he lived with his father, who became a citizen in 1995. When he was traveling to / from El Salvador to visit his family in 2004, CBP agents arrested him, claiming he was not a US citizen because his father had no written evidence of custody. A move order was entered and he was deported. Shortly afterwards he returned to the USA. In 2015 ICE arrested him. His attorney presented evidence of citizenship and Ice released him after seven months in detention and issued a citizenship certificate effective June 8, 1995. He sued for assault, false arrest / detention, willful infliction of emotional distress, and negligence. The District Court rejected some claims and issued a summary judgment on others based on the discretionary waiver from waiver of sovereign immunity contained in federal tort law. The Fourth Circle confirmed the finding that law enforcement decisions related to investigation, prosecution and detention under immigration laws are clearly covered by the discretionary function exemption. Since the waiver of sovereign immunity is an act of grace and not a fundamental right, it is strictly interpreted. Approved.

McMichael v James Island Charter School

No. 19-1880 (4th Cir. December 31, 2020) (unpublished) DRIVER’S PRIVACY PROTECTION ACT, DEFAMATION, INVASION OF PRIVACY. The Charter School cut its finance department for budgetary reasons and fired one of the plaintiffs. The headmaster asked for continued security to prevent retaliation from former staff members and the officer in charge received pictures of the former staff member and her husband from the SC DMV driver’s license database so that officers could identify them if they returned to campus uninvited. Other workers saw the pictures at the security office, and plaintiffs were sued for violating the Federal Driver’s Privacy Protection Act (FDPPA) and for defamation and invasion of privacy under South Carolina law. The district court has summarized all claims. The fourth circuit confirmed. The FDPPA allows a person involved in law enforcement to obtain the DMV photos, and the exception is for school campus protection for legal reasons. The mere presence of the photos to identify a possible unauthorized visitor on campus (only students and staff are allowed without invitation) did not constitute defamation, nor did a plaintiff dismiss when the resignation letter merely stated that the position was eliminated for budgetary reasons has been. Plaintiffs’ privacy invasion claim was based on the unlawful disclosure of the form of tort in private matters. For legal reasons, keeping the pictures with a security kit in the security office, used by officers on duty, may not be tantamount to publishing the photos. Just because a few other employees saw the photos in the security office does not achieve the required publicity. Advertising involves disclosure to the public, not to individuals or small groups. Defendants summary judgment on all claims, upheld.

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