John G. Bauer, BSME, MEM, P.E., Rimkus
Air bags in vehicles have become quite commonplace. They are neatly tucked away and mostly unseen, so most people don’t give them much thought… until there’s a crash. Then, people start asking questions. “Why didn’t my air bag deploy?” “Why did my air bag deploy?” “After the impact, my air bag was smoking… was it on fire?” “The air bag is supposed to cushion me… why did it break my nose and glasses?” “What happened to Tiger Woods? Why didn’t his vehicle have an air bag for his lower legs?” “How do knee air bags work?” It’s not rocket science, or is it?
A little history
The first automotive barrier crash test, conducted at GM in 1934, was an early milestone in vehicle safety. In the late ‘40s and early ‘50s, seat belts began being offered in cars, and the first patents for early air bag designs were filed in 1951 (Figure 1). The inventors of those original air bag devices were limited by compressed air or gas technology of that time; but compressed gas could not fill the bags fast enough, and crash sensing had not been invented yet. So, the concept of automotive air bags stayed “deflated” for several years.
Figure 1. Early patent of automotive air bags
Then, in the late ‘60s, Allen Breed developed a ball-in-tube electromechanical sensor that could detect a crash and close a circuit to deploy an air bag. Also, at about that time, aerospace companies like Talley and Thiokol had been researching solid propellant applications for rocket boosters, military aircraft pilot ejection systems… and automotive air bags.
Breed’s sensor designs and some aerospace rocket science led the way to the actual implementation of air bags in passenger vehicles. Ford and GM began installing air bags in automotive test fleets in the early ‘70s, and the first passenger air bag was sold to the public in the 1973 Oldsmobile Toronado. In 1981 at the Geneva Motor Show, Mercedes-Benz announced a driver air bag and pyrotechnic passenger belt tensioner for the new S-Class (Figure 2). Automatic seat belts or air bags were required in US passenger vehicles in the late ‘80s. After initially fighting their implementation – like a lot of auto industry leaders -- Lee Iacocca decided to gamble and offered driver air bags as standard equipment on several Chrysler models. The bet paid off, and the industry found that “safety sells.” The rest, as they say, is history.
Figure 2. Mercedes-Benz circa 1981
Air bag myth #1
“My air bag didn’t deploy, so it must have been defective.”
Air bags are very reliable. The automotive industry was very cautious before finally embracing air bag technology. Air bags were – and still are – carefully designed, tested, and vetted. Since they are inherently dangerous, special precautions are taken to make sure they work as intended. Also, air bags are only intended to deploy in certain situations.
Air bags are not set to inflate based primarily on the speed of the vehicle. Deployment depends on the object struck, the impact direction, and how rapidly the vehicle changes speed or slows down. Is the struck object fixed or moving, rigid or deformable, narrow or wide?
Early air bag systems were designed to only function in frontal or near-frontal crashes. Later, side impact air bags were developed. Then, rollover air bags were introduced to complement and utilize the side air bags. More recently, knee air bags, inflatable seat belts, rear impact air bags, and others are being developed and introduced. Some vehicles have active head restraints or “deployable” headrests for rear impacts, but those devices currently are mechanically activated and do not use air bag technology. Crash sensors detect impact “forces” or roll characteristics. Deployment thresholds are then used to determine if the air bags should inflate (Figure 3).
Figure 3. Deployment thresholds (Okamura, et.al., 26ESV-19-000248)
Air bags are designed to inflate only if the applicable deployment threshold is exceeded. Deployment thresholds are mostly based on crash severity, usually some function of acceleration (or deceleration). The threshold is set to deploy air bags only in moderate to severe crashes to reduce the potential for serious injuries. More advanced vehicle restraint systems use thresholds based on crash severity, driver and passenger belted status, front seat position, and front passenger occupant size and weight.
Most vehicles built since the late 1980s have air bags. For those vehicles equipped with air bags, nearly all will have one or more frontal air bags. The most common is the driver frontal air bag located in the steering wheel. A larger frontal air bag for the outboard front passenger is also very common. More recent examples of frontal air bags include knee air bags for the driver and outboard front passenger. Frontal air bags are designed for frontal and near-frontal crashes and are not intended to deploy in rear impacts, rollovers, or many side impacts.
Side air bags are set to inflate in side impacts and sometimes rollover crashes. Air bags for side impacts must deploy very early and fast because the gap between the occupant and door is small, and that gap often “closes” rapidly due to the intruding vehicle or object. Side impact sensors are usually solid-state accelerometers or pressure sensors in the doors or side pillars. Like frontal air bags, most side air bags are vented and quickly deflate. Since rollover crashes can last up to 6 seconds or more, rollover air bags need to stay inflated for about 6 seconds and are, therefore, coated and sealed. Some side curtain air bags are designed only for side impacts. Other side curtain air bags have been developed for side impacts and rollover crashes.
Each vehicle model is relatively unique with its own specific size, weight, and structure. Therefore, each vehicle model has its own unique crash “signature” and reacts to crashes differently than other models. To account for this, the air bag sensor system for each vehicle model is calibrated specifically for that vehicle model, and that model only. Many tests and various simulations are conducted and used for air bag sensor calibrations. In addition to standard frontal, angular, side, rear, and rollover crash tests, rough road and other abuse tests like curb impacts and undercarriage strikes are used.
Vehicle crashes can be very complicated and somewhat chaotic events, so it is very difficult and often impossible to replicate actual crashes with tests. Many crashes include multiple impacts and directions and are a small collection of different events. Some develop very quickly, while others develop slowly over several seconds. Due to thorough design and development, air bag sensor calibration is usually quite robust and can assess most crashes and make the proper decision to deploy or not deploy. Although rare, air bag systems can and do occasionally fail to deploy or deploy inadvertently. Before concluding a defect occurred, the conditions of the crash and the vehicle specifications must be carefully examined.
Air bag myth #2
“Air bags pop out after the car stops, like in the movies.”
For most of us, we realize what we see on the big screen is not always completely accurate. Hollywood often takes liberties with physics, with science, with technology, and with air bags. Although not meant to be authentic, one of my favorite portrayals is the Jiffy Pop popcorn air bag by Saturday Night Live (SNL) (Figure 4).
Figure 4. Jiffy Pop air bag (SNL)
Air bags usually deploy a fraction of a second after impact. For example, during a 30-mph frontal barrier test, the occupant begins moving relative to the vehicle in about 15 milliseconds (0.015 second). The occupant continues to move about 5 inches over the next 30 milliseconds. Since a typical driver frontal air bag inflates in about 30 milliseconds, the decision window for air bag deployment is the first 15 milliseconds during that type of crash. So, for a 30-mph frontal, deployment occurs after about 15 milliseconds, air bag inflation in about 30 milliseconds, occupant ride-down over another 50 milliseconds, and occupant rebound back into the seat in about 100 milliseconds or more. The vehicle comes to a brief stop and begins to rebound in about 90 milliseconds, just before the occupant reaches maximum ride-down. The vehicle rebounds or bounces back and comes to rest “long” after the air bag has deployed.
According to various sources, the duration of an eye blink is 100 to 400 milliseconds. Air bags deploy in 30 to 60 milliseconds… “less than the blink of an eye.”
Air bag myth #3
“Air bags are soft cushions or pillows.”
As just described, air bags inflate very fast. As they unfold and deploy, the filling bag front can reach speeds of 100 to 200 mph. Also, most are designed to protect belted and unbelted occupants. To restrain an occupant in a moderate-to-severe crash, an air bag may need to exert a force of 1,000 to 3,000 pounds or more on the occupant. That means the air bag must pressurize and be quite firm for a short time. The air bag is usually porous or vented and allows gas to quickly escape to properly manage the occupant’s energy and allow the occupant to “ride down” the air bag (Figure 5).
Figure 5. Air bag ride-down (phandwc.com)
Air bags are designed to help stop an occupant with a substantial amount of kinetic energy in a crash. Crash forces can be quite high, so the air bag must be firm, not soft. Occasionally, drivers break their eyeglasses or nose when contacting the air bag. The air bag must also deflate rapidly in a controlled fashion to avoid excessively high forces that could seriously injure the occupant.
Air bag myth #4
“My car has air bags, so I don’t need to wear a seat belt.”
Seat belts are primary restraints. Air bags are designed to be supplemental restraints. While air bags will provide some protection for unbelted occupants, air bags alone cannot prevent all injuries. Air bags work best when used in conjunction with seat belts.
Unbelted occupants will normally experience much more movement or “excursion” during a crash, when compared to a belted occupant. For example, a front seat unbelted occupant will travel forward and hit his knees on the lower dash panel, known as the knee bolster, during a frontal crash. Knee bolsters are typically steel or structural plastic panels covered by trim. They are designed to absorb occupant crash energy, but they are relatively hard and rigid. Also, an unbelted occupant is much more likely to penetrate through, miss, or slide off the air bag and strike an interior component like the header, A-pillar, or windshield.
Even worse, an unbelted occupant can easily be ejected from the vehicle during a crash (Figure 6). Ejection from the vehicle is extremely dangerous. It is much safer to remain inside the vehicle during a crash. It is not safer to be thrown clear of the vehicle (another myth). According to National Highway Traffic Safety Administration (NHTSA) (safercar.gov), only two percent of all crashes involved a rollover, but rollovers accounted for 35 percent of all traffic fatalities due to partial or full occupant ejection and other factors.
Figure 6. Occupant ejection through windshield (abcnews.go.com)
Air bag myth #5
“My air bag was smoking, so it must have been on fire.”
