Featured Articles

by Jason Clevenger, Ph.D., Jessica Vargas, Ph.D., Nicholas Benetatos, Ph.D., Megan Leonhard, M.P.H., and Diane Boesenberg

FTC scrutiny is expanding the scope of evidence-based claim substantiation, increasing the demands for valid scientific research

“Increase your metabolism.”   “Clinically proven to reduce skin irritation.”   “Supports joint health.”

Health-related claims can help sell a variety of consumer products. However, when claims may be misleading or lacking the appropriate level of scientific support, product manufacturers can face significant business and regulatory risks.

In an effort to ensure that health-related claims are “truthful, not misleading, and supported by science,” the Federal Trade Commission released its Health Products Compliance Guidance in 2022. This guidance, the first update from FTC since its 1998 Dietary Supplements: An Advertising Guide for Industry, expands the agency’s purview from dietary supplements to all health-related products, including foods, diagnostic tests, apps, medical devices, wearables, over-the-counter drugs, and more.

In addition to expanding its scope from dietary supplements to all health-related products, FTC’s guidance details how consumer product manufacturers need to substantiate their claims through “competent and reliable scientific evidence” and “clear and conspicuous disclosure.” The agency’s increased scrutiny signals that substantiation of new and existing health-related claims may need to be reviewed to confirm there is robust evidence the claims are truthful and not false or misleading based on updated guidelines.

Without substantiating their product health claims, manufacturers risk financial penalties and litigation, as well as the loss of time to market, money, and reputational damage that can come with having to retract or restate claims.

Regulation of consumer product health claims

Although this expansion in scope creates a situation where FTC and the Food and Drug Administration share jurisdiction over the marketing of devices, drugs, dietary supplements, foods, and other health-related products, they have different responsibilities. FTC has primary responsibility for regulating all advertising of foods, drugs, devices, and cosmetics but not their labeling. FDA has primary responsibility over the branding of foods, drugs, devices, and cosmetics, as well as the regulation of prescription drug advertising. FTC and FDA also have different legal frameworks — for instance, the FTC, unlike FDA, can’t exercise premarket approval over health-related claims.

Importantly, a product’s regulatory status can change depending on the claim. For example, dietary supplements making broad and far-reaching claims about being able to “diagnose, cure, treat, mitigate, or prevent” disease could be considered an unapproved drug under the Federal Food, Drug, and Cosmetic Act, subject to the requirements that apply to drugs, even if they are labeled as dietary supplements.

Trending toward increased substantiation

FTC has brought and adjudicated or settled more than 200 cases involving misleading or false health-related claims since 1998. Since 2021, FTC has brought or settled approximately 27 healthcare-related suits, including claims regarding deceptive marketing. Two key principles guide FTC’s actions:

1) Health-related claims must be truthful and not misleading (i.e., clear and conspicuous disclosure).

2) Before advertising health-related claims, advertisers must have adequate substantiation (i.e., robust, reproducible, competent and reliable scientific evidence) for all product claims conveyed expressly or implied, preferably based on peer-reviewed guidelines and published methodologies.

For example, a label on a vitamin bottle that claims 95% of orthopedists consume the product reflects an “expressly stated” claim (i.e., 95% of orthopedists take the product), as well as an “implied” claim because it suggests that the vitamin might support bone health since orthopedists take it. Both types of claims need substantiation.

In verifying these claims, stakeholders will want to think about how different audiences might interpret their health-related claims. Someone who has mobility issues for instance, may be more susceptible to an overstated claim like “boosts leg strength and mobility” than someone without mobility concerns. FTC also requires that qualifiers and disclosures must be “clear and conspicuous,” disclosing any limitations of a health-related claim. Rigorous substantiation can help reveal product claim limitations.

Factors affecting the required level of substantiation

According to the updated guidance, claims involving the safety and efficacy of health-related consumer products may receive a higher level of scrutiny and require increased substantiation. According to FTC, factors influencing the amount and type of substantiation required include:

• Product types: Consumer health and safety goods generally require a relatively high level of scientific substantiation.
• Claim types: Claims that are difficult for consumers to verify on their own — such as claims that cannot be verified without medical testing — may require more substantiation.
• Truthful claims that might benefit consumers but are difficult or expensive to verify: The costs and benefits of verifying claims may affect the level of substantiation required.
• Consequences of a claim being false: This could include both physical and economic injury, such as a consumer forgoing more effective treatment or the cost of buying an ineffective product.
• Expert opinion: What experts in the field consider a reasonable amount of substantiation can affect the level of substantiation required.

Steps for substantiating health-related claims

According to FTC, basic components of valid scientific research include a treatment and control (or comparison) group, randomization, and double blinding, as well as robust methodology and both statistically significant and clinically meaningful and, if necessary, actionable, results. Taking a scientific approach informed by the following steps can help product manufacturers obtain the evidence needed to understand the specific scope and parameters of their health-related claims and go to market with confidence:

1. Conduct a thorough critical review of the existing scientific literature and data on the product — including history of claims made and accepted — and relevant regulatory guidance and standards to identify gaps and opportunities in the evidence base, as well as potential risks and benefits of the claim.

2. Design a study to address a research question and hypothesis that will meet the regulatory expectations and criteria for the claim, including choosing the appropriate study design, such as a randomized controlled trial or an observational study; selecting the relevant outcome measures, such as biomarkers, clinical endpoints, or subjective ratings; defining the study population, sample size, and inclusion and exclusion criteria; and determining the study duration.

3. Create a statistical analysis plan and perform data analysis that can answer the research question and hypothesis and evaluate the statistical significance and clinical relevance of the results — which may include applying appropriate statistical analyses to test the assumptions and limitations of the data and the methods — and reporting the findings.

4. Synthesize and communicate the evidence in a clear and concise manner that can support evaluation of the claim, which may include preparing a complete study report, manuscript, or presentation that summarizes the study objectives, methods, results, and conclusions; highlighting the strengths and weaknesses of the evidence; providing recommendations regarding whether the claim is supported; and outlining the implications of the claim.

Looking to the future of advertising

Although FTC’s guidance update was its first in many years, consumer product companies can benefit from thinking about how the stakes for substantiation could increase going forward. In the context of evolving advertising platforms like augmented reality (AR) labels, product claims may be presented to consumers in new ways (e.g., multiple languages, additional content unable to fit on a standard label) with the potential to increase consumer engagement and improve consumer interactions and label understanding — quickly delivering more information than a two-dimensional label can provide. With the touch of a button, consumers may be able to scan AR labels with smart phone cameras to receive a variety of content, including videos, customized messaging, related product recommendations, social media, and much more. With these advances, companies should also be mindful of equitable access for populations or communities who may not have access to AR or smart phones and will continue to rely on traditional labels.

While these labels and others like them may offer added value for consumer products companies — fostering brand loyalty and influencing purchasing decisions with increased speed to different demographics — it’s more than likely that as messaging related to health-related digital claims becomes more prominent, so will the demand from regulatory entities in substantiating them. To capitalize on early and ongoing opportunities on these platforms and others, well-designed scientific studies have the potential to help companies appropriately scope and collect the evidence that might be needed for future health-related claims, helping them take advantage of fast-evolving market and advertising trends.

by Trey Ferguson¹, Sumrell Sugg

We’re only half-way through 2024 and our courts have handed down numerous decisions hand-slapping local governments (“LGs”). Some of these cases are pretty straight forward while others are bit more perplexing, and most (all but one in this Article) rule against the LG. This Article briefly outlines the notable appellate decisions from the last six months that effect local governments and the attorneys representing them.

Pre-auditing LG contracts: Town of Forest City v. Florence Redevelopment Partners, LLC

To start off the year, the Court of Appeals shocked local government (“LG”) lawyers when it essentially said not all written contracts with LGs need to be pre-audited pursuant to N.C.G.S. § 159-28.

In Town of Forest City v. Florence Redevelopment Partners, LLC², the Court refused to invalidate a contract between a developer and the Town of Forest City when the contract at issue lacked a pre-audit certification pursuant to N.C.G.S. § 159-289(a1).

Citing a case from 1999³, the Court held the statutory pre-audit certification did not apply when a LG signs a contract in one fiscal year but does not actually incur an expense under the contract until the following fiscal year. The Court noted that it would not invalidate a contract for lack of a pre-audit certificate at the mere possibility of an expense in the first fiscal year but rather would look to whether an obligation actually occurred in that timeframe.

Zoning & Free Use of Property: Town of La Grange v. County of Lenoir

In the same month, the Court of Appeals reaffirmed the long-standing judicial canon that when zoning ordinances should be strictly construed in favor of free and uninhibited use of private property.

