CSX Transportation, Inc. v. Carolina Feed Mills, Inc. , 53 F. App'x 676 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CSX TRANSPORTATION, 
INCORPORATED,
Plaintiff-Appellant,
v.  No. 02-1470
CAROLINA FEED MILLS,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Terry L. Wooten, District Judge.
(CA-01-725-4-25)
Argued: December 4, 2002
Decided: December 17, 2002
Before WILKINSON, Chief Judge, and WILLIAMS and
MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Frank J. Gordon, MILLBERG, GORDON & STEWART,
P.L.L.C., Raleigh, North Carolina, for Appellant. John Thomas Lay,
Jr., ELLIS, LAWHORNE & SIMS, P.A., Columbia, South Carolina,
for Appellee. ON BRIEF: Marvin C. Jones, BOGOSLOW, JONES,
STEPHENS & DUFFIE, P.A., Walterboro, South Carolina, for
2 CSX TRANSPORTATION v. CAROLINA FEED MILLS
Appellant. M. Catherin Cauthen, ELLIS, LAWHORNE & SIMS,
P.A., Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
In this negligence action, the district court granted summary judg-
ment on statute of limitations grounds to Carolina Feed Mills, Inc.
("Carolina"), finding that CSX Transportation, Inc. ("CSX") failed to
"commence" the action by both timely filing and serving the com-
plaint, as required under South Carolina law. We conclude, as did the
district court, that Carolina neither waived its statute of limitations
defense nor is estopped from asserting it. Accordingly, we affirm.
I.
On March 18, 1998, a CSX freight train derailed at a milepost
located in Chesterfield County, South Carolina. Carolina operates a
business near the milepost, and a pond is located on Carolina’s land.
CSX alleges that the pond was "held by a dam constructed and main-
tained" by Carolina and that the "dam failed catastrophically which
caused the water escaping the pond to flow onto the roadbed and rail-
road tracks immediately eroding them."
Prior to the filing of the instant action, on July 27, 1999, CSX con-
ductor Henry Webb, the driver of the derailed train, sued both CSX
and Dr. Winston Godwin, the owner of Carolina. CSX then filed a
cross-claim against Godwin for its property damage. Godwin had
insurance coverage from both Auto Owners Insurance Company and
State Farm Fire and Casualty Company. Carolina and CSX retained
the attorneys who also represent them in the instant case.
CSX TRANSPORTATION v. CAROLINA FEED MILLS 3
The parties settled Webb’s claim. In mediating CSX’s cross-claim,
a dispute arose between Auto Owners and State Farm regarding
which insurance company had primary coverage. In December 2000,
CSX reached a partial settlement with State Farm and agreed to re-file
the lawsuit against Carolina, rather than against Winston Godwin, and
to pursue further recovery solely from Auto Owners.
When the prior suit concluded in December 2000, Carolina’s coun-
sel "orally requested that CSX counsel not serve the new lawsuit on
Winston Godwin (as president and owner of Carolina Feed Mills) but
rather send the lawsuit directly" to counsel. On January 11, 2001,
Carolina counsel sent a letter to CSX counsel reiterating the request
as to service of the complaint: "I am waiting on service of the com-
plaint against Carolina Feed Mills. I can accept service of the com-
plaint; therefore, forward it to my attention."
On March 12, 2001, CSX filed the complaint. The three-year stat-
ute of limitations expired on March 18, 2001. See S.C. Code Ann.
§ 15-3-530. On March 22, 2001, CSX counsel sent Carolina counsel
a "notice of lawsuit and request for waiver of summons." Carolina
counsel signed the waiver on April 9, 2001. The waiver was filed on
April 26, 2001, and the complaint was deemed served on that day. See
Fed. R. Civ. P. 4(d)(4).
The waiver provided that Carolina "agree[d] to save the cost of ser-
vice of a summons and an additional copy of the Complaint" by not
requiring that it "be served with judicial process in the manner" pro-
vided by Federal Rule of Civil Procedure 4. The waiver also provided
that Carolina "will retain all defenses or objections to the lawsuit or
to the jurisdiction or venue of the court except for objections based
on a defect in the summons or in the service of the summons."
On May 5, 2001, Carolina filed its answer and asserted a statute of
limitations defense. It did not assert an insufficiency of service of pro-
cess defense. The parties cross moved for summary judgment on the
statute of limitations defense.
4 CSX TRANSPORTATION v. CAROLINA FEED MILLS
II.
The district court granted summary judgment to Carolina, reason-
ing that South Carolina law governed when an action "commenced"
for purposes of the statute of limitations, and that CSX had timely
filed but failed to timely serve its complaint within the three-year stat-
ute of limitations, which expired on March 18, 2001. See S.C. R. Civ.
P. 3(a) ("A civil action is commenced by filing and service of a sum-
mons and complaint."); S.C. Code Ann. § 15-3-20.* CSX timely filed
its complaint on March 12, 2001, but the complaint was not deemed
served until April 26, 2001 — over a month after the running of the
statute of limitations. Rejecting CSX’s reliance on Unisun Insurance
v. Hawkins, 537 S.E.2d 559 (S.C. Ct. App. 2001), the district court
also held that Carolina had not waived its statute of limitations
defense by failing to assert insufficiency of service of process in its
answer. The district court further held that Carolina was not estopped
from claiming the statute of limitations because the parties never dis-
cussed the applicable statute of limitations and, although Carolina’s
counsel did agree to accept service, he did not agree to waive any stat-
ute of limitations defense.
III.
We have reviewed the record, briefs, and applicable law and have
considered the oral arguments of both parties, and we conclude that
the district court was correct. Accordingly, we affirm on the basis of
the district court’s well-reasoned opinion. See CSX Transport., Inc. v.
Carolina Feed Mills, Inc., No. 4:01-725-25BF (D.S.C. March 29,
2002).
AFFIRMED
*The South Carolina legislature amended this provision, effective May
24, 2002, to provide that a "civil action is commenced when the sum-
mons and complaint are filed with the clerk of court if actual service is
accomplished within one hundred twenty days after filing." The parties
agree that the amended provision does not apply to the instant action.