OPINIONS

Continued From Page 19 until the matter is called for trial in hopes of an easier path—or in the case of a supporting party, any path at all—to recouping attorney’s fees.

Affirmed in part; reversed in part.

Limerick v. Rojo-Limerick (Lawyers Weekly No. 011-028-23, 10 pp.) (Toby Hampson, J.) Appealed from Mecklenburg County District Court (Tracy Hewett, J.) Randall Limerick, pro se; Jennifer Fleet for defendant. N.C. App.

Schools & School Boards

IDEA – Least Restrictive Environment – Remedy – ALJ’s Findings –Regularly Made

Plaintiff’s autistic daughter, A.C., was moved from a regular high school to a high school for children with cognitive disabilities. An administrative law judge determined that the defendant-school board should have set out benchmarks or “measurable criteria that [A.C.] must meet in order for the IEP [(individualized education plan)] team to consider . . . a change to a lesser restrictive environment than [a] separate school.” The ALJ did not delegate her authority when she ordered the school board to add such criteria to A.C.’s IEP.

We affirm the district court’s decision, which upheld the ALJ’s ruling.

Even the most diligent of reviewing courts is likely to be less familiar with a child’s case and the substance and the details of educational programs than the school officials and parents who deal with such matters regularly. We thus discern no abuse of remedial discretion on the part of the district court in allowing the school board to fashion “benchmark(s) and criteria” in A.C.’s IEP indicating when she may move on from Metro School. We cannot run the school system from this distance. Lacking the background to know precisely which benchmarks and criteria would be suitable in A.C.’s case, the district court and ALJ reasonably looked to the school district to proceed in good faith to meet its statutory responsibilities.

Furthermore, the ALJ’s findings were regularly made. Plaintiff takes no issue with the process afforded her by the ALJ prior to the written decision. The ALJ took her time in this case and made findings that shed light on her reasoning.

The ALJ made nuanced factual findings, ruling in plaintiff’s favor on two issues and in the school board’s favor on others. Moreover, the ALJ spotted that one of the school board’s assertions was “contradict[ed]” by evidence. The context of the ALJ’s balanced decision lends additional support to the school district’s contention that she “g[a]ve careful consideration” to plaintiff’s witnesses and evidence.

Based on the extensive process plaintiff received in the handling of her case, as well as the detail provided in the ALJ’s written decision, we affirm the district court’s determination that the ALJ’s findings were regularly made.

Affirmed.

Bouabid v. Charlotte-Mecklenburg Schools Board of Education (Lawyers Weekly No. 001-035-23, 19 pp.) (Harvie Wilkinson, J.) No. 22-1048. Appealed from USDC at Charlotte, N.C. (Robert Conrad, J.) Kelli Lorraine Espaillat, Keith Howard and Carla Fassbender for appellant; Ashley Frances Leonard and Christopher Campbell for appellee; Ellen Saideman, Selene Almazan-Altobelli, Deborah Stagner and Stephen Rawson for amici curiae. 4th Cir.

Tort/Negligence

Misappropriation of Trade Secrets –Compilation – Customer Information

The plaintiff-mortgage company alleges that its spreadsheet of information about past, present and future clients constitutes a trade secret. Although some of this information might be shared with third parties or might otherwise be in the public domain, plaintiff alleges that, over years of doing business, it has expended effort in compiling the particular information regarding its customers and prospective customers that is necessary to “target [its customers] with a tailor-made pitch” for use of plaintiff’s mortgage services. Plaintiff has sufficiently alleged that this compilation of customer information is a trade secret.

The court grants in part and denies in part defendants’ motion to dismiss. The court grants plaintiff’s motion to amend its complaint.

Defendants are plaintiff’s former employees and their new businesses – allegedly formed while the individual defendants still worked for plaintiff –that now compete with plaintiff.

While nondisclosure agreements and employment policies are certainly tools that are often used to safeguard business information, the law does not require that they be used in order to satisfy the “reasonable efforts” requirement in G.S. § 66-152(3)(b) of the North Carolina Trade Secrets Protection Act. At this early stage of the litigation, plaintiff has sufficiently alleged that it made reasonable efforts to maintain the secrecy of its spreadsheet: plaintiff alleges that it (1) restricted access to the spreadsheet to certain of its employees, (2) maintained safeguards such as password-protected computers, (3) prevented access to the spreadsheet by its competitors, and (4) required nondisclosure of the spreadsheet in exit interviews and agreements.

