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Wade v. Berkeley County2/4/2002
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Berkeley County R. Markley Dennis, Jr., Circuit Court Judge
Heard October 24, 2001
AFFIRMED IN PART, REVERSED IN PART
The Court granted a writ of certiorari to review the decision of the Court of Appeals in Wade v. Berkeley County, 339 S.C. 513, 529 S.E.2d 743 (Ct. App. 2000). We affirm in part and reverse in part.
FACTS
Respondent Gerald D. Wade (Wade) brought this negligence action against Bobby Joe Pierce (Pierce) and an unknown driver, Respondent John Doe, alleging injury as a result of an automobile accident. At his deposition, Pierce testified that at the time of the accident, he was working for his employer, Petitioner Berkeley County (County). Thereafter, Wade and Pierce executed a "Covenant Not to Execute Judgment." In essence, Wade agreed not to execute any judgment obtained against Pierce and his personal insurer in exchange for $13,000.
Wade then amended his complaint, deleting Pierce as a defendant and naming County as the party defendant. Wade alleged Pierce was acting within the scope of his employment at the time of the accident and County, as his employer, was liable under the South Carolina Tort Claims Act.
County filed a motion for summary judgment, claiming execution of Wade and Pierce's Covenant Not to Execute Judgment barred the tort action against it. The trial judge granted County's motion. The Court of Appeals reversed. Wade v. Berkeley County, 339 S.C. 495, 529 S.E.2d 734 (Ct. App. 1999) (Wade II). On rehearing en banc, the plurality affirmed the panel's decision holding the Covenant Not to Execute was not a settlement as contemplated by the South Carolina Tort Claims Act and, therefore, Wade was not barred from pursuing its action against County. Three judges concurred; two dissented. Wade v. Berkeley County, supra (Wade III).
ISSUE
Did the Court of Appeals err by holding Wade and Pierce's "Covenant Not to Execute Judgment" did not constitute a settlement and, therefore, did not bar further action by Wade against County under the South Carolina Tort Claims Act?
DISCUSSION
Section 15-78-70(d) of the South Carolina Tort Claims Act (the Act) provides:
A settlement or judgment in an action or a settlement of a claim under this chapter constitutes a complete bar to any further action by the claimant against an employee or governmental entity by reason of the same occurrence.
The Court of Appeals held A) Wade and Pierce's "Covenant Not to Execute Judgment" was not a settlement and B) even if the document was a settlement, it was not a settlement "under this chapter," and, therefore, Wade was not barred from pursuing his action against County.
A.
Initially, the Court of Appeals' opinion states:
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. Wade III 339 S.C. at 518-19, 529 S.E.2d at 746 (italic in original).
Thereafter, the Court of Appeals discusses the three enumerated forms of settlement, ultimately concluding Wade and Pierce's document was a "covenant not to execute as opposed to a settlement agreement, release, or covenant not to sue." Id. 339 S.C. at 523, 529 S.E.2d at 748 (emphasis added).
Under South Carolina law, a covenant not to execute is one type of settlement agreement. Poston by Poston v. Barnes, 294 S.C. 261, 36
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