All air bags are inflated by gas-generating devices that include some type of ignition train. An igniter or “squib” is a small “micro” gas generator that starts the inflation process. The squib produces a small amount of hot gas that ignites booster material, which in turn produces more hot gas that ignites the main solid propellant. The propellant converts to harmless nitrogen gas and fills the bag. Hybrid-technology air bag inflators use a smaller amount of solid fuel to heat compressed gas that expands and fills the bag.
Some smoke or widely dispersed particulates are produced as a byproduct of air bag inflator ignition and deployment. Most of the heavy particulates are trapped by filters in the inflator, but some of the smallest particulates pass by the filters and enter the bag as smoke. Since the bag is typically stitched and semi-porous or vented, some of the smoke exits the bag during deflation. That smoke is visible inside the vehicle but is mostly harmless. The smoke is a normal byproduct; it does not mean the air bag was on fire.
Early air bag cushions were made from state-of-the-art fabric at that time. Since fabric long-term aging and friction were concerns, the air bag cushions were often coated with cornstarch or talcum powder to keep the fabric soft and lubricated. With the advancement of better fabrics over time, the use of cornstarch or talcum powder on air bags was abandoned many years ago.
What happened to Tiger Woods
As you likely heard, Tiger Woods was involved in a very serious car crash a while back. He was reportedly traveling north on a curvy downhill stretch of road in Los Angeles County, on his way to a TV shoot with other celebrities. Tiger was driving a 2021 Genesis GV80 SUV.
Police said the Genesis contacted the dividing median and struck a wooden sign before crossing two southbound lanes. The Genesis then reportedly struck a curb and some trees, causing it to overturn and roll several times. There was heavy impact damage to the front end and light-to-moderate damage on the rear quarter panels and rear end.
The Genesis driven by Tiger was equipped with 10 air bags, including a front center air bag for side impacts (Figure 7). At least eight of the 10 air bags deployed during the crash. The driver steering wheel and knee air bags deployed due to the frontal impact. The left and right side-curtain air bags and front and rear seat side air bags also deployed for rollover protection.
Figure 7. Genesis GV80 (hooniverse.com)
Tiger was reportedly belted. Although he was protected with a driver knee air bag, Tiger still sustained multiple serious fractures to his lower right leg, ankle, and foot. His injuries were possibly caused by intrusion of the driver footwell. Tiger did not sustain any significant injuries to his head, chest, or vital organs. He can attribute his survival – from what could have been a fatal crash – to the vehicle’s overall structural integrity and crashworthiness, his seat belt usage, and air bag protection and safety containment.
First invented in the early 1950s, air bags have been in production vehicles since the ‘70s and ‘80s. Although the general concept seems rather simple, air bags are very sophisticated and complicated devices. Special sensing and gas-generating technologies had to be developed to implement air bags. A lot of that technology is tightly packaged and hidden away inside the vehicle. For various reasons, there are several misconceptions or myths about air bags. This article attempted to dispel some of those myths with factual and detailed information… and rocket science.
About the author
John G. Bauer is a forensic mechanical engineer, certified traffic crash reconstructionist, and vehicle occupant restraints expert for Rimkus in Raleigh, North Carolina. His experience includes 25 years in the automotive industry, most of that designing and developing seat belts and air bags. He conducted vehicle crash testing and simulations to optimize passenger safety. He has 11 US patents and was a featured speaker and author for the Society of Automotive Engineers. Since becoming a forensic expert, Mr. Bauer has consulted on various transportation-related matters and reconstructed hundreds of traffic accidents. He has investigated Takata air bag recalls, go-cart and ATV rollovers, and wheelchair accessible vans with safety restraints failures. He was retained as a seat belt expert for a high-profile fatal accident of a young boy on a 168-foot high water slide at the Schlitterbahn Waterpark in Kansas City, KS, in 2016. He enjoys vehicle and home restoration, golf, boating, and other activities with his family and friends.
By: Michael Fryar & Betsy KeeslerInQuis Global, LLC
Evidence-based life care plans and earning capacity assessments ostensibly may not appear to have similarities. However, close examination of their foundation requirements and overall tenets reveals both categorically have common and related developmental connections. This article will review these specific forensic work products with an end goal of identifying their developmental parallels and common denominators.
EVIDENCE-BASED LIFE CARE PLANS
A life care plan is formally defined within the published 2015 Standards of Practice (Third Edition) by the International Association of Rehabilitation Professionals (IARP) and the International Academy of Life Care Planners (IALCP) as follows:
“The life care plan is a dynamic document based upon published standards of practice, comprehensive assessment, data analysis, and research, which provides an organized, concise plan for current and future needs with associated costs for individuals who have experienced catastrophic injury or have chronic health care needs.”
An evidence-based and credible life care plan will be based upon adherence to published peer-reviewed life care planning standards of practice and empirically validated consensus statements. These guiding tenets inform the Life Care Planner of the methodological processes and the types of evidence/data necessary for their plans. The categorical types of evidence, data and guidelines utilized during the development of an evidence-based life care plan include:
Many actively practicing Life Care Planners maintain life care planning certification through the International Commission on Healthcare Certification (ICHCC). The ICHCC’s current practice standards and guidelines were released in 2021 and should be followed by all persons certified by the Commission. In addition to the ICHCC, three professional groups have developed standards for life care planning practice, to include the International Academy of Life Care Planners (IALCP), the American Association of Nurse Life Care Planners (AANLCP), and the American Academy of Physician Life Care Planners (AAPLCP). The standards from all three professional groups have been analyzed and the outcomes published within the Journal of Life Care Planning (Gamez, Johnson & Stajduhar, 2017). In summary, all three sets of published standards present the need for professional collaboration when developing a life care plan. Specifically, the noted 2017 peer-reviewed life care planning publication concluded the following:
“Based upon a review of data from each of the three documents, overlap is apparent. Specific reference to collaboration is seen throughout all three standards of practice, reinforcing the interdisciplinary nature of life care planning.”
In addition to published standards, consensus and majority statements have been developed for the practice of life care planning. The most current version is found published within the Journal of Life Care Planning (Johnson, C; Pomeranz, J. & Stetten, N, 2018). The publication outlines that the findings reached are applicable to all Life Care Planners, regardless of their educational/occupational background and/or professional affiliation. Of note, 89 full consensus statements were published during 2018, secondary to the Delphi study, which evaluated decades of professional Summit information with the aid of Life Care Planners across multiple committees and rounds of formal analysis.
Echoing the themes of published standards, the consensus reached through the past Delphi study included collaboration with health care providers/professionals as an essential requirement for the development of a life care plan. Thus, such collaboration should be readily evident through clear documentation within an evidence-based life care plan. Specifically, published life care planning consensus includes the following foundational requirements for a life care plan:
“84. Review of evidence-based research, review of clinical practice guidelines, medical records, medical and multidisciplinary consultation and evaluation/assessment of evaluee/family are recognized as best practice sources that provide foundation in life care plans.”
Life Care Planners emerge from a variety of health care and educational backgrounds, such as Nursing, Medicine, Allied-Health, Mental Health/Counseling, etc. Each of these professionals has a well-defined scope of practice, in which they must remain, when developing a life care plan. As such, rarely, if ever, is one person fully qualified to make all the recommendations for a comprehensive and evidence-based life care plan. Therefore, it is imperative that the Life Care Planner collaborate with appropriate and necessary treating and/or evaluating health care providers to obtain plan recommendations that are outside of their scope of practice. More precisely, published consensus outlines the following requirements for the Life Care Planner:
“81. Life care planners seek recommendations from other qualified professionals and/or relevant sources for inclusion of care items/services outside the individual life care planner’s scope(s) of practice.”
As a basic example, Registered Nurses (RNs) cannot prescribe medications. It would be outside of their professional scope to attempt such. Therefore, medication recommendations within the life care plan must have a foundation from a qualified health care provider who is able, by virtue of their scope of practice, to prescribe medications.
In addition to establishing foundation through health care collaboration, a Life Care Planner can document direct connections between an evaluee’s medical records and/or health care providers’ testimony to the future care and treatment recommendations of their plans. However, Life Care Planners should not attempt to fill in the informational gaps pertaining to the frequency and duration of future care and services when such matters are outside of their scope of professional practice(s) and were not clearly documented within the medical records or testimony reviewed.
Also, published life care planning consensus requires the Life Care Planner to include relevant evidence-based research and guidelines within their plan’s foundational framework. Such resources may include guidelines from medical academies, professional associations and/or governmental agencies, etc. as well as peer-reviewed journal publications. Based upon consensus, the overall research, resources and processes utilized during life care plan development must be reliable, consistent, transparent and credible.
The consensus statements require verifiable data from appropriately referenced resources be used during the development of a life care plan. The plan’s cost data, when reviewed through the same sources by another Life Care Planner, should be reproducible. Also, the costs identified in a plan should be geographically specific to the evaluee. Costs of medical care and treatment are not equivalent across the country, a state or even a larger region for that matter. Moreover, the life care planning community has adopted the use of Usual, Customary and Reasonable (UCR) costs, as defined by the American Medical Association (AMA), for the development of a life care plan. This matter is outlined within a field treatise, the Life Care Planning and Case Management Handbook (Fourth Edition, Weed & Berens, 2018). Due to the requirements inherent for the defining of UCR, more than one cost source will need to be utilized by Life Care Planners in their plans. The same requirement of multiple cost estimates is outlined within the published consensus statements. Per consensus, the cost data of a life care plan should reflect market rate pricing and not be discounted in any manner. Finally, as with all data and processes of the life care plan, the cost data utilized should be reliable, consistent, transparent and credible.
