South Carolina Court of Appeals Rules Legal Malpractice Case Barred by Statute of Limitations


The South Carolina Court of Appeals has reversed a partial summary judgment in favor a client where the lower court held that the statute of limitations had not expired on a legal malpractice claim. In Kimmer v. Wright, a client sued his former attorney for negligent representation in a worker’s compensation claim. The client had been injured in a work related motor vehicle accident.

The client retained the attorney to represent him in the worker’s compensation claim and also a third party personal injury action against the driver of another vehicle. The attorney settled the third party claim, but failed to obtain the prior consent of the client’s employer.

The client filed his claim with the Worker’s Compensation Commission, who ordered that the injuries were compensable, but was barred because the settlement constituted an election of remedies. The client then sought review in the trial court, which reversed the Commission’s Order. The employer appealed.

The attorney informed the client that he might have a legal malpractice claim and that he should consider hiring another lawyer. The client declined and then signed an acknowledgement of his potential claim.

While the appeal was pending and over three years after the employer’s initial rejection of the claim, the client and the attorney entered into a tolling agreement. The agreement gave the client an additional year to bring a malpractice claim, but did not revive any claims that were already barred by the statute of limitations. Less than one year later the client filed a complaint for malpractice against the attorney.

Subsequently, the appellate court found for the employer and reinstated the Commission’s Order denying benefits.

The attorney moved for Summary Judgment in the malpractice case, claiming that the three year statute of limitations had run prior to the filing of the action. The trial court denied the motion, ruling that the statute of limitations was tolled until the Commission’s Order had entered, even though the client had some knowledge of the claim at the time he signed the acknowledgement. The attorney appealed.

The appellate court reversed, finding that the statute of limitations began to run at the time of the attorney’s error. The Court reasoned that the client did not have to wait for his damages to materialize in the form of an adverse Order by the Commission in order to commence the malpractice claim. The client had already suffered financial and emotional injuries as a result of the attorney’s negligence and the extent of the damages in the worker’s compensation matter could have been litigated in the malpractice action.

Decision: Kimmer v. Wright

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