United States District Court, D. South Carolina, Charleston Division
C. NORTON UNITED STATES DISTRICT JUDGE
matter comes before the court on declaratory judment action
(2:13-cv-3035) plaintiff Founders Insurance Company’s
("Founders") motion for summary judgment as to bad
faith action plaintiff and declaratory judgment action
defendant George Giannaras, as guardian for Emmanuel
Kehagias’s ("Kehagias") counterclaims, ECF
No. 164. For the reasons set forth below, the court grants
motion involves Founders’s declaratory judgment action
against Kehagias, Richard Ruth’s Bar and Grill LLC
("Richard’s Bar"), Richard Ruth ("Mr.
Ruth"), and Jane Ruth ("Ms. Ruth")
(collectively "the Ruths") seeking a declaration
that Founders has no duty to indemnify the Ruths for claims
asserted by Kehagias for a judgment in the underlying
personal injury action in state court. ECF No. 113, Am.
Compl. Kehagias filed an answer and renewed counterclaims on
April 22, 2015, asserting two counterclaims against Founders
for negligent misrepresentation of the applicable policy
limits and negligence/gross negligence pertaining to
Founders’s alleged failure to pay the medical payment
limits ("Med-Pay"). ECF No. 116.
filed the present motion for summary judgment on October 14,
2015. ECF No. 164. Kehagias filed a response on November 12,
2015. The motion has been fully briefed and is now ripe for
the court’s review.
judgment shall be granted "if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as
a matter of law." Fed.R.Civ.P. 56(c). "By its very
terms, this standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of material
fact." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986). "Only disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment."
Id. at 248. "[S]ummary judgment will not lie if
the dispute about a material fact is ‘genuine, ’
that is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Id.
the summary judgment stage the judge’s function is not
himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial." Id. at 249. When the party moving for
summary judgment does not bear the ultimate burden of
persuasion at trial, it may discharge its burden by
demonstrating to the court that there is an absence of
evidence to support the non-moving party’s case.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
The non-movant must then "make a showing sufficient to
establish the existence of an element essential to that
party’s case, and on which that party will bear the
burden of proof at trial." Id. at 322. The
court should view the evidence in the light most favorable to
the non-moving party and draw all inferences in its favor.
Anderson, 477 U.S. at 255.
argues that Kehagias’s negligent misrepresentation
counterclaim fails because he cannot establish detrimental
reliance or damages regarding Founders’s
misrepresentations. ECF No. 164, at 11. Founders further
argues that the negligence/gross negligence counterclaim also
fails because Kehagias cannot establish that Founders
breached any duty or that he was damaged as a result of the
alleged breach. Id. at 12-14.
negligent misrepresentation claim, Kehagias alleges that
Founders and its agent misrepresented the applicable policy
limits on September 3, 2013 in its counteroffer because it
stated that the maximum coverage was $50, 000.
Carolina law prohibits an insurer from knowingly
misrepresenting to third-party claimants "pertinent
facts or policy provisions relating to coverages at issue or
providing deceptive or misleading information with respect to
coverages." S.C. Code Ann. § 38-59-20 (1976). Under
South Carolina law, in order to maintain an action for
negligent misrepresentation for a pecuniary loss, Kehagias
must establish the following six elements: (1) that Founders
made a false representation to the plaintiff; (2) that
Founders had a pecuniary interest in making the statement;
(3) that Founders owed a duty of care to see that it
communicated truthful information to the plaintiff; (4) that
Founders breached that duty by failing to exercise due care;
(5) that Kehagias justifiably relied on the representation;
and (6) that Kehagias suffered a pecuniary loss as a
proximate result of his reliance upon the representation.
Spires v. Acceleration Nat. Ins. Co., 417 F.Supp.2d
750, 754 (D.S.C. 2006) (citing AMA Mgmt. Corp. v.
Strasburger, 420 S.E.2d 868 (S.C. 1992)).
first argues that Kehagias cannot recover under its negligent
misrepresentation counterclaim as a matter of law because
Founders provided a full copy of their insurance policy. ECF
No. 164, 11. Founders further argues that Kehagias cannot
establish detrimental reliance because: (1) he did not accept
the $50, 000 offer; (2) Giannaras testified that he would not
have accepted an offer of $105, 000, ...