Plaintiff has also adequately alleged misappropriation.

Plaintiff alleges upon information and belief that the individual defendants “used [plaintiff’s president] Donna Chain’s computer and/or coerced Donna Chain” into downloading and transferring a form of the spreadsheet for defendants’ use to start defendant LKN Capital Mortgage, Inc. Plaintiff further alleges that as of December 2020, defendant Casper maintained a copy of this electronic file on his personal computer.

Plaintiff alleges that it was the inadvertent recipient of an email indicating that defendants use the spreadsheet to contact plaintiff’s customers. Plaintiff also alleges that 25 of the first 32 mortgages closed by LKN involved customers whose information appears on the spreadsheet.

The court denies defendants’ motion to dismiss plaintiff’s claim of misappropriation of trade secrets.

Employees do not generally owe their employers a fiduciary duty, and plaintiff has not alleged facts that would make this case an exception. Defendants’ motion to dismiss plaintiff’s breach of fiduciary duty claim is granted.

To the extent plaintiff’s unfair trade practices claim is based on a misappropriation of trade secrets, it survives defendants’ motion to dismiss; to the extent it is based on a breach of fiduciary duty, it is dismissed.

Motions granted in part, denied in part.

States Mortgage Co. v. Bond (Lawyers Weekly No. 020-019-23, 22 pp.) (Julianna Theall Earp, J.) Clark Tew for plaintiff; Brett Dressler, Michelle Dressler, James Galvin and Ryan Tiede for defendants. 2023 NCBC 19

Workers’ Compensation

First Impression – Temporary Total Disability – Extended Benefits –Burden of Proof

On a matter of first impression, the court construes the “ext ended benefits” available under G.S. § 97-29(c), i.e., temporary total disability benefits past the usual 500 weeks, to be available under the same terms as temporary total disability benefits; however, a plaintiff seeking extended benefits no longer enjoys a presumption of continuing disability and must prove he remains temporarily totally disabled.

We affirm the Industrial Commission’s denial of plaintiff’s claim for extended benefits.

As the 500-week limit on his temporary total disability benefits neared, plaintiff filed a Form 33, seeking to qual- ify for extended benefits. Defendant presented evidence that there were jobs available that plaintiff could perform, despite his compensable back injury.

According to § 97-29(c), an employee qualifies for extended temporary, total disability benefits, beyond the 500week cap set out in § 97-29(b), if “pursuant to the provisions of G.S. 97-84, . . . the employee shall prove by a preponderance of the evidence that the employee has sustained a total loss of wage-earning capacity.”

We agree with plaintiff that the Industrial Commission erred by concluding that his burden to show a “total loss of wage-earning capacity” under § 97-29(c) is higher than his burden to show he had suffered a “total disability” to qualify for the initial 500 weeks of benefits under § 97-29(b).

Our Supreme Court has used the phrase “loss of wage-earning capacity” synonymously with “disability” both prior to and after the 2011 amendment which added § 97-29(c). Based on such cases, it reasonably follows that “total disability” (under § 97-29(b)) and “total loss of wage-earning capacity” (under § 97-29(c)) are synonymous. More importantly, our General Assembly expressly defines “disability” in the Act as the “incapacity . . . to earn wages[.]” G.S. § 97-2(9). Applying the plain language of this statutory definition of “disability,” it reasonably follows that “total disability” means “total incapacity to earn wages.” The phrase “total incapacity to earn wages” conveys the same idea as the phrase “total loss of wage-earning capacity.”

Under Watkins v. Central Motor Lines, 279 N.C. 132, 181 S.E.2d 588 (1971), until an employee who has been awarded total disability benefits under § 97-29(b) returns to work, it is presumed that (1) he has no wage-earning capacity and (2) his compensable injury continues to be the cause of his incapacity to earn a wage.

Our Supreme Court has never determined whether the Watkins presumption applies beyond the 500-week cap.

Based on the language of § 97-29, we conclude an employee who seeks extended benefits under § 97-29(c) is not entitled to a presumption that he has suffered a total loss of wage-earning capacity merely because it was previously determined that he had suffered a disability under § 97-29(b). Section 97-29(c) plainly states that to qualify for extended benefits, the employee “shall prove” that he “has sustained a total loss of wage-earning capacity.” There is no indication that our General Assembly intended an injured employee to rely on a prior determination of total disability beyond the 500-week cap.

