To Sign or Not to Sign
By: J. Patrick Norris
The Supreme Court of South Carolina dealt a blow to tract developers/homebuilders in refusing to compel arbitration. Smith v. D.R. Horton, Inc. (2013-001345, July 6, 2016) arose out of a purchase agreement/contract between the Plaintiff ("Buyer") and D.R. Horton, Inc. ("Builder") for design and construction of a house in coastal South Carolina. The contract contained a "dispute resolution" clause stating the parties agreed to arbitrate any claim arising out of Builder's construction of the home, as well as any warranties.

After completion of the home, Buyer alleged he experienced a myriad of construction problems. Builder unsuccessfully attempted to repair the issues, and Buyer filed a lawsuit against Builder and its subcontractors for construction defects in the Court of Common Pleas in Dorchester County, SC. Builder moved to compel arbitration per its contract with Buyer. Buyer, wanting to have his case heard by a jury in Circuit Court, opposed arbitration arguing the arbitration provision was unconscionable, and therefore unenforceable. The Circuit Court agreed with Buyer, finding the agreement unconscionable for two reasons: (1) the "dispute resolution" paragraph in the contract also contained (in a sub-paragraph) an express disclaimer of warranties, including the implied warranty of habitability; and (2) the same paragraph contained a prohibition of an award of any money damages against Builder. The South Carolina Court of Appeals affirmed the Circuit Court's decision. Builder then petitioned the South Carolina Supreme Court to overturn the ruling.

Click here to read the entire article.
Carlock Copeland congratulates the following attorneys who have been selected by their peers for inclusion in Best Lawyers in America® 2017

*Commercial Litigation
*Medical Malpractice Law - Defendants
*Personal Injury Litigation - Defendants
*Best Lawyers® Since 1991

*Legal Malpractice Law - Defendants
*Best Lawyers® Since 2009


*Personal Injury Litigation  - Defendants
*Best Lawyers® Since 2008


*Insurance Law (Atlanta, GA)
*Best Lawyers® Since 2013


*Insurance Law
*Litigation - Construction
*Best Lawyers® Since 2014


*Professional Malpractice Law - Defendants
*Best Lawyers® Since 2014

* Medical Malpractice Law - Defendants (Atlanta, GA; Charleston, SC)
* Personal Injury Litigation - Defendants (Atlanta, GA; Charleston, SC)
* Best Lawyers® Since 2013

*Construction Law - Charleston (Atlanta, GA; Charleston, SC)
*Legal Malpractice Law - Defendants (Atlanta, GA; Charleston, SC)
*Litigation - Construction (Atlanta, GA; Charleston, SC)
*Best Lawyers® Since 2006
Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers® is based on an exhaustive peer-review survey in which more than 36,000 leading attorneys cast almost 4.4 million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers® is considered a singular honor. Corporate Counsel magazine has called Best Lawyers® "the most respected referral list of attorneys in practice."

Carlock Copeland welcomes new attorneys to our Atlanta and Charleston offices 
Carlock, Copeland & Stair, LLP welcomes Michael P. DiOrioRishi D. Pattni, Gabrielle M. Holland, Stephen J. Cohen, T. Peyton BellQuinn Curtis Bennett, Michael P. Manfredi, Samuel W. Hughes, J. Andrew Yoho, and Tawny D. Mack to the firm.

Upcoming Events
Please join us at the 2016 CLM National Construction Claims Conference in San Diego, CA held September 28-30. Laura Paton to Participate in Panel on September 29.
Laura Paton will participate in the Session III Panel entitled, Not So Simple Addition: Coverage Issues Surrounding Additional Insureds in the Southeast scheduled from 2:30 p.m. to 3:30 p.m. on September 29, 2016.

In 2013, ISO introduced a new additional insured form. Now that the form has been around for a few years we have been able to see it in practice. This session will discuss coverage issues surrounding additional insureds on commercial general liability policies issued to contractors and subcontractors in the Southeast. These issues include priority of coverage, coverage (or not) for claims of an additional insured's exclusive negligence, and how contractual indemnity and additional insured status work together and work with the Southeastern states' laws regarding enforceable indemnity contracts. Additional Insured status has taken center stage in construction litigation in so many ways, and this panel will lead an interactive discussion about the not-so-simple challenges this issue presents.

Mike Ethridge and  Patrick Norris to attend.