Published consensus requires that the life care plan be individualized to the evaluee. Such developmental requirements apply to all aspects of the plan to include the life expectancy projection. Most Life Care Planners are not life expectancy experts, and therefore must rely upon the expertise of other professionals for an individualized account of the evaluee’s expected longevity. The peer-reviewed life care planning literature outlines the complex methodological processes necessary to arrive at individualized conclusions of life expectancy for a life care plan, and strongly cautions against endorsing only general population findings. As consistent with the need for medical foundation when qualifying treatment requirements outside of one’s scope of practice, the Life Care Planner, that is not a life expectancy expert, should defer life expectancy determinations to a qualified expert. Otherwise, the Life Care Planner would be guilty of providing an opinion that violates accepted life care planning consensus and standards.
Hypothetical case scenarios and subsequent reviews are offered below for illustrative and educational purposes regarding evidence-based life care plans:
A 28-year-old male evaluee suffered a Traumatic Brain Injury (TBI) after falling from a third story building under construction. The TBI resulted in multiple long-term issues including executive deficits, vision deficits, hearing deficits, depression and anxiety. Following the completion of inpatient rehabilitation care, the evaluee was discharged to his home within the community. A Registered Nurse (RN), who is also a Certified Life Care Planner (CLCP), completed a life care plan for the evaluee. The life care plan’s narrative included a summary of the medical treatments received thus far by the evaluee from the medical records. Also, the life care planning narrative outlined past diagnostic testing completed, a list of the evaluee’s current medications and dosing, and the identification of all records that had been analyzed by the Nurse. Her plan included outpatient medical services the evaluee was actively receiving: Physiatry, Neuro-Ophthalmology, Neurology, Audiology, and Psychology. Based upon her clinical knowledge, the RN, independently and without collaboration, determined all the future medical and psychological care, diagnostic testing, medications, future attendant care, and other support services needed by the evaluee, including their future frequency and duration. Such future care information was not found within any of the medical records reviewed and testimony from the health care providers had not been obtained before release of the life care plan.
Development of the life care plan did not include any type of documented collaboration with a treating or evaluating health provider for the evaluee. Also, there was not any direct link made between the medical records reviewed and the specific treatment/care recommendations as issued within the life care plan by the Nurse. Moreover, the Life Care Planner did not identify any clinical practice guidelines, empirical research or peer-reviewed literature as specific foundation for the content of her plan. Finally, the Life Care Planner did not have testimony from a treating or evaluating health care provider for foundation either. In summary, the RN acted well beyond her scope of practice when she independently opined about future care and treatment for the evaluee absent necessary medical foundation for the same. Ultimately, the life care plan lacked the required credible and reliable data, as well as the overall foundational information necessary to formulate an evidence-based plan that is consistent with published life care planning consensus and standards.
A 56-year-old female was involved in a motor vehicle accident (MVA). The car exploded before the evaluee could be evacuated by emergency personnel. As a result, the evaluee suffered second and third degree burns over 60% of her body. After receiving extensive acute care services, she was discharged home and began outpatient services, wherein she received care and treatment from a Physician Burn Specialist, Reconstructive Burn Surgeon, Physical Therapist, Occupational Therapist, and Psychologist. The evaluee’s subsequent life care plan was developed by a Certified Rehabilitation Counselor (CRC). The Life Care Planner completed an in-home assessment of the evaluee, and multiple consultations were accomplished by him with the outpatient medical and clinical treatment teams. The consultative recommendations received were carefully documented by the Life Care Planner and fully endorsed through signature by the treatment teams. Subsequently, these medical and clinical recommendations were included into the evaluee’s life care plan. The CRC independently made recommendations for future vocational rehabilitation services within the life care plan. Also, the CRC made direct reference to published clinical practice guidelines for burn care, and peer reviewed journals regarding the psychological supports necessary to aid with emotional adjustment following a severe burn. Also, additional pertinent details of current treatment, as found within the medical records, was noted within the life care plan. The life care plan included a comprehensive list of all medical, clinical and legal documents reviewed during development. Present-value calculations were deferred to an Economist and total calculations were not issued by the Life Care Planner within the plan. Finally, the Life Care Planner deferred the determination of an individualized life expectancy for the evaluee to a qualified expert.
This Life Care Planner included multiple areas of foundation needed for an evidence-based life care plan. Of important note, the CRC remained within his scope of practice and relied upon other qualified health care providers, published clinical guidelines, literature, and medical records to support the recommendations of the plan. The CRC appropriately deferred other related determinations to qualified experts (i.e., present-value calculations and life expectancy). Overall, the life care plan contained credible and reliable data as well as the foundational information necessary to formulate evidence-based conclusions that are consistent with published life care planning consensus and standards.
EVIDENCE-BASED EARNING CAPACITY ASSESSMENTS
Similar to the life care plan, the determination of an evaluee’s earning capacity before and after an injury and/or chronic health condition is a complex endeavor, requiring adherence to a peer-reviewed and accepted methodology, as well as professional standards. Typically, professionals completing these assessments have an educational and professional background in vocational rehabilitation. A properly developed earning capacity analysis should incorporate evaluee assessment information, standard classifications, relevant research data, statistical information and foundation from necessary medical and/or clinical professionals. The objective evidence, information and data gathered should inform the final clinical judgements reached regarding an individual’s overall capacity for employment and wages within the competitive labor market.
The Commission on Rehabilitation Counselor Certification (CRCC) is the governing national professional organization that manages the Certified Rehabilitation Counselor (CRC) credential as maintained by many of the vocational rehabilitation professionals completing earning capacity assessments for forensic purposes. Published CRCC forensic standards require the utilization of methodologies appropriate to the evaluation process performed. There are multiple published earning capacity methodologies within the peer-reviewed vocational rehabilitation literature. These published methodologies provide the structure and guidance necessary to arrive at objective and valid earning capacity conclusions. A Forensic Vocational Rehabilitation Consultant (FVRC) should be able to discuss the specifics of the published earning capacity methodology adhered to during the assessment process and fully describe the data/evidence utilized for final clinical judgements/opinions.
Qualitative analysis of the content factors found within earning capacity assessment reports has been accomplished and the empirical findings were published within the peer-reviewed Rehabilitation Professional journal (Robinson, Young & Pomeranz, 2009). Specifically, the research determined 22 factors were included within at least 50% or more of the forensic vocational rehabilitation reports analyzed regarding employability and earning capacity.
The specific 22 content factors identified included:
The core 22 factors identified through empirical analysis should, at minimum, be considered by a FVRC during the course of analyzing an evaluee’s earning capacity and arriving at evidence-based conclusions. Also, during the course of earning capacity assessment, evidence-based practice requires the consultant to directly consider objective data. Specifically, published CRCC standards require the FVRC utilize objective data for the determination of unbiased evaluation conclusions (CRCC Code, Section F: Forensic Services). The sources of such data may vary, but often include information from governmental surveys, wage and employment databases, professional associations, non-profit organizations, trade associations, research centers, peer-reviewed literature, published professional/medical guidelines, industry literature, and United States Department of Labor (USDOL) publications, as well as the evaluee’s tax, employment and academic records, etc.
Multiple published CRCC advisory opinions outline that it is outside the scope of professional practice for a Certified Rehabilitation Counselor (CRC) to determine any type of functional work capacity for an individual. Moreover, based upon vocational rehabilitation treatises, such decisions should be made by qualified and licensed physicians and/or mental health practitioners (Robinson, 2014 and Weed & Field, 2012). In contrast, the FVRC’s professional role includes evaluating and determining the individualized impact that medically and/or clinically established physical, mental and/or environmental guidelines will have upon an evaluee’s employability, placeability and overall earning capacity. In summary, it is professionally inappropriate for a FVRC to determine or assign a specific occupational strength level or other functional, environmental, cognitive or psychological work parameter to an evaluee in the absence of foundation established by a licensed physician or other qualified health care provider.
Ultimately, within the guiding context of a published methodology and professional standards, and based upon assessment findings, objective data, research analysis and the application of informed clinical judgement, the FVRC can, to a reasonable degree of probability, reach conclusions regarding an evaluee’s pre-injury and post-injury earning capacities. Specifically, published peer-reviewed literature within Rehabilitation Professional (Field, Choppa & Weed, 2009) outlines that clinical judgements/opinions should include relevant information/data, follow a widely accepted and peer-reviewed methodology, adhere to relevant standards of practice, utilize statistical studies and, when professionally necessary, include valid and reliable testing instruments. Finally, the authors outline that the judgements/opinions reached by the Rehabilitation Professional must be unbiased, ethical and professional in nature.
After appropriate clinical judgements/opinions are finalized and the overall earning capacity assessment report is completed, the information can be provided to a Forensic Economist (FE) for calculation(s) related to the determination of present value. A forensic vocational rehabilitation treatise (Robinson, 2014) describes the following, relative to the professional hand-off between the Vocational Rehabilitation Expert (VE) and the Forensic Economist (FE):
“As will be seen, the typical relationship between an FE and a vocational rehabilitation expert (VE) is that the VE provides the FE with differentiations of a postinjury earning capacity scenario from a preinjury scenario in a personal injury case, so that the FE can estimate the present value of lost earning capacity and perhaps other categories of economic damages.”
