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Tucker v. Peerless Insurance Co.

United States District Court, D. South Carolina, Florence Division

March 3, 2017

Bobby Lee Tucker, Sr., Plaintiff,
Peerless Insurance Company, Defendant.



         This matter is before the Court on Defendant's Amended Motion to Dismiss, (ECF No. 23), and Plaintiff's Motion for Leave to File Amended and Supplemental Complaint, (ECF No. 26). For the reasons set forth below, the Defendant's motion is DENIED and Plaintiff's motion is GRANTED.


         On the evening of April 30, 2010, Plaintiff was involved in a car accident in which he struck a 650 pound metal block lying in the outside lane of Interstate 95, causing Plaintiff to lose control and strike the overpass. A third party, Anthony Bernardo (“Bernardo”), witnessed the accident and subsequently signed an affidavit attesting to the truth and facts of the accident. Upon notification of the incident, South Carolina Highway Patrol conducted an investigation. Plaintiff learned that on the day of the crash, a witness observed a freightliner that contained a block on its flatbed, leaving a truck stop. At the time, the witness thought the block “could be a problem” because it only had a single strap across the top of the block. (ECF No. 26-1 ¶ 5.)

         At the time of the crash, Plaintiff was driving his employer's car. Plaintiff had $100, 000 in individual uninsured motorist (“UM”) coverage from Defendant Peerless Insurance Company (“Defendant”) and $100, 000 in UM coverage from his employer's carrier, Canal Insurance Company (“Canal”).[1] On May 14, 2010, Plaintiff filed a “John Doe” action, believing John Doe to be the driver of the freightliner seen on the day of the accident. Plaintiff served the two UM carriers with process.[2] Defendant and Canal answered on John Doe's behalf. After the parties exchanged written discovery and took depositions, the UM carriers moved for summary judgment on whether the Bernardo affidavit satisfied S.C. Code Ann. § 38-77-170(2). The trial court denied the motions on June 15, 2011, finding that Plaintiff had “complied with all requirements set forth by the legislature to bring this action under the uninsured motorist provision.” (ECF No. 24-1 at 5.)

         By email dated June 20, 2011, Plaintiff's trial counsel offered to settle the case if both carriers tendered the policy limits under each applicable policy. Plaintiff confirmed this offer on June 27, 2011, and stated the offer remained open until July 1, 2011. Defendant did not respond to the settlement offer and, instead, moved for reconsideration of its summary judgment motion on June 29, 2011, which the trial court denied on August 30, 2011. (ECF No. 24-2.) Canal, however, engaged in settlement talks and, after some negotiation, tendered the policy limits of $100, 000 dollars by letter dated August 29, 2011. The case proceeded to trial with only Defendant defending John Doe.

         On April 15, 2013, the jury awarded Plaintiff $2, 500, 000 in actual damages and $2, 500, 000 in punitive damages. On May 28, 2013, Plaintiff filed this action against Defendant for bad faith and breach of contract. This action was stayed during Defendant's post-trial motion and appeals in the underlying state action. On December 16, 2013, the trial court reduced the punitive damages award, affirmed the actual damages award, and entered judgment for Plaintiff in the amount of $3, 000, 000. The South Carolina Court of Appeals affirmed the trial courts' decision, and the South Carolina Supreme Court denied certiorari on October 20, 2016. In December 2016, Defendant tendered to Plaintiff the $100, 000 policy limit and post-judgment interest. (ECF No. 26-1 ¶ 35.)

         This Court lifted the stay on October 26, 2016. Defendant filed an Amended Motion to Dismiss in this action on November 16, 2016, to which Plaintiff responded on December 1, 2016. On December 27, 2016, Plaintiff filed a Motion for Leave to File an Amended and Supplemental Complaint. Defendant opposed the motion on January 5, 2017. Both motions are ripe and ready for the Court's review.


         A. Motion to Amend

         Rule 15 of the Federal Rules of Civil Procedure allows a party to amend the party's pleading once as a matter of course at any time before a responsive pleading is served. Fed.R.Civ.P. 15(a). Otherwise, a party may amend the party's pleading only by leave of court or by written consent of the adverse party. Id. Leave to amend a pleading shall be freely given “when justice so requires.” Id. Thus, “leave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would be futile.” Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir.1986).

         B. Motion to Dismiss

         A plaintiff's complaint should set forth “a short and plain statement . . . showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 8 “does not require ‘detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To show that the plaintiff is “entitled to relief, ” the complaint must provide “more than labels and conclusions, ” and “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. In considering a motion to dismiss under Rule 12(b)(6), the Court “accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff . . . .” Nemet Chevrolet, Ltd. v., Inc., 591 F.3d 250, 255 (4th Cir. 2009).

         To survive a Rule 12(b)(6) motion to dismiss, a complaint must state “a plausible claim for relief.” Iqbal, 556 U.S. at 679. “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Twombly, 550 U.S. at 557). Stated differently, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. (quoting Fed.R.Civ.P. 8(a)). Still, Rule 12(b)(6) “does not countenance . . . dismissals based on a judge's disbelief of a complaint's factual allegations.” Colon Health Centers of Am., LLC v. Hazel, 733 F.3d 535, 545 (4th Cir. ...

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