by Andrew Mathias
The South Carolina Supreme Court Historical Society conducted a Colloquium entitled “J. Waites Waring and the Dissent that Changed America” in Charleston on Thursday, May 19 and Friday, May 20, 2011. The Colloquium marked the 60th anniversary of the trial Briggs v. Elliot, South Carolina’s landmark school desegregation case arising out of Clarendon County that was consolidated on appeal with four other cases from around the country. The opinion issued by the Supreme Court of the United States in that consolidated appeal is known as Brown v. Board of Education.
The event kicked off Thursday night with a dinner at which Professor Charles Ogletree of the Harvard Law School delivered a wonderful speech concerning Briggs and the events leading up to the trial of the case. I had the privilege of sitting next to Judge Matthew Perry and listened to him tell stories of attending the trial at the Federal Courthouse in Charleston. Judge Perry, along with hundreds of other interested onlookers, packed into the relatively small court room to watch Thurgood Marshall present ground breaking evidence. This trial was the very first time Professor Kenneth Clark took the stand and gave expert testimony based in his tests using dolls to identify psychological harm to school children. I will remember forever Judge Perry’s stories about the trial and count it a wonderful blessing that I got to hear them first-hand.
The group reconvened the following morning at the Federal Courthouse to hear from a great lineup of speakers at a day long CLE. Presenters at the CLE included Chief Justice Jean Toal; Federal District Judges Richard Gergel, Michelle Childs, and Matthew Perry; as well as several history professors. The most impactful address was delivered by Joe DeLaine, son of J.A. DeLaine. J.A. DeLaine was the minister of St. Marks AME Church in Summerton, South Carolina and helped organize the group of parents that eventually became plaintiffs in Briggs. Joe DeLaine told stories about the families involved in the law suit, the trial, and the real-life sufferings experienced by each of them as a result of their actions. The Charleston Post and Courier ran a short piece on Joe DeLaine’s speech. It provides a little more detail and I recommend that you read it.
I wish I had more time to share details of the event and the history that I learned as a result of my attendance. But, I will simply say this: the 2011 South Carolina Historical Society Colloquium was the best CLE I have ever attended and believe it will be hard to top.
Tuesday, May 24, 2011
Thursday, May 19, 2011
SCOTUS Justices on legal writing--A few tips, and proof that you can't please everyone.
By Kirsten E. Small
Courtesy of The Blog of Legal Times comes news that legal writing guru Bryan Garner has release the full transcripts of his 2008 interviews with various Supreme Court Justices. The BLT's article is here, and the transcripts are available through the Scribes Journal of Legal Writing (an excellent resource, by the way).
Before hightailing it over to the Scribes site to download and read the transcripts until my nerdy little heart is content, a couple of highlights from the BLT article: short briefs are better than long, avoid legalese (and the improper use of "which"), and cite the record and cases honestly. Justices Thomas and Alito think the summary of argument is important; Justice Scalia thinks its a waste of space.
Finally, be advised that Justice Kennedy does not like it when lawyers verb words.
Courtesy of The Blog of Legal Times comes news that legal writing guru Bryan Garner has release the full transcripts of his 2008 interviews with various Supreme Court Justices. The BLT's article is here, and the transcripts are available through the Scribes Journal of Legal Writing (an excellent resource, by the way).
Before hightailing it over to the Scribes site to download and read the transcripts until my nerdy little heart is content, a couple of highlights from the BLT article: short briefs are better than long, avoid legalese (and the improper use of "which"), and cite the record and cases honestly. Justices Thomas and Alito think the summary of argument is important; Justice Scalia thinks its a waste of space.
Finally, be advised that Justice Kennedy does not like it when lawyers verb words.
Wednesday, May 4, 2011
Appeals in the digital age: Using [sic] when quoting a text message.
by Kirsten E. Small
This opinion by the Supreme Court of South Carolina caught my eye yesterday. The fact portion of the opinion involved the quotation of numerous text messages, which didn't phase me until I got to this one:
""Leav me tha f*k alone im nt gna txt u bak and I want nothng 2 do w u so jus get out mx [sic] life already."
