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Curry v. Carolina Insurance Group of SC, Inc.

Court of Appeals of South Carolina

August 21, 2019

Porthemos Curry, Respondent/Appellant,
Carolina Insurance Group of SC, Inc. and Maurice Derrick, Appellants/Respondents. Appellate Case No. 2016-000986

          Heard May 16, 2019

          Appeal From Richland County Robert E. Hood, Circuit Court Judge Jocelyn Newman, Circuit Court Judge.

          Wesley Dickinson Peel, of Bruner Powell Wall & Mullins, LLC, and Bryan Michael James Triplett, both of Columbia, for Appellants/Respondents.

          Thomas Jefferson Goodwyn, Jr., of Goodwyn Law Firm, LLC, and Rachel Gottlieb Peavy, of The McKay Firm, P.A., both of Columbia, for Respondent/Appellant.

          KONDUROS, J.

         In this cross-appeal involving an insurance contract, Carolina Insurance Group of South Carolina, Inc. (CIG) and Maurice Derrick (collectively, CIG/Derrick) appeal the circuit court's (1) grant of Porthemos Curry's motion for summary judgment as to their affirmative defense of release and (2) considering extrinsic evidence in dismissing their defense of release. Curry also appeals, arguing the circuit court abused its discretion in granting CIG/Derrick's motion to amend their answer at trial to assert the affirmative defense of release. We affirm.


         Derrick is a licensed insurance agent for CIG, an insurance agency. In August 2013, CIG/Derrick sold Curry a three-month vacant structure policy for a building he owned in Columbia. Curry purchased another vacant structure policy from CIG/Derrick with Scottsdale Insurance Company for the same building in December 2013. On February 21, 2014, a vehicle collided with the building, starting a fire that caused severe damage to the building. Scottsdale refused to pay the claim, asserting the policy had begun in November 2013 and had lapsed at the time of the accident.[1]

         In July 2014, Curry brought an action against Scottsdale[2] and CIG/Derrick. Curry named CIG/Derrick as agents of Scottsdale and asserted causes of action for negligence, later amending the pleading to add claims for gross negligence in the procurement of the insurance policy.[3] In Scottsdale's answer, it stated CIG/Derrick were not "agents, servants[, ] or employees o[f] Scottsdale" and "any injuries or damages sustained by [Curry] . . . were the result of the acts or omissions of others not in the employ or control of [Scottsdale]." In their answer, CIG/Derrick also denied they were agents of Scottsdale. Additionally, in Derrick's deposition on April 16, 2015, he testified he was not employed by Scottsdale and was not a producing agent for Scottsdale. In CIG's 30(b)(6), SCRCP, deposition on June 4, 2015, the president of CIG testified CIG had no relationship with Scottsdale.

         In November 2015, Curry settled with Scottsdale and executed a release (the Release) in exchange for payment of $85, 000 by Scottsdale. The Release, dated December 10, 2015, stated it released and "discharge[d] Scottsdale Insurance Company, its agents, servants, employees, successors[, ] and assigns of and from any and all actions, causes of action, demands[, ] and/or claims of whatsoever kind or nature prior to and including the date hereof." Attorneys for Curry, Scottsdale, and CIG/Derrick all signed a stipulation of dismissal as to Scottsdale only on December 10, 2015. The stipulation stated it did not affect Curry's case against the remaining defendants.

         On April 15, 2016, CIG/Derrick filed a motion for summary judgment. They argued the Release amounted to a full compensation of Curry's claims and thus Curry was precluded from receiving any additional damages. On April 18, 2016, CIG/Derrick filed an amended motion for summary judgment, asserting, in addition to their previous argument, Curry's release of Scottsdale also released CIG/Derrick from liability. CIG/Derrick argued the language of the Release indicated Curry intended to release them in addition to Scottsdale because the Release included the agents of Scottsdale and Curry's complaint stated CIG/Derrick were agents of Scottsdale. CIG/Derrick asserted a party is bound by its pleadings and Curry could have changed his allegation when he filed his amended complaint after having conducted discovery in the case. Also on April 18, CIG/Derrick filed a motion to amend their answer to assert the affirmative defense of release. CIG/Derrick asserted that Curry's accepting the amount he agreed "represented the full amount of the policy benefits" precluded him from claiming additional damages later.

