Clinton T. Magill
Associate / Charleston
Clinton is an associate in the Charleston office. He enjoys a wide-ranging civil practice with a primary focus on complex cases involving construction litigation, insurance coverage & bad faith litigation, and product liability. However, Clinton also regularly issues insurance coverage opinions for his clients, represents parties in general liability and commercial litigation matters, and has represented entities with zoning disputes before municipal courts and town councils. In his litigation practice, he has drafted and argued several successful dispositive motions on behalf of his clients in both state and federal court. Throughout his practice, Clinton has represented a variety of diverse clients, including contractors, engineers, architects, manufacturers, dealers, suppliers, insurance carriers, claims administrators, insurance agents, homeowners associations, law firms, non-profit corporations, and various other businesses such as an in-home caregiving service, an auto shop, and a moving & storage company.
In addition to his accomplished practice, Clinton has authored and co-authored articles that have been published in SC Lawyer, The DefenseLine, and Charleston Law Review. He earned his Juris Doctor (J.D.) from his hometown institution, Charleston School of Law, where he graduated summa cum laude as a member of the Presidential Honors Program. While in law school, Clinton served as the Symposium Editor of Charleston Law Review, the Vice President of the Healthcare Law Society, and a Teaching Fellow for the Legal Research, Analysis, and Writing Department. He also spent a semester externing for The Honorable David C. Norton, U.S. District Judge for the District of South Carolina, and volunteered as a Pro Bono Legal Intern for the ACLU of South Carolina. Clinton received CALI Awards (highest class grade) in several classes, including: Legal Research, Analysis, and Writing I; Civil Procedure; Legal Research, Analysis, and Writing II; International Business Transactions; and War Crimes & Courts – Martial.
Prior to law school, Clinton lived in Miami (FL) where he was the Finance & HR Analyst for Beauté Prestige International, a subsidiary of Shiseido (one of the world’s largest cosmetic companies). Clinton earned his undergraduate degree in Accounting from the School of Business Administration at the University of Miami. While in Florida, he was also the lead guitarist in a hard rock band that performed at several large events and venues across Florida, including on the Vans Warped Tour and at the Sunset Cove Amphitheater. Clinton is a proud Charleston native and alumnus of Porter-Gaud School. He enjoys serving on the Planning Committee of MUSC’s Annual Judges and Attorneys Substance Abuse and Ethics CLE Seminar and volunteering for organizations such as Habitat for Humanity (both of Charleston and Greater Miami).
Jack Daniel and Clinton Magill Secure Partial Voluntary Dismissal in Construction Related Products Liability Case
December 20, 2018
Jack Daniel and Clinton Magill recently secured a voluntary dismissal of certain cross-claims asserted against their product supplier client in a construction defect case in Charleston County, South Carolina. In this case, homeowner-plaintiffs sued various subcontractors, including a sprayfoam applicator and its principals, after renovations were performed on its home. In response, the sprayfoam applicator and its principals brought third-party claims against Jack and Clinton’s client—the supplier of a chemical product used to produce the sprayfoam applied at the subject property. After several amendments, the plaintiff eventually added Jack and Clinton’s client as a direct defendant, and the sprayfoam applicator subsequently re-asserted its claims against their client as cross-claims for (1) Breach of Contract; (2) Negligence; and (3) Indemnity. In August 2018, Jack and Clinton filed a motion for summary judgment as to the sprayfoam applicator’s Breach of Contract and Negligence cross-claims in the Charleston County Circuit Court, arguing that (1) these cross-claims were nothing more than disguised claims for indemnity; (2) these cross-claims were barred because the rights of the sprayfoam applicator and its principals had been assigned to another company that was not a party to the lawsuit; and (3) the principals of the spray foam applicator had no standing to bring these cross-claims because they were not parties to the underlying agreement upon which they based their claims. On the morning of the hearing in December 2018, opposing counsel contacted Clinton and agreed to dismiss, with prejudice, these cross-claims for Breach of Contract and Negligence. Thus, as a result of their motion and creative legal arguments, Jack and Clinton secured a voluntary dismissal of two out of the three cross-claims asserted against their client in this case without incurring any additional expenses for a hearing and/or further briefing.
For informational purposes only. Past success does not indicate the likelihood of success in future cases.
Kathy Carlsten and Clinton Magill Obtain Order Dismissing Premises Liability Suit Against Corporate Property Owner
October 10, 2018
Kathy Carlsten and Clinton Magill recently obtained a dismissal of their client from a premises liability suit filed in Berkeley County, South Carolina. In this case, a plaintiff sued a corporate property owner for negligence related to an alleged slip-and-fall incident. Early this year, Kathy and Clinton drafted and argued a successful motion to compel certain discovery information from the plaintiff. After the plaintiff failed to comply with the terms of the Court’s Order granting the motion to compel, Kathy and Clinton then moved to dismiss the case under SCRCP 41(b). At the hearing on their motion to dismiss, Clinton argued that the plaintiff’s case should be dismissed as a result of her failure to comply with the Court’s Order. At the conclusion of the hearing, the Court granted Kathy and Clinton’s motion to dismiss and later signed an order officially dismissing the plaintiff’s entire case with prejudice.
