Posted by: Stefanie Caraviello | February 27, 2011

Indian Wells

After getting to the hotel @ 3AM EST this morning, I woke up to this view.

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Posted by: Stefanie Caraviello | February 26, 2011

Down goes Barney

The Terriers take down the Purples today 79-65 for a first round bye in the So Con tourney. A big win, since no team in conference history has won the tournament and the ticket to the big dance that didn’t have a bye.

Posted by: Stefanie Caraviello | February 26, 2011

FDCC Bound

This afternoon I sit in the Columbia airport headed to the mid year meeting of the Federation of Defense and Corporate Counsel. I have been a member of the Federation since 2005, and in that time I have met and worked with some of the best defense lawyers in the country. Like every other legal organization, there are lots of SC lawyers. South Carolinians are joiners, no doubt about it. Many past presidents of SCDTAA are members.
The meeting is in Palm Springs which at last check had rain and 49 degrees. I hope for better weather, but I have committee meetings and a Wednesday CLE presentation on Defendant Class Actions @ 8AM. I’ll play a little golf and it’s back to reality next Saturday.
While I get much both personally and professionally from the Federation, my wife and girls get just as much. For my wife, she’s built a network of friends and for my girls, they now have friends from all over the country.

Now let’s hope Delta’s on time today.

Posted by: Stefanie Caraviello | February 22, 2011

Another venue

Team sports are big at my house. Having played team sports growing up and now coaching, I know the value that experience has for success in later life.
A good judge of whether someone will be a valuable member of an organization is whether they played on a team and can be a good metric in hiring decisions.
That being said, I sit at Memorial Stadium at halftime with middle daughter playing soccer versus Dreher

Posted by: Stefanie Caraviello | February 22, 2011

Senate Judiciary part 3

1st amendment – change to the seatbelt moving violation provisions passed
2nd amendment – insertion of the word likely in front of to cause harm which has now rolled back into knew or should have known (which is amendment 17)
The discussion now centers around some alternative to knew or should have known

A motion is made to send back to subcommittee is defeated 11-6.

Motion to adopt knew or should have known fails 9-9

Posted by: Stefanie Caraviello | February 22, 2011

Senate Judiciary Part 2

They are now taking up the subcommittee report and what came out of subcommittee and once again the knew or should have language has come up. The theme of the folks opposed to the punitive caps is there is no problem and no one has shown that a punitive problem exists.

Posted by: Stefanie Caraviello | February 22, 2011

Senate Judiciary

Meeting is starting with a discussion of HB 3375 the tort reform bill. I have been told there will be a number of amendments today per Senator Martin. Discussion of the punitive exception for acts committed while engaged in pursuit of unreasonable financial gain.

Now there is a discussion of whether there can be evidence introduced that not wearing a seatbelt saved someones life or reduced injuries. Also a discussion of an amendment to allow for fees and costs if the introduction of seatbelt is not proven by person offering the absence of a seatbelt.

There are 33 amendments to the tort reform bill as of this afternoon. One Senator suggests sending the bill back to subcommittee because of the amendments.

Stay tuned

Posted by: Stefanie Caraviello | February 22, 2011

Live from Senate Judiciary

This afternoon the Senate Judiciary Committee is holding a hearing on the Tort Reform bill and I am here – details to follow

Posted by: Stefanie Caraviello | February 19, 2011

Terriers win

My Wofford Terriers played Ball State tonight in an ESPN bracket buster game and come away with the win 66-61. Tuning up for a run for the SoCon Tournament and the big dance.

Posted by: Stefanie Caraviello | February 18, 2011

Amicus Briefs

One of the valuable services that the SCDTAA provides to its membership is the Amicus Committee, which files amicus briefs in cases which present issues within the mission of the SCDTAA and its membership; namely the advancement of the civil justice system. My first position on the Executive Committee was chair of that committee. As a result of that service, I now write Amicus briefs from time to time for various industries and trade groups. One of those cases was decided last week, and it is the first time that I have seen a court cite one of my briefs in support of their decision – good stuff. Here’s the SC Lawyers Weekly Article:

http://sclawyersweekly.com/news/2011/02/10/railroad-beats-fine-for-ugly-bridge/

Railroad beats fine for ugly bridge
By Fred Horlbeck

By FRED HORLBECK, Senior Staff Writer

The Midlands city of Cayce fined a freight carrier under a criminal ordinance for not painting a railroad bridge, but the company hadn’t violated the ordinance because a federal law preempted it, the S.C. Supreme Court ruled.

The law trumped the ordinance even though the two were not in direct conflict, the court said.

Built in 1955, the Norfolk Southern Railway bridge over U.S. Highway 321 drew fire in 2005 when the city, complaining of rust and graffiti, asked the company to paint it. In 2007, the city amended its public nuisance ordinance to include rusted structures and then fined Norfolk Southern $500.