Here, the Commission weighed conflicting evidence in the record and found that (1) “Plaintiff has some transferable skills from his several decades of prior employment in various fields”; (2) there were jobs in plaintiff’s home county that were compatible with his skill; and (3) “[c]onsidering Plaintiff’s work history [and] his educational level,” he “would be able to obtain some employment, at a minimum, part-time work in a sedentary position.” These findings are supported by evidence in the record, including the testimonies of defendant’s medical and vocational experts.

Since plaintiff did not offer evidence that he made reasonable efforts to find a job suitable to the capabilities the Commission found him to have, he failed to meet his burden of showing that he qualifies for extended benefits under § 97-29(c).

Affirmed.

Sturdivant v. North Carolina

Department of Public Safety (Lawyers Weekly No. 011-041-23, 13 pp.) (Chris Dillon, J.) (Donna Stroud, C.J., concurring in result only without separate opinion) Appealed from the Industrial Commission. Stewart Poisson for plaintiff; J.D. Prather for defendant; Michael Bertics, Richard Harper, Joshua Harper, Joy Brewer, Ginny Lanier, Frances Clement, Kristine Prati, Tracey Jones, Logan Shipman and Lindsay Underwood for amici curiae. N.C. App.

$1.35 MILLION SETTLEMENT Collision with 18-wheeler results in $1.35M settlement

Action: Motor vehicle negligence

Amount: $1.35 million

Injuries alleged: Death

Case name: Withheld

Court/case no.: N/A

Jury and/or judge: N/A (settled pre-suit)

Mediator: Sam Clawson

Date of settlement: April 2022

Most helpful experts: David Dorrity

Attorneys for plaintiff: Daniel E. Henderson of Parker Law Group; Paul T. Oven of Dougherty, Leventhal & Price

Attorney(s) for defense: Withheld

Were liability and/or damages contested: Yes

Has judgment been successfully collected: Yes

The 49-year-old plaintiff was traveling south on I-95 in an unlit portion of Jasper County. According to plaintiff’s counsel, she encountered an 18-wheeler moving at approximately 30 mph partially in the right lane and partially on the right shoulder. The plaintiff’s vehicle went under the trailer in a violent crash that destroyed the front of her SUV.

Within minutes, the plaintiff’s vehicle became engulfed in flames and resulted in her death. The 18-wheel driver had stopped on a pitch black road to “check his load.” It was not an emergency situation, plaintiff’s counsel reported; the driver was reentering the traveled lane of I-95 when the crash occurred.

The plaintiff was survived by her husband and her18-year-old son. The case settled for policy limits of $1 million.

$900K SETTLEMENT

Tractor-trailer crash leads to

$900K settlement

Action: Motor vehicle negligence

Amount: $900,000

Injuries alleged: Fractured left hip, fractured right ankle, six fractured ribs, fractured left knee

Case name: Withheld

Court/case no.: Withheld

Jury and/or judge: N/A (settled post-mediation)

Date of settlement: October 2022

Attorney for plaintiff: Meredith S. Hinton of Ricci Law Firm Attorney(s) for defense: Withheld

The plaintiff was involved in a collision with a tractor-trailer that had overturned in the roadway at night. Liability was highly contested with numerous experts brought in by both sides, plaintiff’s counsel reported.

The plaintiff suffered a fractured left hip, fractured right ankle, six fractured ribs, and a fractured left knee. The plaintiff underwent surgery for her ankle and hip immediately following the wreck. However, the plaintiff’s ankle did not completely heal, and she later underwent an ankle fusion. The plaintiff was unable to return to work following the accident, but due to an inconsistent work history, she was unable to present a lost wage claim following the accident.

$1.3 MILLION SETTLEMENT

Jury returns $1.3M verdict over ‘alienation of affection’

Action: Tort

Amount: $1.3 million

Injuries alleged: Alienation of affection

Case name: Fish v. Stetina

Court/case no.: Catawba County Superior Court/No. 22 CVS 931

Jury and/or judge: Jury/Judge Nathaniel J. Poovey

Date of verdict: March 14, 2023

High-low agreement: No

Most helpful expert's name: Clark Walton of Charlotte Attorney for plaintiff: Clark D. Tew of Pope McMillan, Statesville

Attorney for defense: Pete McArdle of Arnold & Smith, Charlotte

The plaintiff and their spouse were married for 19 years. According to the plaintiff’s counsel, in the last year and a half prior to separation, the defendant began a long-distance relation- ship with the plaintiff's spouse, primarily consisting of hundreds of hours of telephone calls with the plaintiff's spouse and including evidence of two pre-separation meetings between the two of them during which the plaintiff argued that the pair had inclination and opportunity to have sexual relations. When the defendant’s divorce was finalized with his spouse, the plaintiff's spouse left the marital home with intent to remain separate and apart, and within five months the pair had two other trips to see each other and commenced a formal romantic relationship.