For informational purposes only. Past success does not indicate the likelihood of success in future cases.
Laura Paton and Clinton Magill Obtain Dismissal of Six Claims Filed Against Their Stucco Subcontractor Client in Federal Court
July 19, 2018
Laura Paton and Clinton Magill recently obtained a dismissal of six (6) third-party claims filed against their stucco subcontractor client in the Beaufort Division of the United States District Court for the District of South Carolina. In this construction defect and product liability action, the owner of three amenity-facilities filed various claims against its general contractor and architect in 2017. Later, in 2018, the general contractor filed several third-party claims against its alleged subcontractors—including Laura and Clinton’s stucco subcontractor client—for negligence, gross negligence, breach of warranty, breach of contract, strict liability, apportionment, and indemnification. In response, Laura and Clinton filed a partial motion to dismiss which sought a dismissal of all of the claims asserted against their client except for the indemnification claim. In their motion, Laura and Clinton argued that (1) the general contractor’s claims for negligence, gross negligence, breach of warranty, breach of contract, and strict liability were not independently viable claims pursuant to the Stoneledge doctrine and its progeny; and (2) South Carolina law does not recognize a claim for “apportionment.” After briefing from both parties, the Court issued an opinion granting Laura and Clinton’s motion on the briefs and dismissing, with prejudice, the six other claims filed against their client.
For informational purposes only. Past success does not indicate the likelihood of success in future cases.
Sarah Wetmore and Clinton Magill Obtain Voluntary Dismissals for Their Foundation Subcontractor Client in Three Separate Cases
April 24, 2018
Last week, Sarah Wetmore and Clinton Magill obtained a voluntary dismissal of a plaintiff’s claims against their subcontractor client in an 8-figure construction defect dispute in Horry County, South Carolina. In that case, a homeowners’ association sued various subcontractors, bringing three claims against each for negligence/gross negligence, breach of warranties, and unfair trade practices. In response, Sarah and Clinton filed a motion to dismiss the plaintiff’s claims on several grounds. With a hearing on the dispositive motion looming, With the hearing on the dispositive motion looming, plaintiff agreed to voluntarily dismiss, without prejudice, all of their claims against their client. Thus, as a result of their motion and creative legal arguments, Sarah and Clinton secured a dismissal of the plaintiff’s claims without having to go forward with the hearing. The dismissal was without prejudice, so there is technically a potential for a “round two” in the future. Notably, however, in the last nine (9) months Sarah and Clinton have obtained similar dismissals by a general contractor against their foundation subcontractor client in two separate cases involving different construction projects in Horry County. To date, those dismissals remain undisturbed.
Kathy Carlsten and Clinton Magill Secure Dismissal of Zoning Citations for Moving & Storage Company Client
Kathy Carlsten and Clinton Magill recently secured a dismissal of two zoning citations for their moving and storage company client in North Charleston, South Carolina. In this enforcement matter, municipal authorities cited their client’s employee for alleged land-use and buffer-zoning violations. In response, Kathy and Clinton opposed the merits of the citations on grounds that the land-use actually conformed with the municipal ordinance and that the ordinance was otherwise unconstitutionally vague and overbroad. After several months of meetings and negotiations regarding the subject land-use, Kathy and Clinton secured a dismissal of the charges against their client. As a result, the zoning enforcement action was dropped against their client and its employee.
Multi-Office Effort Leads to Dismissal of State Court Lawsuit
April 3, 2018
Mark Rogers and Joe Kingma of our Atlanta office combined with Patrick Norris and Clinton Magill of our Charleston office to obtain dismissal of a claim against an outside insurance adjuster in a dispute related to an 8-figure, multi-layer hurricane loss in South Carolina state court. After briefing and oral argument, the judge granted the motion to dismiss relating to claims for breach of contract and injunctive relief. The dismissal was without prejudice, so stay tuned for a potential round two in the near future.
Patrick Norris and Clinton Magill Secure Voluntary Majority Dismissal with Prejudice of Cross-Claims Asserted Against Framing Subcontractor Client
January 12, 2018
Patrick Norris and Clinton Magill recently secured a voluntary majority dismissal of cross-claims asserted against their framing subcontractor client in Beaufort County, South Carolina. In this construction defect case, a homeowner sued various contractors, including the two general contractors for the project. In response, the general contractors brought five cross-claims against Patrick and Clinton’s framing subcontractor client for indemnity, negligence, breach of contract, breach of express warranties, and breach of the implied warranty of workmanlike service. The general contractors sought actual, consequential, and punitive damages. In November 2017, Patrick and Clinton filed a motion to dismiss the general contractors’ cross-claims in the Beaufort County Circuit Court, arguing (1) the cross-claims were nothing more than disguised claims for equitable indemnity; (2) the cross-claims were barred by the statute of repose; and (3) the cross-claims were barred by the statute of limitations. In January 2018, with a hearing on the dispositive motion looming, Patrick and Clinton forced a deal with the general contractors wherein in exchange for withdrawal of the motion, the general contractors agreed to voluntarily dismiss, with prejudice, their cross-claims for negligence, breach of contract, breach of express warranties, and breach of the implied warranty of workmanlike service. Thus, as a result of their motion and creative legal arguments, Patrick and Clinton secured a majority dismissal of the cross-claims without having to go forward with the hearing.