In Town of La Grange v. County of Lenoir⁴, a landowner proposed to use recently purchased land to store and sell vehicles at auction. Some of the vehicles had been wrecked and some only had minor damage. The landowner’s proposed use was not listed in the County’s table of permissible uses under its Zoning Ordinance. Rather, the use was a close call between a permissible use (auction sales) and a non-permissible use (junkyard).

In making the initial determination, the County Zoning Official aired on the side of permissible use, finding it dispositive that the cars were not being sold piecemeal for parts and scraps but were sold and transported off-site as a single unit. The neighboring landowner, the Town of La Grange appealed this determination, believing the proposed land use was an impermissible junkyard and would pollute one of the Town’s water source.

The Town appealed the official’s determination. The County’s Planning Board, Superior Court, and State Court of Appeals all agreed with that analysis, and the Court affirmed the official’s determination under a strict statutory construction analysis that favored the free use of private property.

Building Code trumps LG’s Ordinance: Currituck County v. Letendre

Months later, the Fourth Circuit looked to resolve a difference of statutory definitions between State law and a County’s zoning ordinance as it pertained to the construction of a beach front vacation home. Detailing the dense (and lengthy) procedural history of the case, the Court in Letendre⁵ struck down a County’s definition of “building” to the extent it was inconsistent with the North Carolina Building code’s definition.

Prior to the Fourth Circuit opinion, the North Carolina Court of Appeals had found that the property owner’s home construction was made up of three buildings and not one as required by the “single-family dwelling” zoning definition. As a result, the current construction violated the County’s ordinance. Simultaneously, on appeal of an insurance determination, the N.C. Building Code Council had determined the construction was a “one and two family dwelling” as defined by the North Carolina Residence Code. The two determination clearly contradicted one another.

While on appeal, the General Assembly passed the 160D overhaul to the state’s zoning laws, which specifically said LGs could not use a definition of “building” or “dwelling” that was inconsistent with any definition of the same under another statute or rule adopted by a State agency, including the State Building Code.

Based on that legislative amendment, the Fourth Circuit reasoned that the 160D statutory changes had abrogated the previous State Court of Appeals decision and found the Building Code Council’s definition applied to the property owner’s home construction—essentially striking down the County’s zoning determination and effectively vacating the prior state appellate decision.

The Court noted (but did not address) the retroactive application of the 160D changes, which may have altered the outcome in this case, however the County did not raise that issue on appeal.

Racial epithet is not “just cause” for termination: Ayers v. Currituck County Dep’t of Soc. Servs.

Currituck County had its share of appellate attention this year, appearing before the Fourth Circuit and the State Court Appeals (twice). Once on the County’s impermissible expenditures of its occupancy tax⁶, which is a good opinion on tax-payer standing but not addressed in this Article, and again in Ayers v. Currituck County Dep’t of Soc. Servs⁷.

In Ayers, the County DSS Director fired a DSS Supervisor for writing “NR” on an applicant’s paperwork after the Supervisor explained that the denotation stood for a racially derogatory remark and then laughed about it. The Supervisor appealed her termination, which ultimately ended up before the Court of Appeals.

Preliminary, it is important to understand that within county government there are some employees that are dual status employees meaning they are both county employees and agents of various State government agencies. The prime example of these types of dual status employees are those that work in a County’s Department of Social Services (“DSS”).

By virtue of their dual status, these types of employees are subject to the State Human Resources Act (“SHA”), meaning they may only be disciplined for just cause. N.C.G.S. § 126-34.02. With no clear litmus test of “just cause,” the Court employs a flexible concept, embodying notions of equity and fairness.

Now, in Ayers, the Court held that while the use of a racial epithet was wrong and harmful to the County, the use of the epithet itself was not “just cause” under the SHA for terminating the Supervisor. The Court looked to five factors: (1) the severity of the violation; (2) the subject matter involved; (3) the resulting harm; (4) the employee’s work history; and (5) the discipline imposed in other cases involving similarly violations.

After a fact-intensive inquiry into each factor, the Court did not believe the County DSS met it burden for termination but rationalized a lesser punishment would have been more appropriate. In her dissent, Judge Collins pointed out the potential liability to the County for a potentially fostering an abusive working environment had the Supervisor not been disciplined nudges the first three factors in favor of a “just cause” determination.

The County DSS has appealed the split decision to the Supreme Court.

Business regulations & Fruits of Labor (and Equal Protection?): North Carolina Bar & Tavern Ass’n v. Cooper

The same month as Ayers, the Court of Appeals struck down as unconstitutional Governor Cooper’s COVID-19 related executive order closing down bars but not bars in restaurant during the pandemic.

In North Carolina Bar & Tavern Ass’n⁸, the Court found the Governor’s distinction between bars and bars in restaurants was arbitrary and unreasonable, lacking a legitimate scientific basis. As a result, the Order violated the Fruits of Labor clause of the State constitution.

The Court then went on to analyze the Order under the State Constitution’s Equal Protection provision. In doing so, the Court explained that the Order affected the fundamental right of businesses to enjoy the fruits of their own labor and struck down the order under strict scrutiny. The Court reasoned the distinction was underinclusive for not allowing bars to reopen during the same phase as bars in restaurants.

As our courts have been more inclined in recent years to extend the Fruits of Labor provision in striking down business regulations⁹, this decision is the first time the Court has identified the Fruits of Labor provision as a fundamental right implicating the strict scrutiny analysis under the separate, equal protection constitutional provision. This is even more likely given a similar case, Howell v. Cooper (finding an Executive Order closing bars during the pandemic to violate the Fruits of Labor provision) is on review by the State Supreme Court.¹⁰

This could pose severe issues to LGs in passing ordinances regulating businesses; however, the N.C. Bar & Tavern Ass’n decision is on appeal to the State Supreme Court, which has diverging stances on the application of the Fruits of Labor provision (having just recently un published a Court of Appeals decision related to the provision’s applicability to LG employment policies).¹¹ It also remains unclear how much of the legal analysis in these cases rests on the Fruits of Labor jurisprudence versus differing political views on the COVID-19 lock-down restrictions—so stay tuned.

Governmental Immunity Conundrum: Estate of Graham v. Lambert

Governmental immunity is the popular refrain of LG defense attorneys everywhere (much to the Plaintiff’s bar’s chagrin). However, the interplay between governmental immunity, public official immunity, waiver, and preservation can be a minefield of legal doctrine—as evidenced in the Supreme Court’s recent case of Estate of Graham.¹²

There, a police officer hit a pedestrian with his cruiser while the officer was responding to a domestic violence call without his lights and sirens activated. The Estate sued the City and Officer for negligence and gross negligence, and the City unsuccessfully moved to dismiss the Complaint on immunity grounds. After discovery, the City then moved for summary judgment on the same grounds.

In a split decision, the Court of Appeals conflated the motion to dismiss and summary judgment standards in addressing the City’s denial of summary judgment. The Court of Appeals found that the Estate had adequately plead a waiver of governmental immunity through the purchase of liability insurance and, thus, immunity was waived for the purposes of summary judgment. However, the Court of Appeals granted summary judgment for the City and the Officer on the grounds that there was no genuine issue of material of fact as to the Officer’s gross negligence, alleviating liability against the Officer and his employer, the City.

The Supreme Court reversed, pointing out that the Court of Appeals had confused the 12(b)(6) and summary judgment standards on the waiver of immunity issue and instructed the Court to reconsider whether the City had, in fact, waived immunity through the purchase of insurance.

Despite the City’s offer of proof that no insurance existed, the Supreme Court instructed the lower court to consider whether the Estate had sufficient evidence to raise a genuine factual dispute as to the City’s waiver of immunity.

The Supreme Court further rejected the Estate’s argument that N.C.G.S. § 20-145 (when speed limit not applicable) created a statutory waiver of governmental immunity because the statute contemplates personal liability of “the driver” of a vehicle and does not contain clear language withdrawing the City’s immunity.

Cost of red-light regime doesn’t violate Fines and Forfeitures Clause: Fearrington v. City of Greenville

Although most of the 2024 LG appellate decisions to date have hand-slapped LGs, the Supreme Court did offer a brief reprieve from the judicial rebukes by upholding the City of Greenville’s red-light ticket program as constitutional.

In Fearrington,¹³ the City had an interlocal agreement with the County Board of Education whereby the City would remit 100% of the proceeds from red-light tickets to the School Board but would then invoice the Board for the cost of operating the program (roughly 18% of the proceeds initially remitted).

Despite the net proceeds to the Board only amounting to 72%, the Court found that the program aligned with the core purposes of the State Constitution’s Fines and Forfeitures clause and that the interlocal agreement rested on valuable consideration, providing the School Board with a revenue stream it would not otherwise have. Thus, the Court upheld the City’s ticketing program. Despite the affirmation, Justice Berger offered a scathing (and at times humorous) dissent to the majority’s opinion.

