MCE Automotive, Inc. v. National Casualty Company

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 6:11-cv-01245-TMC. Copies to all parties and the district court/agency. [999158634]. [12-2475]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-2475

MCE AUTOMOTIVE, INC., d/b/a
INC., d/b/a Kia of Greer,

Toyota

of

Greer;

MCE

CARS,

Plaintiffs – Appellants,
v.
NATIONAL CASUALTY CO.; SUSAN
Guardian and Conservator for
vulnerable adult,

WETHERALD, as Permanent
Patricia A. Kaufman, a

Defendants – Appellees.

Appeal from the United States District Court for the District of
South Carolina, at Greenville. Timothy M. Cain, District Judge.
(6:11-cv-01245-TMC)

Submitted:

June 7, 2013

Before WYNN and
Circuit Judge.

DIAZ,

Decided:

Circuit

Judges,

and

July 25, 2013

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.

Robert M. Frey, BUTLER, SNOW, O'MARA, STEVENS & CANNADA, PLLC,
Ridgeland, Mississippi, for Appellants. John R. Murphy, Timothy
J. Newton, MURPHY GRANTLAND, P.A., Columbia, South Carolina, for
Appellee National Casualty Company.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
This action stems from an underlying South Carolina
state

suit

brought

Appellants

MCE

by

of

advantage

of

thirteen

Wetherald’s
against

Kaufman,

MCE:

conspiracy,

A.
a

between

original

Inc.,

against

and

MCE

PlaintiffsCars,

Inc.

Ms. Wetherald, as permanent guardian and

Patricia

cars

Wetherald

Automotive,

(collectively, “MCE”).
conservator

Susan

Kaufman,

vulnerable

July

2,

complaint

exploitation

conversion,

alleges
adult,

2007,

alleged

of

a

illegal

that
by

and
six

selling

March
causes

9,

took
her
2009.

of

action

adult,

vulnerable

and

MCE

civil

unenforceable

contract,

MCE

liability

unfair trade practices, and negligence.
At
insurance
Company

the

time

policies

of

with

(“National”):

the

sales,

had

Defendant-Appellee

Commercial

General

four

National
Liability

Casualty
coverage,

Garage Liability coverage, Statute and Title Error and Omissions
coverage, and Customer Complaint coverage.

After the underlying

action was filed, MCE gave notice of the suit to National, who
denied

coverage.

explained

that

When

MCE

Wetherald’s

contested
complaint

the
did

denial,
not

National

present

any

possibility of recovery of damages due to “bodily injury” or
“property damage.”

MCE then filed this action in the District

of South Carolina, alleging bad faith and breach of contract
claims against National.
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Both parties moved for summary judgment.

The district

court denied MCE’s motion and granted National’s motion. The
court held that none of the claims alleged in the complaint gave
rise to a duty to defend.
policies

with

National

According to the court, none of MCE’s

provided

coverage

allegations in the original complaint.

for

the

intentional

Moreover, even though

Wetherald had stated a cause of action for negligence, the court
held that the factual allegations in the complaint constituted
intentional and deliberate acts that could not be construed as
accidental in nature.

J.A. 1166.

The court explained that

“[w]hile South Carolina law allows alternative pleading, a party
cannot

invoke

coverage

negligence terms.”

by

couching

intentional

acts

in

Mfrs. & Merchant Mut. Ins. Co. v. Harvey,

498 S.E.2d 222, 227 (S.C. Ct. App. 1998).
After the district court issued its order, MCE moved
for

leave

to

file

a

supplemental

complaint,

alternative, to alter or amend the judgment.

or

in

the

In addition to

requesting reconsideration of the district court’s order, MCE
noted that Wetherald had moved to amend her complaint in the
underlying proceeding.

According to MCE, the amended complaint

would create a duty to defend.

The court denied MCE’s motion,

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noting that Wetherald’s motion had not yet been granted. *

MCE

appealed.
We
district

have

court’s

thoroughly
orders

reviewed

and

discern

the
no

record

and

reversible

the

error.

Accordingly, we affirm on the reasoning of the district court.
See MCE Automotive, Inc., et al. v. National Casualty Co., et
al., No. 6:11-1245-TMC (D.S.C. Sept. 28, 2012 & Nov. 27, 2012).
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court, and argument would not aid the decisional process.

AFFIRMED

*

After the court denied MCE’s motion, Wetherald was granted
leave to amend her complaint in the underlying proceeding.
National, apparently concluding that the amended complaint
sufficiently alleged facts supporting a cause for negligence,
then undertook MCE’s defense in the suit.
In its response
brief, however, National contends that the amended complaint
does not give rise to a duty to defend. See Appellee’s Br. at
14, 23, 29-30.
Because the district court did not decide
whether National has a duty to defend MCE against the
allegations in the amended complaint, that issue is not properly
before us.

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