NEWS ARTICLE EXCERPT

By: Fred Horlbeck, South Carolina Lawyer's Weekly, January 12, 2009

In a rare instance of a court resorting to summary judgment on damages in a class action, the U.S. District Court of South Carolina has awarded $7.9 million to cancer patients in a breach-of-contract suit against two insurance companies.

The award resolves the parties' differences over damages, but whether the 182 plaintiffs will collect remains to be seen since the defendants have filed an appeal with the U.S. Court of Appeals.

The case could mark a first in South Carolina, a lawyer for the plaintiffs said.

Most class actions end with a dismissal or a settlement, but the recent award via summary judgment in Ward v. Dixie National Life Ins. Co. et al., C/A No. 3:03-3239-JFA, was "unique" said Richard A. "Dick" Harpootlian of Columbia.

"I've been doing this for 30 years, and I've never had one that either didn't get thrown out or settled," said Harpootlian, who represented the plaintiffs along with Columbia attorney Toby Ward.

The decision may reveal summary judgment as a viable approach for courts to take when deciding awards in a contract-based class action especially when disputes over damages depend on which contract interpretation passes muster in the case's liability phase.

"This case stands for the proposition that, once you have a class and have liability determined, these companies should settle with you," Harpootlian told South Carolina Lawyers Weekly.

The summary judgment was the second handed down in the case since the Fourth Circuit held a hearing in 2007 on the issue of liability. That was a turning point for the plaintiffs because the court reversed the lower court in November 2007 and ordered it to grant them summary judgment.

The latest ruling avoided a trial over damages, a battleground for the parties since early 2008.

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Contact South Carolina Lawyers Weekly, http://www.scweekly.com/, for the full article.