— Posts About NC Legislature

Victory: Tenure repeal declared unconstitutional

At 11 am this morning, Superior Court Judge Robert Hobgood sided with Patterson Harkavy’s attorneys and ruled that legislation stripping teachers of their vested employment rights violated the North Carolina and the United States Constitutions.

For over forty years, North Carolina public school teachers have been able to earn “career status” after successful completion of a four-year probationary period and a favorable vote by a teacher’s school board.  A teacher with career status can only be demoted or dismissed for good cause, and has the right to a hearing in which he or she could contest a dismissal or demotion decision.  All of North Carolina’s neighboring states provide teachers a comparable system of basic employment protections.

In 2013, the North Carolina General Assembly passed legislation stripping teachers of these employment protections.  The scheme purported to replace career status with a new system, in which teachers would be employed under one-, two-, or four-year contracts.  When a school board fails to renew an experienced teacher’s contract, the new system would deny that teacher any right to a hearing challenging that decision.

Representing a group of teachers and the North Carolina Association of Educators, Patterson Harkavy’s Burton Craige and Narendra Ghosh filed suit challenging the constitutionality of the 2013 legislation.

Today, Judge Hobgood ruled that this legislation violated the United States Constitution’s Contracts Clause and the North Carolina Constitution’s Law of the Land Clause.  The State failed to produce any evidence indicating that the repeal of career status was necessary to accomplish any public purpose.  In contrast, Patterson Harkavy produced the affidavits of school administrators who consistently discussed how career status was not a barrier to removing bad teachers, but instead helped schools attract and retain good teachers despite their low salaries.

This historic victory has received news coverage around the state and the nation, including in the Raleigh News and Observer, the Charlotte Observer, and the Wall Street Journal.

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Unemployment Benefits Extended in NC

An executive order was issued on Wednesday by North Carolina Governor Beverly Perdue that will extend long-term unemployment benefits to 25,000 jobless workers in the state.  The federal government pushed back the deadline for extended unemployment benefits to the end of February, but required states to make the change to their systems of calculations and deadlines as well to be eligible to get the federal funds.  Governor Perdue could have called a special session of the General Assembly to make this change, but chose to go the quicker route and issue an executive order.  The extension provides much needed benefits to unemployed workers.  More coverage here.

Categories: General News, Legislative Action Tags: , , , , ,

Burton Speaks About the New Medical Malpractice Legislation

Burton Craige addressed another bill passed in the North Carolina General Assembly this session with his paper entitled “SB 33: The Brave New World of Malpractice Litigation” where he summarizes Senate Bill 33, shows its evolution and addresses some of the possible constitutional challenges that it may face.  He spoke about his paper at a CLE hosted by the North Carolina Advocates for Justice in Raleigh on August 31, 2011.


On July 25, 2011, the North Carolina House of Representatives, by a vote of 74-42, overrode Governor Perdue’s veto of the medical malpractice bill (SB 33). The enactment of SB 33 culminated an intense six-month legislative battle.

When the Act becomes effective on October 1, 2011, a new era of malpractice litigation in North Carolina will begin. Injured patients, who already face formidable barriers, will find it harder to find a lawyer, pursue their claims, and recover adequate compensatory damages. Lawyers and judges will be forced to decipher complex new statutory language.  Courts will confront constitutional challenges to the bill’s most controversial provision, the $500,000 cap on noneconomic damages.

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Burton Presents “Billed v. Paid” Paper

Burton Craige authored a paper this month titled “Billed v. Paid: Present, Past, Future”.  Burton presented his paper this month at the North Carolina Advocates for Justice CLE, “Bill v. Paid: Counting the True Cost.”  His paper discusses the way the “Billed v. Paid” issue is handled in other states and how North Carolina’s law has changed over the years.


In June 2011, the North Carolina General Assembly enacted HB 542, titled “Tort Reform for Citizens and Businesses.”  Section 1.1 of HB 542 creates a new rule of evidence (Rule 414) that limits evidence of past medical expenses to “the amounts actually paid to satisfy the bills” and “the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied.”  Section 1.2 amends G.S. § 8-58.1, limiting the plaintiff’s testimony about reasonable medical expenses to the amount “paid or required to be paid in full satisfaction” of the charges. In combination, the new provisions, commonly referred to as “billed v. paid,” will significantly reduce the amount that injured plaintiffs can recover for their medical expenses.  The billed v. paid provisions are effective for all actions “arising on or after” October 1, 2011.

In the past decade, many states have confronted the billed v. paid issue in their appellate courts.  A handful of states have addressed the issue legislatively.  This paper reviews the experience in other jurisdictions, traces the evolution of billed v. paid in North Carolina, and identifies a potential constitutional challenge to the new legislation.

