February 2021 Fourth Circuit Tort & Insurance coverage Circumstances of Curiosity | Nexsen Pruet, PLLC

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

The cases of tort and insurance selected for February 2021 are listed below with links to the expert opinions of the Fourth Circle to which reference is made.

Funderburk v CSXTransp., Inc.

No. 19-2220 (4th Cir. February 2, 2021) (Unpublished) FEDERAL PROTECTION LAW, CAUSATION EVIDENCE EXPERTS Landowners sued the railroad for flooding during Hurricane Joaquin, claiming improperly maintained drains and culverts along the railway line caused flooding. The district court issued a summary judgment anticipating claims under Section 10501 (b) of the Interstate Commerce Commission’s Termination Act. Fourth Circle did not achieve the pre-purchase, but confirmed it on independent ground. The district court only ruled out evidence that culvert maintenance caused or worsened flooding because it found the testimony “extremely problematic”. The applicants had no evidence of causality and the summary judgment was confirmed.

View the case here.

Wingate versus Fulford

No. 19-1700 (4th Cir. Feb. 4, 2021) (published) 42 USC § 1983 UNLAWFUL Arrest The plaintiff was driving his car at about 2 a.m. when the check engine light came on. He stopped in front of a dealership, lifted the hood, took tools out of the trunk, and began researching. A sheriff’s deputy stopped to help. After talking to the plaintiff, the deputy asked for ID. The plaintiff refused and asked if he was in custody. The deputy said no, but wanted identification. The plaintiff asked if he was free, the deputy only said when you would identify me. The MP called for reinforcements and the driver was arrested for failing to identify himself under a district ordinance. The district court decided on all claims of the defendant in summary proceedings. The fourth circle has partially reversed. The prosecution may only demand that a citizen can identify himself if it carries out a lawful freeze on the investigation. To stop an investigation requires: (1) reasonable and understandable facts (2) relating to the person being stopped that give rise to reasonable suspicion of criminal activity by that person. There must be a concrete and objective basis for the suspicion that the person concerned was prevented from engaging in criminal activity. In a situation where an officer stops helping a citizen or engages in a person in question without such reasonable suspicion, the officer may request identification, but not request, or arrest or punish the person if they refuse. The seven reasons given by the on-record officers for suspicion of criminal activity could all just as easily be innocent behavior and were sub-standard. The court overturned the summary judgment on the motion for an unconstitutional freeze on investigations and expelled the detention center. The fourth district confirmed the summary judgment for unlawful arrest and violation of state law, as the constitutional limits of the district ordinance had not been prescribed by any court before the incident and thus qualified immunity / good faith existed. This will no longer be a defense for similar Fourth Circle ordinances.

View the case here.

Ledwell versus Ravenel

No. 20-1344 (February 4, 2021) (Unpublished) ATTACK – REMOVE, ARBITRATION Thomas Ravenel’s children’s nanny brought bodily harm lawsuits against Ravenel and companies involved in the production and distribution of the television show Southern Charm . The original claims were tried in SC State Court, but after the plaintiff settled with Ravenel, who remained a nominal defendant for cross-action and third party purposes, the corporate defendants were transferred to the US District Court. The District Court rejected the plaintiff’s motion for remand and granted the other defendants’ motion to force arbitration. The Fourth Circle affirmed. Ravenel did not consent to the removal. Normally all defendants are required to consent to the removal of diversity, however Ravenel became a nominal party here when he settled down. Plaintiff presented no evidence, only speculation, that Ravenel might still have an indemnity obligation or other involvement that would hold him accountable. The arbitration agreements contained in the plaintiff’s announcement for the show could not be canceled. The consideration received from the plaintiff for the public relations work represented sufficient consideration and was essentially not unscrupulous. Confirmed, case forwarded to arbitration.

View the case here.

Way of Life Family Fin. Sec., Inc. v. Triangle Capital Corp.

No. 19-2162 (Feb. 4, 2021) (Published) SECURITIES FRAUD, CLASS ACTION The District Court dismissed the class action agent’s first amended complaint for non-fraud allegation, but approved an amendment. The district court thereupon rejected the request for change as futile because it had failed to assert facts sufficient to support scientists on the part of the defendants. The Fourth Circle affirmed. Scienter is one of six essential elements of a Plaintiffs’ fraud claim under Section 10 (b) / Rule 10b-5. To substantiate scholars, the complaint must produce facts sufficient to demonstrate a state of mind intended to cheat, manipulate, or cheat – it also includes severe recklessness. The Private Securities Litigation Reform Act of 1995 placed an increased pleading requirement for academics, specifically specifying facts that give rise to a “strong conclusion” by academics. 15 USC § 78u-4 (b) (2). The alleged facts and the supporting evidence admitted in the records of documents referred to in the complaint led to the conclusion that there was an honest disagreement in the market about the likely future success of the type of lending, which the defendant did in the worst case, and this would not support scientists. Termination confirmed with prejudice.

View the case here.

Sedar v. Reston Town Ctr. Prop., LLC

No. 19-1972 (February 4, 2021) (Published) LIABILITY, SLIP AND FALL (Va. Law) District Court has issued a summary judgment to property owners and property managers in the event of a trip and the first fall of a flight Concrete stairs at the end of a paved path, who comes out of a parking garage and leads to the sidewalk in the mall. The court found no material facts regarding the dangerous condition, defendants’ knowledge of the condition and causation. The fourth circle has reversed. Witnesses, photos, and a skilled civil engineer testified that where the brick path met the concrete stairs, there were loose bricks and rotting grout. The nature of the paved path did not make the danger to an ordinary pedestrian overt and obvious. As for knowledge, the Fourth Court agreed that the plaintiff’s evidence posed no problem with actual knowledge, but the photos and expert testimony questioned the fact that the condition must have been at least months old and would have undergone routine maintenance inspections must be established. Finally, circumstantial evidence was sufficient to justify the fact that the plaintiff’s fall could have been caused by the loose brick and deteriorating sealant. Conversely, pre-trial detention for an opinion-compliant procedure.

View the case here.

Dizzley v. Garrett

No. 19-6959 (Feb. 4, 2021) (unpublished) FALSE Arrest — 42 USC § 1983 Dizzley brought a lawsuit for unlawful arrest against the Georgetown County investigator who arrested him for murder. A jury convicted Dizzley for a murder in 2008 and was sentenced to 35 years in prison. The District Court found that if successful, the lawsuit would prove the invalidity of criminal convection and was therefore dismissed under the Prison Litigation Reform Act. The fourth circle has reversed. A successful application for unlawful arrest for no probable reason does not, of course, call into question the validity of a conviction. Dizzley made it clear in his complaint that he was only being sued for damages for wrongful arrest. Released and pre-trial detention.

View the case here.

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