Kathy Carlsten and Clinton Magill Secure Complete Dismissal for Third-Party Claims Administrator and Majority Dismissal for Insurance Company
January 8, 2018
Kathy Carlsten and Clinton Magill obtained a complete dismissal for their third-party claims administrator client in Anderson County, South Carolina. Additionally, they successfully dismissed four claims asserted against their insurance company client in the same case. The plaintiff’s complaint alleged four claims against both clients for civil conspiracy, breach of covenant of good faith and fair dealing, unfair trade practices, and bad faith. The plaintiff also brought an additional claim against the insurance company for fraud. Kathy and Clinton filed a motion to dismiss the plaintiff’s complaint and argued their motion in the Anderson County Circuit Court. At the hearing, Clinton argued that (1) the plaintiff’s civil conspiracy claim must be dismissed because the plaintiff had failed to plead both special damages and an overt act done pursuant to a common scheme; (2) the plaintiff’s breach of covenant of good faith and fair dealing claim was duplicative of its bad faith claim and was otherwise foreclosed by admissions contained within the complaint; and (3) the plaintiff’s unfair trade practices claim was barred because the Unfair Trade Practices Act did not apply to practices regulated under South Carolina’s Insurance Trade Practices Act. The Circuit Court agreed on all grounds and dismissed these claims against both clients with prejudice. Additionally, Clinton argued that the plaintiff’s bad faith action must fail as to the administrator because no bad faith claim can be brought against a third-party administrator in South Carolina. The Circuit Court again agreed and granted their motion as to the remaining claim against the administrator, thereby dismissing it from the case with prejudice. Finally, Clinton argued—and the Court agreed—that the plaintiff had failed to plead fraud with particularity and that the fraud claim against the insurance company must therefore be dismissed. As a result of their motion, Kathy and Clinton secured a complete dismissal of their administrator client and a dismissal of four claims against their insurance company client, all of which was with prejudice
Jack Daniel and Clinton Magill Defeat Plaintiff’s Attempts to Reopen Case Against Attorney and its Firm
April 17, 2017
Jack Daniel and Clinton Magill successfully opposed a plaintiff’s recent attempts to reopen a case against their legal clients in Beaufort County, South Carolina. The plaintiff originally brought an action in 2011 against a non-profit legal firm, its attorney, and a paralegal. The Plaintiff attempted to assert actions for fraud, civil conspiracy, malicious prosecution, defamation, conversion, and trespass against the legal team. In 2013, Sarah Wetmore and Jack Daniel successfully pursued a motion to dismiss as to the firm and its paralegal and a motion for summary judgment as to the attorney. After the trial court granted both motions in two separate orders, these orders were consolidated and affirmed on appeal. Recently, however, the plaintiff filed a motion to reopen its case and attempted to file motions for relief from the judgments based on allegations of fraud and newly discovered evidence. Jack and Clinton filed an opposition to the plaintiff’s motion and Clinton proceeded to argue their opposition in the Beaufort County Circuit Court. At the hearing, Clinton argued that the fully and finally adjudicated orders of the Court were the law of the case, that the plaintiff had not timely filed its motions for relief, and that all of the plaintiff’s motions otherwise lacked any merit. The Circuit Court agreed on all grounds and ultimately dismissed the plaintiff’s attempts to reopen its case against the legal team.
Doug MacKelcan and Clinton Magill Secure Dismissal for Community Association
February 13, 2017
Doug MacKelcan and Clinton Magill obtained a dismissal for their community association client in Beaufort County, South Carolina. The plaintiffs originally brought claims for civil conspiracy and slander against the association. After an early motion to dismiss was filed, the plaintiffs amended their complaint and dropped the association from their slander cause of action. Doug and Clinton proceeded with their motion to dismiss against the plaintiffs’ amended complaint, arguing that the plaintiffs had failed to plead special damages in their civil conspiracy cause of action. The Circuit Court agreed and ultimately dismissed the plaintiffs’ final remaining claim against the association.
Copeland Stair’s Annual Insurance Coverage and Bad Faith Seminar
September 12, 2019
Copeland, Stair, Kingma & Lovell's Annual Insurance Coverage and Bad Faith Seminar was held on Thursday September 12, 2019. Located at the beautiful Atlanta Botanical Gardens, this two-track format addressed the emerging issues that keep you up at night. Some session topics included: the rise in tort litigation, putting together the pieces of the wrongful death case, effective use of recorded statements and the material misrepresentation defense, liability exposure in the age of active shooters and the impact bias has on case evaluation and jury deliberations. For more information on this seminar, please contact Michelle Mattox.