In sum, the last six months have provided a wealth of appellate decisions for LG attorneys to consider whether defending LGs or advising them generally, and this Article is only intended to provide brief vignettes of the decisions handed down thus far.

______________________________

¹Trey is an associate attorney at Sumrell Sugg, P.A. in New Bern, focusing his practice on local government defense. In addition to representing LGs in litigation, he works with a number of LGs on a general counsel basis and has presented on topics related to LG liability, law enforcement legal updates, and state constitutional issues.

²Town of Forest City v. Florence Redevelopment Partners, LLC, 896 S.E.2d 653 (N.C. App. Jan. 2024).

³Myers v. Town of Plymouth, 135 N.C. App. 707, 522 S.E.2d 122 (1999).

⁴Town of La Grange v. Cnty. of Lenoir, 897 S.E.2d 121 (N.C. App. Jan. 2024).

⁵Currituck Cnty v. Letendre, 2024 U.S. App. LEXIS 11978; 102 F.4th 252 (4th Cir. May 2024).

⁶See Costanzo v. Currituck Cnty, 899 S.E.2d 569 (N.C. App. Mar. 2024).

⁷Ayers v. Currituck Cnty. Dep’t of Soc. Servs., 900 S.E.2d 381 (N.C. App. Apr. 2024).

⁸N.C. Bar and Tavern Ass’n. v. Cooper, COA22-725 (N.C. App. Apr. 2024).

⁹See, e.g. Howell v. Cooper, 290 N.C. App. 287 (2023), discr. rev. granted, No. 252A23 (May 30, 2024); Kinsley v. Acer Speedway Racing, Ltd., 284 N.C. App. 664 (2022); King v. Town of Chapel Hill, 367 N.C. 400 (2014).

¹⁰See Howell v. Cooper, 290 N.C. App. 287 (2023), discr. rev. granted, No. 252A23 (May 30, 2024).

¹¹Mole’ v. City of Durham, 384 N.C. 78 (2023).

¹²Est. of Graham v. Lambert, 385 N.C. 644 (Mar. 2024).

¹³Fearrington v. City of Greenville, No. 89PA22 (May 23, 2024).

by Derrick Foard, Ellis & Winters, LLP

As I wrote about last year for the NCADA’s Employment Law Practice Group (here), the non-compete agreement is quickly falling out of favor. At that time, we previewed the proposed rule by the FTC that would largely ban non-compete agreements.

On April 23, 2024, the final rule was announced. It bans all new non-compete agreements, and it largely invalidates existing non-competes. Existing non-competes for senior executives remain valid. To qualify as a senior executive, a worker must earn more than $151,164 annually and be in a policy-making position.

Read full article here.

By: Robert Young and Trisha Barfield, Carruthers & Roth P.A., and Brye Meyer (an Elon Law Student Resident)

Practitioners have likely argued – the three-year statute of limitations for contract actions begins to run when the breach occurs. Seems simple and straightforward. But what happens if the discovery of the breach occurs outside of the three years after the breach occurred? The North Carolina Supreme Court clarified how these instances should be analyzed in its 2021 decision, Chisum v. Campagna.

In that case, the North Carolina Supreme Court made it clear that “. . . a claim for breach of contract accrues when the plaintiff knew or should have known that the contract had been breached. . . .” Failing to consider this during the analysis, “. . . runs afoul of both our recent decisions, such as Christenbury, and basic notions of fairness.”

Despite there having been specific dates on which the Campagna brothers’ actions allegedly breached the Carolina Coast operating agreement and the trial court directing a verdict in favor of the Campagna brothers on that issue, Chisum was nevertheless able to reach the jury on remand for a new trial. The Court remanded on this issue because there was also evidence that supported a determination that Chisum’s discovery of the breach occurred several years later after the breach actually occurred.

While the “discovery rule” is not a new concept for personal injury or property damage claims, where the statute expressly provides for such; and, it is not necessarily a new concept for breach of contract claims, the Campagna Court acknowledged that “a number of our prior decisions have been somewhat opaque in addressing the issue that is before us in this case.”

A practice tip to possibly avoid losing a statute of limitations defense may be to advise clients to add language to their contracts that either limit the statute of limitations period or that specifically exclude the discovery of the breach as being a consideration for determining whether the claim is time-barred or not.

Finally, before you find yourself making a knee-jerk argument that your opposing party’s claim is time-barred solely based on the dates of breach and filing of the lawsuit, take care to review the Chisum case.

by Kevin Departhy, P.E.

Like the name suggests, HVAC systems are responsible for the heating, cooling, and filtering of the air in our residential, commercial, and industrial facilities. However, they also largely impact the temperature, moisture levels, and air pressure within these spaces, contributing to not only the perceived comfort in our homes and businesses but also the stability of environments where continuous human occupancy is not expected. The proper functioning of HVAC systems can significantly impact the longevity of the mechanical and electrical equipment operating in spaces such as equipment rooms, server rooms, and nuclear power plants which require unique and controlled conditions for optimal and safe operations. Understanding the fundamental science behind how these systems operate will help to explain why HVAC systems can be so complex.

We have all experienced the cool blast of air conditioning as we retreat indoors to escape the blistering heat of a summer day, but what if I told you that HVAC systems are actually responsible for the movement of heat? Let’s break down the principles of thermodynamics and physics which govern our HVAC systems. A fundamental principle of thermodynamics is that heat is transferred from higher-temperature bodies to lower-temperature bodies. This movement occurs spontaneously, meaning that heat moves in a direction from “high” to “low” on its own and without assistance. For example, when you hold a carton of ice cream in your hand and it feels “cold,” what you are feeling is the heat leaving your skin and flowing to that carton of ice cream. The comfort of our indoor environments is dependent on this principle of heat transfer. ASHRAE’s Fundamentals handbook indicates that acceptable human comfort zones can vary depending on factors like season and clothing, but generally speaking, most people prefer indoor air temperatures to be between 68°F and 80°F.

Our comfort is not only dependent on the “heat” in our environment, but also the amount of water in the air. Psychrometrics is the study of the interaction and effects of moisture, or humidity, in the air and is often studied by engineers seeking to improve our HVAC systems. The fascinating relationship between humidity and temperature can lead to an interesting event in which water can change phases from liquid to vapor without a change in temperature in the environment. An example of this relationship can be seen in how we cool our body temperature through perspiration. As we sweat, the water on our skin evaporates into the air, meaning that there is a phase change from liquid to vapor. This phase change releases heat which reduces our body temperature but increases the amount of water in the air. You may have noticed that it feels “hotter” in environments with higher humidity. That is because high humidity means there is already a high percentage of water in the air and the sweat on your skin cannot evaporate as readily. Our HVAC systems need to account for this relationship between humidity and temperature to maintain a balance in our indoor environments. Failures in these systems can cause vital mechanical systems to overheat or be destroyed by condensation and can result in human death or injury.

External conditions and weather events can negatively impact the operations of our HVAC systems. In late December, 2022, there was a prolonged cold front that reduced daily temperatures on the East Coast to be below 0°F for a long period of time. This resulted in the freezing of pipes and the failures of numerous piping systems across the state of North Carolina. My investigations into the failures of these systems were centered around determining whether the pipes were adequately protected from cold weather prior to the cold front by evaluating things like wall thickness, insulation R-value, temperature setting on the thermostat, outdoor air dampers, and a plethora of other protections. When investigating control system failures at industrial plants, a failure to regulate the temperature of the water that was being circulated in plastic piping systems led to the melting of the plastic pipes, flooding the entire plant and causing significant damages and delays to the operation.

Every year, residential spaces suffer from moist conditions and biological growth. If the HVAC unit is not sized correctly, the equipment may not be able to remove an adequate amount of humidity. This is a major function of residential equipment during the warmer seasons in the Southeast. Traditional thermostats sense temperature only and during the shoulder seasons like spring and autumn, indoor humidity can build while indoor temperatures stay moderate, preventing the thermostat from turning the system on. We have seen this scenario result in biological growth and rot on interior and exterior walls.

How many times have you tried to open a door to a restaurant, but the door pulls back and doesn’t want to open easily? The resistive door can be connected to an imbalance in airflow at the kitchen hoods that remove the grease-laden vapors coming off the cooking equipment. You may have also noticed a sewer smell, deterring you from finishing your meal or having a pleasant experience. Air exhausted out must be replaced, and when that doesn’t occur, negative pressure can build, pulling sewer gases through dried floor drains and ultimately pulling back on that entrance door and creating resistance. This failure can occur in aging or deteriorating HVAC systems and can be a much greater issue in places like healthcare and nuclear facilities where hazardous or contaminated air can pose a serious risk.

