Contributory Negligence in the Southeast

Contributory negligence” is negligent conduct on the part of the plaintiff/injured party contributes to the negligence of the defendant in causing the injury or damage.  This definition is fairly uniform in all states.  While the term “contributory negligence” is understood in Alabama, South Carolina, Mississippi, and Tennessee, the legal concept is treated quite differently in the Harper Little geographic territories.

Alabama

Alabama recognizes Pure Contributory Negligence.  This is a drastic concept which says that claimant cannot recover any damages if he or she is even 1% at fault. The pure contributory negligence defense has been criticized for being too harsh on the plaintiff, because even the slightest amount of contributory negligence by the plaintiff which contributes to an accident bars all recovery.

If plaintiff is making claim based in negligence, entitlement to receive damages will be defeated by plaintiff’s negligence. John Cowley & Bros., Inc. v. Brown, 569 So.2d 375 (Ala. 1990); Ala. Power Co. v. Schotz, 215 So.2d 447 (Ala. 1968).”

Mississippi

Mississippi is a “comparative fault” state.  The term “comparative fault” refers to a system of apportioning damages between negligent parties based on their proportionate shares of fault. Under a comparative fault system, a plaintiff’s negligence will not completely bar recovery like states that employ the harsh Pure Contributory Negligence Rule, but it will reduce the amount of damages the plaintiff can recover based on the plaintiff’s percentage of fault. The Pure Comparative Fault Rule allows a damaged party to recover even if it is 99% at fault, although the recovery is reduced by the damaged party’s degree of fault. The pure comparative fault system has been criticized for allowing a plaintiff who is primarily at fault to recover from a lesser-at- fault defendant some portion of its damages. Twelve (12) states, including Mississippi, recognize the Pure Comparative Fault Rule.

Mississippi tort law allows for determination of percentage of fault in civil cases. See Ghane v. Mid-South Inst. of Self Def. Shooting, Inc., 137 So. 3d 212, 220, 2014 Miss. LEXIS 32, *20, 2014 WL 172133. Mississippi is proud of its history in applying the doctrine. In 2018, the Supreme Court stated that “contributory negligence…….no longer a complete bar for recovery. See Miss. Code Ann. § 11-7-15 (Rev. 2004). “Comparative negligence represents a long-established, salutary and worthwhile policy of this State.” Mitchell, 211 So. 2d at 513. See Smith v. Church Mut. Ins. Co., 254 So. 3d 57, 68, 2018 Miss. LEXIS 327, *23, 2018 WL 3661529

South Carolina

South Carolina follows a practice known as “Modified Comparative Fault.”  In South Carolina, it is sometimes referenced as the 51% rule as a claimant may not recover if he or she is deemed to be more than fifty percent (50%) at fault.  If 50% or less at fault, it can recover, although its recovery is reduced by its degree of fault. Plaintiff’s negligence cannot exceed that of the defendant(s). Ross v. Paddy, 340 S.C. 428, 532 S.E.2d 612 (Ct. App. 2000)

Under Modified Comparative Fault System, each party is held responsible for damages in proportion to their own percentage of fault, unless the plaintiff’s negligence reaches a certain designated percentage.

Tennessee

Like South Carolina, Tennessee follows the “Modified Comparative Fault” doctrine.    There is another twist, however, in that Tennessee does not allow recovery for a party that is found to be fifty percent at fault. See McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992). Precedent holds that a damaged party cannot recover if it is 50% or more at fault. If 49% or less at fault, it can recover, although its recovery is reduced by its degree of fault. Plaintiff’s right to damages may be reduced by his own liability, but he will not be barred from recovering. McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992)

Our lawyers are well tested in applying each of the four variations on comparative fault and contributory negligence. Harper Little’s insurance defense practice thrives on superior knowledge with regard to the jurisdictions within which we work.