SC Lawyer article by Laura Paton, Sarah Wetmore and Clinton Magill on the possible uses of Fitbit data cited by the Wall Street Journal in Law Blog
April 27, 2016
SC Lawyer article by Laura Paton, Sarah Wetmore and Clinton Magill on the possible uses of Fitbit data cited by the Wall Street Journal in Law Blog. The Wall Street Journal Law Blog is entitled, Prosecutors Say Fitbit Device Exposed Fibbing in Rape Case. Laura Paton, Sarah Wetmore, and Clinton Magill's article entitled, "How Wearable Fitness Devices Could Impact Personal Injury in South Carolina" was published in the January 2016 SC Lawyer publication. SC Lawyer is a publication of the South Carolina Bar. With the emergence of the wearable fitness device market comes an increase in personalized health and fitness data for discovery and investigation on using information from fitness devices in personal injury litigation. Laura Paton is of counsel and Sarah Wetmore is a partner in the Charleston office of Carlock, Copeland & Stair, LLP. Clinton T. Magill is an associate in the Atlanta office. With express permission to reprint by SC Lawyer Magazine, January 2016 Edition©.
The Law of Energy Symposium
February 5, 2016
Article by Laura Paton, Sarah Wetmore and Clinton Magill on the possible uses of Fitbit data cited by the Wall Street Journal in Law Blog
April 22, 2016
Article by Laura Paton, Sarah Wetmore and Clinton Magill on the possible uses of Fitbit data cited by the Wall Street Journal in Law Blog. The Wall Street Journal Law Blog is entitled, Prosecutors Say Fitbit Device Exposed Fibbing in Rape Case.
Publications and Presentations
Clinton Magill Moderates CLE Panel on Gun Violence at MUSC’s 35th Annual Judges and Attorneys Substance Abuse and Ethics Seminar
December 7, 2018
On December 7, 2018, Clinton Magill moderated the “Gun Violence Panel” at MUSC's 35th Annual Judges and Attorneys Substance Abuse and Ethics Seminar. The Seminar brought together legal and clinical experts to present the latest information on substance abuse and related mental health problems and addressed how the legal system responds to those issues. Clinton’s panel sought to clarify common misconceptions and complexities of the term “mental illness” and its alleged link to gun violence. The panel also discussed the existing legal framework governing access to firearms, as well as the feasibility of any potential changes to that framework and other practical matters to consider in addressing the prevalence of gun violence. The South Carolina Department of Mental Health, Medical University of South Carolina (“MUSC”), and the South Carolina Bar Association co-sponsored this educational event. Clinton’s panelists were Dr. Jeffrey S. Cluver, M.D., Deputy Chair and Vice Chair for Education & Training in the Department of Psychiatry and Behavioral Sciences at MUSC and Professor Miller W. Shealy, Professor of Law in Criminal Law, Criminal Procedure, and Evidence at the Charleston School of Law. For more information on the Annual Judges and Attorneys Substance Abuse and Ethics Seminar, please click here.
Insurer Discovery in Bad Faith Litigation –Presentation at Carlock Copeland’s Annual Insurance Coverage and Bad Faith Seminar
August 23, 2018
Insurer Discovery in Bad Faith Litigation – Protecting the Claims File, Dangers of the 30(b)(6) Deposition, and Walking the Former Employee Tightrope Presenters provided insight and options regarding discovery issues arising in the defense of bad faith litigation, including plaintiff’s efforts at discovery of the insurer’s file, handling and preparing for the 30(b)(6) deposition, and who is entitled to meet with former employees and how to safely do so. Presenters/Co-Authors: Ryan Wilhelm, Clinton Magill and Clinton Fletcher. For more information on this presentation, please contact Michelle Mattox at email@example.com.
Who Wants to be a Coverage Millionaire? – Presentation at Carlock Copeland’s Annual Insurance Coverage and Bad Faith Seminar
August 23, 2018
August 23, 2018 several Carlock Copeland attorneys presented Who Wants to be a Coverage Millionaire? at our Annual Insurance Coverage and Bad Faith Seminar in Atlanta, Georgia. This fun and audience-interactive program explored constantly evolving coverage issues and allegations of bad faith. The program was designed to offer insight and guidance on effectively identifying and using coverage defenses, as well as providing tools and techniques to resolve potential bad faith claims. Presenters/Co-Authors: Clinton Magill, Alex Davis, Charles McDaniel, Jr., Sarah Wetmore, Abby Grozine, Brian Spitler and Graham Thompson. For more information on this presentation, please contact Michelle Mattox at firstname.lastname@example.org.
