MCE Automotive Inc et al v. National Casualty Co et al
ORDER denying 72 Motion to Alter and/or Amend the Judgment or for Leave to File a Supplemental or Amended Complaint. Signed by Honorable Timothy M Cain on 11/27/2012.(gpre, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
MCE Automotive, Inc.,
d/b/a Toyota of Greer;
and MCE Cars, Inc.,
d/b/a Kia of Greer,
National Casualty Co.,
and Susan Wetherald, as
Permanent Guardian and
Conservator of Patricia A.
Kaufman, a vulnerable adult,
C/A No. 6:11-1245-TMC
This matter is before the Court on a motion for leave to file a supplemental or
amended complaint and to amend and/or alter a judgment filed by Plaintiffs MCE
Automotive, Inc., d/b/a Toyota of Greer, and MCE Cars, Inc., d/b/a Kia of Greer
(collectively “MCE”). (Dkt. # 72). Defendant National Casualty Company (“National
Casualty”) opposes the motion. (Dkt. # 73). For the reasons set forth below, MCE’s
motion is denied.
This matter stems from an underlying state court action brought on December
29, 2009, by Plaintiff Susan Wetherald (“Wetherald”), as permanent guardian and
conservator of Patricia A. Kaufman (“Kaufman”) against MCE in which Wetherald
alleges that MCE took advantage of Kaufman, a vulnerable adult, by selling her a large
number of cars for herself and others. Susan Wetherald as Permanent Guardian and
Conservator for Patricia A. Kaufmann v. MCE Automotive, Inc., d/b/a Toyota of Greer;
MCE Cars, Inc., d/b/a Kia of Greer; Eugene Black; and David Alan Perry, C.A. No.
2009-CP-23-11039 (filed Dec. 29, 2009) (“Underlying Complaint”). The underlying
complaint asserts six causes of action against MCE: 1) exploitation of a vulnerable
adult; 2) civil conspiracy, 3) conversion, 4) illegal and unenforceable contract; 5) unfair
trade practices; and 6) negligence. (Dkt. # 1 Attach. # 1 - State Court Compl.).
After the Underlying Complaint was filed, MCE requested National Casualty
defend them in the action. National Casualty refused and MCE brought this action
alleging bad faith and breach of contract claims against National Casualty.
September 28, 2012, this court found National Casualty did not have a duty to defend
the Underlying Complaint and granted National Casualty’s motion for summary
judgment. (Dkt. # 70).
Subsequently, Wetherald sought leave from the arbitrator to file an amended
complaint in the underlying state action and that motion is currently pending before the
arbitrator. MCE seeks leave to file a supplemental or amended compliant in this action
arguing that National Casualty “now has an unmistakable duty to defend; that National
Casualty should be given a reasonable time to agree or refuse to defend; and that in the
event National Casualty refuses to defend, the parties should be given an opportunity to
brief the effect of the Amended Complaint.” (Dkt. # 72- Mot. at 2). Additionally, MCE
seeks to alter or amend this court’s order granting National Casualty summary judgment
to enable the court to rule on the effect of the proposed amended complaint in the
underlying state action. Id. at 2-3. MCE also states that they “realize that they could
simply file a new suit.” Id. at 2.
As this court’s granting of summary judgment was based upon the allegations
then pending in the Underlying Complaint, if MCE were to be granted leave to file an
amended complaint in the underlying action, the coverage determination would at least
arguably need to be revisited.1 However, before MCE is granted leave to file the
proposed amended complaint in the underlying action, the proposed amended
complaint is just that - only a proposed amended complaint. It has no legal effect and
would not cause this court to alter or amend its prior judgment.2
For the foregoing reasons, Plaintiffs MCE’s Motion for Leave to File a
Supplemental or Amended Complaint and to Alter and/or Amend the Judgment (Dkt. #
72) is DENIED.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
Greenville, South Carolina
November 27, 2012
Whether that should be in a new action is not an issue this court needs to
decide at this time.
Further, National Casualty would have to deny coverage based upon the
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