MCE Automotive, Inc. v. National Casualty Company, No. 12-2475 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2475 MCE AUTOMOTIVE, INC., d/b/a INC., d/b/a Kia of Greer, Toyota of Greer; MCE CARS, Plaintiffs Appellants, v. NATIONAL CASUALTY CO.; SUSAN Guardian and Conservator for vulnerable adult, WETHERALD, as Permanent Patricia A. Kaufman, a 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 Before WYNN and Circuit Judge. DIAZ, Decided: Circuit Judges, and July 25, 2013 HAMILTON, Senior Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 Appellants MCE by of advantage of thirteen Wetherald s against Kaufman, MCE: conspiracy, A. a between original Inc., against and MCE PlaintiffsCars, Inc. Ms. Wetherald, as permanent guardian and Patricia cars Wetherald Automotive, (collectively, MCE ). conservator Susan Kaufman, vulnerable July 2, complaint exploitation conversion, alleges adult, 2007, alleged of a illegal that by and six selling March causes 9, took her 2009. of action adult, vulnerable and MCE civil unenforceable contract, MCE liability unfair trade practices, and negligence. At insurance Company the time policies of with ( National ): the sales, had Defendant-Appellee Commercial General four National Liability Casualty 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. explained that When MCE Wetherald s contested complaint the did denial, not National 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. 2 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. policies with National According to the court, none of MCE s provided coverage allegations in the original complaint. for the intentional 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 negligence terms. by couching intentional acts in 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, alternative, to alter or amend the judgment. or in the 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, 3 noting that Wetherald s motion had not yet been granted. * MCE appealed. We district have court s thoroughly orders reviewed and discern the no record and reversible the 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 contentions with are oral argument adequately because presented in the facts and the materials legal 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. 4
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