Putative Class Action Plaintiffs Cannot Escape Their Enemy at the Gates – Article by Tyler Winton, Alex Davis & Clinton Magill
July 18, 2017
Recent article by Tyler Winton, Alex Davis & Clinton Magill published in SCDTAA's The Defense Line, Vol. 45, No. 1. Not long ago, many practitioners likely thought that class actions, while a relatively novel approach to large-scale construction defect claims, had limited realistic utility in construction defect litigation. Recently, however, courts have more leniently construed the concept of commonality, which has resulted in the filing of— and approval of—more and more putative class action construction defect claims every day. To remain vigilant in protecting our clients’ individual defenses, we as practitioners must find “new” ways to combat class certification. Recently, the South Carolina Court of Appeals recognized the validity of a class action waiver in Gates at Williams-Brice Condominium Ass'n v. DDC Construction, Inc. This article will briefly explore the growing class action trend and then dissect the courts’ holding in Gates and the lessons to be learned therefrom. While we do not have precise statistics on the frequency of class action construction defect claims in South Carolina, judging from the number of class action claims that we defend in our office alone; its popularity does not appear to be waning. Rather, the number of construction defect class actions seems to be growing, and the class actions themselves are proliferating. Unsurprisingly, the most frequent construction defect and design defect claims we encounter relate to condominium complexes. Nevertheless, we also see claims—albeit less frequently—relating to tract home builders that implement common construction methods on debatably similar single-family homes or townhome units. Plaintiff’s counsel will invariably offer differing justifications for the use of class actions to pursue their clients’ interests. Although we have had success in defeating the certifications of putative classes, and thus avoiding some of the risks inherent in class action litigation; frankly speaking, it is difficult to ignore the many potential benefits that encourage some plaintiff’s counsel to focus their practice on larger, multi-family putative class action claims. For some plaintiff’s counsel, the potentially limited financial and labor investments (e.g., avoiding retention of multiple experts, the shorter total duration of class claims versus the cumulative duration of every individual claim, etc.) pales in comparison to the potential recovery for, inter alia, percentage-based attorneys’ fees calculated from the entire class action settlement. This often makes representation of a putative class too enticing of an opportunity not to pursue. But wait, how did we get here? Arguably, class action litigation had its origin in bills of peace in equity involving multiple parties. A bill of peace could be brought when a lord of the manor appropriated village common lands to the loss of the manorial tenants, or when a vicar quarreled with his parishioners about tithes. For a time, class action litigation in South Carolina was governed by S.C. Code § 15-5-50 (prior to July 1, 1985), which provided: “When the question is one of common or general interest to many persons or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.” Common law roots of the class action "bill of peace" were eventually thrown out in Baughman v. Am. Tel. & Tel. Co. In that case, the Court stated that SCRCP Rules 23 and 42 (related to class actions and consolidation) had the same effect as a bill of peace and thus rendered it unnecessary. Today, parties seeking class certification bear the burden of proving five prerequisites under South Carolina law. A class may be certified only if all prerequisites under Rule 23(a), SCRCP are satisfied. The court must find: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; (4) the representative parties will fairly and adequately protect the interests of the class; and, (5) the amount in controversy exceeds one hundred dollars for each member of the class. In deciding whether class certification is proper, the court must apply a rigorous analysis to determine each prerequisite is satisfied. The burden in proving the five prerequisites under South Carolina law rests with the plaintiffs. Importantly, “[t]he failure of the proponents to satisfy any one of the prerequisites is fatal to class certification.” Notwithstanding these established rules for determining the appropriateness of putative class action claims, litigators continue to argue over how to actually apply the rules in the context of ever-proliferating class action scenarios. Although the courts’ trending liberal interpretations of commonality and typicality have certainly betrayed many defense attorneys’ principled understanding of the class action device, these loose interpretations did not appear out of thin air, devoid of any rational justification. Rather, they are likely a byproduct of the situational impracticality of trial courts efficiently and effectively presiding over hundreds—or even thousands—of individual homeowner claims in construction defect cases. In those situations, courts have become increasingly amenable to approving a putative class representing a bloated collection of homeowners with similar claims stemming from the same development. However, as the number of class actions has grown, so too have the recognized defenses to certification. One recent and important example is the class action waiver defense. This defense, as recognized by the Court of Appeals in Gates, is explored below. On August 31, 2016, the South Carolina Court of Appeals issued a decision clarifying the extent to which defendants may utilize certain defenses to Rule 23 class actions. In Gates, the Court of Appeals was asked to determine whether a class action waiver in the Master Deed of a condominium complex could prohibit the complex’s property owners’ association from bringing a class action against the developer and a number of contractors involved in the construction of the