A Case to Keep Your Eye On – $29,000,000 Chapter 75 Judgment

By Dan Morton

There is a case making its way through Onslow County Superior Court that you may want to keep an eye on. In Ortez and the Estate of Estes v. Penn National Security Insurance Company (Penn National) a trial court recently awarded judgment against Penn National for treble damages of $28,949,424.80, for breach of its duty to defend and breach of its duty to settle a claim against its insured driver. A Rule 59 motion for reconsideration is pending. This case could generate caselaw on several important coverage issues.

Penn National insured Kitchen and Lighting Designs Inc. under a commercial auto policy, with liability and UM/UIM limits of $1,000,000. Kitchen and Lighting’s employee (Ortez) was driving an Isuzu box truck that was a covered auto and was involved in a two-vehicle accident in which Ortez’ passenger/co-employee (Estes) was fatally injured. The Estes Estate sued Ortez, Fissaha (the driver of the other vehicle) and Passport (Fissaha’s employer) in Craven County (The Underlying Action). Fissaha and Passport settled the claims against them for $863,000. Relying on exclusions for injury to an employee of the insured or to a co-employee of the insured, Penn National denied coverage and refused to provide a defense to Ortez. In response to the coverage denial, the Estes Estate asserted an uninsured motorist claim under the Penn National policy.

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Grab a Coffee Program

By Spencer S. Fritts

Last year, the Law Student Outreach Committee of the Young Lawyers Division started a new and exciting initiative—the Grab a Coffee Program.  When creating the Grab a Coffee Program, our committee sought to create something that would require low investments of time and energy from our NCBA members yet offer high dividends for current law students.  After conducting a pilot program at Campbell School of Law earlier this year, which yielded terrific results and excellent feedback from both law students and participating attorneys, our Committee is expanding the Grab a Coffee Program across the state.

For a brief background, this program seeks to pair law students with practicing attorneys in their area of interest to grab coffee and discuss topics such as the attorney’s path to their current employment, what it is like working in their respective area of the law, and any general advice the attorney may have for the student.  The program is meant to be very informal, and we only ask that participating attorneys meet with a law student one time over coffee for roughly 30 minutes.  Of course, it is our hope that this one-time visit could blossom into a positive mentorship for the law student.

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Request for Articles: Write for the GPS Blog

By Amy O’Neal

As we have officially entered the fall season (despite the deceiving outside temperatures), it is a great time to consider submitting an article for publication on the Government and Public Sector Blog. Our blog posts are sent to GPS Section members and are available to all attorneys who are members of an NCBA Section. Send proposed articles to this year’s Communications Committee Co-Chairs, Amy O’Neal (amy.oneal@wbd-us.com) and Matt Sommer (msommer16@gmail.com).

Whether an introductory article or an in-depth piece, your proposed articles are welcome and would be much appreciated. We are looking for articles about:

  • Government and Public Sector law basics
  • Recent cases or case law
  • Proposed rules or legislation
  • Recently passed rules or legislation
  • Practice tips for those interacting with government agencies, boards, commissions, etc.
  • Information and news about government agencies, boards, commissions, etc.
  • Other areas of the law that intersect with the Government and Public Sector (e.g., administrative law)
  • Book reviews

In addition to original content, feel free to submit recent third-party articles or news stories that may be interesting or helpful to GPS Members. Please reach out to Amy or Matt if you have any questions or any suggested topics that you would like to see covered by the GPS Blog.

Enduring Tedium: The Future of Fights Over Electronically Stored Information

Photo by Markus Spiske/temporausch.com from Pexels

By Sean F. Herrmann

“Seeking justice often involves enduring tedium.” It’s fitting that North Carolina’s first substantive legal decision on eDiscovery begins with this pithy observation. Employment litigators often lament the virtual hellscape of discovering electronically stored information (“ESI”). But the era when paper was king is long dead, and the fight is now firmly in the cyber world of custodians, native formats, and keyword searches.

For those in federal court, at least rules and precedent exist to help guide them through the dark ESI forest (especially those that find themselves before Chief Judge Frank Whitney in the Western District of North Carolina). North Carolina state court practitioners haven’t been so lucky. That is until this week. On Aug. 6, 2019, the North Carolina Court of Appeals issued its first substantive decision on ESI in Crosmun v. Trustees of Fayetteville Technical Cmty. Coll. (No. COA18-1054). Judge Lucy Inman, who authored the opinion, put it well: “This appeal presents this Court with our first opportunity to address the contours of eDiscovery within the context of North Carolina common and statutory law regarding the attorney-client privilege and work-product doctrine.” The Court ultimately reversed the trial court’s order granting Plaintiffs’ forensic expert direct access to Defendants’ ESI, but the way the Court got there and its recommendations on remand are far more important than the holding itself.