HVAC system performance can change depending on the time of year because most air-sourced equipment (e.g. chillers, condensers, economizers, etc.) operate as a function of the outdoor air temperature and humidity. Collecting data on the performance of an HVAC system may not be a one-site-visit affair and HVAC performance issues can sometimes warrant a more elaborate study of the conditions. This can be done by placing dataloggers in the equipment, and gathering data over time and multiple seasons.

In conclusion, HVAC systems are more complicated than they might appear. The proper functioning of these systems is crucial for the comfort and safety of human occupants, as well as the longevity of our infrastructure of mechanical equipment. Understanding the science behind these systems can help us appreciate their complexities and the importance of their maintenance and upkeep.

Understanding the complexities of reported noise disturbances may require a multifaceted scientific approach

by  Ryan Harne, Ph.D., P.E., FASME & Eric Ahlberg, Ph.D., P.E.

From construction sites to pickleball courts to traffic congestion, community noise complaints arising from everyday sources create concerns over the effect of noise on well-being and health, the loss of sleep and recovery, and adverse effects on the development of children.

For municipalities, construction companies, and other large-scale noise generators, it’s best practice to develop a comprehensive noise monitoring plan before launching sound-producing activities, especially given the rise of noise-detecting technologies and public awareness of the impacts of noise exposures. Smart cities are turning up the volume on noise complaints by installing cameras and sound meters to capture vehicle noise violations while apps like the Airnoise app allow residents to register airplane noise complaints with the click of a button.

Despite their best efforts, stakeholders — ranging from construction sites and flight path operators to schools and community recreation centers — may find themselves facing community noise complaints, which can carry the risk of litigation, reputation damage, and frayed public relations if not handled correctly. Determining the legitimacy of these noise complaints requires a suite of tools and a data-driven approach to analyze the alleged sources of the complaint, establish the significance of the disturbance, and predict community response while proactively working to prevent noise complaints in the future.

The varying human perception of noise

Analyzing noise complaints requires knowing what data to collect, but this is complicated by the fact that everyone perceives sound differently. An individual’s response to sound — or psychoacoustic perception of sound — varies based on cultural factors, sensitivity to noise, what they were doing at the time of exposure, and more.

For example, sources of noise such as football games, children’s recreation areas, and concerts often elicit very different responses from those nearby, ranging from fun and playful to a minor annoyance to the cause of significant disruption. In 2019, for instance, the volume of noise at Kentucky’s Bourbon & Beyond festival made headlines, but while some residents were angered, others described a very loud Foo Fighters set as a “nice lullaby” for their children.  There’s also always the possibility that a noise-producing venture becomes a source of litigation: Northwestern University has recently been involved in a lawsuit related to its Ryan Field stadium and proposal to host summer concerts to help pay for the facility, which has been met with outrage from residents over the potential disturbances.

Predictive models play an essential role in analyzing community noise complaints because the complaint may be driven by a small number of highly annoyed residents.

Because people perceive sound differently, data from sound-level meters and laboratory microphones using essential acoustic metrics (e.g., A-weighted decibels expressed in units dBA or dB(A) and Zwicker parameters) is critical because it helps characterize how “noisy” a sound may have seemed to a particular group.

Measuring sound to quantify noise perceptions

As our ears and brains interpret sound differently, we hear some frequencies as louder than others. A-weighted decibel units (dBA) used to measure data from sound-level meter readings are designed to account for variations in the human perception of loudness by modifying the decibel (dB) reading according to how sensitive the average human ear is to different frequencies of sound (the A-weighting).

For example, a change in sound level of ±5 dBA is considered clearly noticeable, whereas people would categorize a change in sound level of ±10 dBA as twice or half as loud.

But if the sound level changes only by ±3 dBA, many people may not even notice the increase or decrease. As a result, an absolute change in sound level must be interpreted carefully in light of human perception variations.

While basic sound level meter readings provide important information about human perception through loudness measures, the time-dependent data collected by a laboratory microphone or an advanced sound level meter with data recording capabilities provides detailed insights, especially regarding annoyance. We can quantify how “annoying” a noise was by processing microphone pressure data for noise metrics known as Zwicker parameters, which include sharpness, fluctuation strength, and roughness.

For example, when Zwicker parameters show that the sharpness and roughness characteristics of a sound are especially high, they uncover particular insights, such as why a fingernail scratch on a blackboard might draw

cringes even when heard from a hundred feet away. Zwicker parameters also quantitatively explain why sirens and alarm clocks work well to alert people to critical information.

Putting community noise complaints in context

In addition to the human perception of sound, examining the human context of sound can help reveal how a community may have perceived a given sound:

• When was the noise created? Was it during the workday when residents were away from their homes?
• What produced the noise? Was the noise created by a diesel generator powering construction equipment all night long?
• Was the noise impulsive and periodic in nature, like pickleball or pile-driving, or was it continuous, like an engine idling?
• How long did the noise last: for a minute or for hours?
• Where is the neighborhood? Is the community already exposed to other noise sources?

For instance, community noise complaints are often generated by noise sources that are not native to the community. This is why construction projects near neighborhoods, recreational activities adjacent to residential housing, and traffic near homes often generate noise complaints, whereas noisy lawnmowing in the morning and children who play and shout late into the evening often do not.

Consequently, if absolute sound levels from recordings suggests there is no cause for a noise concern, it is possible a community has risen up against an unfamiliar noise source that temporarily upset the acoustic norms of the community.

Gathering sound data

Knowing how to best collect data is as important as knowing what data to collect. Here are some best practices for gathering data about sound issues and noise complaints:

Know your codes:

• Recording noise: Municipal codes often dictate how to record noise and often recommend the use of sound level meters to record a noise source in the community.
• Distance from noise: While local codes may require measuring the sound level a certain distance from the noise source, community noise complaints often originate from a resident who is at a different distance from the noise. For example, the codes may require that construction companies monitor the sound level of their activities at a distance of 50 feet, but neighborhood complaints may be collected from residents hundreds of feet away from the construction. In other cases, sound may travel a shorter distance than codes indicate due to natural barriers obscuring the noise, such as hills, dense foliage, or other commercial and industrial buildings. As a result, it’s good practice to collect acoustic measurements not only from the required locations according to code but also from where the complaints originated.

Measure sound in real-time:

• Continuous acoustic data: Because basic sound level meters often only save the overall sound level per increment of time, such as one-second increments, it’s wise to complement averaged sound-level meter readings with continuous acoustic data collected using traditional laboratory microphones or advanced sound level meters, which collect the actual sounds as heard in time. Stakeholders can use this real-time data to analyze the human perception-based characteristics of noise, including Zwicker parameters, that sound-level meters do not capture.

If your community noise complaint is delivered long after the noise has ceased, making it difficult to collect new acoustic recordings, it is possible to work with data collected during the noise-generating activities — or even to work with no acoustic data at all. For example, if a construction site only had vibration data to work with, that could be leveraged to confirm sound levels and model the likely propagation of sound over a specific distance.

Science meets psychology: interpreting community noise complaints

With sufficient data gathered — the contextual information about the noise generation along with the loudness recorded by sound level meters and lab microphones — we can assess the legitimacy of the complaint by building a predictive model to analyze community reaction to a given acoustic disturbance. These models account for the duration, location, frequency, and loudness of the noise, as well as the location of the community, to approximate the seriousness of potential community reactions.

Predictive models play an essential role in analyzing community noise complaints because the complaint may be driven by a small number of highly annoyed residents. It’s often best practice to de-escalate community reactions by acknowledging how the noise exposures may have affected their quality of life while interpreting such impacts considering the factual data.

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Reconstructing Reality in a Digital Sandbox

by Charles A. Fox, Senior Director of Technology Services

Introduction:

The legal landscape is ever evolving and with it, the tools we use to present our cases. Buzz Lightyear’s iconic phrase, “To infinity and beyond!” may belong to the world of animation, but it also metaphorically represents the bounds we are pushing in legal visualizations. In our courtrooms, 3D animations have transitioned from novel to necessity, playing a pivotal role in elucidating complex facts for juries and judges in many cases. And this is not due to their entertainment value. Animations built on a solid foundation of data can accurately depict events in detailed ways not accessible via photos, security camera footage, or other forms of recording.

Advancements in technology have transformed these animations from illustrative to evidentiary. The 3D scans we employ today offer dimensional precision that allows technologists to build large scenes with millimeter precision. The proliferation of digital recordings from various sources—security cameras, dashcams, and smartphones—allows us to integrate this data into a 3D framework, crafting immersive and reliable reconstructions of events.

