Dolford v. Shaw
ORDER denying 29 Motion for Summary Judgment. Signed by the Honorable R. Bryan Harwell on 4/13/2017. (hcic, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Georgeanna Benjamin, as
Guardian ad Litem for Curtis Dolford,
Civil Action No.: 4:15-cv-05110-RBH
This matter is before the Court for a ruling on Defendant Adrian Shaw’s Motion for Summary
Judgment. See ECF No. 29. The Court denies the motion for the reasons herein.1
Summary Judgment Standard
Summary judgment is appropriate when no genuine issue of material fact exists and the moving
party is entitled to judgment as a matter of law. Reyazuddin v. Montgomery Cty., Md., 789 F.3d 407,
413 (4th Cir. 2015); see Fed. R. Civ. P. 56(a) (“The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.”). “A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by: (A) citing to particular parts of materials in the record . . . ; or (B) showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The facts and
inferences to be drawn from the evidence must be viewed in the light most favorable to the non-moving
party, Reyazuddin, 789 F.3d at 413, but the Court “cannot weigh the evidence or make credibility
determinations.” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015).
Pursuant to Local Civil Rule 7.08, the district court may decide motions without a hearing. The Court has
reviewed the parties’ filings and determined a hearing in this matter is unnecessary.
Moreover, “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). “A
dispute of material fact is ‘genuine’ if sufficient evidence favoring the non-moving party exists for the
trier of fact to return a verdict for that party.” Seastrunk v. United States, 25 F. Supp. 3d 812, 814
(D.S.C. 2014). A fact is “material” if proof of its existence or nonexistence would affect disposition
of the case under the applicable law. Anderson, 477 U.S. at 248.
At the summary judgment stage, “the moving party must demonstrate the absence of a genuine
issue of material fact. Once the moving party has met his burden, the nonmoving party must come
forward with some evidence beyond the mere allegations contained in the pleadings to show that there
is a genuine issue for trial.” Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992)
(internal citation omitted). Summary judgment is not warranted unless, “from the totality of the
evidence, including pleadings, depositions, answers to interrogatories, and affidavits, the [C]ourt
believes no genuine issue of material fact exists for trial and the moving party is entitled to judgment
as a matter of law.” Whiteman v. Chesapeake Appalachia, L.L.C., 729 F.3d 381, 385 (4th Cir. 2013);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
The Prior Case: Dolford I
On January 31, 2013, Defendant Adrian Shaw (“Defendant Shaw”) was driving north on U.S.
Highway 17 in a 1999 Mack dump truck when he crossed the center line and collided head-on with a
1989 Lincoln Sedan occupied by Curtis Dolford (“Plaintiff”), Maurice Dolford, and Brent O’Neal (the
driver). See ECF No. 23 [Amended Complaint] at ¶¶ 7-9. Plaintiff and his companions filed a
negligence action in state court against both Defendant Shaw and his employer Willard Locklear
Trucking, LLC (“Locklear Trucking”);2 the lawsuit was removed to this Court in January 2014. See
Dolford v. Willard Locklear Trucking, LLC, No. 4:14-cv-00062-RBH (D.S.C. filed Jan. 8, 2014)
(hereinafter, “Dolford I”). On March 24, 2014, O’Neal’s and Maurice Dolford’s cases were dismissed
with prejudice from Dolford I after they stipulated to the dismissal of all claims against both Defendant
Shaw and Locklear Trucking; Plaintiff’s lawsuit continued against both Defendant Shaw and Locklear
Trucking. Dolford I at ECF No. 13. On January 6, 2015, this Court entered an order dismissing
Defendant Shaw without prejudice for failure to serve pursuant to Federal Rule of Civil Procedure 4(m);
Plaintiff and Locklear Trucking remained the only parties in Dolford I. Id. at ECF No. 35. On January
12, 2015, Locklear Trucking filed in this Court a Confession of Judgment consenting to entry of
judgment in Plaintiff’s favor in the amount of $2.5 million dollars, and the Clerk entered the confessed
judgment the next day. Id. at ECF Nos. 39 & 40.
The Instant Case
On May 18, 2015, Plaintiff (a South Carolina resident) filed the present action solely against
Defendant Shaw in state court, and after having difficulty locating Defendant Shaw (a North Carolina
resident), served him on November 30, 2015, through the Director of the South Carolina Department
of Motor Vehicles.3 See ECF No. 1-1. Defendant Shaw removed the case to this Court on December
30, 2015.4 See ECF No. 1. Plaintiff filed an amended complaint on September 22, 2016, and Defendant
Locklear Trucking owned the Mack dump truck that Defendant Shaw was driving and was his employer.