Hypothetical case scenarios and subsequent reviews are offered below for illustrative and educational purposes regarding evidence-based earning capacity assessments:
A 55-year female was evaluated by a Forensic Vocational Rehabilitation Consultant (FVRC) secondary to a slip and fall that caused herniated discs for both her lumbar and cervical spine. After multiple spine surgeries and the establishment of Maximum Medical Improvement (MMI), the evaluee continued to report cervical, lumbar and right leg pain, as well as moderate to severe functional deficits. She was not actively working. The FVRC did not review the evaluee’s past tax records, testimony or employment file information during his analysis. The FVRC concluded based upon his professional experiences and assessment, the evaluee was physically unable to work and earn a gainful wage within the economy. He specifically indicated the evaluee was physically incapable of functioning at the United States Department of Labor’s (USDOL) Sedentary strength level for a full-time or part-time occupation within the open labor market. A treating or evaluating physician had not issued any medical conclusion regarding the evaluee’s work capacities. Also, the FVRC concluded it was likely the evaluee would have worked until the age of 85, had the fall not occurred, as a Registered Nurse (RN), receiving wages at the 90th percentile for the occupation nationally throughout her remaining career. However, the evaluee had only demonstrated maximum mean annual earnings as a Registered Nurse (RN) in her region before the fall. The FVRC did not make any reference to published work-life expectancy data before rendering his opinions.
The case scenario has multiple professional errors and omissions. The FVRC did not have the necessary medical foundation to support his independent conclusion that the evaluee had physical capacities that were functionally below USDOL Sedentary strength. Physical capacities are determined by appropriately licensed health care providers and are certainly beyond the scope of practice for a Rehabilitation Counselor. Secondly, the FVRC did not reference a published methodology, or any objective data, to determine past or future earning capacities for the evaluee. Lastly, the FVRC did not incorporate any objective data from an empirical source to define the evaluee’s work-life expectancy. Due to the nature and extent of these professional errors and omissions, the FVRC would not be able to derive reliable and valid evidence-based earning capacity conclusions for the evaluee.
A 45-year-old male sustained a Mild Traumatic Brain Injury (M-TBI) secondary to a motor-vehicle accident (MVA). The MVA and M-TBI resulted in mild deficits related to concentration, attention and processing speed for the evaluee, as described within the treating physician’s records and confirmed through valid neuropsychological testing by a qualified Neuropsychologist. A Forensic Vocational Rehabilitation Consultant (FVRC) was requested to complete an earning capacity assessment of the evaluee. The FVRC completed an onsite assessment of the evaluee with standardized testing. She subsequently consulted with the treating Brain Injury Physiatrist and the evaluating Neuropsychologist regarding the evaluee’s overall capacities for future work. The consult findings were documented through signed summaries from the health care providers and included into the earning capacity assessment report. Also, the FVRC noted that she followed the peer-reviewed and published RAPEL methodology during completion of her earning capacity assessment and documented the same methodological process within the report. The evaluee’s employment files and taxes for multiple years (both before and after the MVA) were reviewed. Published USDOL employment and wage statistics were analyzed for the evaluee’s region and included within the earning capacity assessment report. A standard Transferability of Skills Analysis (TSA) was performed to define the evaluee’s employability. Published and peer-reviewed work-life expectancy data was gathered and included in the report. Based upon all the assessment, data and information researched and analyzed, the FVRC rendered conclusions pertaining to the evaluee’s partial loss of wage-earning capacity after the accident, and she quantified the specifics of the earning capacity loss through her report. The findings from the FVRC were subsequently reviewed by an evaluating Forensic Economist (FE) who applied present-value calculations to the data and earning capacity conclusions reached by the FVRC.
The earning capacity evaluation process described above followed accepted standards, methods and data requirements necessary to facilitate arrival at evidence-based earning capacity conclusions for the evaluee. Specifically, the FVRC utilized an accepted published methodology, objective data, appropriate analysis tools, statistics and necessary medical/clinical foundation to reach informed conclusions regarding the evaluee’s earning capacities.
SUMMARY & CONCLUSIONS
Life Care Planners and Forensic Vocational Rehabilitation Consultants have similar categorical requirements for the production of their evidence-based evaluation reports. Life care plans and earning capacity assessment reports both require the utilization of an accepted published methodology and the utilization of objective data, research and guidelines to objectively substantiate the professionals’ overall conclusions. Moreover, both the Life Care Planner and the Forensic Vocational Rehabilitation Consultant must rely upon an appropriate health care foundation when specific determinations necessary for their opinion formation are outside of their professional scope(s) of practice. Finally, these two types of damage experts must apply the parameters of informed clinical judgement/opinion formation to reach objective conclusions within their scopes of practice. The utilization of life care planning and earning capacity assessment experts well-versed in necessary evidence-based practice requirements is critically important to the establishment of valid and reliable damage conclusions after an injury and/or a chronic health condition has occurred. The Life Care Planner or Forensic Vocational Rehabilitation Consultant that does not adhere to established evidence-based parameters for the determination of their conclusions places their forensic work product in jeopardy of not being accepted into the evidentiary record.
By Taylor Richards, Garrison Law Group PLLC
The Medical Malpractice Group offers the following updates on several issues that are significant to our members: the upcoming lifting of the COVID-19 State of Emergency and its impact on application of immunities, tips on trying cases during a pandemic, and recent appellate decisions.
COVID-19 State of Emergency To Be Lifted August 15
Governor Roy Cooper recently announced that North Carolina’s State of Emergency Order—originally issued on March 10, 2020—will be lifted on August 15, 2022. https://www.newsobserver.com/news/politics-government/article263365608.html. Termination of the Order will have a significant impact on application of COVID-19 immunities enacted by our legislature, as discussed in an outstanding article by Christopher G. Smith, James C. Wrenn Jr., and David Ortiz: https://www.smithlaw.com/resources-publications-1937. As detailed in that article, immunity for negligent transmission of COVID-19 will essentially continue for an additional 180 days, but the temporary immunity for civil liability (which provided “broad protection against most ordinary negligence”) established by SB 704 will end on August 15, 2022. https://www.smithlaw.com/resources-publications-1937.
Tips on Trying Cases During a Pandemic
The Medical Malpractice breakout session at the NCADA Annual Meeting in June featured an outstanding panel discussion with tips on trying cases during the pandemic. Our esteemed panelists were Chip Holmes, Jerry Allen, Pat Meacham, and Barrett Johnson.
The panelists agreed that jury selection has been greatly affected by the pandemic. One panelist realized how much he relies on facial expressions during voir dire, finding that it was quite difficult due to masking. Masking procedures have varied from county to county. Some courtrooms are now “back to normal” in the sense that jurors are not required to be masked, and courtroom logistics are back to pre-pandemic status. Other courtrooms may still require masks. Some judges allow masked jurors or witnesses to pull their masks down when they are testifying.
Discussion of COVID-19 issues during voir dire also varies. One panelist had opposing counsel file a motion in limine seeking to prevent any discussion of COVID-19, and that motion was granted. In contrast, in other cases, counsel directly asked jurors how the pandemic has impacted them and their families. A member of the panel found that due to the challenges of a COVID courtroom, voir dire would take longer because of counsel digging deeper during questioning.
One particularly unpleasant scenario involves what to do if a juror tests positive for COVID-19 during trial. One panelist asked the judge to continue the trial to another date to maintain the current jury. That request was denied. As with the pandemic itself the logistics and practice of trying cases is constantly evolving. However, the panel provided important tips and tricks that will not only be instructive to our practice in COVID-19 courtrooms, but also will help serve our clients in a “normal” courtroom setting.
Recent Medical Malpractice Appellate Decisions
At the Annual Meeting in June, Leslie Packer provided an extensive update on recent decisions. The excellent manuscript authored by her and Dixie Wells is here. (“Wells & Packer”). Three cases of the cases discussed in their paper are of particular interest to the Medical Malpractice Group: (1) Blue v. Bhiro, 871 S.E.2d 691, 2022-NCSC-45 (N.C. 2022); (2) Bryant v. Wake Forest Univ. Baptist Med. Ctr., 870 S.E.2d 269, 2022-NCCOA-89 (N.C. App. 2022); and (3) Hall v. Wilmington Health, PLLC, 2022-NCCOA-204 (N.C. App. 2022).
The Hall case addressed a deponent’s right to have counsel physically present while testifying, even in a pandemic setting. Specifically, “the court of appeals considered whether a trial court’s order prohibiting a medical center’s counsel from being physically present with the center’s own witness during remote depositions violated the center’s constitutional right to due process.” (Wells & Packer, p. 64). The Court reversed and remanded, and Chief Judge Stroud wrote for the majority. The Court held that “[t]his wholesale ban on personal attendance of Defendant’s counsel at depositions of its own employees and witnesses presented the constitutional issue Defendant asserts in this appeal and was not supported by existing law, emergency orders or evidence. … The trial court’s order violated Defendant’s constitutional right by prohibiting counsel from being physically present at depositions of its own employees and witnesses.” Hall at ¶3.
