Wade v. Berkeley County

• Decision Date: 04 October 1999
• Docket Number: No. 3053.,3053.
• Citation: 339 S.C. 495,529 S.E.2d 734
• Parties: Gerald D. WADE, Jr., Appellant, v. BERKELEY COUNTY, South Carolina and John Doe, Respondents.
• Court: South Carolina Court of Appeals

339 S.C. 495

529 S.E.2d 734

Gerald D. WADE, Jr., Appellant, v. BERKELEY COUNTY, South Carolina and John Doe, Respondents.

No. 3053.

Court of Appeals of South Carolina.

Heard September 9, 1999.

Decided October 4, 1999.

Rehearing Granted December 4, 1999.

George J. Kefalos, of George J. Kefalos, P.A., of Charleston, for Appellant.

Stephen P. Groves, Joseph E. DaPore and Stephen L. Brown, all of Young, Clement, Rivers & Tisdale; and Bonum S. Wilson, III, of Pratt-Thomas, Pearce, Epting & Walker, all of Charleston, for Respondents. ANDERSON, Judge:

In this negligence action, Gerald D. Wade, Jr., appeals from the trial court's order granting summary judgment to Berkeley County pursuant to the Tort Claims Act.¹ We reverse and remand.

FACTS/PROCEDURAL BACKGROUND

On the morning of June 1, 1995, Bobby Joe Pierce was driving his personal vehicle to his job as an animal control officer with Berkeley County. While on the way, Pierce stopped to determine if a dead dog on the side of the road was wearing a collar. The night before, Pierce received a phone call from a woman who informed him the dog had been run over and was dead. According to Pierce, after resuming his trip to work, he was forced to drive into the left hand lane to avoid a John Doe driver who suddenly stopped in front of him. Pierce's car collided head on with Wade's vehicle.

Wade filed a negligence action against Pierce and the John Doe driver. In the initial complaint, Wade made no allegation concerning Pierce's employment with the County. In his deposition, Pierce testified he stopped to check on the dead animal because that was his job and he considered himself on the job at the time. Subsequently, Pierce's personal liability insurance carrier paid Wade $13,000 in exchange for a Covenant Not to Execute Judgment. At the time of this payment, Wade had made no claim against Berkeley County.

Thereafter, Wade filed an amended complaint against Berkeley County, pursuant to the South Carolina Tort Claims Act, and John Doe as a result of the same accident. Pierce was not a named party in the amended complaint. Wade alleged Pierce was acting as an agent and servant of the County at the time of the accident. The County denied this allegation and averred as an affirmative defense the action was barred under S.C.Code Ann. § 15-78-70(d) (Supp.1998), which addresses the effect of a judgment or settlement. The County filed a motion for summary judgment² based upon this section. In granting the motion, the trial court held Berkeley County was entitled to summary judgment as a matter of law "since there was a prior settlement of Wade's personal injury claims between Wade and an alleged tortfeasor-employee (i.e., Pierce) for the same occurrence." The court concluded "[t]his settlement constitutes a complete bar to any further action by Wade against the relevant governmental entity—employer (i.e., Berkeley County) pursuant to S.C.Code Ann. § 15-78-70(d)."

ISSUES

I. Did the trial court err in ruling there was a full settlement between Wade and Pierce?

II. Did the trial court err in granting summary judgment based on his conclusion the execution of the document constituted "a settlement of a claim" initiated under the Tort Claims Act?

STANDARD OF REVIEW

Summary judgment is appropriate when it is clear there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Mosteller v. County of Lexington, 336 S.C. 360, 520 S.E.2d 620 (1999); Young v. South Carolina Dep't of Corrections, 333 S.C. 714, 511 S.E.2d 413 (Ct.App.1999); Rule 56(c), SCRCP. In determining whether any triable issue of fact exists, as will preclude summary judgment, the evidence and all inferences which can be reasonably drawn therefrom must be viewed in the light most favorable to the nonmoving party. Strother v. Lexington County Recreation Comm'n, 332 S.C. 54, 504 S.E.2d 117 (1998); Vermeer Carolina's, Inc. v. Wood/Chuck Chipper Corp., 336 S.C. 53, 518 S.E.2d 301 (1999). If triable issues exist, those issues must go to the jury. Rothrock v.. Copeland, 305 S.C. 402, 409 S.E.2d 366 (1991); Young, supra.

Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law. Mosteller, supra.

All ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the moving party. Vermeer, supra. Even when there is no dispute as to evidentiary facts, but only as to the conclusions or inferences to be drawn from them, summary judgment should be denied. Id. Because it is a drastic remedy, summary judgment should be cautiously invoked so no person will be improperly deprived of a trial of the disputed factual issues. Baughman v. American Tel. and Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991).