My first thought was, "Why bother? The entire message is one long [sic]." But then I looked up the proper usage of [sic], and learned that "sic" is a word (not an abbreviation) derived from Latin that means "intentionally so written." So, the SC Supreme Court used [sic] not to point out the unconventional (to put it mildly) spelling of the text message, but rather to indicate that an actual error ("mx" instead of "my") was original to the text message, not an error in transcription by the court.
In other news, an amendment to SC Appellate Rule 219 became effective yesterday. The amended rule clarifies the procedure for seeking initial hearing en banc by the S.C. Court of Appeals.
This opinion by the Supreme Court of South Carolina caught my eye yesterday. The fact portion of the opinion involved the quotation of numerous text messages, which didn't phase me until I got to this one:
""Leav me tha f*k alone im nt gna txt u bak and I want nothng 2 do w u so jus get out mx [sic] life already."
My first thought was, "Why bother? The entire message is one long [sic]." But then I looked up the proper usage of [sic], and learned that "sic" is a word (not an abbreviation) derived from Latin that means "intentionally so written." So, the SC Supreme Court used [sic] not to point out the unconventional (to put it mildly) spelling of the text message, but rather to indicate that an actual error ("mx" instead of "my") was original to the text message, not an error in transcription by the court.
In other news, an amendment to SC Appellate Rule 219 became effective yesterday. The amended rule clarifies the procedure for seeking initial hearing en banc by the S.C. Court of Appeals.
Monday, May 2, 2011
The Fourth Circuit goes (almost) live.
by Kirsten E. Small
New Fourth Circuit Internal Operating Procedure 34.3 takes effect today. Beginning with the upcoming May term of court, recordings of oral arguments will be available for free on the Court's website, two days after argument.
The new rule takes effect just in time for the arguments on the health care law, which are scheduled for Tuesday, May 10.
New Fourth Circuit Internal Operating Procedure 34.3 takes effect today. Beginning with the upcoming May term of court, recordings of oral arguments will be available for free on the Court's website, two days after argument.
The new rule takes effect just in time for the arguments on the health care law, which are scheduled for Tuesday, May 10.
Wednesday, April 13, 2011
I'm not sure if Oscar Wilde would be amused or aghast.
By Kirsten E. Small
It's Wednesday, and in my household spring break is coming closer but is still three.whole.days away (my kids are certain they will not make it until Friday afternoon). So, it's time for a little levity, helpfully supplied by SCOTUS, the D.C. bar, and the D.C. Shakespeare Theater in the form of their annual mock trial, which this year is a send-up of "An Ideal Husband." You can read about it (and get a few laughs) here.
It's Wednesday, and in my household spring break is coming closer but is still three.whole.days away (my kids are certain they will not make it until Friday afternoon). So, it's time for a little levity, helpfully supplied by SCOTUS, the D.C. bar, and the D.C. Shakespeare Theater in the form of their annual mock trial, which this year is a send-up of "An Ideal Husband." You can read about it (and get a few laughs) here.
Friday, April 1, 2011
There Is A Need To Cross All Of The “T”s And Dot All Of The “I”s
by Stephen P. Groves, Sr.
Boyd v. Metropolitan Life Insurance Company, ___ F.3d ___ (4th Cir 2011)
(Case No. 10-1702, filed 31 March 2011) (http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/101702.P.pdf)
While this case is essentially directed to all of the Family Court practitioners out there, the basic premises apply to all attorneys. Make sure all of the “T”s are crossed and the “I”s are dotted. When your client or their opposition waives a right to something, such as insurance benefits, pension benefits, etc., make sure everyone who should know about the waiver does know – especially the plan administrator.
Emma Boyd lived in Charleston, South Carolina and worked for Delta Airlines. She participated in Delta’s ERISA-governed life insurance program administered by Metropolitan Life Insurance Company. Emma was married to Robert Alsager and he was her designated primary insurance beneficiary. Emma’s mother, Mary Boyd, was the contingent beneficiary. Sometime in 2007 or so Emma and Robert separated and, in April 2008, the Charleston County Family Court approved their separation and property settlement agreement. As part of the settlement, both Emma and Robert agreed to waive any of their respective rights to the other’s estate and/or property, including specifically any rights to life insurance proceeds. Emma did not, however, notify MetLife to change the policy beneficiary from Robert to either Mary or someone else.