The Bryant case addressed a variety of issues, including whether an implanted device should be considered a “foreign object” under North Carolina law. Procedurally, the Court of Appeals in Bryant “considered whether a doctor had sufficiently shown an absence of material fact necessary to receive summary judgment on his former patient’s claims against him for actual and constructive fraud, res ipsa loquitur, breach of fiduciary duty, and medical malpractice. (Wells & Packer, p. 86). Plaintiff alleged that a “Gore-Tex barrier” that the defendant implanted years ago caused her infertility. Bryant at ¶6. ¶23. Regarding the actual fraud, breach of fiduciary duty, and constructive fraud claims the court held the Defendants were entitled to judgment as a matter of law. Id. at ¶14, 23. The Court “agree[d] with the trial court that res ipsa loquitor cannot apply because a layperson, without the assistance of expert testimony, could not infer negligence from the facts of this case based on common knowledge and ordinary human experience.” Id. at ¶27. The Court also addressed whether the Gore-Tex barrier had a therapeutic purpose and was not a “foreign object,” which would trigger the 10-year statute of limitations. The Court found that the Gore-Tex barrier had a therapeutic purpose or effect, relying on the trial court finding: “’Plaintiff’s and Defendant’s experts agree that Gore-Tex can be properly used as an adhesion barrier to prevent pelvic adhesion formation and that such a use is therapeutic.’” Thus, affirming the trial court’s application of the 4-year statute of limitations. Id. at ¶30. Regarding the punitive damages claim the court held “because we hold that the trial court properly granted summary judgment on each of Plaintiff’s claims above, Plaintiff has no independent basis for punitive damages and this claim necessarily fails.” Id. at ¶ 43.Finally, in the Blue case, the North Carolina Supreme Court “considered whether inclusion of additional facts not in the pleadings converted a trial court’s order on a Rule 12(b) motion to dismiss to a motion for summary judgement under Rule 56.” (Wells & Packer, p. 84). The Court reversed the Court of Appeals, holding that “the trial court did not consider matters outside the pleading and thus was not required to convert the motion.” Blue at ¶ 1. In Blue, the plaintiff alleged that the defendants “were negligent by failing to provide follow-up care after learning the results of the 24 January 2012 PSA test and failing to diagnose plaintiff with prostate cancer.” Id. The Court of Appeals held that the trial court did not expressly exclude facts in the parties’ memoranda and arguments (facts that were not in the Complaint), so the trial court “’considered matters beyond the pleading,’” which converted the motion to dismiss to a summary judgment motion. Id. at ¶6. The North Carolina Supreme Court disagreed, finding that the trial court’s order did not mention any additional documents outside the parties’ memorandums. The defendants’ memorandum “included the pleadings, a statute, and case law as exhibits, but did not include any evidentiary materials” and the plaintiff “did not include any exhibits with his memorandum.” Id. at ¶13. Further, plaintiff’s counsel’s factual assertions in his memorandum and oral arguments were “not evidence and thus are not matters outside the pleading.”
Pamela Graham, MSN, RN, LNC
There was a collective gasp across the country amongst all health professionals following the criminal conviction of Tennessee Registered Nurse RaDonda Vaught for “reckless homicide” and “gross neglect of an impaired adult." For any practicing nurse, the precedence of this conviction and the staffing and prevention issues surrounding COVID are enough to make any nurse immediately resign or retire. Is it any wonder the nursing shortage has roused itself once again?
As a defense attorney, your reassuring strengths and skills are to guide your client through a most confusing and frightening time in their career and, now, as Ms. Vaught can attest, life. The nurse must journey through the trauma of a licensing hearing process that may likely take his or her professional license, livelihood and a beloved profession. There is also the probability of a civil suit for “wrongful death” or some claim of harm for which, hopefully, professional liability insurance will cover.
Criminal charges must be the worst issue to face. In North Carolina, the charge probably would have been “involuntary manslaughter," the “unintentional killing of another person resulting from recklessness or criminal negligence.” As a defense attorney, defining “intent” and “recklessness” comes with the job; however, how do you define the intent of a nurse who removes the wrong drug from an electronic medication dispensing machine? A machine that required being overridden to obtain the medication ordered? Within a delivery system that apparently required nurses to consistently override it to obtain different medications? Is that “recklessness”? Or is that the current ‘standard’ for that facility at that moment?
There were other extenuating circumstances that drew concerns about the Just Culture philosophy to which we supposedly espouse. While Ms. Vaught reported her error and admitted her fault, the health care delivery system failed to report the incident to the State as required. Ultimately, Ms. Vaught’s failure was that she did not confirm that she had the right medication. The institution failed to report a Sentinel Event. They had the ‘deep pockets’ to settle the case. Ms. Vaught faced criminal charges. It was a horrific error and caused the death of a family’s loved one.
Then comes Michelle Hewitt, a Forsyth County correctional facility nurse charged with “involuntary manslaughter” or “criminal negligence” in the death of inmate, John Neville. Mr. Neville reportedly fell from his bunk and was rendered aid by five correctional officers and Ms. Hewitt. He unfortunately passed away under their care. Now, all five correctional officers and Ms. Hewitt have been charged. It would be interesting to see what failures in the system, aggravating factors and mitigating circumstances influenced this horrible incident.
Defense attorneys have their work cut out for them. Having a Legal Nurse Consultant on your team can help find these nuances and details to define what was “negligent” or “reckless." An LNC is a Registered Nurse who has practiced in a clinical setting and understands what it is like “inside” the practice setting. Most have regulatory experience with a good grasp of what standards and deviations from those standards mean. They can quickly help identify where and how the failures occurred and guidance on evidenced-based references and resources. The LNC can also serve as a trusted colleague and counselor for your nurse-client enduring probably the most frightening time of his or her career.
Don’t go it alone! Have a Legal Nurse Consultant for your team when needed to assist and advise. Your health professional clients will thank you!
Pamela Graham, MSN, RN, LNC is a Legal Nurse Consultant with Pamela Graham LNC, PLLC.
She is a member of the American Association of Legal Nurse Consultants.
by Jeffrey Kuykendal, McAngus Goudelock & Courie, LLC
On May 3, 2022, in Tutterow v. Hall, No. COA21-326, 2022-NCCOA-300, the North Carolina Court Appeals answered the question of how to calculate the underinsured motorist (“UIM”) coverage in a case involving both multiple underinsured tortfeasors and multiple UIM insurance policies.
On October 21, 2014, Vivian Tutterow was a passenger in a vehicle being driven by Pamela Crump. At that same time, Brian Hall was operating a vehicle owned by Kris Hall, his mother, and while in the course and scope of his agency relationship with Randy Hall Automotive, LLC. Ms. Crump stopped her vehicle in a lane of travel and Mr. Hall collided with the back of her vehicle resulting in Ms. Tutterow’s death.
Ms. Crump had an auto policy issued by Horace Mann with a $100,000 per person liability limit and a $100,000 per person UIM coverage limit. Mr. Hall was covered by an auto policy issued by Nationwide with a $100,000 per person liability limit. Ms. Tutterow also had an auto policy issued by State Farm with a $100,000 per person UIM coverage limit.
On October 10, 2016 Horace Mann tendered the $100,000 limits of its liability policy on behalf of Ms. Crump. On October 18, 2016, Nationwide tendered the $100,000 limits of its liability policy on behalf of Hall. Several weeks later, Ms. Tutterow’s estate informed the UIM carriers of the tenders, but advised that it had not accepted the tendered limits. Neither Horace Mann nor State Farm advanced any UIM coverage at that time.
In June 2017, Plaintiff informed the UIM carriers that it had accepted the liability limits of Ms. Crump’s policy. Soon thereafter, State Farm, in light of the North Carolina Supreme Court’s decision in Lunsford v. Mills, 367 N.C. 618, 766 S.E.2d 297 (2014), advanced $100,000 to Tutterow’s estate under its UIM policy while expressly reserving its rights to recoup those funds should Plaintiff recover some or all of the liability limits from the Nationwide policy.
In July 2019, Plaintiff informed the UIM carriers that it had accepted the liability limits of Mr. Hall’s policy. Shortly thereafter, State Farm requested that Plaintiff reimburse the $100,000 that it had advanced in 2017. The funds were placed in escrow and Plaintiff filed a declaratory judgment action to determine the obligations of the UIM carriers.
Plaintiff contended that the stacked per person limits of the two UIM policies, $200,000, was to be compared to the liability limits of Ms. Crump’s policy and Mr. Hall’s policy separately, meaning Ms. Crump was underinsured by $100,000 and Mr. Hall was also underinsured by $100,000. Further, Plaintiff argued State Farm had waived its right of subrogation by failing to timely advance within 30 days of notice of the tender of the liability limits. The UIM carriers contended that the stacked per person limits of the UIM polices were to be compared to the combined limits of the tortfeasors’ liability policies, meaning no underinsured motorist coverage was owed and that State Farm was entitled to reimbursement.
After the trial court granted summary judgment to the UIM carriers, Ms. Tutterow’s estate appealed to the North Carolina Court of Appeals.
The North Carolina Court of Appeals focused on the language in the Financial Responsibility Act. See N.C. Gen. Stat. § 20-279.21. The Court held:
Under the statute, the calculation of applicable UIM coverage has three basic steps. First, the reviewing court must determine if a torfeasor’s vehicle meets the definition of an “underinsured highway vehicle.” If so, the court must determine if the limits of that tortfeasor’s liability policy are exhausted. Finally, if those liability limits are exhausted, the court must calculate the amount of coverage that is available under the applicable UIM policy.
Under the statute, the calculation of applicable UIM coverage has three basic steps. First, the reviewing court must determine if a torfeasor’s vehicle meets the definition of an “underinsured highway vehicle.” If so, the court must determine if the limits of that tortfeasor’s liability policy are exhausted. Finally, if those liability limits are exhausted, the court must calculate the amount of coverage that is available under the applicable UIM policy.