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NC Legislature Amends Guaranty Bill to Protect Workers’ Compensation Settlements

Last year, the State expanded the coverage of the North Carolina Guaranty Association to include structured settlement annuitities for North Carolina residents.   This is especially important for people who receive annuities as part of a workers’ compensation or personal injury settlement.  Coverage here.  One part of the new law’s language was less than clear, which required an amendment.  The amendment makes clear that annuity protection runs to the benefit of the actual beneficiary, the “payee” of the policy.  The text can be found here.  The amendment was enacted during the legislature’s short session this summer and signed by the governor.  Hank Patterson and Narendra Ghosh assisted with the legislative effort.

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Burton Writes on Comparative Fault Legislation

Burton Craige has published an article entitled “The Road to Comparative Fault in North Carolina” in this month’s issue of The Litigator, the regular publication of the North Carolina Bar Association’s Litigation Section.

Summary:  North Carolina is one of only five jurisdictions that retain the antiquated doctrine of contributory negligence. Here, as in Alabama, Maryland, Virginia and the District of Columbia, a plaintiff whose negligence makes the slightest contribution to his injury is barred from recovering any damages against the tortfeasor. The other 46 states, either by judicial decision or by statute, have adopted some form of comparative fault, allocating damages based on the degree of fault among the plaintiff and the defendants.

In May 2009, the North Carolina House of Representatives passed a bill that would abolish contributory negligence, adopt a system of modified comparative fault, and modify joint and several liability.  Modeled on the Uniform Apportionment of Tort Responsibility Act (UATRA), the bill attracted bipartisan sponsorship and support.  After the sponsors agreed to several last-minute amendments that favored defendants, the bill (HB 813) passed by a margin of 67-50, overcoming strong opposition from business and insurance interests.

In the 2010 session, the North Carolina Senate will consider HB 813.  If the bill passes the Senate, it will end the long, harsh regime of contributory negligence, and bring North Carolina tort law into the modern era.  This article discusses the provisions of UATRA, the amendments adopted in the House, and the principal objections to the bill.

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Mike Okun Speaks to NC Legislative Committee on Work and Family Balance

Yesterday, Michael Okun spoke in front of the North Carolina Legislature’s Joint Study Committee on Work and Family Balance.  Mike presented an overview of employment law, the specific laws that assist employees in caring for family members and themselves, and possible improvements that could be made to further assist employees as they balance the demands of work and family.

An excellent paper on the topic is “Free Riding on Families: Why the American Workplace Needs to Change and How to Do It,” an Issue Brief by Phoebe Taubman, an Equal Justice Works Fellow with A Better Balance: The Work and Family Legal Center, based in New York City.  The paper discusses the need for reform, compares our laws to the more robust protections available in most other countries, and proposes reforms in the areas of: an improved Family and Medical Leave Act, paid sick days, workplace flexibility, employment discrimination against caregivers, and workplace equity.

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Hank Organizing and Presenting at Today’s Annual NCAJ Workers’ Compensation CLE

Hank Patterson is one of the co-chairs for today’s NCAJ 16th Annual CLE on Workplace Torts and Workers’ Compensation.  Hank is also speaking and presenting a paper entitled Structured Settlement Annuities and the N.C. Life and Health Insurance Guarantee Association.

Summary:   From the perspective of the North Carolina Life and Health Insurance Guaranty Association, Senate Bill 780, enacted by the 2009 General Assembly did not accomplish its basic purpose of expanding coverage to structured settlement annuity payees. We concur. An additional amendment will be required to assure that annuity payees who are residents of North Carolina have the protection of the Guaranty Association.

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New Laws Go Into Effect Today

A bunch of the new laws passed by the North Carolina legislature earlier this year go into effect today. The News and Observer highlights a few, including the statute of repose law that helps consumers injured by defective products. The N&O also has a more complete list of laws going into effect here.

Categories: General News Tags: , , ,

Guaranty Fund Bill Passed by NC Legislature

The North Carolina Life & Health Insurance Guaranty Association is a state agency that, as one of its dutites, provides a guarantee for an annuity bought by North Carolina residents.  If the company that sells the annuity fails, then the Guaranty Association will take over paying the annuity up to a certain amount ($300,000 per person).  This is similar to the role of the FDIC in protecting bank deposits.

Injured people who reach settlements in workers’ compensation and personal injury cases often are provided with annuities (called structured settlement annuitities) to cover future expenses related to their case, such as future medical expenses.  Through a wrinkle in the law, many of these structured settlement annuities were not covered by the N.C. Guaranty Association.

Senate Bill 780 fixes this problem by expanded the coverage of the N.C. Guaranty Association to include structured settlement annuitities for North Carolina residents.  The Bill has just been passed by the Legislature and is on the way to the governor for her to sign.  Hank Patterson and Narendra Ghosh assisted with the legislative effort.

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