Attorneys – Tort/Negligence – Legal Malpractice – Civil Practice – Choice of Law – Statute of Repose

Rogers v. Lee (Lawyers Weekly No. 011-088-15, 12 pp.) (Thomas Huff, J.) (John Few, C.J., concurring) Appealed from Spartanburg County Circuit Court (Frank Addy Jr., J.) S.C. App.

Holding: The plaintiff’s ward and the defendant-attorney are both South Carolina residents. Nevertheless, plaintiff’s legal malpractice claim is barred by the North Carolina statute of repose because (1) this action is based on a North Carolina workers’ compensation case, which arose out of the ward’s employment in North Carolina; (2) the parties’ representation contract indicated that it was governed by North Carolina law; and (3) this action was filed more than four years after the end of the representation in question.

We affirm summary judgment in favor of defendants.

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. Lex loci delicti is determined by the state in which the injury occurred, not where the results of the injury were felt or where the damages manifested themselves.

The alleged injury to plaintiff’s ward was the loss of his opportunity to further pursue his underlying workers’ compensation claim or to settle for a greater sum of money. This injury occurred in North Carolina where defendants undertook representation of the ward in his workers’ comp claim, where the ward accepted the defendant-attorney’s advice to settle his claim for $100,000, and where the ward entered into a binding settlement agreement.

We find no error in the trial court’s determination that the relationship between defendants – which includes the attorney – and the ward was governed by the substantive law of North Carolina pursuant to the choice of law provision in the representation contract.

The court will not apply foreign law if it violates the public policy of South Carolina. However, 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.

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 in this case.

Affirmed.

Concurrence

(Few, C.J.) I write separately to emphasize that the choice of law provision in the original fee agreement does not govern the entire relationship between the lawyer and the client. There were other matters potentially included in the representation, such as (1) going to probate court to have a guardian or conservator appointed, (2) a third-party action, and (3) a social security disability claim.

Nevertheless, the fact of proceeding before the North Carolina Industrial Commission invokes the substantive law of that state for the lawyer’s actions in the courts of that component of the representation.