The Court noted that it was not disputed that the first two steps were satisfied and that UIM coverage was triggered. Thus, all that remained was to calculate the amount of UIM coverage available.
The Court determined the answer was in the unambiguous language of N.C. Gen. Stat. § 20-279.21(b)(4). The Court focused on the sentence, which provides:
Furthermore, if a claimant is an insured under the underinsured motorist coverage on separate or additional policies, the limit of underinsured motorist coverage applicable to the claimant is the difference between the amount paid to the claimant under the exhausted liability policy or policies and the total limits of the claimant’s underinsured motorist coverages as determined by combining the highest limit available under each policy…
Furthermore, if a claimant is an insured under the underinsured motorist coverage on separate or additional policies, the limit of underinsured motorist coverage applicable to the claimant is the difference between the amount paid to the claimant under the exhausted liability policy or policies and the total limits of the claimant’s underinsured motorist coverages as determined by combining the highest limit available under each policy…
The Court found this sentence answered the question of what to do when multiple UIM policies apply to a claimant. The Court held “the statute provides an unambiguous method to calculate the applicable limit of combined UIM coverage: it is the difference between the total amount paid under all exhausted liability policies and the total limits of all applicable UIM policies.”
As applied to the facts of the case, the total amount paid under the exhausted liability policies was $200,000, with $100,000 from the Horace Mann liability policy and another $100,000 from the Nationwide liability policy. The total limits of the available underinsured motorist coverages was also $200,000, with $100,000 from the Horace Mann UIM coverage and another $100,000 from the State Farm UIM coverage. Thus, the difference between those two totals was $0.00, which was determined to be the amount of available UIM coverage.
Beyond the unambiguous language of the Financial Responsibility Act, the Court noted the result comported with the purpose of the Act. The purpose of UIM coverage is to put the insured in a position where total insurance coverage for injuries sustained in an automobile accident is not less than the amount of UIM coverage obtained. The Court noted, the result in this case precisely accomplished that purpose. The available UIM coverage for Ms. Tutterow was a total of $200,000, which is the precise amount tendered to the Plaintiff by the carriers for the two liability policies.
Finally, the Court held that State Farm was entitled to reimbursement of the $100,000 it advanced. The Court determined the statutory provision requiring advancement within 30 days to preserve the right to subrogation was inapplicable. Once the limits of both of the liability policies were exhausted, the UIM carriers had no duty to advance any payments because they owed nothing under their policies. Thus, because State Farm did not have an obligation to advance payment under its UIM policy, it was entitled to have its advance returned in full.
By Ross Bromberger, Hedrick Gardner Kincheloe & Garofalo, LLP
What happens when an owner brings a lawsuit against its former general contractor six years to the day from substantial completion? Or if the owner brings a suit one month before the claim is barred by North Carolina’s statute of repose but the complaint is not served until more than six years after substantial completion? In either scenario, can a general contractor bring suit against its subcontractors or are those derivative claims, either in contract, indemnity, or contribution, barred by North Carolina’s statute of repose? Unfortunately, the answer appears to be that the general contractor is barred from asserting those valuable derivative claims against the subcontractors, even though the subcontractors are often the ones that performed the work at issue.
In ESA, Inc. v. Walton Constr. Co., Inc., the Eastern District Court was faced with this exact scenario. No. 7:04-CV-75-F(3), 2007 WL 9718764, 2007 U.S. Dist. LEXIS 113115, (E.D.N.C. Mar. 16, 2007) (applying North Carolina law). Plaintiff, Extended Stay America (ESA), filed suit against its general contractor, Walton, six years to the day after substantial completion. Walton filed a third-party complaint against its subcontractor, Power Plus, which actually performed the work in dispute. Walton’s Third-Party Complaint, however, was filed six years and two months after substantial completion. At summary judgment, Power Plus sought dismissal of Walton’s Third-Party Complaint, arguing the claim was barred by North Carolina’s six-year statute of repose. In response, Walton argued that such an application of the statute of repose would be inequitable. Ruling in favor of Power Plus and dismissing Walton’s Third-Party Complaint, the ESA Court noted:
Although the court appreciates the seeming inequity of the result, [N.C.G.S.] § 1-50(a)(5)(a), (b)(6) plainly dictates it. Therefore, where, as here, an owner files an action against a general contractor for defective or unsafe conditions arising from improvement to real property on the very last day allowed by law, that same statute of repose operates to preclude that contractor from seeking contribution or indemnity from his subcontractors. The Court of Appeals of North Carolina expressly has rejected the argument that the statute of repose does not bar an action for contribution or indemnification under similar circumstances, pursuant to an earlier version of the statute. New Bern Assoc. v. The Celotex Corp., 359 S.E.2d 481, 483 (N.C. Ct. App.), cert. denied, 362 S.E.2d 782 (N.C. 1987). The court also has pointed out that “[w]hether a statue of repose has expired is strictly a legal issue . . .,” Cellu Products Co. v. G.T.E. Products Corp., 344 S.E.2d 566, 568 (N.C. Ct. App. 1986), and that where “the pleadings and proof show without contradiction that the statute has expired, then summary judgment may be granted.” Id.
ESA, at *3.
What can a general contractor do to avoid, as the ESA court noted, such an inequitable ruling? Such a question requires a closer look at North Carolina’s construction statute of repose. For construction disputes, North Carolina’s statute of repose can be found in N.C.G.S. § 1-50(a)(5), stating, “[n]o action to recover damages based upon or arising out of the defective or unsafe condition of an improvement to real property shall be brought more than six years from the later of the specific last act or omission of the defendant giving rise to the cause of action or substantial completion of the improvement.” (emphasis added).
In reviewing N.C.G.S. § 1-50(a)(5), the North Carolina Supreme Court, in Christie v. Hartley Const., Inc., undertook an inquiry as to the legislative basis and intent behind a statute of repose. 367 N.C. 534, 766 S.E.2d 283 (2014). The Christie Court noted that “[b]ecause an applicable repose period begins to run automatically, statutes of repose give potential defendants a degree of certainty and control over their legal exposure that is not possible when such exposure hinges upon the possibility of an injury to a plaintiff that may never manifest.” Id. at 539, 766 S.E.2d at 287. Therefore, as a statute of repose acts to provide a bulwark against open-ended exposure, where a business contractual modifies and extends the statute of repose, North Carolina courts will allow such modification. Id. at 539-41, 766 S.E.2d at 287-88. Such a modification is allowable as parties generally are “free to contract as they deem appropriate.” Id.
In adopting and applying Christie, Judge Bledsoe of the Business Court found that contracting parties can seek to toll the applicable statute of repose. Window World of Baton Rouge, LLC v. Window World, Inc., 2019 NCBC 10,, 2019 WL 540755, 2019 NCBC LEXIS 11 (N.C. Super. Feb. 11, 2019). In support of this position, Judge Bledsoe stated, “North Carolina courts have explicitly recognized that a statute of repose may be tolled by agreement.” Id. at 6.
Not only can a party contractually modify to extend or toll the applicable statute of repose, but contracting parties can also agree to shorten the applicable statute of repose. Tsonev for Est. of Shearer v. McAir, Inc., 272 N.C. App. 689, 847 S.E.2d 788 (2020). In Tsonev, the plaintiff-homeowners hired McAir to remediate flood damage at their personal residence. Plaintiff and McAir entered into a contract, which, in part, specifically stated, “[McAir is] not liable for any consequential incidental, indirect, punitive, treble, speculative, or special damages of any kind whatsoever, and you may not bring any action against us more than two (2) years after the Completion Date.” Id. at 694, 847 S.E.2d at 792. Five years after completion date, plaintiff-homeowners discovered defective workmanship by McAir and brought suit. Upon review of the contract, the Tsonev Court dismissed plaintiff-homeowners’ claim, stating that the contractually shortened statute of repose was allowable “[b]ecause the express provision of the contract is clear” and therefore “the contract must be enforced as written.” Id. Based upon the Tsnoev decision, it appears a party may contractually modify the statute of repose to match the three-year statute of limitations for construction claims.
Back to the question at hand: what can a general contractor do to avoid the inequity of being sued within an owner’s statute of repose but outside a subcontractor’s statute of repose? At least one of the potential answers is the contractual formation on the front end. A general contractor can contractually modify and limit the statute of repose with the owner as in Tsonev. To that end, one suggestion would be to limit the statute of repose to match the applicable statute of limitations at three years. Alternatively, a general contractor could modify their subcontract agreements to include a tolling provision pursuant to Christie and Window World. In so doing, a subcontractor’s statute of repose would be contractually tolled from the date the owner brings suit against the general contractor. While there’s no silver bullet, at least there do appear to be contractual options available to protect a general contractor against the implicit risk of the statute of repose.
Finally, what can be done if the contracts are silent on the issue of modifying or tolling the statute of repose? Under such a scenario, the options for a general contractor are limited. If, however, the owner of the project has provided notice of potential issues, it might be advisable for a general contractor to file suit against any subcontractors that performed the work in dispute to preserve any available claims. The lawsuit against the subcontractors could later be consolidated with any lawsuit that was filed by the owner but served after the statute of repose has run.