units. In Gates, the putative class members alleged a myriad of construction defects at the project. In response, the defendants sought enforcement of a class action waiver contained within a jury trial waiver subsection of the alternative dispute resolution section of the Master Deed. The Master Deed was originally drafted by the developer; however, shortly after the class action complaint was filed, the property owners’ association amended the master deed. The master deed was amended to remove class action and jury trial waiver provisions, as well as provisions related to the limitation of warranties and arbitration. The defendants filed a motion for a non-jury trial and to strike the homeowners’ class action allegations and jury trial demand more than a year after the original complaint was filed— but only three days after the final defendant in the case answered the second amended complaint. The trial court denied the defendants motion on a number of grounds, including (1) that the master deed had been amended to remove the provisions in question; (2) that the defendants waived enforcement of the arbitration provisions in the Master Deed, which included the class action and jury trial waiver; (3) that the provisions in question were unconscionable, oppressive, and one-sided and, therefore, not enforceable; and, (4) that the defendants failed to timely challenge the amendment or to challenge the mode of trial. On appeal, the South Carolina Court of Appeals rejected each of the trial court’s grounds for refusing to grant Defendants motion. The court held that the amendments to the master deed, which occurred after the initial filing of the complaint and as a result of the litigation, could not retroactively remove the class action and jury trial waivers. Furthermore, the court found that the waivers were “conspicuous and unambiguous” and “expressly incorporated into each unit owner’s purchase contract.” The court also noted that each purchaser was represented by counsel during the closing for the unit and could have directed questions about these waivers to counsel. In light of this, the court held that the waivers were knowing and enforceable. Finally, because it determined that the waivers remained valid and enforceable despite the decision of the Defendants not to seek arbitration, the court found that the jury trial and class action waivers were “completely separate and distinct” and set forth in different subsections of the master deed.  Therefore, the court reversed the decision of the trial court and remanded the case with instructions to grant the motion for a nonjury trial and strike the class action allegations.  Two non-exhaustive, but important lessons should be taken from the Court of Appeals’ decision in Gates. First, it is imperative that construction defendants named in a putative class action complaint immediately investigate whether defenses such as class action waiver, jury trial waiver, or arbitration agreements should be asserted in a responsive pleading. In Gates, a substantial portion of the parties’ arguments and the written opinion of the court were dedicated to the issue of whether or not the Defendants had properly and timely raised the mode of trial defenses. Although the Court of Appeals ultimately held that the issue was sufficiently raised and pled, early research and review of the Master Deed or other agreements and the specific assertion of class action waiver, jury trial waiver, the existence of an arbitration agreement, and other affirmative defenses may help avoid the need for costly appeals over these defenses. The second lesson gleaned from Gates is that developers should continue to utilize clear, unequivocal language to waive the right to class actions and non-jury trials in Master Deeds. The provisions of the Master Deed should also be incorporated into the bylaws of the property owners’ association, as the Gates court found this incorporation by reference to be additional support for its finding that the waivers in that case were enforceable. Although the class action trend in construction defect litigation is unlikely to dissipate anytime in the near future, more defenses to certification will be recognized as the class action enters a growing spotlight. While not an entirely novel concept, the class action waiver is now a recognized defense in South Carolina. Defendants should always be sure to check the Master Deed for class action waiver language, as they may be able to nip a putative class action in the bud. Because we handle more and more construction defect class actions every day, we are in a prime position to keep you apprised of the important developments in this area of the law.  No. 5438, 2016 S.C. App. LEXIS 110 (Ct. App. Aug. 31, 2016).  See Stephen C. Yeazell, Group Litigation and Social Context: Toward a History of the Class Action, 77 COLUM. L. REV. 866, 866-96 (1977).  In re Consumers Power Co. Sec. Litig., 105 F.R.D. 583, 600 (E.D. Mich. 1985).  378 S.E.2d 599, 601 (1989).  See Rule 23(a), SCRCP; Waller v. Seabrook Island Prop. Owners Ass'n, 388 S.E.2d 799, 801 (1990).  Rule 23(a), SCRCP.  Waller, 388 S.E.2d at 801 (citing General Telephone Co. of Southwest v. Falcon, 457 U.S. 147 (1982)).  Id. at 801.  Ferguson v. Charleston Lincoln/Mercury, 544 S.E.2d 285, 289 (Ct. App. 2001) (quoting Waller, 388 S.E.2d at 801).  No. 5438, 2016 S.C. App. LEXIS 110.  Id. at *1.  Id. at *8.  Id. at *4-5.  Id. at *4-7.  Id. at *7-8.  Id. at *8-9.  Id. at *10-30.  Id. at *10-30.  Id. at *10-30.  Id.  Id. at *28. The court of appeals also noted that whether or not the homeowners were aware of the waivers, they could not avoid their effect under South Carolina law. Id. at *26.  Id at *29-30.  Id at *30-31. On November 17, 2016, the South Carolina Court of Appeals denied Plaintiffs petition for rehearing in this matter. Gates at Williams-Brice v. DDC Constr., Inc., No. 5438, 2016 S.C. App. LEXIS 151, at *1 (Ct. App. Nov. 17, 2016).  See, e.g., 2016 S.C. App. LEXIS 110, at *12-19.  See id. at *26 For more information on SCDTAA's Publication The Defense Line or to read the entire publication, click here.
