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North Carolina Litigation Blog

North Carolina Litigation Blog

Category Archives: NC Court of Appeals

NC Court of Appeals Affirms Election of Remedies in Legal Malpractice

02 Monday Jan 2012

Posted by McIlveen Family Law Firm in law, Liability, NC Court of Appeals, NC Law, Negligence, News

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Court of Appeals, Law, Lawyer, Legal malpractice, NC Court of Appeals, Plaintiff, Summary judgment

I received a great Christmas present when the NC Court of Appeals issued an opinion in Danius v. Rogers, affirming summary judgment on behalf of a lawyer in a legal malpractice case I was defending. The plaintiffs settled the two underlying cases with the original tortfeasors and then filed suit against my client arguing that the lawyer’s alleged malpractice had damaged the settlement they were able to obtain. I argued that the plaintiffs had waived any claims against their attorney by electing to settle with the original tortfeasors. The Court of Appeals affirmed summary judgment, holding that the election of remedies barred the plaintiffs from pursuing claims of malpractice. A summary of the opinion appeared in the NC Lawyers Weekly December 28, 2011 edition under “Important Decisions”. The full opinion can be read here.

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Actual Notice Required to Trigger Duty to Defend

25 Friday Mar 2011

Posted by McIlveen Family Law Firm in Insurance, Insurance Coverage, NC Court of Appeals, NC Law

≈ 1 Comment

Tags

Actual notice, Good faith, Insurance

Insurers need actual notice to require a duty to defend. If you are an insured and you have been served with a lawsuit the first thing you need to do is notify your insurer in writing. If you fail to notify your insurer you will have to prove to the court that you had a good faith reason for the failure. This is becoming harder and harder to do. Great American Ins. Co. v. C.G. Tate Construction Co., 315 N.C. 714 (1986). See also Kubit v. MAG Mutual Ins.

Related Articles
  • No Triggering Event, No Duty to Preserve (bowtielaw.wordpress.com)
  • Chinese Drywall Ruling Lifts Builders’ Prospects (blogs.wsj.com)

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Insurance Not Responsible for Expert Witness Fees

25 Friday Mar 2011

Posted by McIlveen Family Law Firm in Insurance, NC Court of Appeals, NC Law

≈ 1 Comment

Tags

expert witness, Expert Witnesses, Insurance, Law

Most of the time the insurance company will be responsible for expert witness fees when the insurer has a duty to defend but not in Bain v. Unitrin Auto and Home Ins. Co. The N.C. Court of Appeals, held that where the insured hired the expert witness on his own before filing a counterclaim that gave rise to the insurer’s duty to defend the insurer was not responsible for the expert’s fees even if the expert testified regarding the counterclaims that the insurer was defending.

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Charlotte Observer Endorses Candidates for Judge

26 Tuesday Oct 2010

Posted by McIlveen Family Law Firm in NC Court of Appeals, NC Law, News

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Election, John Arrowood, Linda Stephens, N.C., N.C. Court of Appeals, Observer, Sam Ervin

The Charlotte Observer

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The Observer announced it is endorsing Judge James (Jim) Wynn, Sam Ervin, Doug McCullough, Linda Stephens, John Arrowood,

via We recommend four for Court of Appeals – CharlotteObserver.com.

Related Articles
  • Instant runoff to be used for first time this election (charlotte.news14.com)

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Court Holds Student’s Constitutional Rights Violated by Principal’s Questioning in Presence of Police

21 Thursday Oct 2010

Posted by McIlveen Family Law Firm in Criminal, NC Court of Appeals, NC Law

≈ 1 Comment

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5th Amendment, Fifth Amendment to the United States Constitution, Miranda warning, Parent, Police officer

School (1)

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The Court in a well reasoned opinion, held that a juvenile in the a school setting who is questioned by the principal in the presence of a police officer is in custody for the purposes of the 5th Amendment and therefore, entitled to the appropriate Miranda warnings.