$1.62 MILLION SETTLEMENT

Case alleging negligence by social workers settles for $1.62M

Action: Negligence

Amount: $1.625 million

Injuries alleged: Three sexual assaults, physical abuse and neglect between Oct. 9, 2018, and Nov. 9, 2018, resulting in psychological injuries, including post-traumatic stress disorder, adjustment disorder and anxiety

Case name: Wolfe v. Bowens; Wolfe v. NC-DHHS Court/case no.: Pitt County Superior Court; NC Industrial Commission/No. 21 CVS 2844; No. TA 29590-91

Jury and/or judge: Mediator Asa L. Bell Jr.; Judge Marvin K. Blount III; Deputy Commissioner Thomas H. Perlungher

Date of settlement: June 3, 2022

Attorneys for plaintiff: Carlos E. Mahoney of Mills & Mahoney, Durham; Lynne M. Holtkamp of Holtkamp Law Firm, Hillsborough

Attorneys for defense: Paul Gessner of Cranfill Sumner, Raleigh; Carl Newman of NC Department of Justice, Raleigh Insurance company: Atlantic Specialty Insurance Co.

These cases arose from the mishandling by Pitt County DSS of an investigative assessment response to an October 2018 report of sexual abuse and neglect involving a 7-year-old girl with special needs. The child had disclosed the abuse to her school counselor, and the counselor reported the sexual abuse and neglect to DSS and law enforcement. The underlying sexual abuse was committed by the child's 18-year-old brother and two male neighbors at the child’s home while she was living with her mother and a 13-year-old brother. The mother was on the sex offender registry due to a conviction for indecent liberties with a 14-year-old boy.

During an initial examination, the local hospital observed signs of sexual abuse, and the lead social worker found that child sexual abuse was suspected to have occurred. While completing the investigative assessment, DSS allowed the child to stay with her mother at home under a safety plan. The plan required the mother to not allow the offender-brother to reside at the home and to supervise the children at all times when outside the home.

From Oct. 18-30, 2018, DSS did not conduct a home visit, did not have any contact with the children or mother, did not contact the child’s school, and did not staff the case. On Oct. 29, 2018, a school counselor learned that the child was hit twice with a hammer by the offender-brother while playing outside unsupervised with a friend. The following day, the police detective obtained warrants for arrest against the offender-brother and a neighbor for sexual offenses and against the brother for the hammer assault.

On Oct. 31, 2018, a CMEP evaluation was completed by a physician with the lead social worker and the police detective present. The physician concluded that the examination was consistent with the child’s reported history of chronic sexual assault and that neglect and physical abuse were indicated. The physician noted that the mother was unwilling or unable to protect her child from chronic sexual abuse.

The physician recommended that the child should be put in foster care for her protection because the safety plan was not being followed by her mother.

From Oct. 31 to Nov. 8, 2018, DSS did not place the child in foster care, did not complete a home visit, did not have any contact with the children or mother, and did not contact the school. On Nov. 8, 2018, the child broke down at the end of the school day and reported to the school counselor three new incidents of sexual abuse by her 18-year-old brother at the home during the prior week and physical abuse and neglect by her mother. The counselor immediately reported the sexual abuse, physical abuse, and neglect to DSS, and the local hospital observed signs of sexual abuse again. The child was removed from the home and placed in foster care.

The offender-brother was arrested three days later. The child’s mother was present with the brother in his vehicle at the time of the arrest, and she was charged with felony accessory after the fact. The mother was deported, the brother pleaded guilty to various sexual offenses, and a neighbor was found guilty of one of two offenses.

The plaintiffs filed a civil action against the lead social worker in her individual capacity alleging claims for gross negligence based on her actions after the CMEP evaluation on Oct. 31, 2018. In addition, the plaintiff filed a state tort claim against NC-DHHS based on the negligence and gross negligence of the Pitt County DSS social workers.

The civil action was settled at a mediation, and the settlement was approved by the Superior Court. The tort claim was settled after the mediation, and the settlement was approved by the Industrial Commission. The final settlement payment was made in January 2023.