HUFF, J.
Attorney Lee, who is licensed to practice law in North Carolina, represented Malloy in a North Carolina workers' compensation claim after Malloy sustained injuries in 2002 when he fell from a ladder while working in North Carolina for a North Carolina employer. On April 16, 2003, Malloy entered into a contract of representation, retaining the Law Office to represent him in the matter and pursue the North Carolina workers' compensation claim. Among other things, this agreement provided representation of Malloy would end "when the case is either settled or decided at a hearing." Additionally, it stated as follows: "This agreement shall be governed by the law of the State of North Carolina and the Rules and Regulations of the North Carolina Industrial Commission." On November 25, 2003, Malloy entered into a settlement agreement with the employer and carrier to accept payment of $100,000 in full satisfaction of any current and future claims he may have as a result of the accident. Both Attorney Lee and Malloy were present at mediation in North Carolina when the settlement was reached and, along with Malloy's wife, executed the agreement at that time. By letter dated February 25, 2004, the Law Office disbursed Malloy's settlement funds from its South Carolina office to Malloy's South Carolina home. The Law Office's last correspondence with Malloy occurred on January 10, 2005, when Malloy was provided with a copy of a form in regard to his workers' compensation claim.
The trial court filed a Form 4 order on September 5, 2013, granting summary judgment to LEE. In this order, the trial court noted the contract between the parties contained a choice of law clause providing North Carolina substantive law would govern the contract, that Rogers alleged LEE negligently settled the North Carolina workers' compensation action, and North Carolina's statute of repose would bar the present action. The court held the case of Nash v. Tindall Corp., 375 S.C. 36, 650 S.E.2d 81 (Ct.App.2007) controlled the matter and, noting the underlying workers' compensation action was filed, mediated, settled and approved in North
The trial court thereafter filed a formal order, again finding this case indistinguishable from Nash, as Rogers alleged Malloy's injuries were directly and proximately caused by Malloy's acceptance of LEE's advice to settle his workers' compensation claim and that advice was given and relied upon at mediation in North Carolina, and Malloy agreed to the settlement and executed the settlement agreement in North Carolina. Additionally, the trial court found Malloy sought out and retained an attorney licensed to practice in North Carolina to pursue a workers' compensation claim in North Carolina, his underlying workers' compensation claim was for injuries sustained in North Carolina while working for a North Carolina employer, and the parties' relationship was governed by the substantive law of North Carolina pursuant to the terms of their contract of representation. In regard to any public policy exception as a basis for declining to apply North Carolina's statute of repose, the trial court found the fact that the law of two states may differ does not necessarily indicate the law of one state violates the public policy of another. It noted our courts have specifically held the "good morals or natural justice" of South Carolina are not violated when foreign law is applied to preclude a tort action for money damages, even if recovery could be had in application of South Carolina law, and our courts have also repeatedly adhered to the lex loci delicti rule to apply foreign law to defeat a claim which would have survived under South Carolina law. Accordingly, it found North Carolina's statute of repose did not violate the public policy of South Carolina.
Rogers filed a motion to alter or amend, asserting the location where Malloy's "injury was manifested" was the key to applying South Carolina's choice of law jurisprudence, and because all of Malloy's financial injuries occurred in South Carolina, the substantive law of South Carolina governed this legal malpractice tort action. In argument before the trial court, Rogers cited Lister v. NationsBank of Delaware, N.A., 329 S.C. 133, 494 S.E.2d 449 (Ct.App.1997) and Bannister v. Hertz Corp., 316 S.C. 513, 450 S.E.2d 629 (Ct.App.1994) in support of her position that South Carolina substantive law controlled the tort claims. As to the trial court's finding that
Following the hearing on Rogers' motion for reconsideration, the trial court issued an order finding Lister and Bannister to be distinguishable from the case at hand. The trial court further noted Rogers encouraged the court to read the principle that "the substantive law governing a tort action is determined by the state in which the injury occurred" to mean "the state in which the results of the injury manifest themselves." The trial court then stated as follows: "Clearly, the financial harm to [Malloy] manifested itself in South Carolina because [Malloy] is and always has been a citizen of this state. However, the court cannot ignore that the entire transaction which led to [Malloy's] damages occurred in North Carolina." The trial court therefore declined to alter or amend its prior orders.