Andy Countryman and Doug MacKelcan to present at the PLDF Annual Meeting in Denver, Colorado on September 29
Andy Countryman and Doug MacKelcan to present at the PLDF Annual Meeting held September 28-30 in Denver, CO at The Westin Denver Downtown, 1682 Lawrence Street, Denver, Colorado 80202.

Andy Countryman and Doug MacKelcan will present "Is Your Lawyer Client Ready to Answer Questions?" on Thursday, September 29 from 3:10 p.m. to 4 p.m. This session will discuss strategy, techniques and tactics involved in preparing lawyer clients for deposition in LPL cases. Attitude issues, Reptile Theory, theme development and other topics will be discussed in the context of mock examples.

Save the Date - October 7
Shannon Sprinkle will participate in the ICLE Title Standards Program presented at the State Bar of Georgia
Shannon Sprinkle will participate in the ICLE Title Standards Program presented at the State Bar of Georgia on Oct. 7. Shannon is scheduled to present Title Standards and Lawyer Liability at 1:30 p.m. This program is also available via video conference and web stream.

Save the Date - October 18
Broderick Harrell to present at the Southwestern Medical Legal Symposium

Broderick Harrell to present at the Southwestern Medical Legal Symposium held at the State Bar of Georgia, 104 Marietta Street, NW, Atlanta, GA from October 18-19.  Broderick Harrell's presentation  Session II: MVAs and Other Personal Injury is scheduled for October 18 from 2:15 p.m. - 3:15 p.m.  Chris Whitlock and Lynn Olmert to attend.
Save the Date - November 17
Annual Risk Management for Design Professionals Seminar in Atlanta
Kent Stair, Bill Jones and the Design Professional Group will present How to Avoid, Manage and Resolve Claims Against Design Professionals. Kent and Bill will lead panel discussions regarding claims against design professionals. These dynamic presentations will include advice on the best practices to avoid claims, how to handle claims when they cannot be avoided, and the various ways to resolve claims.

This event will be held at the Cobb Energy Centre on November 17 from 1:00 to 5:30 p.m. Registration begins at 12:30 p.m.

There will a reception following the program.

Recent Events

Laura Paton participated in a panel presentation at The 2016 Construction Law Conference presented by the South Carolina Bar Continuing Legal Education Division and the South Carolina Bar on September 23, 2016. 
Thanks to all who attended Carlock Copeland's Annual Insurance Coverage and Bad Faith Seminar held on September 15, 2016 at the Atlanta Botanical Garden.   David Root, Charlie McDaniel, Fred Valz, Mike Ethridge, Lee Weatherly, Sarah Wetmore, Ryan WilhelmJack Daniel, Robert Hawk, Marc Hood, Andrew BagleyMelissa BaileyJeff CrudupAlex DavisBroderick HarrellSuzanne Deters and  Kimberly Reeves  presented and the following topics were covered:

* Litigating Coverage Issues Through Appeal
* Construction Defect Coverage Issues
* Rescinding Policies
* Effective Denials and Reservation of Rights Letters
* Interplay of Underwriting and Claims
* Coverage Issues Involving Additional Insureds
* Litigation Coverage Issues In Trucking Policies
* Coverage Issues in a Sharing Economy

Carlock, Copeland was proud to be a Gold Sponsor of the CLM 2016 Claims College, held at the Marriott Baltimore Waterfront from September 7-10. The CLM Claims College featured more than 80 collaborative educational sessions and keynote presentations designed by industry professionals to help attendees gain the knowledge they need to be on the forefront of the industry.  Angela Kopet presented The Level II course for Case Resolution - Development of a Negotiation Strategy in the School of Casualty and Level II: Property Evaluation in the School of Property. Please click here for the Press Release.

Jeffrey Crudup participated in the National Business Institute Seminar on Damages in Personal Injury in Columbia, SC on August 31. Jeff had two presentations in the program entitled,  Quantifying Damages and Negotiating and Litigating the Damages: Defense Perspective. Please click here for more information.

Please contact Patricia F. O'Toole at for more information on any past or upcoming events.

Bench Trial Defense Verdict for CPA in Fulton County
Joe Kingma and Matt Gass prevailed for a great CPA firm who had served as an expert in a high value divorce.  Joe's takeaways include: many divorce clients just can't stop fighting; no accounting engagement is ever perfect; and, justice often triumphs!