Unfortunately, on November 8, 2008, Emma passed away suddenly. Mary Boyd and others filed a claim with MetLife for the insurance proceeds, noting Robert had previously waived any claim thereto, notwithstanding the settlement agreement. Robert also filed a claim with MetLife. Based upon the plan documents, MetLife determined Robert was entitled to the proceeds and ultimately paid the benefits to him.
Mary sent a letter to MetLife appealing the claim determination on the basis Robert had specifically waived his right to recover any of Emma’s insurance benefits. After the claim decision was upheld, Mary sued MetLife in Federal Court in Charleston. Senior United States District Judge C. Weston Houck granted MetLife’s motion to dismiss “concluding that MetLife had carried out its statutory obligations by disbursing benefits in accordance with the beneficiary designation form on file with the plan. (Slip Op., pp.4-5). Mary appealed to the Fourth Circuit.
Relying on Kennedy v. Plan Administrator for DuPont Savings & Investment Plans, ___ U.S. ___, 129 S.Ct. 865 (2009), the United States Court of Appeals for the Fourth Circuit affirmed the District Court. In Kennedy, the Supreme Court had concluded that ERISA required the plan administrator to disburse benefits “ ‘in accordance with the documents and instruments governing the plan.’ ” (Slip Op., p.5) (quoting 29 U.S.C. § 1132(a)(1)(D)). Furthermore, the Kenney Court concluded that “ ‘ERISA’s statutory scheme ‘is built around reliance on the face of written plan documents.’ ” (Slip Op., p.5) (quoting Kennedy, ___ U.S. ___, ___, 129 S.Ct. 865, 875) (quoting Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 83 (1995)).
In Kennedy, a case similar to this one, the ex-wife was a party to a divorce decree which divested her of any proceeds to her ex-husband’s retirement and/or pension benefits, but remained as the designated beneficiary on the plan documents for one of his pension benefit plans. After Mr. Kennedy passed, his estate’s executrix claimed the pension benefits for the estate based on the ex-wife’s benefit’s waiver. The Court rejected the argument and determined the plan administrator was statutorily required to pay benefits pursuant to the plan documents on file, regardless of any alleged waiver. Stated otherwise, “even though [the] ex-wife’s waiver was clear, the [Supreme] Court concluded it could not trump the plan documents.” (Slip Op., p.7) (citing Kennedy, ___ U.S. ___, ___, 129 S.Ct. 865, 874-875). See also Matschiner v. Hartford Life & Accident Insurance Co., 622 F.3d 885 (8th Cir. 2010) (similar case holding).
While this may seem a harsh result given Robert’s clear waiver of Emma’s insurance benefits in the settlement agreement, Emma’s (or her attorney’s) failure to actually have MetLife change the beneficiary is the real problem. To require a plan administrator to honor a beneficiary’s waiver as opposed to simply following the plan documents would clearly open the door to questions of whether the waiver was “voluntary”, “knowing”, “based upon adequate consideration”, and so on. This would be very time consuming, likely to engender significant litigation, and plainly unnecessary. A plan participant, like Emma, could easily avoid all of these machinations by changing the beneficiary designation to another person once the original primary beneficiary, like Robert, has waived his rights to the proceeds.
Boyd v. Metropolitan Life Insurance Company, ___ F.3d ___ (4th Cir 2011)
(Case No. 10-1702, filed 31 March 2011) (http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/101702.P.pdf)
While this case is essentially directed to all of the Family Court practitioners out there, the basic premises apply to all attorneys. Make sure all of the “T”s are crossed and the “I”s are dotted. When your client or their opposition waives a right to something, such as insurance benefits, pension benefits, etc., make sure everyone who should know about the waiver does know – especially the plan administrator.
Emma Boyd lived in Charleston, South Carolina and worked for Delta Airlines. She participated in Delta’s ERISA-governed life insurance program administered by Metropolitan Life Insurance Company. Emma was married to Robert Alsager and he was her designated primary insurance beneficiary. Emma’s mother, Mary Boyd, was the contingent beneficiary. Sometime in 2007 or so Emma and Robert separated and, in April 2008, the Charleston County Family Court approved their separation and property settlement agreement. As part of the settlement, both Emma and Robert agreed to waive any of their respective rights to the other’s estate and/or property, including specifically any rights to life insurance proceeds. Emma did not, however, notify MetLife to change the policy beneficiary from Robert to either Mary or someone else.