Under South Carolina choice of law principles, the substantive law governing a tort action is determined by the state in which the injury occurred, commonly referred to as the lex loci delicti rule. Boone v. Boone, 345 S.C. 8, 13, 546 S.E.2d 191, 193 (2001); Bannister, 316 S.C. at 515, 450 S.E.2d at 630. A statute of repose "creates a substantive right in those protected to be free from liability after a legislatively-determined period of time," and it "constitutes a substantive definition of rights rather than a procedural limitation provided by a statute of limitation." Nash, 375 S.C. at 40, 650 S.E.2d at 83.
We disagree with Rogers' assertion that the lex loci delicti is determined simply by the location of manifestation of a plaintiff's financial damages in a legal malpractice action.
Additionally, we find Rogers' reliance on Lister is misplaced. There, the plaintiffs, while vacationing in Aruba, rented a vehicle from an Avis agency using their NationsBank Visa credit card. Lister, 329 S.C. at 138, 494 S.E.2d at 452. The car was involved in an accident, which plaintiffs averred was caused by a deflating tire, and the plaintiffs returned to Avis and discussed closing out their account. Id. The plaintiffs believed Avis closed out their credit card account. Id. at 139, 494 S.E.2d at 452. A few months later, however, plaintiffs discovered their credit card had been charged $7,696.63 for the wrecked vehicle, even though plaintiffs never authorized the charge. Id. Citing Hester v. New Amsterdam Cas. Co., 287 F.Supp. 957 (D.S.C.1968), this court noted, in a fraudulent misrepresentation action, the place of the wrong is not where the misrepresentations are made but where the plaintiff, as a result of the misrepresentation, suffers a loss. Lister, 329 S.C. at 143, 494 S.E.2d at 455. The court then held "[s]ince the [plaintiffs] suffered their financial loss as a result of [the Avis employees'] misrepresentation [that they were authorized to charge the plaintiffs' credit card] in South Carolina, we conclude South Carolina law applies under the choice of law test for torts." Id. at 144, 494 S.E.2d at 455. In Lister, the injury that occurred was the misappropriation of the plaintiffs' money and this injury was directly to their money, which occurred in South Carolina. In Lister, the injury was not considered to have occurred in South Carolina simply because the plaintiffs resided in South Carolina and therefore felt the financial consequences of it there. Rather, as noted by this court in Lister, "South Carolina was the place
We likewise find no merit to Rogers' assertion that the trial court's reconsideration order was contrary to the law in Bannister. That case involved the rental of a van in New York from Hertz Corporation to transport New York residents to South Carolina. 316 S.C. at 515, 450 S.E.2d at 630. The van was involved in an accident in North Carolina, resulting in injury to Bannister and her daughter and the death of Bannister's husband. Id. Bannister brought actions in South Carolina against Hertz for negligence, alleging the driver was a permissive bailee, and moved for summary judgment on the ground New York law governed Hertz's vicarious liability for the negligence of the driver. Id. Hertz argued North Carolina substantive law should apply to the tort action, and under North Carolina's substantive law, it could not be held vicariously liable. Id. In reversing the trial court's application of New York law, this court noted "[u]nder South Carolina conflict of law principles, the substantive law governing a tort action is determined by the state in which the injury occurred," and found "North Carolina substantive law therefore governs this case." Id. at 515-16, 450 S.E.2d at 630. As previously stated, the place in which the injury occurred in the case at hand was in North Carolina, where Malloy allegedly sustained a loss of his opportunity to further pursue his underlying workers' compensation claim or settle for a greater sum of money.
Rogers also takes issue with the trial court's finding that, "[a]lthough the parties entered into their relationship in South
Rogers next urges this court to adopt the substantive law of the state where a plaintiff resided at the time of the injury to govern legal malpractice claims, asserting this would improve "predictability in determining choice of law problems." In so arguing, Rogers cites several cases from other jurisdictions. However, in all but one of these cases, the courts in those jurisdictions applied a different choice of law test—the most significant relationship test or some similar test—and not lex loci delicti in determining the substantive law to be applied.