But in a Feb. 7 opinion, the Supreme Court held that § 28-251 of the municipal code didn’t apply to railroads. What did apply was the U.S. Interstate Commerce Commission Termination Act, 49 U.S.C.A. §§ 10101-16106, it said.

The decision means railroads won’t have to contend with municipalities regulating the appearance of railroad structures, a lawyer for Norfolk Southern said.

But a lawyer for the city said the company earned $2.6 billion in 2007 and was big enough to foot the cost of the paint job.

“This was truly a David versus Goliath kind of situation, and, unfortunately, we ran out of stones, and Goliath won,” said Danny Crowe of Columbia.

The ruling affirmed a Lexington County circuit court, which had reversed a municipal court that found Norfolk Southern guilty of a criminal offense.

“We hold the circuit court correctly determined the ICCTA preempts enforcement of the nuisance ordinance against Norfolk,” Chief Justice Jean Hoefer Toal wrote for the court.

“Bridges are expressly considered part of the railroad’s operations under the definitional section of the ICCTA, and the enforcement of the city’s ordinance against Norfolk will have an effect on its railroad operations that falls within the scope of the ICCTA,” she added.

Greenville lawyer Ronald K. Wray, who represented Norfolk Southern along with co-counsel James M. Dedman, hailed the ruling as a first and said it would protect railroads from a “patchwork of laws and regulations” affecting their operations.

“To our knowledge, this is the first case to address this issue anywhere in the country,” Wray said. “It is a case of first impression with respect to the issue of a criminal conviction for a railroad failing to comply with an ordinance like this, as far as I know. It is not a case of first impression in terms of application of federal preemption.”

For the company, the decision meant more than beating a $500 fine, Wray said. The ordinance mandated an additional $500 fine for each day the violation continued, and the company could have taken a big hit if it had lost in the Supreme Court.

“We thought the court correctly analyzed the issues and understood the situation presented to railroads being faced with a patchwork of laws and regulations,” Wray said. “It would have been very difficult for them to have comfort with their operations because they would have faced different requirements in the various cities and towns through which they passed.”

Crowe said the city had made no decision on whether to seek a rehearing.

“Our position was that any federal preemption is not absolute and that this was a circumstance where the aesthetic concerns of the city ordinance, in our view, should have had only a remote, incidental effect on the railroad. It did not impact in any meaningful way the operations of the railroad or rail transportation,” he said.

Although the court focused on the $250,000 cost of a complete paint job, the city wanted the company to paint only parts of the bridge visible to motorists, Crowe said. The company estimated the cost at about $60,000.

“We were arguing that our small effort to address the aesthetics of this bridge were not the type of activity that Congress intended to be preempted,” he said.

The case is City of Cayce v. Norfolk Southern Railway (Lawyers Weekly No. 010-023-11, 8 pp.).

Analysis

The case arose two years after Cayce first asked the company to paint the bridge. The city contended that the bridge was an eyesore that devalued nearby property and “created a negative impression about the city.” But the company said it didn’t have the money to do the work.

After the municipal court ordered the company to pay the fine, the company went to circuit court, where Judge William P. Keesley reversed.

On appeal, the city argued that the bridge fell squarely within the ordinance’s definition of public nuisance and that the parties had agreed the bridge had rust and graffiti when the city issued the fine.

The municipal court had found that the ICCTA didn’t preempt because no federal regulation directly addressed the appearance of railroad bridges. But the justices disagreed.

Federal law can preempt state law in three ways: through express preemption, when Congress explicitly means it to trump; through field preemption, when state law intrudes into an area where Congress intends federal law to be exclusive; or through conflict preemption, when federal law and state law are in conflict.

In this case, the court said conflict preemption was the issue but noted the lack of a direct conflict between the two laws.

“However, we hold that ICCTA preemption does apply, even if there is no direct conflict with a specific regulation, if the ordinance interferes with the railroad’s ability to conduct its operations or otherwise unreasonably burdens interstate commerce,” Chief Justice Toal wrote. “Direct conflict is only one circumstance under which state law is preempted by federal law.”

Justices also pointed to testimony in which a Norfolk Southern official emphasized the need for uniformity in railroad regulations. With more than 20,000 miles of track in 22 states, Norfolk Southern would have difficulty keeping up with ordinances that might vary or conflict from town to town, the official said.

In that same vein, the court took note of an amicus brief submitted by the Association of American Railroads. The association argued that ordinances like Cayce’s, if enforced around the country, would unreasonably burden interstate rail transportation.

“It is a function of fact that if the statute were allowed to stand, then it would be precedent to allow any municipality or town to then legislate this and put additional burdens on the railroad to keep the graffiti off, or whatever it may be, a condition that the railroad didn’t create,” said Gray T. Culbreath, a Columbia lawyer who represented the association.

Such ordinances “could be conflicting from one town in South Carolina to another,” he said.

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