What Every Adjuster Needs to Know: Part II by Sarah E. Wetmore & Clinton T. Magill
March 7, 2017
Welcome to Part II of the wild world of additional insureds (AI)! Last quarter, we introduced you to the basics regarding additional insured coverage and provided you with two essential practice tips to remember: (1) check the form; and, (2) read the contract. Although the importance of our essential practice tips cannot be overstated, they are simply the initial steps. Now that you have these fundamental tools in hand, it’s time to start peeling back the intricate layers of AI law. And remember, in this swiftly developing realm of AI, “[i]t is in the circumstantial detail, the embellishing touches of probability, the general air of scrupulous—almost of pedantic—veracity, that the experienced [adjuster] is seen.” In this second installment of our AI series, we will explore two issues that every professional should understand, as they are quickly taking a front seat in AI disputes across the country: priority of coverage and contribution among insurers. Who has Priority of Coverage? The question of which insurance carrier has priority of coverage between a primary carrier for a purported additional insured and a carrier who provides additional insured coverage is an issue that commonly arises in the additional insured context. Many “additional insured endorsements” attempt to address this issue and read something like this: Any coverage provided by this endorsement to an additional insured shall be excess over any other valid and collectible insurance available to the additional insured . . . unless the “written contract” specifically requires that this insurance be primary and that the additional insured’s primary coverage be non-contributory. Although this language is seemingly concise, courts must still analyze whether the written contract between the actual parties to the litigation—e.g., the general contractor and the subcontractor—indicates a requirement that the additional insured coverage be primary. Unfortunately, many construction contracts are unclear when it comes to additional insured requirements. Courts in Georgia have analyzed additional insured endorsements with language similar to the one above. Generally, in determining whether an endorsement creates excess or primary coverage, the Georgia courts have first looked to the contractual language related to insurance coverage. From this language, the courts have tried to ascertain the intent of the parties. In doing so, these courts have typically looked at whether the contract requires the company or individual seeking coverage—normally, the general contractor—be added to the subcontractor’s policy as: (1) an additional insured; or, (2) a named insured. In interpreting language constituting the former requirement of “additional insured” status, courts have indicated in dicta that this type of language reveals no requirement of primary coverage. On the other hand, these same courts have unequivocally found that the latter requirement of “named insured” status indicates a requirement of primary coverage. For example, in 3060 Corp. v. Crescent One Buckhead Plaza, L.P., the Georgia Court of Appeals found that a lease agreement requiring that the tenant get an insurance policy for the landlord that specifically listed the landlord as a “named insured” was sufficient to show a “requirement” that the tenant’s insurance be primary. In any event, more often than not, the additional insured will have its own Commercial General Liability (“CGL”) policy providing coverage for the claim at issue. This in turn raises the question of which policy provides primary coverage—the additional insured’s policy or the named insured’s policy. Some policies contain an “other insurance” clause which renders its coverage excess above any other insurance available to the additional insured. Problems can arise, however, when the additional insured’s policy also contains an “other insurance” clause which renders its coverage excess above other policies. In that instance, most courts find that the “other insurance” clauses cancel each other out and require that the insurers split the additional insured’s defense costs pro rata. Case law deciphering priority of coverage in the AI context is still developing, with many interesting cases currently being litigated. Nevertheless, the cases out of Georgia provide a trustworthy prediction of how courts in other jurisdictions will handle similar issues. Importantly, those cases provide three key questions that should be answered before a court can determine the priority of coverage: (1) whether there is an additional insured endorsement and what language is utilized therein; (2) whether there is an “additional insured” or “named insured” requirement in the parties’ written contract; and (3) whether one or both policies contain an “other insurance” clause. Contribution Among Insurers Beyond the duty to indemnify and the priority of coverage therein is the duty to defend. There are two schools of thought in this regard, and both are represented in the Southeast. In Florida, while there is a right to contribution for indemnity payments among insurers, there is no reciprocal right to contribution for defense costs. The courts’ justification is that there is an absolute duty for each insurer to defend and the benefit of that defense is inherently granted by each policy. Accordingly, any rights, duties, or benefits of a different insurer should not be considered. Like in Florida, South Carolina similarly bars contribution among insurers for defense costs. There, the U.S. Court of Appeals for the Fourth Circuit similarly found that under South Carolina law the duty to defend is personal to each insurer. In other words, the Fourth Circuit found that by simply defending, the insurer is doing nothing greater than what it had personally obligated itself to do by contract. A second school of thought is found in Georgia. Under Georgia law, equitable contribution is not permitted between two insurers. However, unlike in Florida and South Carolina, the existence of an “other insurance” clause—which is found in most modern insurance contracts—constitutes a sufficient contractual agreement to allow one insurer to seek contribution from another insurer for defense costs. North Carolina also has an exception whereby contribution is available between insurers. There, while an insurer who has a duty to defend its insured may not recover its defense costs from another insurer who also has a duty to defend, if an insurer has no real duty to defend under its policy but defends anyway, contribution is available to that insurer. Like priority of coverage issues, contribution in the AI context is still a developing area of the law. It remains to be seen which school of thought gains more traction across the courts in the various states. We look forward to keeping you updated on any new developments, and we will continue to provide you with timely and important insight throughout this quarterly AI series. Stay tuned for more important practice tips in our third AI series installment coming in the second quarter of 2017!  If you missed our first installment of this AI series, you can access that article here.  Jerome Klapka Jerome, Three Men in a Boat 217 (1889).  Generally speaking, “[a]dditional insured endorsements  take one of two forms: (1) specific endorsements in which the additional insured is named explicitly, or (2) ‘omnibus additional insured’ endorsements in which the specific additional insured is not named but instead meets a definition provided.” Ins. Co. of Pa. v. APAC-Southeast, Inc., 677 S.E.2d 734, 736 (Ga. Ct. App. 2009).  See, e.g., id. at 740 (finding language in a subcontract ambiguous because it “did not require excess policy coverage but [did] require additional insured coverage to be obtained for such a policy once procured”).  See, e.g., 3060 Corp. v. Crescent One Buckhead Plaza, L.P., 686 S.E.2d 367 (Ga. Ct. App. 2009).  See, e.g., id.  See, e.g., id.  See, e.g., id. at 370-71.  See, e.g., id. at 370.  686 S.E.2d 367 (Ga. Ct. App. 2009).  See, e.g., Certain Underwriters at Lloyds v. Waveblast Watersports, Inc., 80 F. Supp. 3d 1311 (S.D. Fla. 2015); Northland Ins. Co. v. Am. Home Assur. Co., 689 S.E.2d 87 (Ga. Ct. App. 2009); see also State Farm Fire & Casualty Co. v. Holton, 205 S.E.2d 872 (Ga. Ct. App. 1974) (“Where . . . both insurers attempt to limit their liability to excess coverage ‘if there is other insurance,’ then the clauses are irreconcilable, cancel each other out, and the liability is to be divided equally between them.”).  Compare Cont'l Casualty Co. v. United Pac. Ins. Co., 637 So. 2d 270 (Fla. Dist. Ct. App. 1994), and Auto-Owners Ins. Co. v. Travelers Cas. & Sur. Co. of Am., 597 Fed. Appx. 197 (4th Cir. 2015), with Graphic Arts Mut. Ins. Co. v. Essex Ins. Co., 465 F. Supp. 2d 1290 (N.D. Ga. 2006).  See, e.g., Cont'l Casualty Co., 637 So. 2d 270.  See, e.g., id.  See id.  See, e.g., Auto-Owners Ins. Co., 597 Fed. Appx. 197.  See id.  See id.  See, e.g., Graphic Arts Mut. Ins. Co. v. Essex Ins. Co., 465 F. Supp. 2d 1290 (N.D. Ga. 2006).  See, e.g., id.  See, e.g., id.  See Nationwide Mut. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 470 S.E.2d 556 (N.C. Ct. App. 1996).  See id.