Modern 3D animation technology empowers the creation of scaled virtual worlds, testing grounds for hypotheses against the tangible reality of an incident site. This is not merely a theoretical exercise; it's a rigorous investigative process upheld by legal and technical experts to dissect and understand the dynamics of an event.

Gone are the days when 3D models were based on a handful of measurements and a dose of creativity. Today, we harness laser scanners and drones that capture millions of points that are used to define a precise 3D model of an accident scene. Accurately combined scene and object models are then used in an active recreation of an incident, incorporating the crucial element of time. These scenes allow for the analysis of vehicle paths, human movement, and operational machinery and can be further enhanced with environmental factors such as lighting and weather, crucial for understanding visibility and other conditions pertinent to an event.

Developing Visualizations in the Digital Sandbox:

“Visualization” is a broad term that encompasses the result of these investigatory tools. The digital sandbox is a real-time version of the data as it is accumulated. Using a computer, stakeholders interact with the relevant data points like a meticulous child would construct a scene in a sandbox. This allows stakeholders to layer in relevant information anchored by scene geometry and motion. Deliverables from the digital sandbox are often animations simply because the animation is portable, unchangeable, and is easily shared with other parties.

Phase 1: Data Gathering - Capturing the Scene

As an attorney, you know that reconstructing an event for the courtroom isn't just beneficial—it's often critical. The starting point is data collection that paints a detailed and accurate 3D picture of the incident's environment. Whether it's United States Geological Survey (USGS) data of landscapes, drone-captured images of an intersection, or laser scans of vehicles, each dataset is integral to understanding the environment and objects that led to a loss.

Incident data is perishable and immediate scanning of the scene ensures evidence preservation however, this is frequently not possible. We often rely on documentation like first responder photos and video recordings from security cameras that capture information at or near the time of the incident. This photographic and video evidence is invaluable when combined with scan data to reconstruct a virtual scene as it was at the time of the accident even when the laser scan data is captured well after the time of the event.

Phase 2: Analysis

Entering the Sandbox in Real-Time

A digital sandbox doesn't just show a scenario—it immerses you in it. Whether through a head-mounted display or on a computer screen, you're transported to the heart of the incident, able to view the scene from multiple angles, including the perspectives of involved parties. This virtual environment lets you assess the feasibility of witness statements, for example, examining potential obstructions to an eyewitness’s point of view.

Videogrammetry is used to align video within a 3D scene model and enables precise movement recreation. Software like HVE and PC Crash simulate ground vehicle motion and radar and GPS data are useful for aviation accidents. Video and simulation data ensure that by the time we reach trial, the animations presented are founded on accurate and verifiable data.

Critical data analysis is important for developing strong visuals and aligning your legal team. Thorough data collection significantly streamlines this process while taking shortcuts may lead to increased costs and delays. It’s important to secure relevant evidence early that will withstand judicial scrutiny and effectively support your case.

Case Overview: Landscaping Incident

A critical workplace injury occurred at a landscaping site. The individual sustained injuries after being crushed between a motorized concrete transport buggy and a dump truck's tailgate (Figure 1). The landscaper was engaged in the transfer of concrete debris using a skid loader that was stationed on the side of a roadway to load the demolished concrete into a dump truck. During the operational cycle, the buggy operator reversed the concrete buggy away from the loader and into the back of the dump truck, resulting in his upper torso pressing against the vehicle's tailgate. He was trapped in a position that caused his chest to press the safety lever that, when released, stopped the drive system on the buggy.

The reconstruction of the event was informed by two photographs secured by first responders, which became the crux of the spatial analysis (Figure 2). Because the laser scan was taken long after the accident, placing the scale vehicle models accurately within the scene was a challenge. Advanced laser scanning techniques and 3D models of the skid loader, truck, and buggy, augmented by the injured worker’s biometric profile, were utilized to reconstruct the scene. The precise positioning of the skid loader and dump truck, critical to understanding the dynamics of the accident, was extrapolated from the photographs, defining the operational environment that was unsuitably confined.

The 3D model also served as a blueprint for a physical model (Figure 3). This model was instrumental in physical testing to challenge the alleged failure of the buggy's safety mechanism. The tests illustrated the continuous engagement of the drive system when controlled force was applied using a physical surrogate, mimicking the incident conditions.

Case Overview: Urban Transit Incident Analysis

Video camera footage can be informative. Knowing the movements of vehicles, pedestrians, and other objects may explain why an accident occurred. However, it’s frequently not a good tool for determining visibility in nighttime conditions. Video cameras “see” differently in the dark than the human eye can. When a city bus struck and killed a pedestrian, a nighttime conspicuity analysis proved crucial to understanding the bus driver’s view.

The initial step in the reconstruction process involved capturing detailed survey quality data of the accident location using laser scanning to develop a precise 3D model. Concurrently, a detailed lighting analysis was executed, measuring luminosity from multiple sources which were then integrated into the 3D environmental model. This integration was critical in replicating the visual conditions during the incident and included stationary lights, like streetlights, and moving lights on vehicles (Figure 4).

Security camera footage from the bus supplied vital information regarding vehicle movements and pedestrian activity at the time of the accident. A visualization specialist utilized this data to accurately position light sources and animate the scene, enhancing the fidelity of the reconstruction.

Because the bus had a camera viewing the driver, a human factors expert's analysis contributed to the creation of a simulated driver's viewpoint. This virtual driver’s vantage point was critical in showing the driver's potential visual perception during the incident (Figure 5), helping the expert explain why the pedestrian was difficult to see in the background of the headlight glare from oncoming vehicles.

Phase 3: Decision Making

The integration of rapid data collection technologies into legal practice has revolutionized how digital environments are constructed and utilized. These digital sandboxes serve as dynamic tools where layers of information about an event are assembled in valuable ways. Sandboxes allow for the iteration of scenarios, advancing the investigative process by prompting discovery questions. What other useful data exists or could be collected? What should be asked in a deposition? Things learned in the sandbox also guide physical testing to eliminate uncertainties, such as the effect of sunlight on a dirty windshield's transparency.

Once the team has exhaustively analyzed and combined all available information, the reconstructed digital model becomes an educational platform. It translates complex scenarios into visual narratives—images and movies—that animate the event for those outside the investigative circle. These visual aids are instrumental in resolving cases, with the reconstructed reality playing an important role from early in the investigation until the dispute is resolved.

Digital sandboxes play a critical role in helping clients understand and evaluate evidence, which in turn informs their decision-making. These tools allow stakeholders, who may not be well-versed in legal details to better grasp the case strategy and determine the right course of action regarding settlements or trial proceedings.

Deciding to go to Trial:

If the case does not settle and the parties move forward to trial, visual storytelling can significantly enhance juror comprehension of complex information, tapping into the innate human proficiency for processing visual data. It can demystify expert testimony, replacing jargon with clear, impactful imagery. It’s important to remember that jurors will filter the story through their personal experiences, which can both aid in understanding familiar concepts and elicit skepticism towards information that conflicts with their beliefs. Furthermore, a coherent narrative is key; jurors will scrutinize any omissions or inconsistencies with a critical eye, as evidenced by the research of Pennington and Hastie (1992)¹. Therefore, visual aids are most compelling when they are part of a well-orchestrated narrative, enhancing and reinforcing expert testimony, especially when prepared in a digital sandbox.

For attorneys incorporating visual aids alongside expert testimonies, a comprehensive understanding of the trial environment is essential. Crafting a strategy that dovetails with the courtroom's technical capabilities is the responsibility of the attorney who brings the expert witness. Legal teams must address several key logistical questions:

Finally, make sure to consider the merits and drawbacks of advanced versus basic technological approaches (for example, equipping jurors with VR headsets versus displaying a video or live feed of the expert's VR demonstration on a screen).

Involving your visual expert early and developing themes in a digital sandbox environment can enhance the quality of visuals your team decides to bring to the courtroom. Such proactive collaboration ensures that the presentation is well-founded and informative, enabling the legal team and sponsoring expert to effectively use the visual products to communicate with the jury.

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¹Pennington, N. and Hastie, R. (1992). Explaining the Evidence: Tests of the Story Model for Juror Decision Making. Journal of Personality and Social Psychology, Vol. 62 (2), 189-206. DOI:10.1037/0022-3514.62.2.189

Guardrails and End Terminals: Enhancing Roadside Safety

by Mitchell Chermak
QForensics

Introduction
Guardrails play a crucial role in ensuring roadside safety by preventing vehicles from encountering roadside hazards such as rigid objects, steep slopes, cliffs, or bodies of water. These protective barriers are strategically placed along highways, bridges, and curves to minimize the severity of collisions. In this article, we’ll delve into the world of guardrails, with a specific focus on guardrail terminals—the critical components that mark the beginning or end of a guardrail system.