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South Carolina Coverage and Bad Faith Opinion

South Carolina Answers Certified Question For Attorney Client Privilege In Bad Faith Refusal to Defend

The South Carolina Supreme Court, on certified question from the Fourth Circuit, has decided whether an insurer waives the attorney-client privilege when it denies liability in a “bad faith” case. 

The issue arose out of a construction defect lawsuit when the insurer failed to defend its insured, a contractor.  After settling out of the case personally, the policyholder contractor sued the carrier for bad faith refusal to defend.  In discovery, the policyholder sought the carrier claim file including correspondence between the carrier and its coverage attorneys.  The Insurer claimed privilege over those communications, but the Insured argued that the Insurer’s denial of liability for bad faith and its affirmative defense of “good faith” resulted in waiver of the attorney-client privilege.  The discovery dispute ultimately found its way to the SC Supreme Court.

Holding:

A client does not waive the attorney-client privilege simply by bringing or defending a lawsuit; rather, waiver requires the additional interjection of the issue of advice of counsel (either expressly or implicitly) by the client.  In other words, whether or not “advice of counsel” is raised as an affirmative defense, if the client defends based on the affirmative theory that the client’s mental state at the time at issue (such as when the Insurer denied the Insured’s claim) was based on an evaluation of the law and the facts then existing, such would equate to putting the legal evaluation “at issue” and thus result in a waiver of the privilege.

“a client does not waive the privilege simply by bringing or defending a lawsuit. “

In reaching its conclusion, the Court relied heavily on an approach adopted by Arizona in the case State Farm Mutual Automobile Insurance Co. v. Lee.

Insurers Help Design Luxury Homes to Mitigate Disaster Losses

Insurers Help Design Luxury Homes to Mitigate Disaster Losses
— Read on www.claimsjournal.com/news/national/2019/09/03/292862.htm

TARGETED TENDERS

Construction defect cases are occurrence based matters which, in South Carolina, are pre-determined to involve the occurrence of property damage each and every year following a construction project. The “continuous trigger” theory puts the onus on a defense attorney to send notice in the form of a “tender letter” to all insurers affording CGL coverage to an insured for the time on risk.
Today we will look at this a little more closely.
South Carolina does not follow the “targeted tender doctrine”, which allows the insured to submit an entire claim to only one of multiple insurers whose policies may be triggered. However, South Carolina courts have held that when an insurer owes a duty to defend, the insurer must defend the entire claim.  Sloan Constr. Co., Inc. v. Central Nat’l Ins. Co. of Omaha, 269 S.C. 183, 236 S.E.2d 818 (1977).
Where two companies insure the identical risk and both policies provide for furnishing the insured with a defense, neither company, absent a contractual relationship, can require contribution from the other for the expenses of the defense where one denies liability and refuses to defend. The duty to defend is personal to both insurers; neither is entitled to divide the duty. Indemnity contemplates merely the payment of money. The agreement to defend contemplates the rendering of services.Citing Sloan Constr. Co., Inc. v. Central Nat’l Ins. Co. of Omaha, 269 S.C. 183, 236 S.E.2d 818 (1977).
For purposes of indemnification, the claim must be submitted to each carrier on the risk while the damage continued, and each carrier is responsible for only the “property damage” that occurred during its policy period.  Crossmann Cmties. of N.C., Inc. v. Harleysville Mut. Ins. Co., 395 S.C. 40, 66-67, 717 S.E.2d 589, 603 (2011).
This distinction is often confusing at mediations, I have found. In certain situations we may have three policies of insurance defending a claim under three reservations of rights. Depending on the issues, any of the carriers might evaluate their indemnity duties as being slight and, in many cases, less than another carrier’s. As defense counsel it is important to make sure these issues are addressed by a third party, such as a good mediator. Fortunately we have several outstanding mediators in Charleston. William G. “Bill” Lyles, Jay Jones, and John Massalon come to mind.

Mississippi Legislation to Drastically Reduce Liability for Property Owners

A bill to protect landowners from potential liability exposure is almost a reality for Mississippians.

