United States District Court, D. South Carolina, Florence Division
ORDER AND OPINION
HOWE HENDRICKS UNITED STATES DISTRICT JUDGE.
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.
AND PROCEDURAL HISTORY
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.)
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”). 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. 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.)
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.
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
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.
Motion to Amend
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).
Motion to Dismiss
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,
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. Consumeraffairs.com,
Inc., 591 F.3d 250, 255 (4th Cir. 2009).
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. ...