Dolford I at ECF No. 1-1 ¶¶ 6, 11, 13.
See S.C. Code Ann. § 15-9-350 (permitting service of process on nonresident drivers via service on the
Director of the South Carolina Department of Motor Vehicles).
South Carolina law controls this removed, diversity action. See Erie R. Co. v. Tompkins, 304 U.S. 64
Shaw filed an answer admitting liability on October 6, 2016. See ECF Nos. 23 & 24. On November
17, 2016, Defendant Shaw filed a motion for summary judgment. See ECF Nos. 24 & 29. Plaintiff
filed a response in opposition to the motion for summary judgment, and Defendant Shaw filed a reply
to Plaintiff’s response. See ECF Nos. 30 & 31.
Defendant Shaw moves for summary judgment on two grounds, arguing (1) Plaintiff’s claims
are barred by the doctrine of laches and (2) Plaintiff received consideration for the entire judgment
against Locklear Trucking by virtue of the Confession of Judgment. See ECF No. 29-1 at 4-8.
Defendant Shaw asserts the doctrine of laches bars Plaintiff’s claims. Id. at 4-5. Plaintiff
contends laches is inapplicable because Defendant Shaw was served within the statute of limitations.
ECF No. 30 at 3-4.
Laches is an equitable doctrine defined as “neglect for an unreasonable and unexplained length
of time, under circumstances affording opportunity for diligence, to do what in law should have been
done.” Robinson v. Estate of Harris, 388 S.C. 645, 656, 698 S.E.2d 229, 236 (2010). “If the defense
of laches is applicable, whether a claim is barred is to be determined in light of the facts of each case,
taking into consideration whether the delay has worked injury, prejudice, or disadvantage to the other
party; delay alone in assertion of a right does not constitute laches.” Treadaway v. Smith, 325 S.C. 367,
378, 479 S.E.2d 849, 856 (Ct. App. 1996). “However, the statute of limitations, rather than laches,
is applicable to a legal as opposed to an equitable claim. Therefore, laches does not operate to bar
a legal claim when the applicable statute of limitations has not run.” Id. (internal citation omitted)
(emphasis added). In South Carolina, the statute of limitations for a personal injury action is three
years. See S.C. Code Ann. § 15-3-530(5).
Plaintiff commenced this negligence action within the three-year statute of limitations: the
accident causing his injuries occurred on January 31, 2013; he filed the lawsuit on May 18, 2015; and
he served Defendant Shaw on November 30, 2015. Because Plaintiff has asserted legal—not
equitable—claims for negligence, see Am. Compl. at pp. 2-5, laches does not bar those legal claims
because Plaintiff brought this action within the limitations period. See Treadaway, 325 S.C. at 378, 479
S.E.2d at 856; see, e.g., Sadler v. Nicholson, 26 S.E. 893, 894 (S.C. 1897) (“This was an action at law,
brought within the period of the statutory limitation, and the equitable defense of laches was not
available.”). Accordingly, the Court finds laches is inapplicable and summary judgment is not
appropriate on that basis.
Defendant Shaw argues Plaintiff’s claims against him are barred because Plaintiff received
consideration for the entire judgment against Locklear Trucking, Defendant Shaw’s employer. ECF No.
29-1 at 5-8; ECF No. 31 at 3-6. Defendant Shaw notes Plaintiff accepted the Confession of Judgment
from Locklear Trucking in Dolford I, by which Locklear Trucking assigned to Plaintiff its right to
pursue a bad faith action against its insurer National Casualty Insurance Company. ECF No. 29-1 at
7. Defendant Shaw claims Plaintiff’s acceptance of Locklear Trucking’s right to pursue a bad faith
action against National Casualty constitutes a full and complete satisfaction for his damages stemming
from the accident. Id.
Initially, the Court notes the parties’ briefing of the controlling law is limited, thereby
necessitating the Court’s own research of the issue. The cases—many from foreign jurisdictions5—and
secondary authority that Defendant Shaw cites are not dispositive of the issues before the Court, and
at the same time Plaintiff provides little authority other than arguing against authorities cited by
Defendant Shaw. The Court discusses the substantive, binding South Carolina law below.
In Bartholomew v. McCartha, the South Carolina Supreme Court “adopt[ed] the view that the
release of one tort-feasor does not release others who wrongfully contributed to plaintiff’s injuries
unless [(1)] this was the intention of the parties, or unless [(2)] plaintiff has, in fact, received full
compensation amounting to a satisfaction.”6 255 S.C. 489, 492, 179 S.E.2d 912, 914 (1971). This rule
applies regardless of “whether the instrument involved” is a release, covenant not to sue, or covenant
to execute.7 Id. South Carolina courts have consistently followed the two-prong test set forth in
Bartholomew by scrutinizing the language in the settlement instruments involved. See, e.g., Scott by
McClure v. Fruehauf Corp., 302 S.C. 364, 368, 396 S.E.2d 354, 356 (1990); Ecclesiastes Prod.
