MCE Automotive, Inc. v. National Casualty Company

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2475
MCE AUTOMOTIVE, INC., d/b/a Toyota of Greer; MCE CARS,
INC., d/b/a Kia of Greer,
Plaintiffs – Appellants,
v.
NATIONAL CASUALTY CO.; SUSAN WETHERALD, as Permanent
Guardian and Conservator for Patricia A. Kaufman, a
vulnerable adult,
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 Decided: July 25, 2013
Before WYNN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This action stems from an underlying South Carolina
state suit brought by Susan Wetherald against Plaintiffs-
Appellants MCE Automotive, Inc., and MCE Cars, Inc.
(collectively, “MCE”). Ms. Wetherald, as permanent guardian and
conservator of Patricia A. Kaufman, alleges that MCE took
advantage of Kaufman, a vulnerable adult, by selling her
thirteen cars between July 2, 2007, and March 9, 2009.
Wetherald’s original complaint alleged six causes of action
against MCE: exploitation of a vulnerable adult, civil
conspiracy, conversion, illegal and unenforceable contract,
unfair trade practices, and negligence.
At the time of the sales, MCE had four liability
insurance policies with Defendant-Appellee National Casualty
Company (“National”): Commercial General Liability 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. When MCE contested the denial, National
explained that Wetherald’s complaint did not 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. According to the court, none of MCE’s
policies with National provided coverage for the intentional
allegations in the original complaint. 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 by couching intentional acts in
negligence terms.” 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, or in the
alternative, to alter or amend the judgment. 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 have thoroughly reviewed the record and the
district court’s orders and discern no reversible 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 with oral argument because the facts and legal
contentions are adequately presented in the materials 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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