Malloy wins malpractice countersuit

By Chad Rhoad and Dwight Dana
Media General Carolina
Published: June 25, 2008

State Sen. Gerald Malloy, D-Hartsville, has won the countersuit over a $50,000 lawsuit filed in August 2004 alleging malpractice.

Malloy was awarded $27,364.31 in attorney fees and costs. The S.C. Supreme Court ruled in Malloy’s favor June 16, citing the S.C. Frivolous Civil Proceedings Sanctions Act that provides for attorney fees and costs of frivolous suits.

The initial lawsuit was filed by Annie B. Melton on behalf of her son, Jerry Bittle, who suffered permament brain damage following an automobile accident May 24, 1999.

It asserted that Malloy, while a member of the Saleeby Law Firm in 2003, didn’t release proceeds from an insurance settlement check that should have gone to Bittle, who lived in Chesterfield County. The $14,868.97 check was endorsed by Malloy and Bittle in the former’s law office July 19, 2001.

Malloy’s attorney, Desa Ballard of West Columbia, answered the lawsuit in a counterclaim filed Aug. 16 in the Darlington County Clerk of Court’s office. Ballard said Malloy was prohibited from releasing the $14,868.97 because of liens against the settlement proceeds.

The counterclaim charged Melton’s lawsuit was “brought for political reasons, to seek to influence a popular election and to embarrass and humiliate Defendant during a political campaign.” At the time, Malloy was facing Republican Warren Arthur in the Novemeber 2004 general election for the Senate District 29 seat. The attorney representing Melton, George W. Gregory Jr. of Cheraw, denied that claim.

Malloy and the insurance company for the at-fault vehicle in the crash that injured Bittle agreed on a settlement based on the insurance coverage of the driver, but the settlement was for less than the bills incurred.

Malloy agreed to hold the settlement in his trust until the statute of limitations for Bittle’s hospital bills ended, which would have allowed Bittle and Melton to settle for the amount of the bills and be able to cover the bills more adequately.

The settlement check for $14,000 was deposited into Malloy’s trust account and accounted for at all times, Malloy said Monday. It was to remain there until the statute passed and Malloy could help Bittle and Melton get more from the settlement to help with bills.

Malloy said Bittle and Melton wanted the check after the settlement, but law requires Medicaid be repaid for its services before Bittle and Melton received any compensation. Malloy also said he agreed not to take a fee from Melton and Bittle because the level of insurance of the at-fault vehicle only had $15,000 in coverage.

In addition to the lawsuit, Gregory filed disciplinary action with the S.C. Bar Association against Malloy citing unethical conduct and claiming that Malloy intended to keep the money and gather the interest accrued.

Malloy said the action was dismissed with prejudice, meaning it cannot be brought before the committee again.