The language within the bill would eliminate lawsuits against landowners in situations where injury was caused by a third party, unless claimants can prove:

(a) The conduct of said third party occurred on the property;
(b) The conduct of the person who owns, leases, operates, maintains or manages the property actively and affirmatively, with a degree of conscious decision-making, impelled the conduct of said third party; and (c) The third party’s conduct proximately caused the economic and noneconomic damages suffered by the injured party.

More soon.

OHIO DECISION PARTS WAYS WITH THE NORM AS TO CONSTRUCTION DEFECT COVERAGE FOR GENERAL CONTRACTORS

On October 9, 2018, the Ohio Supreme Court issued an important decision in Ohio N. Univ. v. Charles Constr. Servc., Inc., Slip Opinion 2018-Ohio-4057.  Departing from the national majority view, the Ohio Supreme Court held that a general contractor’s commercial general liability policy does not cover claims for property damage caused by a subcontractor’s faulty work. Specifically, the Court reasoned that faulty work is not accidental or “fortuitous,” as contemplated within the policy’s definition of an “occurrence” triggering coverage.”

This topic has been hotly debated in South Carolina after the Crossman decision. Following Crossman, a South Carolina statute was enacted. The statute stated that the definition of “occurrence” in general liability policies includes property damage “resulting from faulty workmanship, exclusive of the faulty workmanship itself.” See S.C. Code § 38-61-70 (2011). The South Carolina Supreme Court has ruled that this statute may only be applied to general liability insurance contracts executed on or after the effective date of the statute – May 17, 2011. Any retroactive application is unconstitutional. See Harleysville Mut. Ins. Co. v. State, 401 S.C. 15 (2012).

MISSISSIPPI AND DUTY TO DEFEND

For years I have discussed South Carolina and the unpredictable, evolving, and  sometimes perplexing treatment of insurance coverage as they pertain to construction defect claims.   As our law firm is based in the state of Mississippi, I have invited one of my partners, James Harper, to discuss the nuts and bolts of insurance coverage for construction defects in the Magnolia state.  Today’s article will focus on a carrier’s duty to defend a policyholder in a lawsuit.

THE DUTY TO DEFEND A POLICYHOLDER LIES IN ALLEGATIONS

Under Mississippi law, “the duty of the insurer to defend is determined by the allegations of the complaint.” Great Northern Nekoosa Corp. v. Aetna Cas. and Sur. Co., 921 F.Supp. 401, 406-07 (N.D.Miss. 1996)  This is the law of the state and is applied literally. “If the underlying pleadings state facts which bring the injury within the coverage of the policy, then the insurer is required to defend.” Id. “Conversely, if the pleadings do not state facts which bring the injury within the coverage of the policy, then the opposite is true.” Id. The focus of courts is on allegations contained in the four corners of the complaint and only if the pleadings state facts bringing the injury within the coverage of the policy must the insurer defend. See Foreman v. Continental Casualty Co., 770 F.2d 487, 489 (5th Cir.1985) (emphasis added); Battisti v. Continental Cas. Co., 406 F.2d 1318, 1321 (5th Cir.1969).

Allegations made in a Complaint are controlling.  Thus, “the ultimate liability of the insurer is not the criterion for determining the insurer’s duty to defend . . . if the factual allegations of the complaint bring the action within coverage of the policy, irrespective of what the actual facts may later prove to be, the insurer is contractually bound to defend its insured.”)(citing Preferred Risk Mutual Insurance Company v. Poole, 411 F. Supp. 429 (N.D. Miss. 1976)).

It is possible for an insurance carrier to trigger a bad faith cause of action by failing to defend a policyholder.   The burden in these matters is on the policyholder, however.  Specifically,  the insured must prove that a proper investigation would easily adduce evidence showing its defenses to be without merit. Mutual Assur., Inc. v. Banks, 113 F.Supp.2d 1020 (S.D. Miss. 2000).

In closing, we would like to always remind the reader that every case is fact specific, and this blog content does not constitute legal advice.