Guardrail Face: Redirecting Vehicles Safely

The guardrail face is the visible part of the barrier that faces the road. Its primary purpose is to redirect a vehicle back onto the roadway if it veers off course. Here are some key points about guardrail faces:

1. Composition: The most common guardrail design features galvanized steel w-beam panels that are lapped and connected with rigid splice bolts. Alternative designs include concrete barriers and cable barriers.

2. Considerations: There is no single “best” barrier system. Each has its own benefits and potential drawbacks that make it better suited to specific applications.

o Cable Barrier: High-tension Cable barrier is often the preferred choice in relatively wide medians or on roadsides where there is sufficient “safe space” beyond the barrier location. Cable barriers have the greatest dynamic deflection of the three most prominent barrier types and are thus more forgiving for the occupants of the impacting vehicle. While that behavior is desirable in locations that allow for it, many locations where barrier is installed feature hazards that are located just beyond the barrier.

o W-Beam Guardrail: W-beam guardrail is considered to be a semi-rigid barrier. It still allows for some dynamic deflection, thus reducing the impact forces exerted on occupants.

o Concrete Barrier: Concrete barrier is considered to be a rigid barrier. It has essentially no dynamic deflection (except for precast, temporary barriers, which can move somewhat when struck). This makes concrete barriers the least forgiving for the occupants of an impacting vehicle, but also the only option for many situations where no room for dynamic deflection exists because the hazard is located immediately beyond the barrier.

End Terminals: Absorbing Kinetic Energy

While guardrails are meant to protect drivers from roadside hazards, they themselves can become a hazard, especially at the end, where the guardrail is secured with a rigid anchor, and the narrow, relatively sharp end of the guardrail is exposed to impacting vehicles. Guardrail terminals are the critical components at the beginning and end of a guardrail system, particularly those located within the clear zone for approaching traffic. Their purpose is to anchor the guardrail for redirectional impacts while minimizing the severity of a direct impact. Let’s explore end terminals in more detail:

1. Energy-Absorbing Guardrail Terminals:

o These designs utilize various means to dissipate energy, gradually decelerating an impacting vehicle. This is most commonly achieved by extruding the guardrail through an impact head that kinks, cuts, or crushes the guardrail as it passes through the impact head.

2. Gating End Terminals:

o Gating end terminals are designed to give and allow a vehicle to pass if struck near the end. Gating terminals are designed to function as a redirective barrier after a specific distance from the end.

Crashworthiness Testing

Guardrail systems undergo rigorous crash tests to assess their performance. These tests simulate real-world collisions and evaluate factors such as occupant safety, vehicle redirection, and structural integrity. The results guide improvements in guardrail design and installation practices.

Global Safety Standards

Several safety standards govern guardrail design and installation worldwide. Notable ones include:

1. NCHRP Report 350:

o The crash testing standards described in Report 350 were superseded by the Manual for Assessing Safety Hardware (MASH), but are still applicable for many existing installations, depending on the installation date.

2. AASHTO MASH:

o Developed by the American Association of State Highway and Transportation Officials (AASHTO), MASH provides guidelines for crashworthy guardrail systems.

o MASH is the current crash test standard for safety hardware used on new construction in the U.S.

3. EN 1317 (European Standard):

o EN 1317 outlines requirements for road restraint systems in Europe.

o It covers various performance levels and impact scenarios.

Legal Liability in Guardrail and End Terminal Impacts

When functioning properly, guardrails redirect vehicles and lessen the severity of collisions with rigid objects and other roadside hazards. Similarly, end terminals protect drivers and save lives by preventing the blunt and relatively sharp guardrail end from impaling an impacting vehicle. However, design defects, improper installations, and improper placement can sometimes yield devastating results.

Design

Although the crash test standards referred to above are generally quite effective at keeping dangerous or inadequate designs off public roadways, changes to design parameters after testing or selective reporting of biased crash test samples can lead to the installation of inferior products. While occasional negative crash outcomes are unavoidable due to the unpredictable nature of roadway departures and high variability in impact conditions, it is important to consider the potential reasons behind a severe crash outcome. What type of guardrail terminal was hit? Does that terminal have any known issues or prior litigation associated with it? What are those issues, and are they applicable to the present crash? Was the terminal installed properly? Were the impact conditions within typical limits, such that acceptable performance could be reasonably expected? All of these questions and more can help shed some light on whether severe or fatal injuries resulting from a guardrail or terminal impact were exacerbated by dangerous conditions hidden in the device itself.

Installation/Placement

In addition to deficiencies in the guardrail design, issues with location, installation, maintenance, and repair can also expose drivers to hazardous conditions. In many cases, the entity responsible for maintenance and repair may not be immediately evident. It may be necessary to obtain discovery documents to determine if a government agency or a private contractor is responsible for guardrail maintenance and repair in that particular area. It is not uncommon for a state DOT to enter into an agreement with a private contractor to maintain and repair guardrail in a particular region, defined within the contract. The contract should also specify whether the contractor is responsible for inspecting the guardrail at certain intervals, or whether they are responsible only for repairs after they have been notified of the work needed. In any case, due to the high risk of having a damaged and unsafe guardrail located alongside a traveled roadway, many states have standards regarding the procedures and timelines for repair.

The installation of a roadside or median barrier is initiated either by satisfying one or more warrants or through an engineering study that considers multiple factors and determines a guardrail installation to be appropriate. These warrants are typically described in the roadway or roadside design manual for the state in which the roadway and guardrail installation are located. There is also national guidance provided on the subject by the AASHTO Roadside Design Guide. In many cases, the absence of a guardrail that is clearly warranted could leave the state DOT, the roadway project design engineer, or even the contractor, liable for accidents resulting from the absence of a barrier that should have been provided based on relevant design standards. Standards based on the type of roadside hazard, the distance to the roadside hazard, median width, and other factors, are typically presented as definitive, and well-defined criteria that render a guardrail either required, recommended, or optional. Other criteria, such as crash history and roadway curvature typically require a more detailed engineering analysis to draw definitive conclusions on whether a guardrail installation is warranted.

Conclusion

Guardrails, along with their end terminals, are unsung heroes of roadside safety. By redirecting vehicles and reducing crash severity, they provide the potential for saving lives and preventing catastrophic accidents. As we continue to improve our transportation infrastructure, let’s appreciate the silent guardians that keep us safe on the roads, while also remaining vigilant to root out dangerous conditions present in some guardrail installations even today.

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Note:  the infomration provided in this article is based on industry standards and practices.  Always follow local guidelines and regulations when designing, installing, or maintaining guardrail systems.

About the Author:
Mitchell Chermak is a Mechanical Engineer with Quality Forensic Engineering. He specializes in accident reconstruction and forensic engineering research and analysis. In over five years of reconstructing vehicle accidents, he has analyzed many cases involving roadside safety and guardrail design, installation and performance.

By Allen C. Smith, Brooks P. Miller, and Julianna Grant, Hedrick Gardner Kincheloe & Garofalo, LLP and Austin R. Walsh, Johnston, Allison & Hord, P.A.

On September 22, 2023, Senate Bill 452, An Act to Make Various Changes to the Insurance Laws of North Carolina, to Amend the Insurance Rate-Making Laws, and To Revise High School Interscholastic Athletics, was presented to Governor Roy Cooper for signature. Because Governor Cooper took no action, SB 452 was codified as Session Law 2023-133 (S.L. 2023-133) on October 3, 2023. In addition to prohibiting male students from participating in female athletics, S.L. 2023-133 includes sweeping changes to liability, uninsured motorist (UM), and underinsured motorist (UIM) coverage in auto liability policies through amendments to N.C. Gen. Stat. § 20-279.21. The changes to UM and UIM coverage go into effect on January 1, 2025.

Specifically, the minimum automobile liability policy limits will increase from $30,000 to $50,000. Additionally, S.L. 2023-133 amends N.C. Gen. Stat. § 20-279.21 regarding the rules for service of process on UM insurers outside of the statute of limitations, the definition of an underinsured vehicle, and the calculation of a UIM insurer’s liability.