Ministries v. Outparcel Assocs., LLC, 374 S.C. 483, 492-504, 649 S.E.2d 494, 498-505 (Ct. App. 2007);
For example, Defendant Shaw heavily relies on a 1975 case from the Florida Second District Court of
Appeal; and he also cites a 1966 decision of the Texas Thirteenth Court of Appeals, a federal district court order from
the District of Arizona, and a decision of the Supreme Court of W yoming. See ECF Nos. 29-1 & 31 (citing Hinton
v. Iowa Nat. Mut. Ins. Co., 317 So. 2d 832 (Fla. Dist. Ct. App. 1975); Manjarres ex rel. Manjarres v. Cont’l Tire
N. Am., Inc., No. CV 06-1037-PHX-MHM, 2007 W L 779725 (D. Ariz. Mar. 12, 2007); Marange v. Marshall, 402
S.W .2d 236 (Tex. Civ. App. 1966); Day v. Davidson, 951 P.2d 378 (W yo. 1997)). Because this Court is sitting in
diversity, it obviously must apply South Carolina law to this case.
“A ‘satisfaction’ is generally defined as ‘[t]he discharge of an obligation by paying a party what is due to
him’ or ‘[t]he performance of a substituted obligation in return for the discharge of the original obligation.’” Bowers,
360 S.C. at 155, 600 S.E.2d at 546 (quoting Black’s Law Dictionary 1342 (6th ed. 1990)).
As explained below, the Confession of Judgment is contingent upon an attached covenant not to execute.
See Dolford I at ECF No. 39-1. “Under South Carolina law, a covenant not to execute is one type of settlement
agreement. It is a promise not to enforce a right of action or execute a judgment when one had such a right at the time
of entering into agreement. It is normally executed when a settlement occurs after the filing of a lawsuit. W hile a
covenant not to execute is not a release, it is nonetheless a settlement between the parties to the agreement.” Wade
v. Berkeley Cty., 348 S.C. 224, 228, 559 S.E.2d 586, 587 (2002) (internal citations, quotation marks, and emphasis
Bowers v. Dep’t of Transp., 360 S.C. 149, 153-56, 600 S.E.2d 543, 545-46 (Ct. App. 2004); Loyd’s Inc.
by Richardson Const. Co. of Columbia, S.C. v. Good, 306 S.C. 450, 454-55, 412 S.E.2d 441, 443-45
(Ct. App. 1991); Vaughn v. City of Anderson, 300 S.C. 55, 57, 386 S.E.2d 297, 299 (Ct. App. 1989).
Two cases in particular—Bowers and Loyd’s—discuss the South Carolina Uniform Contribution
Among Tortfeasors Act, which codifies and “mirrors the rule in Bartholomew.” Bowers, 360 S.C. at
155, 600 S.E.2d 543, 546. Section 15-38-50 of the Act provides as follows:
When a release or a covenant not to sue or not to enforce judgment
is given in good faith to one of two or more persons liable in tort
for the same injury or the same wrongful death:
it does not discharge any of the other tortfeasors
from liability for the injury or wrongful death
unless its terms so provide, but it reduces the claim
against the others to the extent of any amount
stipulated by the release or the covenant, or in the
amount of the consideration paid for it, whichever is
the greater; and
it discharges the tortfeasor to whom it is given from
all liability for contribution to any other tortfeasor.
S.C. Code Ann. § 15-38-50 (2005) (bold emphases added).