The circumstances and legal determinations in the cases from the other jurisdictions cited by Rogers are readily distinguishable from the case at hand, and we are not persuaded our courts should blindly apply the residence of a plaintiff in a legal malpractice claim as the location of the injury.
Rogers also argues South Carolina has an interest in compensating victims of legal malpractice for injuries accruing in
"[F]oreign law may not be given effect in this State if `it is against good morals or natural justice . . .'" Dawkins v. State, 306 S.C. 391, 393, 412 S.E.2d 407, 408 (1991) (quoting Rauton v. Pullman Co., 183 S.C. 495, 508, 191 S.E. 416, 422 (1937)). "[U]nder the `public policy exception,' the Court will not apply foreign law if it violates the public policy of South Carolina." Boone, 345 S.C. at 14, 546 S.E.2d at 193. Our courts "will refuse to follow [the law of lex loci delicti] when it is against good morals or natural justice, or `for some other such reason the enforcement of it would be prejudicial to the general interests of our own citizens.'". Id. (citing Dawkins, 306 S.C. at 393, 412 S.E.2d at 408 and Rauton, 183 S.C. at 508, 191 S.E. at 422). However, "[t]he `good morals or natural justice' of our State are not violated when foreign law is applied to preclude a tort action for money damages, whether against an individual or the State, even if recovery may be had upon application of South Carolina law.'" Dawkins, 306 S.C. at 393, 412 S.E.2d at 408. Further, even though the law of two states may differ, this fact "does not necessarily imply that the law of one state violates the public policy of the other." Id. (citation omitted).
We cannot say the public policy of this state would be violated by application of North Carolina's statute of repose in this matter, as the good morals or natural justice of our State would not be violated. Thus, we find no public policy exception to the lex loci delicti rule would be appropriate in this case. See Dawkins, 306 S.C. at 392-93, 412 S.E.2d at 408 (declining to recognize a public policy exception to the lex loci delicti rule and determining application of Georgia substantive law, which required actual bodily contact with a plaintiff as a result of the defendant's conduct in emotional distress actions, was appropriate); Nash, 375 S.C. at 42, 650 S.E.2d at 84
Rogers argues on appeal that North Carolina law governs the proximate cause element of the malpractice claims. She further asserts South Carolina's three-year statute of limitations and discovery rule are procedural laws which would govern Malloy's claims.
Based on the foregoing, we affirm the trial court's grant of summary judgment for LEE based on application of North Carolina's statute of repose.
WILLIAMS, J., concurs.
FEW, C.J., concurring.
I agree that when a South Carolina lawyer represents a South Carolina resident before the North Carolina Industrial Commission, and the client subsequently sues the lawyer for
Mark A. Malloy was a South Carolina resident on September 9, 2002, when he sustained a serious head injury in a workplace accident in North Carolina. On April 16, 2003, Malloy sat down in the Law Offices of Lee & Smith, P.A. in Spartanburg, South Carolina to meet with Kenneth E. Lee, an attorney licensed in South Carolina, as well as North Carolina. As the majority emphasizes, the fee agreement Malloy signed that day indicates the purpose of the representation included pursuing a workers' compensation claim. However, the fiduciary duty Lee and his law firm assumed by representing Malloy provided the lawyers in the firm the opportunity to consider a variety of other options, including (1) considering whether Malloy should go to probate court to have a guardian and/or conservator appointed;
In that initial conversation, therefore, Lee's duty to exercise reasonable care related to a variety of options that included the possibility of bringing an action in South Carolina. That duty of due care arose under South Carolina law. The fact that one of the services Lee eventually performed for Malloy involved a proceeding before the North Carolina Industrial Commission does not automatically transform the entire attorney-client relationship to one arising under North Carolina law, and neither does the choice of law provision in the fee agreement that covered only that proceeding. Rather, the fact of proceeding before the North Carolina forum simply invokes the substantive law of that state for the lawyer's actions in the course of that component of the representation.
N.C. Gen.Stat. § 1-15(c) (2013).