What Every Adjuster Needs to Know: Part I by Sarah E. Wetmore & Clinton T. Magill
December 19, 2016
Additional Insured (AI) demands are on the rise in South Carolina. Those demands are increasingly having a significant impact on construction litigation disputes with general contractors, developers, subcontractors (and their respective carriers) fiercely debating the obligations under their contracts and insurance policies. To help you navigate this complex topic, we have broken down what you need to know about AI issues into a series of articles in a series of quarterly writings. Welcome to Part I of the wild world of AI. For more information please click here.
Carlock, Copeland & Stair, LLP Recently Added New Attorneys to the Atlanta and Charleston Offices
November 16, 2016
Carlock, Copeland & Stair, LLP recently added new attorneys to the Atlanta and Charleston offices. Thomas R. Cook IV is an associate attorney in the firm’s Atlanta office with a practice focused primarily on defending employers and insurers in workers’ compensation cases. Prior to joining the firm, T.R. worked on the plaintiff/claimant side representing clients in personal injury and workers’ compensation cases. T.R. began his legal career as a criminal defense attorney. In that capacity, he represented clients accused of crimes throughout Georgia in State, Superior, and Federal courts. T.R. earned his bachelor’s degree, cum laude, in global politics and economics from the University of Tennessee. He received his law degree from Mississippi College School of Law. Clinton T. Magill is an Associate in the Charleston office. Clinton practices general civil litigation with a focus on complex cases involving commercial litigation and construction litigation. He is a member of the American Bar Association and has been published on evidentiary and procedural matters in both SC Lawyer magazine and Charleston Law Review. Clinton earned his B.B.A. in Accounting from the University of Miami (FL) and graduated summa cum laude from the Charleston School of Law. While in law school, he served as the Symposium Editor of Charleston Law Review, as Vice President of the Healthcare Law Society, and as a Teaching Fellow for the Legal Research, Analysis, and Writing Department. He also spent a semester externing for The Honorable David C. Norton; U.S. District Judge for the District of South Carolina. Clinton received Cali Awards (highest class grade) in several classes, including Legal Research, Analysis, and Writing I & II, Civil Procedure, International Business Transactions, and War Crimes & Courts – Martial. Prior to law school, Clinton was a Financial & HR Analyst for a subsidiary of one of the world’s largest cosmetic companies. He has also served as a Pro Bono Legal Intern for the ACLU of South Carolina, and has frequently volunteered for organizations such as the Ronald McDonald House Charities of Charleston, Habitat for Humanity of Greater Miami, and Special Olympics. Clinton is a proud Charleston native and alumnus of Porter-Gaud School. Brett C. Giordano is an associate in our Atlanta office. He is a member of the commercial litigation and construction litigation groups. A native of Providence, Rhode Island, Michael received his undergraduate degree in Political Science, Bachelor of Arts, and minor in Business. He received his law degree from Mercer University, Walter F. George School of law, cum laude. Brett was a member of Mercer Law Review and on the Dean's List, Fall 2008, Spring 2009 and Spring 2010. Please click here for the Press Release.
Laura Paton, Sarah Wetmore and Clinton Magill Published in SC lawyer Magazine – January 2016 Edition
January 6, 2016
With the emergence of the wearable fitness device market comes an increase in personalized health and fitness data for discovery and investigation on using information from fitness devices in personal injury litigation. Laura Paton, Sarah Wetmore, and Clinton Magill's article entitled, "How Wearable Fitness Devices Could Impact Personal Injury in South Carolina" has been published in SC Lawyer. SC Lawyer is a publication of the South Carolina Bar. Laura Paton is of counsel and Sarah Wetmore is a partner in the Charleston office of Carlock, Copeland & Stair, LLP. Clinton T. Magill is in his third year at the Charleston School of Law. Please click here to review the SC Lawyer January 2016 cover. To read the complete article, click here. With express permission to reprint by SC Lawyer Magazine, January 2016 Edition©.