Unfortunately, on November 8, 2008, Emma passed away suddenly. Mary Boyd and others filed a claim with MetLife for the insurance proceeds, noting Robert had previously waived any claim thereto, notwithstanding the settlement agreement. Robert also filed a claim with MetLife. Based upon the plan documents, MetLife determined Robert was entitled to the proceeds and ultimately paid the benefits to him.
Mary sent a letter to MetLife appealing the claim determination on the basis Robert had specifically waived his right to recover any of Emma’s insurance benefits. After the claim decision was upheld, Mary sued MetLife in Federal Court in Charleston. Senior United States District Judge C. Weston Houck granted MetLife’s motion to dismiss “concluding that MetLife had carried out its statutory obligations by disbursing benefits in accordance with the beneficiary designation form on file with the plan. (Slip Op., pp.4-5). Mary appealed to the Fourth Circuit.
Relying on Kennedy v. Plan Administrator for DuPont Savings & Investment Plans, ___ U.S. ___, 129 S.Ct. 865 (2009), the United States Court of Appeals for the Fourth Circuit affirmed the District Court. In Kennedy, the Supreme Court had concluded that ERISA required the plan administrator to disburse benefits “ ‘in accordance with the documents and instruments governing the plan.’ ” (Slip Op., p.5) (quoting 29 U.S.C. § 1132(a)(1)(D)). Furthermore, the Kenney Court concluded that “ ‘ERISA’s statutory scheme ‘is built around reliance on the face of written plan documents.’ ” (Slip Op., p.5) (quoting Kennedy, ___ U.S. ___, ___, 129 S.Ct. 865, 875) (quoting Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 83 (1995)).
In Kennedy, a case similar to this one, the ex-wife was a party to a divorce decree which divested her of any proceeds to her ex-husband’s retirement and/or pension benefits, but remained as the designated beneficiary on the plan documents for one of his pension benefit plans. After Mr. Kennedy passed, his estate’s executrix claimed the pension benefits for the estate based on the ex-wife’s benefit’s waiver. The Court rejected the argument and determined the plan administrator was statutorily required to pay benefits pursuant to the plan documents on file, regardless of any alleged waiver. Stated otherwise, “even though [the] ex-wife’s waiver was clear, the [Supreme] Court concluded it could not trump the plan documents.” (Slip Op., p.7) (citing Kennedy, ___ U.S. ___, ___, 129 S.Ct. 865, 874-875). See also Matschiner v. Hartford Life & Accident Insurance Co., 622 F.3d 885 (8th Cir. 2010) (similar case holding).
While this may seem a harsh result given Robert’s clear waiver of Emma’s insurance benefits in the settlement agreement, Emma’s (or her attorney’s) failure to actually have MetLife change the beneficiary is the real problem. To require a plan administrator to honor a beneficiary’s waiver as opposed to simply following the plan documents would clearly open the door to questions of whether the waiver was “voluntary”, “knowing”, “based upon adequate consideration”, and so on. This would be very time consuming, likely to engender significant litigation, and plainly unnecessary. A plan participant, like Emma, could easily avoid all of these machinations by changing the beneficiary designation to another person once the original primary beneficiary, like Robert, has waived his rights to the proceeds.
Wednesday, March 30, 2011
It Is Not Necessary To Show Damages To Make A Prima Facie Claim For Breach Of Contract
by Gary Beaver
On March 1, 2011, in Hodges v. Young, the N.C. Court of Appeals reversed a trial court's order granting defendants' summary judgment motion asserting plaintiff failed to prove any damages based on an alleged breach of contract. The court pointed out that there are only two elements of a breach of contract: the existence of a valid contract and a breach of the contract's terms. No damages are required to be shown. The Court of Appeals also affirmed the trial court's grant of summary judgment on plaintiff's Chapter 75 claims which tried to assert fraudulent acts based on "should have known" allegations. We all see these efforts by creative pleaders to manufacture a Chapter 75 claim out of a breach of contract claim so this case may be one to keep in the drawer as an example of Chapter 75 allegations that are too thin.
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