Uninsured Motorist Coverage

Before S.L. 2023-133, plaintiffs were required to serve a summons and complaint on uninsured motorist (UM) carriers within the statute of limitations. Nearly 50 years ago, the North Carolina Supreme Court established that this requirement was “consistent with the objective of uninsured motorist coverage of placing the insured in the same position as he would have been had the adverse motorist been insured.” Brown v. Lumbermens Mut. Cas. Co., 258 N.C. 313, 319, 204 S.E.2d 829, 833 (1974) (internal citations omitted). The service requirement was plainly stated by the Court of Appeals in Thomas v. Washington: “Failure of insured to serve [a] copy of the [the] summons and complaint on insurer within [the] applicable limitations period [precludes] … recovery under [a] UM policy.” 136 N.C. App. 750, 525 S.E.2d 839 (2000). If a plaintiff failed to serve the Summons and Complaint on a UM carrier within the statute of limitations, the UM claim was subject to dismissal. See Davis v. Urquiza, 233 N.C. App. 462, 757 S.E.2d 327 (2014). The statute of limitations could not be satisfied by mere notice; formal service of process was required to withstand a motion to dismiss. See Id.

Session Law 2023-133

The new language in S.L. 2023-133 states:

The insurer may also be issued a summons, complaint, or other process as an unnamed party and served by registered or certified mail, return receipt requested, or any manner provided by law. Service outside the statute of limitations shall be valid so long as the summons has been properly issued, preserved, and served pursuant to North Carolina Rule of Civil Procedure 4.

S.L. 2023-133(b)(3)(A) (emphasis added). This legislative change overturns 50 years of precedent. Now, a plaintiff may fail to serve the UM carrier within the statute of limitations for the tort action at issue as long as the summons and complaint are filed within the statute of limitations and the summons does not expire prior to service. This will place UM carriers in the same position as tort defendants with regard to statutes of limitations and removes a significant procedural defense.

Underinsured Motorist Coverage

S.L. 2023-133, Section 12(b)(4) amends the method for calculating a UIM carrier’s exposure. Currently, NC Gen. Stat. Section 20-279.21 reduces UIM coverage limits by a tort-feasor’s liability policy limits. For example, if a tort-feasor has policy limits of $50,000 per person / $100,000 per accident and a plaintiff has UIM limits of $50,000, the UIM carrier would have no exposure. UIM carriers will no longer reduce the amount of available coverage by the liability policy. Under the amendment, UIM carriers are now fully exposed up to their policy limits. In the above example, a plaintiff will receive the benefit $100,000 of insurance coverage having only paid for $50,000 of coverage. These changes will also result in increased defense costs for carriers, who will remain exposed in matters where they were previously dismissed as a matter of course.

Section 12(b)(4) also changes the definition of an underinsured vehicle. Presently, an underinsured vehicle is defined as “a highway vehicle with respect to the ownership, maintenance, or use of which, the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of underinsured motorist coverage for the vehicle involved in the accident and insured under the owner's policy.” N.C. Gen. Stat. § 20-279.21(b)(4). When two or more injured persons pursue claims, “a highway vehicle will also be an ‘underinsured highway vehicle’ if the total amount actually paid to that person under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of underinsured motorist coverage for the vehicle involved in the accident and insured under the owner's policy.” Id.

As of January 1, 2025, section (b)(4) will provide that an underinsured vehicle is any vehicle for which policy limits are less than “the total damages sustained by an individual seeking payment of benefits[.]” See S.L. 2023-133(b)(4). Before a claim is reduced to a judgment, personal injury damages are variable and subject to hard-to-value general damages (e.g., pain and suffering). Because UIM carriers will have less certainty whether a tortfeasor’s vehicle is underinsured, carriers are likely to incur increased defense costs closely monitoring a claim.

The ramifications of S.L. 2023-133 will hit insurance carriers and insureds alike. Each change to N.C. Gen. Stat. § 20-279.21 increases UM and UIM insurers’ risk and exposure. It is likely this increased risk will be passed on to the citizens of North Carolina in the form of higher insurance premiums. The legislature’s intention, whether at the behest of plaintiffs’ attorneys or not, was to increase the recovery for injured parties. The ultimate cost remains to be seen.

This article provided by the General Liability Practice Group

By: Louis J. “Johny” Hallow, III

As a young attorney, I am blessed to work in a firm with several mentors. In this piece, I speak with two of my personal mentors, Phil Hornthal and Don Prentiss, about their advice for young attorneys. Phil and Don are both long-standing partners at Hornthal, Riley, Ellis & Maland, LLP, in Elizabeth City, North Carolina. Phil and Don have both practiced law for more than thirty years, and have been heavily involved with a number of North Carolina Bar organizations, including the North Carolina Association of Defense Attorneys. Both Phil and Don focus on insurance defense, mediation, and general civil litigation.

What was the best advice you were given as a young lawyer?

Hornthal: One of the best pieces of advice I received as a young lawyer came from Dan Hartzog: “Do it now.” Whether you have an email you need to respond to or a pleading you need to file, do it now. If you procrastinate, you have a much higher chance of forgetting your task and falling behind.

Prentiss: When I first started practicing law, a lawyer on the other side of a case I had asked for an extension of time. I wanted to give him a hard time about it, but the senior partner at the time, Dewey Wells, pulled me aside and told me: “The practice of law floats on a sea of accommodation.” That piece of advice has always stuck with me. It is important to always try to get along with other lawyers until they give you a reason not to.

What do you believe is the appropriate work-life balance for a young attorney?

Hornthal: I think this varies for all young attorneys, especially with the current generation of young attorneys. These days, there appears to be a trend that young attorneys are more interested in maintaining a work-life balance and spending time outside of the office as opposed to earning high salaries. But for all attorneys, especially young attorneys, it is important to maintain a work-life balance to avoid burn out. I think it is important for all attorneys to have some type of hobby that they can engage in to spend some time away from work.

Prentiss: That is an interesting question. If you had done this survey twenty-five years ago, you never would have heard that question. But, I think older lawyers are likely wrong about not giving work-life balance more attention. It is important to work hard early in your career to establish a reputation. It is important also to spend time with your family and friends and have a work-life balance. With that said, all attorneys need to work hard and put the necessary time in to become a good lawyer.

What advice do you have for a young attorney who is feeling overwhelmed with their caseload?

Hornthal: Seek help from a mentor. One of the worst things an overwhelmed young attorney can do is let the pressure build up and never seek help from a mentor. Having a good mentor—whether it is in the attorney’s own firm or another firm—is essential for a young attorney. When overwhelmed, a young attorney can seek advice from a more experienced attorney about how to sort through their various assignments and stay on track.

Prentiss: Talk with someone, whether it is a partner in your firm or a mentor. I believe mentoring is critical, especially for young lawyers. The willingness to ask for help is the most beneficial thing a young attorney can do when overwhelmed.

Do you think it is important for young attorneys to be involved in organizations outside of the legal profession, whether it is a kickball league or the board of a local nonprofit organization?

Hornthal: Absolutely. This point ties into the question regarding a work-life balance. If a young attorney is involved in local non-profit organizations and other activities outside of the practice of law, it gives the young attorney an opportunity to step away from the legal field and interact with people in their community. This not only leads to an improvement in mental health, but also helps with client development.

Prentiss: Absolutely. Whether it is a big firm or small firm, all attorneys need to give back to the community. I think young lawyers should get involved with different bar organizations and within their own communities. There are numerous opportunities for young lawyers to get involved in their communities, and that is something that can really help with developing a work-life balance.

We often hear the term jack of all trades, master of none. Do you think young attorneys are better served focusing on mastering a few select practice areas, or should young attorneys be willing to take on unfamiliar subject matters?

Hornthal: I think there are pros and cons to both. On one hand, some attorneys may feel more comfortable mastering a few select practice areas and staying within those bounds for their entire career. This is especially true in larger firms. On the other hand, I also think young attorneys should be willing to take on unfamiliar subject matters. In my view, stepping outside of your comfort zone is one of the best ways that a young attorney can develop and learn. Often times, if a young attorney takes on unfamiliar subject matters, he or she will learn things along the way that will help in familiar subject matters.

Prentiss: The latter. Too many people come out of law school and are too focused on a specific practice area. To develop as a lawyer, you need to have exposure to a variety of practice areas. This is especially true early in one’s career. If you are a litigation attorney, for example, you should be willing to go to small claims court, attend depositions, take on trials against pro se litigants, etc. Also, by engaging in a wide variety of matters, young attorneys will have a better idea of what practice areas they want to specialize in as their careers develop.

What is one thing you know now that you wish you knew when you first started practicing law?

Hornthal: A bad result in a case is not always a bad thing. Often times, a bad result comes from a good learning experience. There will be cases that present a number of problems; but as long as you can give the client the pros and cons of trying the case, and feel confident in giving that advice, it is worth trying the case, even if you are likely to have a bad result, as long as the client understands and accepts the risk.

Prentiss: There are several things here. But, if I had to narrow it down to one piece of advice, I would say that procrastination is your enemy. I have been practicing law for almost forty years, and I still struggle with procrastination. When you procrastinate, you often find yourself scrambling at the last minute and trying to put out a fire. I know this sounds like common sense, but it is something that you do not appreciate until you procrastinate and find yourself in a tough situation.