In order to protect the 5th Amendment rights against self incrimination, suspects including juveniles are entitled to Miranda warnings prior to police interrogation.

The N.C. Juvenile code provides additional protections for juveniles who are in custody. Prior to questioning the juvenile must be told that he has the right to remain silent, that any statement can and may be used against him, that he has the right to have a parent present during custody, and that he has a right to have an attorney to consult with and that if he cannot afford an attorney one will be appointed to him.

Additional protections apply to juveniles 14 years of age and under. When the juvenile is less than 14 years of age, no in‑custody admission or confession resulting from interrogation may be admitted into evidence unless the confession or admission was made in the presence of the juvenile’s parent, guardian, custodian, or attorney. If an attorney is not present, the parent, guardian, or custodian as well as the juvenile must be advised of the juvenile’s rights as set out above; however, a parent, guardian, or custodian may not waive any right on behalf of the juvenile.

The Court In re K.D.L,  held that custodial interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” An objective totality of the circumstances test is used to determine whether the suspect has been taken into custody.

The Court reasoned that a juvenile who is questioned throughout the day by the principal for criminal conduct was treated in such a way that a reasonable person in his situation would believe he was functionally under arrest. The Court went on to hold that while the officer did not question the juvenile a reasonable person would believe that the officer was there in concert with the principal and that a failure to answer questions by the principal would lead to criminal charges.

See the entire opinion at

http://www.aoc.state.nc.us/www/public/coa/opinions/2010/pdf/091653-1.pdf

Related Articles
  • What is a Miranda Warning? (brainz.org)
  • High court trims Miranda warning rights bit by bit (seattletimes.nwsource.com)

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Intermediate Scrutiny for Long Term Suspension

19 Tuesday Oct 2010

Posted by McIlveen Family Law Firm in NC Court of Appeals, NC Law, NC Supreme Court

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Tags

Constitutional Law and Civil Rights, Education, Student, suspension

High school students

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In King v. Beaufort County Board of Education, the N.C. Supreme Court reversed the Court of Appeals’ decision, which upheld the trial court’s judgment in favor of the defendant-school board.

The Plaintiff was a sophomore in high school. She was involved a school fight and suspended for 10 days. The principal then recommended she be suspended for the remainder of the school year. She appealed the decision.

The Court held that in NC there is a statutory but not a constitutional right to an alternative education. The Court reviewed the conduct of the school under the intermediate scrutiny standard. Under the state intermediate-scrutiny standard, school administrators must provide an important reason for denying students access to alternative education.

State law requires local boards of education to establish at least one alternative learning program and to create strategies for assigning long-term suspended students to it when feasible and appropriate. G.S. § 115C-47(32a). Since the General Assembly has chosen to grant this statutory right to long-term suspended students, school administrators must provide a reason to the student for excluding the student from an alternative learning program.

In King, the school failed to provide a reason for the denial of an alternative learning program. The Court held that the school must provide a reason for excluding the Plaintiff from an alternative learning program and that a failure to do so does violate the Plaintiff’s constitutional rights.

 

 

Related Articles
  • Ruling Limits State’s Power to Deny School in Suspensions (nytimes.com)
  • Court rules schooling not mandatory for suspended students (charlotte.news14.com)
  • Procedural Safeguards The Series – Part I (specialeducationlawblog.blogspot.com)

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Don’t Forget to Vote November 2nd

15 Friday Oct 2010

Posted by McIlveen Family Law Firm in NC Court of Appeals, NC Law, NC Supreme Court, News

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Ann Marie Calabria, Elections, Martha Geer, NC Court of Appeals, NC Supreme Court, Richard Burr, Rick Elmore, Robert C. Hunter, United States Court of Appeals for the Fourth Circuit

Vote 12345

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Election Day Info

United States Senate

Senator Richard Burr (Rep) http://burrforsenate.com/

Secretary of State Elaine Marshall (Dem)  http://www.elainemarshall.org/

Michael Beitler (Lib)   http://www.beitlerforussenate.org/

 

