Smalls v. Weed, 0870
| Decision Date | 08 December 1986 |
| Docket Number | No. 0870,0870 |
| Citation | 353 S.E.2d 154,291 S.C. 258 |
| Court | South Carolina Court of Appeals |
| Parties | Sam SMALLS, Jr., Respondent, v. David S. WEED as Rehabilitator for the Cherokee Insurance Company, Appellant. . Heard |
Robert A. McKenzie of McDonald, McKenzie, Fuller, Rubin & Miller, Columbia, for appellant.
David A. Fedor and David E. Massey, Columbia, for respondent.
In this action for breach of contract, bad faith refusal to pay an insurance claim and outrage, we are called upon to decide whether the courts of South Carolina have personal jurisdiction over a Tennessee rehabilitator. The trial court found personal jurisdiction over the Tennessee rehabilitator. We affirm.
Respondent Sam Smalls, Jr. suffered fire damage to his timberjack and filed a claim with appellant Cherokee Insurance Company of Tennessee, with whom he had a contract for fire insurance. Cherokee then went into rehabilitation proceedings in Tennessee. Smalls made a claim in the Tennessee rehabilitation proceedings which was denied by the rehabilitator. This action was commenced in May 1985. David S. Weed as rehabilitator was served with the summons and complaint by service upon the South Carolina Insurance Commissioner as statutory agent for the service of process pursuant to Section 38-5-80, Code of Laws of South Carolina, 1976.
Weed appeared specially in this action presenting four grounds for dismissal of the action: (1) that the service of process on the Insurance Commissioner did not effect personal service on him; (2) that he did not have sufficient contacts with South Carolina to permit it to constitutionally assert personal jurisdiction over him; (3) that because Smalls was enjoined by the Tennessee court from filing a claim outside Tennessee, Smalls must file the instant claim in the Tennessee rehabilitation proceeding; and (4) that by filing a claim with the Tennessee Rehabilitator, Smalls had already elected to be bound by the Tennessee proceeding. The trial judge found that service of process on the Insurance Commissioner was effective to acquire personal jurisdiction over Weed, that Weed had sufficient contacts with South Carolina to permit this State to exercise jurisdiction over him, and that Smalls need not present his claims in the Tennessee rehabilitation proceeding.
In addition to his challenge to the trial court's jurisdiction over his person, Weed also asserts that Smalls is enjoined by the Tennessee court from suing him in South Carolina. Moreover, he further claims that Smalls has elected to proceed in Tennessee by filing a claim with the rehabilitator there. These assertions go well beyond a special appearance to contest jurisdiction. As stated in South Carolina State Highway Department v. Isthmian Steamship Company:
The law is well settled ... that when a defendant becomes the actor in an event which contemplates, in effect...
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Williams v. Williams
...S.C. at 497, 369 S.E.2d at 152-53 ).The Fourth Circuit then contrasted Dunbar with another case from this court, Smalls v. Weed , 291 S.C. 258, 353 S.E.2d 154 (Ct. App. 1987). Maybin , 891 F.2d at 74. In Smalls , this court held that when a defendant had "appeared and asserted two claims wh......
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Smalls v. Weed
...David E. Massey, Columbia, for respondent. ORDER ON RECONSIDERATION PER CURIAM: Our original opinion in this case, Smalls v. Weed, 291 S.C. 258, 353 S.E.2d 154 (Ct.App.1987), was remanded by the Supreme Court to consider the issue of whether "S.C. Code Ann. Sections 38-5-1810 through -2500 ......
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Maybin v. Northside Correctional Center
...his right to assert jurisdictional defenses merely by requesting an extension of time. On the other hand, in Smalls v. Weed, 291 S.C. 258, 353 S.E.2d 154 (S.C.Ct.App.1987), the South Carolina Court of Appeals held that where a defendant appeared and asserted two claims which went to the mer......
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Dunbar v. Vandermore, 1164
...Security Management, Inc. v. Schoolfield Furniture Industries, Inc., 275 S.C. 466, 272 S.E.2d 638 (1980), and Smalls v. Weed, 291 S.C. 258, 353 S.E.2d 154 (Ct.App.1987). In Security Management, the defendant obtained an extension of time from the plaintiff to answer or otherwise plead and t......