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Sports Law Panel at UNC Law on 10/10/2019 from 5-7pm

By Kelly Ryan

Sports Law Panel

In a casual setting, come and listen to a truly star studded panel discuss legal issues in sports, leveraging their law degrees and what Carolina Law means to them. 


Thursday, October 10, 2019


5:00 – 7:00 p.m.


The Blue Zone
Kenan Memorial Stadium
104 Stadium Drive
Chapel Hill, NC




Our society is impacted daily by sports. Whether it’s our own interest, that of friends or family, or in the market place, sports makes their way into our lives daily. 

Recreational, collegiate or professional, sports are woven into the fabric of our lives, and since they can have a long-lasting positive impact, it’s important to recognize leaders in the industry.

Hosted by Carolina Law alum Gardner Altman, Jr. ’71, a Fayetteville native and entrepreneur, this panel discussion will highlight various Tar Heels and their contributions in the sports world.

Panelists will include the following:
Jim Delany (BA 1970, JD 1973), Commissioner, Big Ten Conference
Ty Votaw (JD 1987), Executive Vice President International, PGA Tour
Ken Farino (JD 1971), sports agent / entrepreneur
Alexander Julian (XMAT 1970), fashion designer
Professor Lissa Broome (JD Harvard), UNC’s Faculty Athletics Representative to the Atlantic Coast Conference and the NCAA; Burton Craige Distinguished Professor and Director of the Center for Banking and Finance

There is no cost for this event, and light refreshments will be served. RSVP by Monday, October 7.

Questions? Please contact Kelly Mann (assistant director of alumni and donor relations) at mann@unc.edu.

Register Now for the 42nd Annual Bankruptcy Institute

By Bankruptcy Section Editors

Don’t miss the 2019 North Carolina Bankruptcy Institute, November 22-23, 2019, in Wilmington! Not only is this a great opportunity to network with your colleagues across the state, but the seminar itself includes, among other things:

  • Roundtable discussions with North Carolina’s sitting bankruptcy judges;
  • A history panel discussion with two retired North Carolina bankruptcy judges and a Lifetime Achievement Award winner, covering such topics as why we have a BA but no BAP;
  • A keynote presentation from Irving Picard, the trustee in the Bernie Madoff case;
  • A mock trial presentation;
  • Your NC State Bar required ethics, technology, and mental health hours; and
  • Up-to-date information on the latest legislation impacting your practice.

Plus, enjoy the newly renovated Hotel Ballast on the riverfront in beautiful Wilmington at an unbelievable rate of $149 plus taxes.

Registration information and the full agenda are available here.

We hope to see you there!

Margaret Westbrook and Pam McAfee
Course Planners


By Ketan P. Soni

Hat tip to @cjfoxlaw:

“Being a lawyer is really just having everyone mad at you, all the time. Opposing party. Opposing counsel. Your client. Your client’s mom. The judge. Clerks. Random people on the street asking for legal advice that is out of your practice area. Your dog. Basically everyone.”

If that’s what the practice of law has become, we can at least be thankful for the awesome members of our active section!

Checking In: September 23, 2019

Wilson law firms Thomas Law Attorneys and Farris & Farris, P.A., will consolidate effective Oct. 1, managing partners Allen Thomas and Bob Farris announced recently. The firm will be named Farris & Thomas and operate at the current location of Thomas Law. The consolidation reunites the managing partners, who began their legal careers in practice with Robert Farris, the father of Bob Farris and the uncle of Allen Thomas. (Photo: Allen Thomas, left, and Bob Farris, courtesy The Wilson Times.)


Constangy, Brooks, Smith and Prophete has added a new office in Raleigh to complement North Carolina offices in Asheville and Winston-Salem. In tandem with its opening, the Raleigh office has welcomed its first partner, Justin Coffey, who worked previously for Ogletree Deakins. Coffey has more than 14 years of experience in immigration law, including serving as Chair of the Board of Directors of the International and Immigration Law Section of the Atlanta Bar Association.




Zachary Underwood has been promoted to Litigation Partner at the Raleigh office of Cordell & Cordell. He holds a bachelor’s degree from the University of Illinois at Springfield and a Juris Doctorate from Wake Forest University.





Jeffrey Tyburski and his staff have joined the Raleigh office of Geosyntec Consultants after previously working for McAdams. “This was an amicable decision between McAdams and Geosyntec,” Tyburski wrote, “recognizing that McAdams Civil Engineering/Land Development environmental needs are better served from a separate closely aligned partner. This will create a win-win situation for both companies.”




