Settlement Remorse After Worker's Comp Loss
CHARLESTON, S.C. (CN) - South Carolinians allegedly exposed to asbestos say in court that they cannot collect worker's compensation because of the Motley Rice law firm's mishandling of their third-party claims.
Odell Parker leads the county court class action on behalf of South Carolina residents who have suffered physical injuries as a result of exposure to materials containing asbestos during the course of their employment. Parker and the other named plaintiffs claim to be members of a potential class of 14,900.
Each of the plaintiffs claims to have been represented by Motley Rice, which pursued asbestos cases on their behalf as co-counsel and/or members of joint ventures with other law firms located in Mississippi and Georgia.
Motley Rice and its principal, defendant Joseph F. Rice, "knew or should have known that under South Carolina law an injured worker intending to proceed with the claim against a third-party who caused injury to the employee during the course and scope of the employment was required to satisfy the notice provisions of S.C. Code Ann. §42-1-560(b) or they would otherwise lose their workers' compensation benefits," the complaint states.
Indeed, at the time the class retained Motley Rice, the plaintiffs were allegedly presented with a contract that stated, among other things, "I understand that Attorneys are not being employed or retained to advise me or file any type of claim for compensation pursuant to the Georgia Workers' Compensation Act or any other workers' compensation act."
Another form, titled "Information Regarding Your Asbestos Claim," stated "Your employer is not a defendant unless you pursue a Workers' Compensation claim. I do not represent you in worker compensation claims," according to the complaint.
Nevertheless, "neither defendants nor their co-counsel/joint ventures informed plaintiffs at any point during the representation of the need to engage counsel or take other actions to protect plaintiffs' workers' compensation benefits prior to or during the representation of plaintiffs on the third-party claims against the asbestos manufacturers," the class claims.
Because they limited the scope of their representation to pursuing only third-party claims on the their behalf, Rice and his law firm allegedly never provided notice of the claims to their employers, their employers' workers compensation policy carrier, or to the South Carolina Workers' Compensation Commission.
The class says Motley Rice should have advised them that the action could lead them to lose their worker's compensation benefits.
"Had defendants and their co-counsel/joint venturers satisfied the minimum standard of conduct with regard to their fiduciary duties by explaining the proposed limitation on the scope of representation (to exclude workers' compensation claims) and how the proposed limitation on the scope of the represent may impact their workers compensation claims, plaintiffs would have engaged counsel or taken other steps to protect their entitlement to and recovery of workers' compensation benefits," the complaint states (parentheses in original).
The legal malpractice action concedes that Motley Rice pursued one of three possible legal avenues available to the plaintiffs, and that they have all received monetary settlements in exchange for releasing the manufacturers from all claims.
They insist, however, that the attorneys' fees taken out of these settlements was not commensurate with the work performed, and that in the end, pursuing the litigation against the third-parties without providing notice to their employers cost them their "valuable workers' compensations benefits."
Motley Rice did not return a call seeking comment on the lawsuit.
Ruth Parker, Larry Southern, Roy Southern, Yvonne Harris and Barbara Patterson are also named plaintiffs.
They seek punitive damages and disgorgement of legal fees for legal malpractice, negligence, breach of fiduciary duty and breach of contract.
The plaintiffs are represented by Thomas Pendarvis of Beaufort, S.C.