Civil Practice – Estoppel – Personal Service

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Plaintiffs failed to preserve an action against Defendant at-fault driver because they neither personally served him with the summons and complaint nor achieved personal service through his voluntary appearance within the applicable statute of limitations.

The circuit court did not err by granting insurance carriers’ motions to dismiss.

Plaintiffs appealed the circuit court’s order granting motions of Carriers Liberty Mutual Insurance Co. and Horace Mann Property and Casualty Insurance Co. to dismiss. Among other things, Plaintiffs argued the court erred by dismissing the case when the action was commenced against the at-fault driver; finding Carriers did not waive service-related issues by failing to file timely motions to dismiss, participating in litigation for almost two years, and waiting until the eve of trial, after the statute of limitations had run, to raise service-related issues; and refusing to estop Liberty Mutual from raising a service defense when it assured Plaintiffs that no service-related issues existed and accepted the circuit court’s jurisdiction by requesting a transfer of venue.

Among other things, we held Plaintiffs failed to preserve an action against Defendant at-fault driver because they neither personally served him with the summons and complaint nor achieved personal service through his voluntary appearance within the applicable statute of limitations. We next held Liberty Mutual’s allegation Defendant had not been served in accordance with the Rules of Civil Procedure was sufficient to raise a defense of improper service. Similarly, we held Horace Mann’s allegation that Plaintiffs failed to obtain service of process against Defendant was likewise sufficient to raise a defense of improper service.

Next, Plaintiffs argued the circuit court erred by failing to find Liberty Mutual should be estopped from asserting a defense of lack of service due to its specific conduct in this case. Plaintiffs maintained that after filing its answer, Liberty Mutual represented that it did not believe there were any serious omissions with service but later raised a defense of lack of service. We disagreed. Plaintiffs failed to demonstrate the elements required to establish estoppel. As to the elements related to the party to be estopped, Plaintiffs failed to show Liberty Mutual made a false representation or otherwise engaged in conduct that was calculated to mislead Plaintiffs. Liberty Mutual told Plaintiffs that its claims regarding service of process and statute of limitations were “boilerplate at this stage.” It made no representation that it never intended to pursue such defenses, which indicates there was no intention for Plaintiffs to act on the impression that it would never pursue these defenses.

As to the elements related to the party claiming estoppel, Plaintiffs cannot show reliance upon the party to be estopped or a prejudicial change in position. Regardless of Liberty Mutual’s representations regarding whether it would pursue a defense related to the issue of service, Plaintiffs had the burden of serving Defendant and establishing personal jurisdiction. Thus, Plaintiffs failed to demonstrate reliance upon Liberty Mutual’s representation or a resulting prejudicial change in position.

Affirmed.

Thompson v. Toney (Lawyers’ Weekly No. 012-065-25, 14 pp.) (Jerry D. Vinson Jr., J.) Appealed from Sumter County Circuit Court (R. Kirk Griffin, J.) Andrew Nathan Safran, of Andrew N. Safran, LLC; Theile Branham McVey, John D. Kassel, and Jamie Rae Rutkoski, all of Kassel McVey; Shanon N. Peake and Jonathan M. Robinson, both of Smith Robinson Holler DuBose Morgan, LLC, all of Columbia; and George Murrell Smith, Jr., of Smith Robinson Holler DuBose Morgan, LLC, of Sumter, all for Appellants. Richard Edward Mclawhorn, Jr. and Aaron Jameson Hayes, both of Sweeny Wingate & Barrow, PA, of Columbia, for Respondent Liberty Mutual Insurance Company. Karl Stephen Brehmer and Andrew Carson Brehmer, both of Brehmer Law Firm, LLC, of Columbia, for Respondent Horace Mann Property and Casualty Insurance Company. South Carolina Court of Appeals Unpublished