North Carolina Supreme Court

Justice Brady’s Seat

Judge Barbara Jackson.   http://www.judgebarbarajackson.com/

Judge Robert C. Hunter. http://www.judgebobhunter.org/

North Carolina Court of Appeals

Steelman Seat

Judge Sanford L. Steelman, Jr. http://www.judgesteelman.org/

Calabria Seat

Judge Ann Marie Calabria.   http://www.calabria4judge.com/

Judge Jane Gray.   http://www.judgejanegray.com/

Elmore Seat

Judge Rick Elmore.   http://www.judgeelmore.com/

Steven Walker.   http://walkerforcoa.com/

Geer Seat

Judge Martha Geer.   http://marthageer.com/

Dean Poirier.   http://www.poirier4justice.com/

Wynn Seat (instant runoff voting)

Governor Beverly Perdue appointed Judge Cressie Thigpen to fill the vacancy created by Judge James Wynn’s appointment to the Fourth Circuit Court of Appeals.  Because the vacancy was created after the primary filing period but more than 60 days before the general election, an election for this seat will occur on November 2, 2010.  For more information about the candidates and the voting process, see the NCBA’s flier at: http://www.ncbar.org/media/8254237/govAffairs_instantRunoffVoting_2010.pdf.

Want to know who paid for the race? http://www.sboe.state.nc.us/content.aspx?id=22

Related Articles
  • N.C. Court of Appeals swears in new member (charlotte.news14.com)
  • Nominee for 4th Circuit Among Handful of Judges Confirmed (legaltimes.typepad.com)
  • Burr uses Wynn confirmation to attack Democrats (bluenc.com)
  • NC-Sen: Burr (R) is most endangered Republican (dailykos.com)

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Teen Killed Using Shredder Cannot Meet Standard for Woodson Claim

14 Thursday Oct 2010

Posted by McIlveen Family Law Firm in Liability, NC Court of Appeals, NC Law, Negligence

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Tags

Negligence, Woodson, Workers' compensation

Industrial shredder and granulator with a conv...

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The N.C. Court of Appeals makes clear it takes more than negligence of the employer to meet the standard for a Woodson Claim. In Valenzuela v. Pallet Express, Inc., the Court upheld the trial court’s granting of summary judgment for the defendants, finding that the estate of a teenage boy who was killed while operating a shredder could not state a Woodson claim for negligence against his employer, even though the decedent was too young to operate the heavy machinery and a safety guard had been removed. The Court reasoned that there was no evidence that the employer knew its actions were substantially certain to cause serious injury or death.

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NCADA Announces Endorsements for Judicial Canidates

12 Tuesday Oct 2010

Posted by McIlveen Family Law Firm in NC Court of Appeals, NC Law, NC Supreme Court, News

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Tags

Barbara Jackson, NCADA, North Carolina, North Carolina Court of Appeals, North Carolina Supreme Court

Scale of justice, Enhanced version of an image...

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The North Carolina Defense Fund, the political action committee of the North Carolina Association of Defense Attorneys endorses Ann Clabria, Jane Gray, Mark Klass, J. Douglas McCullough, and Richard Elmore for the North Carolina Court of Appeals.

The North Carolina Defense Fund endorses Robert Hunter, and Barbara Jackson for the North Carolina Supreme Court.

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Res Ipsa Proper when Patient Falls From Gurney

04 Monday Oct 2010

Posted by McIlveen Family Law Firm in NC Court of Appeals, NC Law, Negligence

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Hospital, N.C., N.C. Court of Appeals, N.C. Law, res ipsa, Res ipsa loquitur

Medical personnel using a stretcher-type gurney.

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The N.C. Court of Appeals in Alston v. Granville Health System,  recently issued an opinion finding that a claim of negligence where the unconscious patient fell off a hospital gurney is proper under the doctrine of res ipsa loquitur.

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