Defense Verdict for Emergency Room Physician in Stroke Case

Gary Lovell and Kristen Thompson defended a physician who was accused of medical malpractice in his treatment of Plaintiff in the emergency room. During the trial, Plaintiffs argued the defendant doctor failed to recognize the signs and symptoms of an ischemic stroke and administer TPA (tissue plasminogen activator) accordingly.  Gary and Kristen presented evidence through medical fact witnesses and expert testimony that this patient's symptoms were inconsistent with a stroke, and the emergency room physician's work up of altered mental status was appropriate. They further presented evidence that this patient was ineligible for TPA administration as she did not meet strict inclusion and exclusion criteria under the American Heart Association's Stroke Guidelines for TPA Administration. Gary and Kristen  also offered expert testimony on the questionable effectiveness of tPA in stroke patients as evidenced in the medical literature. The jury agreed with the defense and returned a unanimous verdict in favor of the physician in less than 40 minutes.

Click here for more interesting case results.
State Bar of Georgia - Women in the Profession 100th Anniversary Celebration

On August 24, 2016, the State Bar of Georgia celebrated the 100th anniversary of the admission of women to the practice of law in the State of Georgia. The event included a dramatic (and comedic) reading of the minutes from the State Bar of Georgia Annual Meeting where the propriety and wisdom of allowing women to practice law was debated, a panel discussion on the role of women in the practice of law today which included Senior Judge Dorothy Beasley, retired from the Georgia Court of Appeals, and an exhibit which included news clips, documents and even clothing that tell the story of the struggle and ultimate victory of the first woman lawyer in Georgia, Minnie Hale, and all those who followed.

As part of the month long celebration, one of our very own,  Emily Ward, participated in a legal history competition which forced her to delve deep into the history of women lawyers in Georgia.
Carlock Copeland attendees included Lynn Olmert, Heather Miller, Alyssa Rogers, Gabrielle Holland, and Emily Ward.

In photo, from left to right, Lynn Olmert , Alyssa Rogers and Emily Ward .

Editorial Staff

Jennifer Guerra, Associate
If you have questions or comments, contact:  
The CCS  Quarterly Newsletter is a periodic publication of  Carlock, Copeland & Stair, LLP, and should not  be construed as legal advice or legal opinion  on any specific facts or circumstances. The  contents are intended for general information  purposes only, and you are urged to consult  counsel concerning your own situation and any  specific legal questions you have.

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Click Below for Our Latest Blog Postings

The U.S. District Court for the Southern District of New York recently denied the University of Pittsburgh's effort to obtain coverage on behalf of the architect who designed a troubled $40 million university campus construction project.  The Court held that... Continue reading → The post Court Denies Coverage where Architect's Notice of Potential Claim not Detailed Enough appeared first on Insurance Coverage Corner. ...»


The Tennessee legislature recently amended that state's data breach notification statute. Tennessee now requires information holders to disclose any security or data breach to Tennessee residents "immediately, but no later than fourteen (14) days from the discovery or notification of... Continue reading → The post Tennessee Modifies Breach Notification Statute appeared first on Carlock Copeland Cyber Liability. ...»


Determining whether your company is subject to liability for a defect in the chemical composition of a drug, or for a failure to adequately warn of dangers associated with the drug, can be a frustrating task.  Earlier this month, a... Continue reading → The post Federal Preemption: Determining Whether Federal Law Prevents Pharmaceutical Companies From Being Sued appeared first on Carlock Copeland Life Sciences. ...»

 Health Law and Regulation Update Blog  

In the case of Carter v. Cornwell, 2016 Ga. App. LEXIS 523 (September 21, 2016), the Georgia Court of Appeals affirmed the dismissal of a doctor for Plaintiff's failure to file an expert affidavit, but reversed regarding the doctor's practice... Continue reading → The post Georgia Court of Appeals Distinguishes Professional and Ordinary Negligence appeared first on Health Law and Regulation Update. ...»

Georgia Court of Appeals Writes "The law . . . is at this moment crystal clear"


In a recent Georgia Court of Appeals decision, the Georgia Court of Appeals wrote in a footnote that the "law in Georgia regarding affidavits in medical malpractice cases is at this moment crystal clear." In the case of McKuhen v.... Continue reading → The post Georgia Court of Appeals Writes "The law . . . is at this moment crystal clear" appeared first on Health Law and Regulation Update. ...»