Professional Negligence

All professionals, whether they be architects, lawyers, engineers or chiropractors, have a duty to conduct themselves in accordance with their professional standards.  If a professional deviates from those standards, he or she can be liable for any damages that result to the client.

If a person believes that he or she has not received proper professional assistance and has been damaged because of that action or inaction, the person should consult with a lawyer. Early consultation in these matters is essential to make sure that evidence is preserved and witnesses are contacted while their memories are fresh.  If you wait to consider pursuing such action, witnesses may have forgotten important facts or documents may no longer exist to support any possible claim.  Additionally, a strict statute of limitations likely applies and you must leave your attorney with enough time to find an expert witness before you can file a lawsuit.

In potential professional negligence matters, a competent lawyer will carefully assess the chances of prevailing.  If the case does not have merit, a competent lawyer should tell you so.  If the case does have merit, you need to consider all of your options.  Pope & Hudgens has successfully represented people harmed by the negligence of lawyers, accountants and other professionals who breached their duty of care and we offer free initial consultations in civil matters.

Condemnation – When the Government Wants Your Land

The Power of Eminent Domain

Most people do not realize the power that governmental agencies and power companies have to take property.  The right of “eminent domain” is one that is granted for public projects, such as roads, electric transmission lines, sewer projects and gas lines.  The right of eminent domain is the right of any agency to “purchase” private property without the consent of the landowner.  It is an awesome right that the courts in South Carolina have looked at very carefully to be sure the landowner is not mistreated.

The Rights of Landowners

While the law grants authority for these agencies to take lands of private citizens and companies for public purposes, the impact of such “taking” can be very detrimental to private landowners and businesses.  People affected by such projects have recourse in our legal system.

First, the condemning authority cannot be arbitrary in its route selection over private property.  It must utilize objective criteria for selecting a route.  Under South Carolina law, a private landowner can challenge the condemning authority’s right to take.  If a court determines that the route selection is arbitrary and without proper factual foundation, it will enter an Order of Injunction prohibiting the route.

Secondly, even where a condemnation project is for a legitimate purpose and the route is not arbitrary, the landowner is still entitled to full “just compensation” for the taking.  Just compensation includes the following elements:

  • Fair market value of the land taken (the area of the right of way or easement);
  • Any damages to the remainder of the property owned by the landowner, including damages outside the area of the right of way; and,
  • In certain cases, landowners can recover his/her attorneys’ fees, costs, and litigation expenses (such as appraisal fees and expenses).

Pope & Hudgens has represented dozens of landowners in condemnation cases in the last 40 years.  We have achieved successful jury verdicts or settlements which far exceed the value of the actual land used in the project.  Some examples:

  • $800,000 for 5 acres taken for a highway project
  • $170,000 (including fees and costs) for a 1-acre taking for a sewer project that adversely affected an entire horse farm
  • $100,000 (including fees and costs) for a 2-acre electric power line taking which caused damage to a landowner’s full use of a tract of land
  • $1,000,000 for a highway project taking 1-acre of land where the project cut off the landowner’s access to his property.
  • Verdict of 25% damage to the remainder of a 100-acre tract where a highway project taking less than 1 acre for widening a highway caused damage to the remainder of the tract

Jurors are very vigilant to consider the full scope of a taking on a landowner’s property.  They understand that taking a homeowner’s front yard to widen a highway is devastating to the use of that home and can result in a verdict for an amount that would award the landowner the full value of his home, as well as the portion taken.   If a landowner is ever faced with a condemnation, he or she needs to be sure they get proper legal advice from an attorney well-versed in condemnation law.

(Each case is unique.   Any result the lawyer or law firm may have achieved on behalf of clients in other matters does not necessarily indicate similar results can be obtained for other clients. Verdicts, awards, or total recoveries presented reflect gross numbers, are before attorney’s fees, costs, and expenses are deducted.)

ESTATE PLANNING: WHY IT IS IMPORTANT

Estate planning is important for many reasons, and contrary to some beliefs, it is not just for “rich folks” but rather important for everyone. The goal of proper estate planning is to provide you with peace of mind that your wishes will be honored.  Your estate plan should not be comprised of a generic form that you pulled off of the internet, but, instead, should be specifically tailored to your circumstances.  After all, what is right for some is not right for all.  Estate planning can consist of wills, trusts, business entities, lifetime gifts, advance medical directives, and any number of other documents.  Another benefit of a proper estate plan could be tax savings.  This post will address three of the most common estate planning documents and their application to the majority of people.