By Josh Durham, Bell Davis Pitt
North Carolina’s Rule 12(b)(6) provides, in theory, a powerful tool for a defendant to dismiss a lawsuit in its early stages. A challenge under the rule compels the trial court to consider “whether the pleadings, when taken as true, are legally sufficient to satisfy the elements of at least some legally recognized claim.”i A motion under Rule 12(b)(6) is properly granted when (1) no law supports the plaintiff’s claims, (2) the complaint does not plead sufficient facts to state a legally sound claim, or (3) the complaint discloses facts that necessarily defeat the plaintiff’s claims.ii
In other words, Rule 12(b)(6) can provide a much-desired early exit to litigation, sparing a defendant substantial expense and saving considerable time.
But there is often still a cost to pursue such a motion. Many of our commercial litigation section members practice in the North Carolina Business Court, the state’s specialized forum for cases involving complex and significant issues of corporate and commercial law. While motions in non-Business Court cases frequently do not require briefs, briefs are mandatory in Business Court cases, and they must accompany the motion.iii In 2017, the Court made clear that any defendant pursuing a motion to dismiss under Rule 12(b)(6) must do so, with a motion and supporting memorandum, prior to serving an answer.iv At least in the Business Court, this put an end to the common practice of placeholder motions to dismiss in answers, to be followed later by a more formal motion and brief.v
These days, nearly every type of case could merit a Rule 12(b)(6) motion. For example, in suits accusing another of misappropriating a trade secret, the rule can be used to dismiss the case because a plaintiff did not sufficiently describe the alleged secret. Sued for violating a covenant not to compete? Use the rule to challenge the reasonableness of the time, geography, and scope restrictions in the covenant. Rule 12(b)(6) is frequently used in corporate disputes to challenge whether an owner in a closely held entity owed fiduciary duties to another owner. And if a complaint makes reference to a contract, but does not attach it, a defendant can use the rule to introduce the actual contract.vi At that point, while still under the rule, the defendant can show that a plaintiff’s claims are clearly contrary to the parties’ written agreement.
But, are such motions ultimately worth it?
Each year, the state’s Business Court judges participate as a panel in various continuing education events. In such panels, the judges offer views from the bench, practice pointers, and tips for successfully navigating Business Court practice and procedure. Recently, one of the judges spoke on motions to dismiss under Rule 12(b)(6). The judge confirmed that nearly every type of case could merit such a motion, estimating that nine out of ten cases before the court involve a Rule 12(b)(6) motion.
And he suggested they may not always be the best approach.
Why? A dismissal under Rule 12(b)(6) is not always with prejudice, which means the case will not necessarily end if the motion is granted. A dismissal without prejudice allows a plaintiff to amend its claims, fixing any shortcomings in the allegations. The decision whether to dismiss a case with prejudice or without prejudice (and whether to allow a plaintiff to amend its claims) is entirely within the court’s discretion.vii A quick survey of Business Court cases within the last six months shows the court often exercises that discretion to dismiss cases without prejudice. Such cases include claims for:
At the recent event, the judge suggested parties should instead consider addressing shortcomings in pleadings without the court’s involvement. In other words, because a motion to dismiss and briefs from the parties might very well result in a plaintiff being given the chance to amend, the parties might save themselves considerable time and expense by just working through a complaint’s shortcomings on their own. And, if a defendant files a motion and memorandum but does not file an answer to the complaint, the plaintiff can amend the complaint as a matter of right. This moots the entire motion and memorandum. The judge suggested this was all the more reason to meet and confer, so to speak, regarding any alleged deficiencies in a complaint. Doing so could avoid having to prepare for a hearing that will ultimately not happen.
The judge’s comments at the recent program follow comments from another judge at past events. With regard to trade secret claims, the judge suggested it might make for a better strategy to refrain from 12(b)(6) motions that attack the sufficiency of a complaint’s trade secret description. Instead, a party should consider whether to wait to attack the trade secret claim at summary judgment, when, if a motion is successful, the case will indeed be over.
These comments are definitely food for thought, and Rule12(b)(6) strategies definitely merit further discussion.
That is why, at this year’s Annual Meeting in Wilmington, the Commercial Section will be holding a breakout session on June 18 to specifically discuss Rule 12(b)(6) strategies. We are planning an engaging session with insight from an esteemed panel and robust discussion from attendees.
We hope to see you there!
iArroyo v. Scottie’s Prof’l Window Cleaning, Inc., 120 N.C. App. 154, 158, 461 S.E.2d 13, 16 (1995).
iiOates v. JAG, Inc., 314 N.C. 276, 278, 333 S.E.2d 222, 224 (1985).
ivNew Friendship Used Clothing Collection, LLC v. Katz, 2017 NCBC 71 (N.C. Super. Ct. Aug. 18, 2017).
vAdmittedly, I had done this in a case before the Business Court, filing a formal motion and memorandum more than a year after serving the answer.
viErie Ins. Exch. v. Builders Mut. Ins. Co., 227 N.C. App. 238, 242, 742 S.E.2d 803,808 (2013).
viiFirst Fed. Bank v. Aldridge, 230 N.C. App. 187, 191, 749 S.E.2d 289 (2013).
iixBotanisol Holdings II, LLC v. Propheter, No. 21 CVS 102, 2021 WL 4844528, at *9 (N.C. Super. Oct. 18, 2021).
ixLoyd v. Griffin, No. 20 CVS 2394, 2021 WL 5865360, at *8 (N.C. Super. Dec. 10, 2021).
xiNorris v. Greymont Dev., LLC, No. 21 CVS 12659, 2022 WL 278278, at *8 (N.C. Super. Jan. 31, 2022).
By Austin R. Walsh
Hedrick Gardner Kincheloe & Garofalo, LLP
On 12/17/21, the NC Supreme Court issued its opinion in North Carolina Farm Bureau Mut. Ins. Co., Inc. v. Dana i, which clarifies the maximum underinsured motorist (UIM) coverage available to claimants regardless of whether the liability coverage was exhausted based on the per-person or per-accident policy limits.
The Dana decision is a win for common sense interpretation of the policy and N.C. Gen. Stat. §20-279.21(b)(4) and a marked change in course following the Supreme Court’s 2018 decision in Hairston v. Harward ii, which declared for the first time that UIM coverage is a collateral source and profoundly increased a defendant’s exposure to an excess verdict.
In Dana, the tortfeasor was intoxicated when his vehicle crossed the center line and collided with the Danas and a third vehicle, causing the death of Pamela Dana and serious injury to William Dana.
The tortfeasor’s vehicle was insured by Integon National Insurance Company with liability limits of $50,000 per-person, $100,000 per-accident. Integon tendered the per-accident limits in a global settlement, including offers of $43,750 to the Estate and $32,000 to William.
The Dana vehicle carried a Farm Bureau UIM policy with limits of $100,000 per-person, $300,000 per-accident. Farm Bureau offered $56,250 in “new money” to the Estate of Pamela and $68,000 in “new money” to William for a total UIM payout of $124,250. When combined with the liability recovery, Farm Bureau’s offers brought the Estate and William’s total recovery to $100,000 per claimant.
The Estate and Mr. Dana refused the offer, arguing that under N.C. Farm Bureau v. Gurley iii, the total UIM coverage available to the Danas was $200,000, not $124,250. The Danas arrived at $200,000 by reducing the $300,000 per-accident UIM limits by the $100,000 per-accident liability limits. Assuming an even split of the UIM coverage, this would have resulted in the Estate of Pamela Dana and Mr. Dana recovering $143,750 and $132,000, respectively.
Farm Bureau sought a declaratory judgment. On cross motions for summary judgment, the trial court found for the Danas. Farm Bureau appealed and the Court of Appeals unanimously affirmed. The Supreme Court granted discretionary review and reversed.
The Supreme Court opinion authored by Justice Ervin gives a detailed analysis of Gurley and N.C. Gen. Stat. § 20-279.21(b)(4). In Gurley, the Court of Appeals laid out two exclusive scenarios to determine available UIM coverage: (1) a liability settlement tendering the per-person limits and (2) a liability settlement tendering the per-accident limits to multiple claimants. In scenario #1, the liability settlement is subtracted from the UIM per-person limits to find the maximum UIM coverage. In scenario #2, the per-accident liability limits are subtracted from the per-accident UIM limits, but an individual’s recovery is not bounded by the per-person limit iv.
The statutory language at issue provided that “the limit of underinsured motorist coverage applicable is determined to be the difference between the amount paid to the claimant under the exhausted liability policy or policies and the limit of underinsured motorist coverage applicable to the motor vehicle involved in the accident.” In Gurley, the Court of Appeals implied that by using the singular “limit” and not the plural “limits,” the Legislature intended for only the per-person or per-accident limit to apply as a cap to coverage, but not both v. As applied to the Danas, the Gurley Rule would have resulted in a windfall recovery of $75,750 above the per-person UIM limits.
In a clear rebuke, Justice Ervin wrote that the Gurley Court’s reliance on the use of the singular “limit” was a “slender reed upon which to base a conclusion that the per-person and per-accident limits of liability may not both be applicable.” vi Relying instead on “the traditional use” of the per-person and per-accident liability limits “that insurers, policyholders, and policy makers are all familiar with,” vii Justice Ervin continued, “[w]e are unable to discern any reason why the General Assembly would have intended to preclude the use of both per-person and per-accident liability limitations in determining the maximum amount of underinsured motorist coverage.” viii
The opinion went on to hold that in calculating the amount to be paid, Courts should treat “the per-accident amount of [UIM] coverage as the total sum that is available to all of the claimants . . . subject to the caveat that the amount of [UIM] coverage that is available to any individual claimant is limited to the per-person amount.” ix As a result, the Danas would receive a total recovery of $100,000 per claimant, which is the maximum per-person coverage bargained for when the policy was purchased.
