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Who Sues When the Personal Representative of an Estate is Also a Defendant?

In Fisher v. Huckabee, the SC Supreme Court affirmed the circuit court's dismissal of a relative's lawsuit seeking to remove the personal representative of an estate because the relative believed the estate had a claim against the personal representative.

The relative filed suit, litigated the matter in the probate and circuit courts, appealed to the SC Court of Appeals and lost, then appealed to the SC Supreme Court and lost again. Why?

She didn't lose the case based on the merits - in the end, the Supreme Court ruled against her because of a "technicality." She filed the lawsuit on behalf of the estate as the estate's "real representative," and, although there is a clear procedure in the probate code to have a "special administrator" appointed in this situation and caselaw that explains the process, she never asked the probate court to appoint her as "special administrator."

Because the civil rules require that actions be prosecuted "in the name of the real party in interest," and, in this case, the only authorized representatives for an estate would be the personal representative or a "special administrator," the SC Supreme Court affirmed the dismissal of her case.

How to Settle an Auto Accident Claim in SC

If you get hurt in a SC car crash caused by another driver's negligence, no one is going to rush in and voluntarily cover all your costs.

The at-fault driver's insurance company may deny your claim outright. If they make a settlement offer, it will almost certainly be far less than what you are owed.

You can try to negotiate with them on your own, but you are at a disadvantage.

Chances are, you don't do a lot of high-stakes negotiating. The adjuster you're trying to get money out of, on the other hand, does it every day. Their job is to find a way to deny your claim or get you to agree to as little money as possible, and they are good at their job.

Your SC auto accident attorney can help level the playing field for you. Like the insurance adjuster, the Axelrod team has experience with high-stakes negotiations. Unlike the adjuster, we are also trained advocates for plaintiffs and we have experience trying auto accident cases.

Does Marijuana Use Affect Child Custody Determinations in SC?

Family court judges in the states that have legalized marijuana for recreational or medicinal use are dealing with this question: How should the changing legal status of the drug affect the way they rule in child custody cases?

Now that it's legal, does that mean that pot smoking should not disqualify a parent from getting primary custody of their children?

In South Carolina, there is no such debate taking place. The law has not changed here - marijuana is illegal, and, if you are caught with any amount, you will be arrested.

And, if a SC family court judge hearing your child custody case learns that you smoke pot, it will affect their decision as to who gets primary custody of your children.

When Should I Go to Trial in an Auto Accident Case?

If you file a personal injury lawsuit in SC after being injured in a car accident, your case probably will not go to trial - but, you and your attorney must be prepared and ready to try your case.

Insurance companies will usually settle out of court, and, if you are lucky - very lucky - they might make an early offer that's fair and fully compensates you.

It's more likely, though, that the insurance company will try to settle for as little money as possible. Unfortunately, many car crash victims accept the first offer the insurance company makes, and this leaves them struggling to come up with the money to pay their mounting medical bills, make up for their lost earnings, and repair or replace their vehicle.

You don't have to do this. If the insurance company tries to shortchange you in a settlement, your SC personal injury attorney should be ready to take them to trial. That's the last thing insurance companies want because they know that 1) trials cost money; and 2) if a jury determines that they are liable, the damages may be significantly more than they offered as a settlement.

Congress Wants to Force Arbitration for Autonomous Car Wrecks

The arrival of autonomous vehicles has raised a lot of questions for lawmakers and the courts. Who's responsible when a self-driving car crashes? Who should regulate these vehicles, and how?

With the AV Start Act, Congress has taken an early stab at resolving some of these issues. Unfortunately, these early efforts seem designed to protect corporations at the expense of ordinary people who get hurt or killed in self-driving vehicle accidents - by requiring arbitration and preventing car wreck victims from suing the auto manufacturers.

Is Domestic Violence Grounds for Divorce in SC?

Going through a divorce is always hard. When domestic violence is involved, the process becomes even more difficult, more stressful, and - all too often - more dangerous.

If you are suffering violence at the hands or your spouse, you may decide that getting a divorce is the best, or only, way to protect yourself and your children in the future. But what about right now?

If you fear for your safety, talk to your attorney about getting a temporary restraining order through the family court. And, do your best to remove yourself from the danger - stay with a friend or family member. If that's not an option, a local domestic abuse organization can help you find a safe place, at least temporarily, for you and your children.

You may also want to file criminal charges. If your spouse is convicted of or pleads guilty to criminal domestic violence before the divorce is complete, your case in the divorce becomes much stronger - once they have been found criminally liable for the abuse, they cannot claim it didn't happen during the divorce proceedings.

Head-On Collision in Conway, SC

Three people were injured and hospitalized after a head-on collision Sunday afternoon, according to Horry County Fire and Rescue.

One person was trapped inside a vehicle and was in critical condition after being freed by rescuers. Two others suffered significant injuries in the accident, which happened on Old Reaves Ferry Road and Bear Bluff Road in Conway.

Head-on collisions are one of the most dangerous kinds of car crashes - they makeup only 2 percent of auto accidents but account for more than 10 percent of highway deaths.

Teacher of the Year's Felony DUI Dismissed

Prosecutors decided to drop a felony DUI charge against a former Teacher of the Year after tests showed that she had not consumed any alcohol or other drugs.

According to the SC Highway Patrol, the woman turned her car in front of the motorcycle of an off-duty police officer. The motorcycle struck her car, and the officer died.

She was given standardized field sobriety tests (SFSTs) and a breath test at the scene. While the breath test showed she had a blood alcohol content of 0.00, a state trooper said she performed poorly on the SFSTs. The trooper also claimed she smelled of alcohol and had red, glassy eyes.

The responding officer said she was drunk, and an off-duty officer was killed. So, she was charged with felony DUI.

Prosecutors didn't have much of a choice other than to dismiss the case when further tests, including independent blood analysis, confirmed that the driver had no alcohol or other drugs in her system.

I Think I Want a Divorce, What Should I Do?

No matter how bad your marriage is, divorce is not easy.

A marriage becomes an essential part of your identity and making big changes to the relationships that define you is always stressful and emotionally exhausting.

But, your emotional well-being is just one of the many potential casualties of divorce. How will splitting up affect your financial future? Or your relationship with your children?

You may already know that you want a divorce, or you may be on the fence. In either case, you should consider whether counseling may help the situation. For most couples, a separation is the next step, and then there are steps that you may need to take to protect yourself and your children during a separation period.

Can I Sue for Wrongful Death After a Motorcycle Crash?

The Myrtle Beach area has more than it's share of motorcycle crashes, and, with thousands of motorcyclists expected to pour into Myrtle Beach for the 2018 Atlantic Beach Bikefest and the Spring Harley Davidson Rally next month, we can expect there will be crashes in the coming days.

Just in the last couple of weeks, we have had:

Because motorcycles offer much less protection than other vehicles, riders are at a greater risk of catastrophic injury or death in the event of a crash. But, whether the victim is driving a car or a motorcycle, the at-fault driver must pay full compensation for all the damage they caused.

If someone you love is killed by a reckless driver in a motorcycle accident, you may be able to file a wrongful death lawsuit to make the other driver pay and to hold them accountable - get an experienced SC motorcycle accident lawyer on the case as soon as possible after the accident.

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Axelrod & Associates, P.A.
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