I.     LAST WILL AND TESTAMENT:

Anyone who is of age and has people and property that they care about needs a Last Will and Testament (“Will”).  It is a must.  This particularly true for married couples with minor children.  The law allows parents to appoint the person who will have custody of their minor children at their death.  Doing so avoids the prospect of an ugly battle among the grandparents or other family members with regard to who will have custody, and, instead, allows the parents to be in control of that important decision.  Moreover, a Will is important so that your surviving spouse actually receives the assets of your estate.  It is commonly thought that the estate automatically goes to your surviving spouse on your death.  This is simply not true.  In the absence of a Will, the law states that your estate is divided ½ to your surviving spouse and ½ to your children.  This leads to not only to a loss of control by the surviving spouse over the assets of your estate, but it also invites unnecessary expense, litigation, and the intrusion of a probate judge into your affairs.  In short, a Last Will and Testament allows you to control the disposition of your estate.

That said, there are many things that can go wrong in your estate plan if it is not done correctly.  There could be significant estate tax consequences which affect your estate plan.  There are also certain assets that will be controlled by your will and there are others which will not.   It is important that you have an experienced estate planning attorney guide you through the process so as to avoid Uncle Sam dipping into your pockets, or the pockets of your heirs, any more than is necessary.

 

II.     POWER OF ATTORNEY

Another common estate planning tool is the Durable Power of Attorney.  A power of attorney is “durable” only if it is drafted in compliance with South Carolina law and is intended to survive your later mental incompetence or physical disability. Such a power of attorney may provide your spouse, child or friend the authority to make decisions dealing with both your financial affairs and healthcare.  It is an unfortunate reality that everyone reading this post will experience a time in their lives when decisions need to be made but they will not be able to make them for one reason or another.  Hopefully, this occurs at the very end-stages of life, but it is most certainly a fact of life.  In the absence of a Power of Attorney in South Carolina, your family must file petitions with the Probate Court seeking a finding that your are “incapacitated” before they can obtain the legal authority to act on your behalf.  The Probate Court proceedings are less than ideal for many reasons.  First, it is expensive because it is time consuming for everyone involved:  you, the court, your attorney, and your doctors.  Moreover, it is litigation, which, therefore, introduces the potential of a legal fight among your family regarding who is going to be given the authority to make decisions for you.  Ultimately, it will be a probate judge, who you likely do not know, deciding weather and by whom any given decision is made.  It is, therefore, very important that you you have an experienced estate planning attorney draft your Durable Power of Attorney in a manner that allows you to choose your representative in a cost efficient manner.

 

III.   DECLARATION OF DESIRE FOR NATURAL DEATH (a/k/a “LIVING WILL”)

Finally, if you are sure that you would not want life support procedures or machinery used to prolong your death, you should have those wishes documented in the proper manner.  In South Carolina, the document is entitled a “Declaration for Desire of Natural Death”.  This is euphemistically called a “Living Will”.  This document merely states that in the event  two of your physicians (one being your treating or attending physician) certify in writing that the only purpose of giving you life support is to prolong your dying, then you direct that all life support be withheld or withdrawn.  In other words, a “Living Will” provides you with the opportunity to decide how you live your last days, not physicians or courts.  While South Carolina law states that your wishes expressed in this document can be legally enforced by taking the matter to court, the practical effect of the document most commonly experienced is that it takes the awful decision of whether and when to cease life support away from the family, removes any guilt associated with that decision and allows your family to know that doing so is exactly what you would have wanted.

 

You buy piece of mind with a properly executed estate plan.  There are many pieces to the estate planning puzzle.  You should only let an experienced estate planning attorney help you execute a plan that will, in the end, save you and your family money, give you piece of mind and help your family make decisions for you.   Your love ones are worth it.

Bad Faith Insurance Claims Keep Insurance Companies Honest

Everyone has insurance, whether it’s automobile, homeowners, or life insurance. Insurance policies provide benefits, but are often complicated and the “small print” in those policies sometimes take away the very benefits you thought you were paying for.   If you have, as a policyholder, a claim under an insurance policy that is not being handled fairly, you should be aware that you have legal rights of which you may not be aware.

The Supreme Court of South Carolina has held on numerous occasions that if an insurance company refuses to pay benefits under an insurance policy and such refusal was because of the insurance company’s “bad faith” or unreasonable actions, the insurance company can  be held liable for the policy amount and additionally for damages to the insured person for emotional distress and other consequential damages, plus potential punitive damages.