Here, the Court finds neither prong of Bartholomew—as codified in section 15-38-50—is
fulfilled.8 First, there is no evidence that the covenant of Locklear Trucking intended to release
Defendant Shaw argues that because Plaintiff accepted a Confession of Judgment against Shaw’s employer
(Locklear Trucking) in Dolford I, such acceptance precludes Plaintiff from bringing a subsequent action against
Shaw— the employee— by virtue of the principle of vicarious liability/respondeat superior. See ECF No. 29-1 at 6-7;
ECF No. 31 at 4-6. In support of this argument, Defendant cites the Restatement (Second) of Judgments §§ 50 and
51, Hinton v. Iowa National Mutual Insurance Co., 317 So. 2d 832 (Fla. Dist. Ct. App. 1975), and several other nonSouth Carolina authorities. The Court notes there is no conclusive post-Bartholomew South Carolina case law
standing for the proposition that settlement with a principal automatically constitutes settlement with the agent. The
only case that comes close is Andrade v. Johnson, in which the South Carolina Court of Appeals dealt with the
opposite scenario and found settlement with an agent automatically constituted settlement with the principal,
notwithstanding Bartholomew and the Uniform Contribution Among Tortfeasors Act. See 345 S.C. 216, 221-27, 546
S.E.2d 665, 668-70 (Ct. App. 2001) (“W e hold the covenant not to sue issued in favor of Johnson, the agent, released
SCE&G, the vicariously liable principal.”), rev’d on other grounds, 356 S.C. 238, 588 S.E.2d 588 (2003). The Court
Defendant Shaw or “others who wrongfully contributed to [P]laintiff’s injuries.” Bartholomew, 255
S.C. at 492, 179 S.E.2d at 914. The Confession of Judgment states “the Plaintiff, Curtis Dolford, agrees
to accept this confession as full and final resolution of all claims, past, present, or future, that Curtis
Dolford may have or ever have against Willard Locklear Trucking, LLC.” Dolford I at ECF No. 39-1.
The Confession of Judgment does not name Defendant Shaw and does not evidence an intent to make
a general release of all parties who might be liable. In fact, it states, “This agreement shall in no way
affect Plaintiff’s right or ability to seek recovery from any other persons or entities.” Id. (emphasis
added). Additionally, the Confession of Judgment incorporates an “Assignment, Covenant Not to
Execute and Agreement to Cooperate in Litigation” that references only Locklear Trucking as the
“Judgment Debtor.” Dolford I at ECF No. 39-1 ¶ 1. Finally, the “Assignment, Covenant Not to
Execute and Agreement to Cooperate in Litigation” releases Willard and Betty Locklear individually
(“so long as they reasonably cooperate in the prosecution of the bad faith action”), but it does not
specifically release anyone else. See id. ¶ 23.
Second, there is no evidence of “full compensation amounting to a satisfaction.” Bartholomew,
255 S.C. at 492, 179 S.E.2d at 914. The Confession of Judgment states it “is contingent upon the
parties’ proper execution of the attached ‘Assignment, Covenant Not to Execute and Agreement to
Cooperate in Litigation.’” Dolford I at ECF No. 39-1. The attached Covenant Not to Execute specifies
“that once the bad faith lawsuit is resolved, dismissed or a final judgment is entered, this covenant not
is not inclined to extend Andrade to the facts of the instant case, which deal with a settlement with the principal rather
than the individual agent. The Court also notes the complaint in Dolford I alleged both respondent superior/vicarious
liability against the master/employer Locklear Trucking and independent acts of negligence of the master such as
negligent entrustment and negligent hiring, training, and supervision. See, e.g., Dolford I at ECF No. 1-1 ¶¶ 11-15.
In the instant case, Plaintiff’s amended complaint contains no references to Locklear Trucking or respondeat superior.
See ECF No. 23.
to execute in favor of [Locklear Trucking] will become permanent and the Judgment will be marked
satisfied.” Id. at ECF No. 39-2 ¶ 17 (emphasis added). Thus, the plain terms of the Covenant Not to
Execute contemplate satisfaction of the judgment against only Locklear Trucking and only when the
bad faith lawsuit is “resolved, dismissed or a final judgment” entered. There is no indication whether
Plaintiff has actually filed the bad faith lawsuit, much less whether that suit has been resolved,
dismissed, or had final judgment entered. Moreover, even assuming arguendo that the bad faith lawsuit
had reached such conclusion, there is still no evidence that Plaintiff has received a “full compensation
amounting to a satisfaction” for his injuries.9 255 S.C. at 492, 179 S.E.2d at 914. Accordingly, the
Court must deny Defendant Shaw’s motion for summary judgment.
For the reasons stated above, the Court DENIES Defendant Shaw’s motion for summary
judgment [ECF No. 29].
IT IS SO ORDERED.
Florence, South Carolina
April 13, 2017
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Defendant Shaw correctly recognizes “Plaintiff is barred from receiving a double recovery for the same
injury.” ECF No. 31 at 5. See generally Riley v. Ford Motor Co., 414 S.C. 185, 195-98, 777 S.E.2d 824, 830-31
(2015) (discussing the prohibition against double recovery and “a defendant’s entitlement to setoff, whether at
common law or under section 15-38-50”; and explaining how “these equitable principles were codified as part of the
South Carolina Contribution Among Tortfeasors Act,” specifically section 15-38-50).
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