LAW/ANALYSIS³

I. EFFICACY OF SETTLEMENT DOCUMENTS UNDER SOUTH CAROLINA JURISPRUDENCE

Without a jury verdict, order of judgment, or confession of judgment, cases are disposed of by way of amicable disposition under the aegis and ambit of three recognizable legal documents effectuating the settlement: (1) general release; (2) covenant not to sue; and (3) covenant not to execute. The bench and bar have great concernment in regard to the avenues of disposition available to party litigants, especially in the proliferating multi-party litigation, such as product liability, professional malpractice, and construction litigation. Attorneys representing litigants subsumed in multi-party litigation ofttimes seek to extricate a party while the remaining parties litigate to an ultimate resolution. A cardinal principle inherent in the settlement process is the utilitarian use of the proper document to achieve the desired result, i.e., the salvation of the party from further liability or exposure. We analyze with exactitude the precedent governing the documents to achieve the ultimate goals of the parties.

A. General Release

The term "release" has been defined as the "relinquishment, concession, or giving up of a right, claim, or privilege, by the person in whom it exists or to whom it accrues, to the person against whom it might have been demanded or enforced." 76 C.J.S. Release § 2 (1994). A release is an agreement providing that a duty owed to the maker of the release is discharged immediately. Id. See also Black's Law Dictionary 1289 (6th ed.1990) (a release is a writing or oral statement manifesting an intention to discharge another from an existing or asserted duty). A release is contractual in nature. 76 C.J.S. Release § 2. Whether a particular agreement constitutes a release is to be determined from the intent of the parties. Id.

Under the common law, the release of one of multiple joint tortfeasors, regardless of the intention of the parties, released all. Bartholomew v. McCartha, 255 S.C. 489, 179 S.E.2d 912 (1971). In Bartholomew, the Court rejected this common law rule and held:

Being untrammeled by the ancient rule which, in our view, tends to stifle settlements, defeat the intention of parties and extol technicality, we adopt the view that the release of one tort-feasor does not release others who wrongfully contributed to plaintiff's injuries unless this was the intention of the parties, or unless plaintiff has, in fact, received full compensation amounting to a satisfaction.

Bartholomew, 255 S.C. at 492, 179 S.E.2d at 914. See also Scott by McClure v. Fruehauf Corp., 302 S.C. 364, 396 S.E.2d 354 (1990) (release of one tortfeasor does not constitute release of others who contributed to plaintiff's injuries unless parties intended such a release or plaintiff received full satisfaction).

B. Covenant Not to Sue

The covenant not to sue was developed at common law to permit the release of one or more joint tortfeasors without affecting the covenantor's rights against the other joint tortfeasors. A covenant not to sue is a covenant by one who had a right of action at the time of making it against another person, by which he agrees not to sue to enforce such right of action. 76 C.J.S. Release § 4 (1994). "Such covenant does not extinguish a cause of action and does not release other joint tortfeasors even if it does not specifically reserve rights against them." Black's Law Dictionary 364 (6th ed.1990). However, one tortfeasor is entitled to credit for the amount paid by another tortfeasor for a covenant not to sue. See Powers v. Temple, 250 S.C. 149, 156 S.E.2d 759 (1967)

.

A covenant not to sue is not a release. 76 C.J.S. Release § 4. "The difference is one of intent and grows out of the construction placed on the terms of the instrument, since a covenant not to sue is not a present abandonment or relinquishment of a right or claim but merely an agreement not to enforce an existing cause of action, and, although it may operate as a release between the parties to the agreement, it will not release a claim against joint obligors or joint tortfeasors." Id. (Footnotes omitted). In the case of a release, there is an immediate discharge, whereas, in the case of a covenant not to sue, there is merely an agreement not to prosecute a suit. 66 Am.Jur.2d Release § 2 (1973). It is nothing but a contract and should be so construed. Id.

In Ackerman v. Travelers Indemnity Co., 318 S.C. 137, 456 S.E.2d 408 (Ct.App.1995), this Court discussed the genesis of the covenant not to sue:

"At common law, a valid release of one Joint tort-feasor was usually a release of all the joint wrongdoers and was a bar to a suit against any of them for the same wrong. At the base of this rule was the theory that there could be but one compensation for the joint wrong. If the injured party was paid by one of the wrongdoers for the injury he had suffered, each wrongdoer being responsible for the whole damage, his cause of action was satisfied in exchange for a release, and he could not proceed against the others. Thus a release of one joint wrongdoer released all. But when the

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