What trial tips do you have for young attorneys?

Hornthal: Overprepare. It is always better to be overprepared than underprepared. The last thing you want to do as a young attorney is walk into a courtroom feeling unprepared. If you are overprepared, you will be able to focus on the different elements of a trial and the potential problems in your case as opposed to the mere fact that you are underprepared.

Prentiss: You need to know your case inside and out. It is important to think about what can go wrong. If you know your case well enough, you will have a sense of what opposing counsel will try to accomplish at trial. You do not want to think about these things in the middle of the trial. On the contrary, you want to have thought about this before trial so that you can comfortably address any problems during the trial.

How should a young attorney prepare for their first trial?

Hornthal: Again, a young attorney should always overprepare for a trial. A young attorney should also seek advice from a more experienced attorney in preparing to try a case, regardless of whether the young lawyer is a solo practitioner or works in a law firm with several seasoned attorneys.

Prentiss: Pick a theme and pound it. You should focus on hitting the theme in jury selection, the opening statement, direct examination, cross examination, and the closing argument. You want to have a good theme that you can weave into all elements of your case.

What mediation tips do you have for young attorneys?

Hornthal: Be patient. I have handled several mediations both as the mediator, and as a party subject to the mediation. One thing I never realized until I served as a mediator is that you never know what is happening in the other room. So, if a mediation begins and the parties are on complete opposite ends of the spectrum, remember to be patient and let the mediator do his or her job. I also think it is important for a young lawyer to be overprepared for a mediation. Not too many cases are tried these days, and more often than not, the mediation is the place to resolve the lawsuit. Given that the mediation may be the final step in the process more often than not, a young lawyer needs to know the case inside and out and be fully prepared.

Prentiss: From the perspective of a defense lawyer, know that most lawyers on the other side of your case in the mediation do not want to try the case. You can often settle cases for a lower amount than you think because the lawyer on the other side does not want to try the case.

Is it helpful to start with a reasonable response to an opening demand in mediation, or should a young attorney start with a low offer?

Hornthal: I have always had more success starting with a reasonable response. In my experience, I have found that low offers often lead to a waste of time, and as a result, a waste of the client’s money. The purpose of the mediation is to resolve the case, so I see no reason why the parties shouldn’t come in with reasonable offers in attempt to reach a resolution. I know several attorneys that prefer to start with a low offer, and I understand why they do so to a certain extent, but I have always had more success starting with a reasonable offer.

Prentiss: As a lawyer and a mediator, it depends on the demand. It is frustrating when the other side does not know what the insurance limits are, or if the other side comes in with a demand that exceeds the limits. But if you get a reasonable demand, you want to respond with a reasonable offer. This will avoid wasting everyone’s time and money.

What deposition tips do you have for young attorneys?

Hornthal: Like with mediation, be patient. Additionally, I think it is important to really listen to the witness. While I believe it is beneficial for all lawyers, especially young lawyers, to prepare a list of questions for the witness, it is equally important to listen to the witness as you ask the questions. Often times, by listening to the witness, you will think of questions you did not consider before the deposition began and can force the witness to expand on important topics that you may not have thought of in advance.

Prentiss: Give the deponent a chance to talk. I find too often that the questioning lawyer spends too much time talking and asking closed ended questions. This often leads to a lack of information at the end of the deposition. I think attorneys should focus on asking open-ended questions and giving the deponent a chance to talk. I also suggest thinking about what documents you want to use in the deposition. If you have favorable documents, you may want to use those to force the witness to admit certain facts.

What is your strategy with introducing documents in depositions? Do you prefer using several documents as exhibits, or do you try to limit your use of documents?

Hornthal: I usually avoid the overuse of exhibits during depositions. This is partially because it is easier to actively listen to a witness speak without having to worry about introducing certain documents and keeping them organized. Of course, there are several instances where I use exhibits to force witnesses to admit certain facts that I will want to introduce at trial, such as the position and condition of an automobile in a negligence case. But unless there are specific reasons to introduce certain exhibits, I typically focus on making sure that I am listening to the witness’s testimony. When you are worrying about where your documents are and whether you have introduced them in the correct order, you often times are missing opportunities to hear what the witness is saying and see how they are physically responding when prompted by your questions.

Prentiss: I think this is something I deal with on a case-by-case basis. From my practice, which has been heavily personal injury defense oriented, I do not think you should be afraid to introduce documents, especially medial records. For example, if a deponent admits they told a doctor that they felt okay on a certain visit, the attorney can cross-examine the witness on that statement while at trial without having to deal with introducing the medical records from the visit.

What are the most common mistakes you see young attorneys make, and how can those mistakes be avoided?

Hornthal: The most common mistake I see young attorneys make these days is having a sense of entitlement. Some young lawyers these days feel that, because they went through law school, passed the bar exam, and became lawyers, they are entitled to certain things in life and in the practice of law. This sense of entitlement often leads to laziness, a lack of preparation, and poor treatment of clients and other lawyers. I think it is important for young lawyers to remember that they are, in fact, young lawyers; and that the practice of law is a privilege.

Prentiss: First, I see several young attorneys asking questions of their own questions in a deposition. Most of the time, this is counterproductive. It is okay to clarify the record; but too often I see lawyers asking questions of their own clients, which leads to additional information coming out of the witness that may be harmful to the case. This also gives the opposing attorney an opportunity to cross examine the witness a second time on the newly released information. The second common pitfall I see with young attorneys is failing to calendar their deadlines. I recommend that all attorneys create their own scheduling orders or deadlines, even if there are no formal orders or deadlines involved in the case.

What has impressed you the most about the young attorneys that you have come into contact with?

Hornthal: I am always impressed with a young attorney that has a strong work ethic. As mentioned earlier, there are several young lawyers that have a sense of entitlement and do not work as hard as they should. If a young lawyer has a strong work ethic, that work ethic will lead to better work product, more clients, and better case results.

Prentiss: Older lawyers tend to be more obsessed with the practice of law and it becomes their entire life. Younger lawyers seem to have a better feel for work-life balance and quality of life. The practice of law is your profession, not your life; and it should not dominate your life.

What tips do you have for young attorneys that want to continue to advance professionally?

Hornthal: Do not be afraid to try something new; and do not be afraid to reach out to a mentor about advancing professionally. That goes for both solo practitioners and young attorneys that work in firm settings. If a young attorney wants to advance professionally, there are several opportunities to do so. There are also several more seasoned attorneys that are willing to help develop young attorneys.

Prentiss: I suggest that young attorneys get involved with legal groups, such as the North Carolina Association for Defense Attorneys or the Advocates for Justice. This creates new opportunities for young lawyers and allows them to meet other attorneys that they would have never met otherwise. For small firms in small towns, this can be especially beneficial.

What advice do you have for a young attorney who finds themselves facing off against a more experienced attorney?

Hornthal: Again, it is better to be overprepared than underprepared. While every case has its own set of facts that may favor one side more than the other, you can never go wrong by overpreparing for a case and ensuring that you are not outworked by the more seasoned attorney.

Prentiss: Remember that the older attorney has the same insecurities as the young attorney. The best thing you can do with a more experienced lawyer on the other side is out work them. If you know your case inside and out, the fact that you are up against a more experienced lawyer should not make a difference.

Do you think experienced staff should play a role in guiding a young attorney?

Hornthal: Absolutely. As mentioned earlier, many young attorneys have that sense of entitlement that they do not need to listen to staff because staff are not lawyers. But that is not the case. Many staff members in law firms have been with the same law firm for decades, and can do almost everything an attorney can do, with the exception of signing pleadings and a few other things. With the significant amount of experience these staff members have, they can serve as a significant aid in helping a new attorney understand their duties and roles.

Prentiss: Obviously, staff cannot practice law. But, they can surely help you find the courthouse and tell you who to speak with at court houses in certain counties. Staff can help with several things that attorneys are not taught in law school. Also, having a good relationship with staff is an important part of being a good lawyer and good person in general.

What risks should a young attorney be willing to take?

Hornthal: Young attorneys should be comfortable in taking risks. As mentioned earlier, taking on cases that may not have the most favorable facts may help the young attorney develop significantly. Taking risks is always a good way to learn, if the risk is calculated, and the attorney feels comfortable taking it.

Prentiss: The first thing I’ll say is do not take any risks with ethics. If something does not feel right, you should not take the risk. On the other hand, you should be willing to take on a novel theory to a case, especially if the law and facts are not on your side. Having a novel theory to a case is often a way that lawyers can win cases that seem impossible.