The firm of Pope & Hudgens has handled many bad faith insurance cases in recent years, including actions involving cancer insurance policies, automobile liability policies, and occupational accident policies.  In these cases, Pope & Hudgens has been successful in establishing that these insurance carriers breached their duty of good faith and fair dealings to their insureds.  Although each case is different and past results do not guarantee similar results in your case, Pope & Hudgens has been able to secure settlements and/or verdicts in excess of the amount owed under the policy.

If you feel an insurance company is not treating you properly, you should check with a competent lawyer to assess any potential legal action and to determine if you are entitled to damages far in excess of the policy benefits by virtue of bad faith insurance practices.

The law in South Carolina on bad faith refusal is designed to protect an insured who has every right to expect that his or her insurance company will perform as required.  Make sure your rights are protected by contacting competent, local attorneys with experience in handling bad faith claims.

New DUI Case Law

Several important cases have appeared in the South Carolina Appellate Courts during the last few months. One such case is State v. Sawyer decided by the S.C. Supreme Court in Opinion No. 27393 on June 4, 2014. The Supreme Court was reviewing an unpublished opinion of the S.C. Court of Appeals which held that the statutory mandate that the breath site videotape “must include the reading of Miranda Rights, the entire breath test procedure, the person being informed that he is being videotaped, and that he has the right to refuse the test…” S.C. Code Ann. §56-5-2953. The Supreme Court upheld the Court of Appeals’ opinion which indicates that he taping of the required warnings must include video and audio.

The South Carolina legislature has mandated that certain things be videotaped, both at the incident site and the breath test site, for all DUI arrest. While they are often called “loop holes” by law enforcement, it is actually a very important protection for the general public. Your constitutional rights which would normally prevail in any criminal investigation, including your right to remain silent and your right to counsel, have been curtailed by Court decisions throughout the last 20 years for a DUI investigation. It has often been said that there is a “DUI exception” for our Constitutional rights. The South Carolina legislature has partially reinstated some of those rights for the South Carolina motoring public. One such way is the institution of the videotaping statute.

One reason the video tape is so important is that the tape does not lie. The officer and the defendant are held to a higher standard of truthfulness when the video is there to either corroborate their story or to show any exaggerations. Our statute mandates certain things that must be captured on videotape or else the officer must provide a valid reason prior to trial for failure to produce the videotape.

The DUI law in South Carolina has many intricacies which are important for protecting your rights. Having an attorney that understands the law and can make certain that all of your rights are protected is essential. The State should have to meet their statutory obligations prior to revoking someone’s license, fining them thousands of dollars, forcing them to attend classes, causing them to lose their job, or even incarcerating them for a crime which they may not have committed. Choosing a knowledgeable, local attorney is crucial to protecting your rights.

Kyle Parker Named as Partner at Pope & Hudgens

The law firm of Pope & Hudgens, P.A has named Kyle Parker as a partner of the firm. Kyle joined the firm in 2005 after serving as a judicial law clerk for the Honorable J. Carlisle Overstreet and the Honorable Carl C. Brown, Jr. in Augusta, Georgia and an Assistant Solicitor for the First Judicial Circuit in Orangeburg.

Kyle represents clients in the drafting of wills, trusts, and other complex estate planning documents, along with helping clients navigate the complex area of long-term care and nursing home planning. Kyle is also an experienced probate and estate lawyer representing clients in will contests, guardian and conservator proceedings, estate administration, and other probate and estate related litigation. In addition, Kyle devotes a significant portion of his practice to real estate and business transactions, loan closings, and business formations, and handles foreclosure and partition cases, including the difficult and complex cases relating to “heir property”. Kyle is the only member of the National Association of Elder Law Attorneys practicing in Newberry, Laurens, Saluda, Fairfield, and Union Counties.

“Kyle’s service to his clients and work ethic made naming him as a partner an easy choice” said managing partner Tom Pope. He added that, “In addition to making sure the firms’ clients receive the highest quality of legal services, Kyle is also active in the community, which is also important to our firm.” Kyle served as President of the Newberry County Bar Association for 3 consecutive terms and as a member the Elder Law Committee of the South Carolina Bar. He is also an active member of the Rotary Club of Newberry and has presented at no-cost seminars on estate planning issues.

Kyle lives in Newberry with his wife, Melissa Whelchel Parker and son, Noah.