         Also on April 18, 2016, Curry filed a motion for summary judgment on CIG/Derrick's affirmative defense of release, asserting the Release was unambiguous and only applied to Scottsdale. Curry also asserted the record contained no evidence CIG/Derrick were agents of Scottsdale and CIG/Derrick denied they were agents of Scottsdale. Curry also filed a memorandum in opposition to CIG/Derrick's motion for summary judgment. Curry argued CIG/Derrick's attorney signed the stipulation of dismissal as to Scottsdale, which stated it only applied to Scottsdale and Curry's "case against the remaining Defendants shall not be affected by this Dismissal." Additionally, Curry noted the Release did not mention CIG/Derrick. Further, Curry provided CIG/Derrick did not pay any money towards the Scottsdale settlement and also engaged in settlement negotiations up to the eve of trial, participated in discovery, and communicated with the circuit court about the scheduling of trial. Curry asserted that if CIG/Derrick believed they were released by Scottsdale's release, which they had known about since November 2015, they could have made the argument prior to the eve of trial. CIG/Derrick requested a copy of the Release on April 8, 2016, and Curry gave them a copy, after which settlement negotiations and depositions continued.

         The trial between Curry and CIG/Derrick was set to be held April 18-19, 2016, and on April 18, the circuit court heard arguments on the motion to amend. The circuit court orally granted CIG/Derrick's motion to amend their answer to assert the affirmative defense of release.[4] Due to the timing of the motion for summary judgment based on the release argument, the circuit court scheduled a hearing on the summary judgment motions for the following week with another circuit court judge and continued the trial until May 16.

         A hearing on the motions for summary judgment was held on April 26, 2016. The circuit court denied CIG/Derrick's motion from the bench and took Curry's motion under advisement. The circuit court issued an order on May 9, 2016, granting Curry's motion for summary judgment. The circuit court found CIG/Derrick were not agents of Scottsdale. The court stated that looking at the Release as a whole, the plain language showed it clearly and unambiguously released only Scottsdale and not CIG/Derrick from the action. The court found the intent of the parties was to encompass claims against only Scottsdale. The court noted the Release did not mention CIG/Derrick. The court also found the record contained no evidence CIG/Derrick were agents, servants, or employees of Scottsdale. Specifically, the court noted CIG/Derrick testified no agency relationship whatsoever existed between CIG/Derrick and Scottsdale. Additionally, the court found CIG/Derrick's counsel executed the stipulation of dismissal in December 2015, which stated the dismissal did not affect Curry's case against CIG/Derrick. Finally, the circuit court found unpersuasive CIG/Derrick's argument Curry made a "judicial admission" by alleging in his complaint that CIG/Derrick were agents of Scottsdale. The court stated Curry made a mere allegation in his complaint and CIG/Derrick denied it, repeatedly; thus, no "admission" was made under South Carolina law. The circuit court found CIG/Derrick's argument regarding full payment to be without merit because Curry's claims against Scottsdale were distinct from those pending against CIG/Derrick and could result in an award of different types of damages. The court found the argument was not supported by common law or the South Carolina Contribution Among Tortfeasors Act (the Act), SC Code Ann. §§ 15-38-10 to -70 (2005 & Supp. 2018).

         On January 31, 2017, Curry filed a motion for relief pursuant to Rule 60(b), SCRCP, requesting the circuit court vacate its grant of CIG/Derrick's motion to amend their answer. CIG/Derrick filed a motion in opposition. The circuit court denied the motion via form order dated August 1, 2017. These appeals followed.


         A motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), SCRCP. "In determining whether any triable issues of fact exist, the trial court must view the evidence and all reasonable inferences that may be drawn therefrom in the light most favorable to the party opposing summary judgment." Pallares v. Seinar, 407 S.C. 359, 365, 756 S.E.2d 128, 131 (2014). "An appellate court applies the same standard used by the trial court under Rule 56(c) when reviewing the grant of a motion for summary judgment." Spence v. Wingate, 395 S.C. 148, 156, 716 S.E.2d 920, 925 (2011). "Because summary judgment is a drastic remedy, it should be cautiously invoked to ensure that a litigant is not improperly deprived of a trial." Id.



         A. Summary Judgment[5]

         1. ...

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