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Civil Practice – Motion to Intervene – Motion to Set Aside Default Judgment – Service of Process

By: South Carolina Lawyers Weekly staff//September 25, 2023//

Civil Practice – Motion to Intervene – Motion to Set Aside Default Judgment – Service of Process

By: South Carolina Lawyers Weekly staff//September 25, 2023//

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This cross-appeal arose out of the circuit court’s grant of Trustgard Insurance Company’s motion to intervene and denial of Trustgard’s motion to set aside default judgment. Trustgard appealed the denial of its motion to set aside the default judgment, and Terence Graham appealed the grant of the motion to intervene.

We affirm.

On January 29, 2014, Johnnie William Foster had a single-vehicle motor vehicle accident while driving a commercial truck in Dorchester County during a winter storm. Graham was in the sleeping compartment of the truck when the accident occurred. Full Logistics, Inc., a commercial trucking company, owned the truck and employed both Foster and Graham. Graham suffered severe, permanent injuries including traumatic brain injury and other bodily injuries. Full Logistics had a commercial motor vehicle insurance policy with Trustgard at the time of the accident. Drico Fuller (Fuller) owned Full Logistics as the sole shareholder with no other officers or agents. The South Carolina Secretary of State’s records reflected that Fuller was the registered agent for the company.

Trustgard was notified of the accident on January 31, 2014, two days after it took place, and began an investigation. Around March 3, 2014, Trustgard received a letter of representation and a spoliation letter from Graham’s attorney, Brian T. Smith. In March of 2014, Trustgard made the tractor available for Smith to inspect at Smith’s request. Over the next two years, Trustgard’s representatives attempted to obtain information from Smith or his office. Smith failed to provide requested medical documentation of Graham’s injuries or other requested information, including whether Graham was an employee of Full Logistics. The Secretary of State’s Office administratively dissolved Full Logistics on June 22, 2015.

On June 15, 2016, Barrett, on behalf of Trustgard, sent a letter to Smith, stating Trustgard had reviewed the insurance policy and Graham’s claim was denied. The letter indicated there was no liability coverage under the policy because Graham was an employee of Full Logistics at the time of the accident and workers’ compensation “would be his only recourse for recovery.” On January 23, 2017, Graham filed a summons and complaint against Full Logistics. Graham alleged negligent hiring, supervision, training, and entrustment against Full Logistics. He sought actual and punitive damages.

The court denied Trustgard’s request to conduct discovery on the issue of service, stating it saw “little profit in conducting additional discovery based on a party’s hope that the testimony of witnesses or the evidence will change.” The court stated it “conducted a deliberate inspection of the circumstances of default” and found “[a]ny inconsistencies in the affidavit of service are overcome by Fuller’s acknowledgement and acceptance of service.”

Trustgard contended the circuit court erred in accepting Fuller’s testimony at face value notwithstanding a lack of evidentiary support and factual contradictions between this testimony and the proof of service supporting the default judgment. Trustgard asserted that giving credence to the testimony necessitates a conclusion that the default judgment is void. Trustgard further argued judicial estoppel bars Graham from changing his version of facts as to service of process. Finally, Trustgard maintained Fuller’s testimony should not have been considered without appropriate evidentiary support. We disagree.

Although the circuit court did not make any explicit findings on credibility, it did find Fuller was served based on his own testimony. By such a finding, the circuit court implicitly found Fuller credible. Accordingly, the circuit court did not abuse its discretion in finding based on Fuller’s testimony Full Logistics was served.

Trustgard asserted the circuit court erred in refusing to permit it to conduct discovery on the issue of service of process. Trustgard submitted the circuit court erred in rejecting its request for a stay and the opportunity to conduct limited discovery into the circumstances of service of process. It asserted neither Graham nor Fuller provided Trustgard any information into the circumstances of service, not even the date Fuller was allegedly served or what papers he was purportedly handed. Trustgard asserted its need for discovery is not frivolous and it should also be provided a full and fair opportunity to conduct discovery. We disagree.

Trustgard maintained the circuit court erred in ruling that the judgment should not be set aside for mistake, inadvertence, surprise, or excusable neglect, or fraud due to Graham’s counsel Smith’s presuit conduct and failure to notify Trustgard of the default judgment. We disagree.

Graham maintained the circuit court abused its discretion in granting Trustgard’s motion for permissive intervention when its arguments are identical to other parties. We disagree.

The circuit court did not err in allowing Trustgard a permissive intervention. Trustgard demonstrated that its position was not the same as Full Logistics. Accordingly, we affirm the circuit court’s grant of Trustgard’s motion to intervene.


Ex Parte: Trustgard Insurance Company v. Full Logistics Inc. (Lawyers Weekly No. 011-074-23, 22 pp). Appealed from Greenville County Circuit Court (Robin B. Stilwell, J.) Shelley Sunderman Montague and Jessica Waller Laffitte, both of Gallivan, White & Boyd, P.A., of Columbia, for appellant/respondent; William Franklin Barnes, III, of Barnes Law Firm, LLC, of Hampton, and Brian T. Smith, of Brian T. Smith Law Offices, of Greenville, both for respondent/appellant. South Carolina Court of Appeals

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