Steven Bader has joined the Raleigh office of Cranfill Sumner & Hartzog as an Of Counsel attorney. Bader’s practice focuses on appellate law, and his experience includes arguing cases before the Minnesota Supreme Court and the Minnesota Court of Appeals. He holds a bachelor’s degree, magna cum laude, from Saint Cloud State University, and a Juris Doctorate from Gonzaga University.




Grace Kays has joined the Wilmington office of Cranfill Sumner & Hartzog as an associate attorney, focusing her practice on medical malpractice defense. She holds a bachelor’s degree from the University of North Carolina at Charlotte, cum laude, with a major in criminal justice and a minor in political science, and a Juris Doctorate from Elon University.




Lori Fuller has joined the Technology practice at Smith Anderson in Raleigh. She brings with her a wealth of experience from previous positions, including serving as General Counsel for the North Carolina Department of Information Technology and as the first and leading advisor from the Attorney General’s Office for the State Information Processing Services and Information Technology Services.




Colin J. Tarrant has joined Block, Crouch, Keeter, Behm & Sayed in Wilmington after working previously for Smith Moore Leatherwood and Fox Rothschild. Tarrant’s practice focuses on business and commercial litigation, real estate development, land use, and zoning. He holds a Bachelor of Arts from North Carolina State University and a Juris Doctorate from the New England School of Law.




Megan Cook has joined the Raleigh office of Teague Campbell. She focuses her practice on issues of liability, including motor vehicle negligence and wrongful death. Cook holds a Juris Doctorate from North Carolina Central University School of Law.





Carmelle Alipio joins the Raleigh office of Teague Campbell. Carmelle holds a Juris Doctorate from Emory University, where she was the first woman and the first woman of color to be elected Director in Chief of the Emory Law School Supreme Court Advocacy Program. She also holds a Bachelor of Arts in political science and economics from Fordham University.




Patrick Scott joins the Raleigh office of Teague Campbell after participating in the Teague Campbell Summer Associate Program. He holds a bachelor’s degree in criminal justice from the University of North Carolina at Wilmington and a Juris Doctorate from Campbell University.




Report from the First Bankruptcy Section Council Meeting

By John Small

Dear Members of the Bankruptcy Section:

The first Bankruptcy Section Council meeting was held on August 22 in Raleigh. The Council adopted the Section’s budget for 2019-20 fiscal year. The budget provides for more funds for networking events and for certain costs related to the 2019 Annual Bankruptcy Institute, including $4,000 to reduce the cost of the annual seminar, keeping the price of the annual seminar under $500 for those registering as section members at the early bird rate.

The Council received a report from Pam McAfee and Margaret Westbrook, co-chairs for planning the 2019 Annual Bankruptcy Institute to be held in Wilmington on November 22-23. The keynote speaker will be Irving Picard, who is the trustee in the Bernie Madoff bankruptcy cases. This seminar will also feature new formats, including a judge’s roundtable and a trial demonstration. We hope to see you at the seminar and the networking events in Wilmington.

The Section’s new Networking Committee reported on its initial activities and future plans for this year. The Committee is seeking to have networking events in each district, in addition to the networking events associated with the Annual Bankruptcy Institute and the Council meetings. It is currently working to schedule an event on Thursday night of the Annual Bankruptcy Institute to welcome participants and provide opportunities to connect with others. Please contact one of the Committee chairs—Cindy Oliver, Samantha Brumbaugh, or Andy Houston—with any other ideas you may have for networking events.

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Tech Tip: Save Hours Responding to Document Requests or Creating Exhibit Lists with This Simple Trick

By Alicia Mitchell-Mercer

The day I returned to the office from a 7-day vacation, there was a lot of work to catch up on. By 3:00 PM, I was feeling very accomplished. I had completed most urgent matters on my to-do list for that day. However, around 4:00 PM, an attorney walked into my office with an urgent assignment. The project was to take approximately 3,000 computer files (subfiles, zip files, all types of different file formats), give each file a description, and create an exhibit list for an upcoming arbitration. I was told our deadline was the next day at 5:00 PM. The documents had already been sent to printing.

There was a brief moment when I felt overwhelmed. I began calculating how long it would take to look at each of the 3000 files on the computer and create descriptions suitable for the exhibit list. If I did this manually, I would need to type 375 filenames per hour (or 6.25 file names per minute) to have it completed in 8 hours and that’s if I never took a break.

I could have panicked, but my mantra has always been to work smarter – not harder. With technology, there’s almost always a way to automate processes to make tedious projects less cumbersome. With a few mouse clicks here and there, I completed the project in a little over an hour and the final result was 82 pages of itemized exhibits, perfect to cut and paste into a formal exhibit list in time for tomorrow’s deadline with plenty of time to spare.

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