In her concurrence, Justice Earls argued that the majority rightfully supplanted Gurley, but should have overruled Gurley explicitly, rather than preserving Gurley’s analysis to avoid a “one size fits all” rule.
A second concurrence, authored by Justice Berger and joined by Chief Justice Newby and Justice Barringer, argued that because the statute does not expressly provide whether the per-accident limit is subject to the per-person limit, the Court should have looked to the policy. Specifically, the Dana policy clearly states that “[s]ubject to [the] limit for each person, the limit of bodily injury liability shown in the Declarations for each accident for [UIM] Coverage is our maximum limit of liability for all damages for bodily injury resulting from any one accident.” x
For two decades, the personal automobile policy language has been in conflict with the Gurley Rule. Fortunately, the Supreme Court has taken a step in the right direction with Dana’s common-sense re-alignment of the uniform policy and the statute and by providing insurers and policy holders with a solid foundation to evaluate future UIM claims. xi
i. N. Carolina Farm Bureau Mut. Ins. Co., Inc. v. William Thomas Dana, Jr., et al., 2021-NCSC-161, 866 S.E.2d 710 (2021).
ii. Hairston v. Harward, 371 N.C. 647, 821 S.E.2d 384 (2018).
iii. N. Carolina Farm Bureau Mut. Ins. Co. v. Gurley, 139 N.C. App. 178, 532 S.E.2d 846 (2000).
iv. Id. at 183, 532 S.E.2d at 849
vi. Dana, 2021-NCSC-161 at ¶ 19, 866 S.E.2d at 717.
vii. Id. at ¶ 18, 866 S.E.2d at 717.
iix Id. at ¶ 19, 866 S.E.2d at 717.
ix. Id. at ¶ 23, 866 S.E.2d at 719.
x. Id. at ¶47-48, 866 S.E.2d at 724 (Berger, J. Concurring) (emphasis added).
xi. The positive outcome in Dana is owed in part to the NCADA’s Amicus Committee and the efforts of J.T. Crook, Phillip A. Collins, and David S. Coats of Bailey & Dixon, L.L.P., who authored the NCADA’s amicus curiae brief.
by Charles E. McGee, Sizemore McGee, PLLC
In workers’ compensation claims arising on or after 6/24/2011, N.C. Gen. Stat. § 97-29 limits the payment of temporary total disability (“TTD”) compensation to 500 weeks from the date of first disability, unless the claimant qualifies for extended compensation through N.C. Gen. Stat. § 97-29(c). To qualify for extended compensation, the claimant’s extension application must be made at least 425 weeks after the date of first disability, and unless otherwise agreed to by the parties, the claimant must prove by a preponderance of the evidence a total loss of wage-earning capacity. Deputy Commissioners have thus far entered decisions in eight cases addressing extended compensation; five of these have been appealed to the Full Commission, which very recently entered its first decision in the appeals.
Going forward, it will be important for counsel to identify and track the legal standards and methods of proof applied by the Full Commission in its decisions in these extended compensation cases. While Sturdivant and Tyson indicate a “new and different” showing is required to prove a total loss of wage-earning capacity – i.e., “a complete destruction of the ability to earn wages” or a complete lack of “any wage-earning capacity,” buttressed by sufficient medical and vocational evidence – Betts indicates a showing of “no reasonable expectation [to] earn wages in the competitive economy” may be combined with a claimant’s age, education, and transferrable skills to demonstrate a total loss of wage-earning capacity. Though the appellate courts may ultimately weigh in on some or all of the cases, the Full Commission’s decisions will help clarify the applicable burdens and analyses in the meantime.
In addition, the defense bar has noted several issues arising during litigation of extended benefits cases, including: objection to the use of an LMS where the claimant did not take part in its formulation; attempts to require the institution of full vocational rehabilitation efforts in conjunction with an LMS; attempts to add new and even previously-denied body parts/conditions to bolster disability claims (including allegations of injury- and claim-induced psychological issues); and attempts to take voluntary dismissals without prejudice after filing a Hearing Request. Counsel would be well served to be aware of these potential issues going forward, and to anticipate the need to counter new or denied body parts/conditions and restrictions as well as efforts to extend litigation and thwart or blunt LMS evidence.
By Chad Jones, P.E., CMSE, CFEI, The Warren Group
One of my more interesting calls and subsequent forensic investigations was regarding water accumulating inside of 2X4 fluorescent light fixtures in a suspended ceiling of a secondary school in South Carolina.
A client called reporting an unusual problem. They indicated that the metal chassis of the classroom lights were sweating and generating enough water to accumulate on the diffuser lens of the lights. Seeing is believing, so obviously an on-site investigation was in order!
On arrival at the school the next day, water was indeed observed to be accumulating inside the 2X4 fixtures and puddling on the diffuser lens in one classroom and the adjoining teachers work room. The sweating light fixtures were not observed in the adjacent classrooms or teacher workrooms. The phenomenon was also only observed on the first floor of the building. The facility was an approximately 50-year-old two-story educational facility with CMU walls and precast concrete double tees for the floor and roof.
Inspection above the ceiling of the first story in the affected spaces showed large amounts of condensate on the underside of the double tee panels. The concrete panels were literally sweating and looked like the tile walls of a bathroom after a long, hot shower! Measurements were taken using a non-contact infrared thermometer and the temperature of the areas indicated mid to high 50 degrees Fahrenheit. A quick check of a psychrometric chart indicates that these temperatures are near or at the saturation line for water, explaining why the moisture in the air was condensing on the panels. Test measurements in adjacent rooms not showing moisture problems indicated the temperature of the concrete double tees were in the high 60’s F, certainly above the saturation point as evidenced by the lack of condensation.
These observations led to two main questions, why is the ceiling in the first floor of the affected area so cold and why is there excess moisture present in a conditioned building?
Investigating the cause of the extremely cold concrete double tee in the affected room involved inspecting the classrooms above. When I entered the classroom above our subject one, I noted that it was very cold. From discussions with the teacher, it was discovered that the space was unbearably cold at all times since the start of the school year. In fact, the teacher and students wore coats in class even though it was August in South Carolina, definitely not a normal sight for sure.
The HVAC system in the building was antiquated and did not have a central building management system. Each HVAC unit had a local thermostat housed in locked box. The teachers were not allowed to adjust the setpoint at all. Through the clear face of the locked box, the setpoint in the classroom was observed to be set on 55 °F and the space temperature was 59 degrees!! Because the thermostat setpoint was not reached, the HVAC unit continued to supply 55 – 57 °F air to the space in an attempt to reach setpoint. The unit never cycled off, it continually supplied air at saturation conditions. Temperature measurement of the floor indicated 55 – 57 °F, explaining the high 50-degree temperatures observed in the ceiling of the space below the classroom. Maintenance was notified and the thermostat was reset to mid 70’s per district temperature policies.
With the first question of why the double tees were cold answered, the next question to answer is to find the source of the excess moisture in the ceiling space. As the building is not new, infiltration of outside air is always a concern. While investigating above the ceiling the exterior walls were checked for air intrusion. Large amounts of air could be detected entering the building through the building joints and seams. The quantity of air was so large it could be felt on the skin of the back of your hand and it caused the spider webs above ceiling to sway! A check of exterior doors indicated that the doors had significant resistance to being opened. Once a door was opened, large amounts of air began to rush into the building. The day was calm with little to no wind detectable outside. So why was the building so negative?
Next stop was the roof of the building. Several large upblast “mushroom” exhaust fans were observed on the roof, towards the center of the building. Data plate information on the fans was located and recorded. The fans were obviously quite large and moved a great deal of air. Investigation back inside the building indicated that the fans exhausted the restrooms located in the core of the building but based on experience and knowledge of fan HP and chassis size, the fans were moving air well in excess of code required levels. Where was the makeup air coming from and why were the fans so large?
A trip to the central file repository for the District Maintenance Department was in order. Original drawings were obtained for the building. Reviewing the drawings indicated that the classrooms used to be conditioned by a two-pipe hydronic system with fan coil units located in the ceiling. Each fan coil had an outside air duct tied to the return duct with a louver on the exterior wall to bring in fresh air to the space. The two-pipe system and associated ductwork had been demolished and the louvers sealed. Wall mounted heat pumps had been retrofitted to the school in the past. These units had outside air dampers that would close when the wall mount unit was not running. However, the exhaust fans in the restroom were not replaced with appropriately sized fans considering the HVAC system change. This set up an extremely negative condition in the structure. This was the source of the massive infiltration observed above ceiling.
Outside air calculations and code required exhaust calculations for the restrooms were performed. The overall air balance for the space was then analyzed. New exhaust fans were sized to meet current exhaust requirements in the restroom area. Subsequent replacement of the oversized fans with properly sized fans reduced the infiltration to a level expected from a 50-year-old structure. The space above the ceiling dried up and there were no further reports of puddles of water accumulating in light fixtures.
Design defects can manifest in mysterious places. A thorough investigation should lead us to the root cause and potential responsible parties.
Chad Jones, PE, CFEI, CMSE has a Bachelor of Science in Mechanical Engineering from Clemson University. Chad has over 20 years of engineering experience including mechanical, process, and manufacturing engineering. This work has included equipment design, machine safeguarding, cost estimating and safety compliance. Chad also has over 10 years of commercial, industrial, and residential HVAC and plumbing design experience. Chad is a Certified Fire and Explosion Investigator and IFSAC certified Firefighter II in Greenwood County, South Carolina.
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