Nexsen Pruet, PLLC

Periodically, Nexsen Pruet member Marc Manos, Chair-Elect of the SC Bar Torts and Insurance Practice Section Council, sheds light on a few recent cases from the Fourth Circuit Court of Appeals, focused in the areas of tort & insurance law.

Below are the tort and insurance cases of interest selected for March 2021 with links to the Fourth Circuit opinions referenced.

Lokhova v. Halper

No. 20-1437 (4th Cir. Apr. 15, 2021) (Published) DEFAMATION Plaintiff, a Russian born academic, alleged that news stories stating she was a Russian spy who engaged in an affair with General Flynn to compromise him were defamatory.  Articles published for the first time more than one year before filing the complaint were barred by Virginia’s one-year statute of limitations for defamation, even if seen by hyper-link or republication less than one year before filing.  The single publication rule makes the first publication the defamatory publication and starts the running of the statute of limitations.  Additional publications may support a greater damages award, but they are not new instances of defamation.  The two statements within the limitations period were not actionable.   The first stated General Flynn paid undue attention to a foreign graduate student who attended a dinner.  Even if a reader could surmise plaintiff to be the graduate student referred to, the statement only accused General Flynn of improper conduct. Plaintiff attempted to attribute tweets by an  NBC consultant to NBC News, but failed to allege any facts supporting vicarious liability of NBC for the tweets of the person who was not a named defendant.  Summary judgment for all defendants affirmed.

View case here.

Arch Ins. Co. v. Berkley Nat’l Ins. Co.

 No. 19-1773 (4th Cir. Apr. 13, 2021) (Unpublished) INDEMNITY/FAULT APPORTIONMENT Arch paid to settle a personal injury claim by a plaintiff who alleged injuries from an explosion caused when he lit a cigarette next to an active natural gas well.  Plaintiff, an employee of Stric-Lan, sued HG Energy (insured by Arch and Steadfast) for negligence in failing to keep a safe work-place and Stric-Lan (insured by Berkley) under West Virginia’s deliberate-intent statute.  Stric-Lan provided well-site services to HG Energy under a contract that provided for indemnification and that HG Energy would be an additional insured on Stric-Lan’s liability insurance.  HG Energy demanded indemnification from Stric-Lan. Stric-Lan tendered the demand to Berkley.  Stric-Lan and Berkley refused. Defense costs and settlement incurred by Arch and Steadfast totaled $6,150,000.  The district court entered summary judgment for Berkley and Stric-Lan.  The district court improperly relied on the repeal of West Virginia’s joint and several liability statute and replacement with a comparative fault statute enacted two years after filing of the underlying lawsuit.  The workers’ compensation statute made Stric-Lan, as plaintiff’s employer, statutorily immune from suit.  The district court also erred by saying the contract did not require indemnification because Stric-Lan was not named in the suit.  The contract required Stric-Lan to indemnify HG Energy if Stric-Lan in part caused the injury.  Judgment vacated and remanded for further proceedings to determine if Stric-Lan was, at least in part, the cause of the underlying injury thus triggering its duty to indemnify.

View case here.

Livingston v. S.C. Dept. of Soc. Services

No. 20-1552 (4th Cir. Apr. 20, 2021) (Unpublished) SECTION 1983, MALICIOUS PROSECUTION  Infant twins of the plaintiff parents seen in a hospital ER suffered from multiple bone fractures.  Parents told DSS and law enforcement that no one else had access to the infants.  Two reviewing doctors determined the infants suffered abuse by assault.  Husband confessed and was arrested and the couple’s three children were taken into protective custody.  Years later, another set of doctors determined that mother and the twins suffered from a rare genetic disorder resulting in weak and brittle bones.  A court found that the State coerced Husband’s confession.  The State dropped the criminal prosecution and DSS returned the children to the parents.  Both the section 1983 and state malicious prosecution claims required a lack of probable cause.  The district court granted the government defendants motion for summary judgment.  The Fourth Circuit affirmed.  The Fourth Circuit did not reach the admissibility of husband’s confession of the civil matter as the findings of the two doctors (one of whom a specialist in detecting child abuse) provided sufficient evidence for probably cause at the time of the arrest and removal.  The later medical findings could not be considered.

View case here.