Evans v. Johnson

Filing 25

CONSENT ORDER STAYING ACTION. Signed by Chief Judge R Bryan Harwell on 04/16/2019. (lsut, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
ANTHONY EVANS,
Plaintiff,
v.
RYLIE ELIZABETH JOHNSON,
Defendant.

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Civil Action No. 4:18-cv-00713-RBH

CONSENT ORDER STAYING ACTION

BEFORE THE COURT is a Consent Motion to Stay Action.
By and through their respective counsel undersigned, all of the parties to this action,
namely, Plaintiff, Anthony Evans; Defendant, Rylie Elizabeth Johnson; and the Unnamed UIM
Defendants, Erie Insurance Exchange and Allstate Insurance Company (collectively, the
“Parties”), represent to the Court as follows in support of the subject motion:
1.

This is a personal injury lawsuit arising out of an automobile accident.

2.

Plaintiff and Defendant have reached an agreement to settle the matter on a

covenant not to execute.
3.

As more fully set forth in the written covenant,1 in consideration of the payment, to

Plaintiff, on Defendant’s behalf, by Defendant’s automobile liability insurer, American Family
Mutual Insurance Company (“AFMIC”), of the full amount of the per-person bodily injury liability
coverage limit on the auto insurance policy AFMIC issued covering the vehicle Defendant was
driving at the time of the underlying auto accident (the “Subject AFMIC Policy”), Defendant is

1

Nothing in this order is intended in any way to alter or otherwise affect the terms or
meaning of the written covenant. The terms of the written covenant are generally described herein
solely for the purpose of providing this order’s context.
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protected from personal liability exposure relating to the underlying auto accident, but Plaintiff’s
claims against Defendant are not released, and Plaintiff may continue to prosecute the instant
personal injury suit and, although Plaintiff may not seek enforcement against Defendant
personally, Plaintiff may seek payment of any judgment he may obtain in the instant personal
injury suit against/under any other applicable insurance coverage, i.e., against/under other
insurance coverage besides the coverage provided by the Subject AFMIC Policy.
4.

In another court, there is a pending declaratory judgment action about whether

certain disputed underinsured motorist (UIM) coverage exists/applies with respect to the
underlying auto accident (the “UIM DJ”).
5.

Whether Plaintiff will continue to prosecute the instant personal injury suit will

depend on the outcome of the UIM DJ.
6.

The Parties agree that is in the interests of justice and judicial economy, and that it

will work no undue prejudice upon any Party, for the instant personal injury suit to be stayed
pending the outcome of the UIM DJ.
NOW, THEREFORE, for good cause shown, it is hereby ordered as follows:
(a)

The instant personal injury suit is stayed pending the final adjudicated resolution of
the UIM DJ;2

(b)

Beginning four (4) months after the date that this Consent Order Staying Action is
filed and continuing every four (4) months thereafter—until such time as Plaintiff
either advises this Court that the instant personal injury suit should be dismissed
(see the procedure set forth in (c) below) or that the stay now imposed should be
lifted so that the instant personal injury suit can proceed (see the procedure set forth
in (d) below)—Plaintiff shall advise the Court as to the status of the UIM DJ,
specifically, Plaintiff shall file, via ECF, a letter or other appropriate notice
confirming that the UIM DJ remains pending, i.e., that the UIM DJ has not yet
reached a final adjudicated resolution;

2

An adjudicated resolution of the UIM DJ will not be considered final until all rights to
appellate review (of the trial court’s decision on the merits in that proceeding) are expired or
otherwise exhausted.
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(c)

In the event that, prior to the UIM DJ reaching a final adjudicated resolution, the
UIM DJ is resolved via agreed-upon settlement that calls for the dismissal of the
instant personal injury suit (or otherwise leaves no just reason for continued
prosecution of the instant personal injury suit), Plaintiff shall promptly file a
“Voluntary Dismissal,” dismissing the instant personal injury suit WITH
PREJUDICE, with no costs awarded to or assessed against any of the Parties—as
evidenced by their consents to the instant Consent Order Staying Action, the Parties
are hereby deemed to have consented to such dismissal;

(d)

Upon the final adjudicated resolution of the UIM DJ, or in the event that, prior to
the UIM DJ reaching a final adjudicated resolution, the UIM DJ is resolved via
agreed-upon settlement that leaves some just reason for continued prosecution of
the instant personal injury suit, Plaintiff shall promptly advise this Court of the
same via submission of a “Consent Motion to Lift Stay,” which shall briefly explain
why the stay now imposed should be lifted so that the instant personal injury suit
can proceed, along with a proposed “Consent Order Lifting Stay,” which shall
provide only for the lifting of the stay now imposed and no other relief—as
evidenced by their consents to the instant Consent Order Staying Action, the Parties
are hereby deemed to have consented to such motion/order;

(e)

In the event that the procedure under (d) above is followed, within twenty (20) days
after entry of the order lifting the stay, provided the Parties are able to reach
agreement on a single proposal, Plaintiff shall submit to the Court a proposed
“Consent Second Amended Scheduling Order” or, if the Parties are not able to
agree upon a single proposal, each of the Parties (either individually or jointly as a
group of any two or more of them who are in agreement) shall submit to the Court
their own proposed “Consent Second Amended Scheduling Order;”3

(f)

Notwithstanding the stay ordered hereby, the Court retains jurisdiction over this
action and, upon due notice to the Parties and an opportunity to be heard, the Court
may modify the terms of this order and/or address any other matter(s) relating to
the action as may be needed or otherwise appropriate during the period of time in
which the action is stayed.

IT IS SO ORDERED.
April 16, 2019
Florence, South Carolina

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

Unless the Court directs otherwise, any “Consent Second Amended Scheduling Order”
submitted shall be in substantially the same form as the Consent Amended Scheduling Order filed
July 25, 2018 [ECF No. 21].
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<SIGNATURES OF COUNSEL ON FOLLOWING PAGE>
WE CONSENT:
s/Pamela R. Mullis
Pamela R. Mullis
Mullis Law Firm
P.O. Box 7757
Columbia, SC 29202
[phone]
[e-mail]
Attorney for Plaintiff
Anthony Evans

s/Lee M. Thomas
Elizabeth A. Martineau
Lee M. Thomas
Martineau King PLLC
P.O. Box 241268
Charlotte, NC 28224
[phone]
[e-mail]
[e-mail]
Attorneys for Unnamed UIM Defendant
Erie Insurance Exchange

s/Russell G. Hines
Stephen L. Brown
Russell G. Hines
Young Clement Rivers, LLP
P.O. Box 993
Charleston, SC 29402
[phone]
[e-mail]
[e-mail]

s/Kelli L. Sullivan
Kelli L. Sullivan
Clawson and Staubes, LLC
1612 Marion Street, Suite 200
Columbia, SC 29201-2939
[phone]
[e-mail]

Attorneys for Defendant
Rylie Elizabeth Johnson

Attorney for Unnamed UIM Defendant
Allstate Insurance Company

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