Opinion
C. A. 3:21-1180-JFA-PJG
01-18-2022
Lawrence U. Davidson, III, Plaintiff, v. USAA General Indemnity Company, Defendant.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
Plaintiff Lawrence U. Davidson, III, proceeding pro se, filed this breach of contract and conversion action against his motor vehicle insurer in the Richland County Court of Common Pleas. The insurer, Defendant USAA General Indemnity Company (“USAA”), removed this action. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on USAA's motion for summary judgment. (ECF No. 44.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Davidson of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to USAA's motion. (ECF No. 46.) Davidson filed a response in opposition to the motion (ECF No. 57), and USAA replied (ECF No. 58). Having reviewed the record presented and the applicable law, the court concludes that USAA's motion should be granted.
BACKGROUND
The following facts are either undisputed or are taken in the light most favorable to the plaintiff, to the extent they find support in the record. This action arises out of USAA's decision to declare Davidson's 2005 Jaguar XK8 convertible a total loss after a collision. On November 28, 2020, Davidson's vehicle was hit by an unidentified driver in a motel parking lot. Davidson called his insurer, USAA, around noon that day to report the collision. The USAA employee who spoke to Davidson told him that the car may be a total loss. USAA had the vehicle towed that day. Davidson gave the tow truck driver the keys to the vehicle and Davidson removed all of his possessions from the vehicle, including the license plate.
The USAA appraiser determined that the fair market value of the vehicle was $4,583 but the initial cost to repair the vehicle was $7,359.10, and that the final cost would be nearly twice as much. South Carolina law requires that a vehicle be declared a total loss when it is damaged to the extent that the cost of repairing the vehicle, including both parts and reasonable market charges for labor, equals or exceeds seventy-five percent of the fair market value of the vehicle. S.C. Code Ann. 56-19-480(G). USAA notified Davidson that his vehicle was a total loss and offered to pay him $4,367 in exchange for the vehicle and its title, or $2,306.35 if Davidson wanted to retain the vehicle and title. Davidson disagreed with the appraiser's valuation, claiming the vehicle had various electronic features that the appraiser did not take into account. At the time he filed this action, USAA and Davidson continued to negotiate over the value of the vehicle, and the vehicle was not in Davidson's possession.
Davidson raises claims of breach of contract, conversion, and violations of the South Carolina Insurance Trade Practices Act, SC Code Ann. § 38-57-10, et seq., and the South Carolina Claim Practices Act, SC Code Ann. § 38-59-10, et seq., seeking damages. Specifically, Davidson alleges that USAA appraised his vehicle without inspecting it, incorrectly determined that the vehicle was a total loss and beyond repair, and failed to provide him with a rental car.
Davidson does not expressly list any causes of action in the Complaint. The claims listed here were construed by USAA in its motion for summary judgment, which appears to be a fair construction of his claims. Davidson does not dispute USAA's construction of his claims. Notably, USAA asserts that Davidson is a lawyer and experienced litigator. (Def.'s Mot. Summ. J., ECF No. 44 at 2 n.1.) Where the pro se plaintiff is a practicing or former attorney, courts have declined to give liberal construction to the complaint. Polidi v. Bannon, 226 F.Supp.3d 615, 617 n.1 (E.D. Va. 2016) (collecting cases).
DISCUSSION
A. Summary Judgment
Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson v. Pardus, 551 U.S. 89 (2007), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. USAA's Motion
1.Breach of Contract
USAA argues that Davidson cannot identify any provision of the insurance contract that was breached by USAA. Specifically, USAA argues that although Davidson alleges that USAA is contractually obligated to repair his vehicle, the contract contains no such provision. The court agrees.
USAA provides the insurance contract as an attachment to its motion for summary judgment. (Def.'s Mot. Summ. J. Ex. B, ECF No. 44-2.)
The elements of a breach of contract cause of action in South Carolina are the existence of a contract, its breach, and damages caused by the breach. Allegro, Inc. v. Scully, 791 S.E.2d 140, 145 (S.C. 2016); Fuller v. E. Fire & Cas. Ins. Co., 124 S.E.2d 602, 610 (S.C. 1962). The plaintiff bears the burden of establishing the elements of a breach of contract claim. Id. Here, Davidson fails to identify a provision in his insurance contract that requires USAA to repair his vehicle even if the vehicle is a total loss as defined by state law. Nowhere in his Complaint or response to USAA's motion does Davidson cite a provision of the contract that he believes was breached by USAA. Rather, even in his response to the motion, Davidson quibbles over the appropriate valuation of the vehicle. Therefore, Davidson fails to make even a prima facie showing that USAA breached the insurance contract. USAA is entitled to summary judgment on Davidson's breach of contract claim. See Fed.R.Civ.P. 56(c)(1)(B).
2.Conversion
USAA argues that Davidson cannot show the elements of a conversion claim because USAA did not assume or exercise a right of ownership over the vehicle, but even if it did, Davidson authorized the vehicle's towing. The court agrees.
Under South Carolina law, conversion is the unauthorized assumption and exercise of the right of ownership over goods or personal chattels to the exclusion of the owner's rights. Owens v. Andrews Bank & Tr. Co., 220 S.E.2d 116, 119 (S.C. 1975); Regions Bank v. Schmauch, 582 S.E.2d 432, 442 (S.C. Ct. App. 2003). Conversion cannot arise from the exercise of a legal right; rather, it must arise from a “wrongful act” such as illegal use or detention of another's property. See Owens, 220 S.E.2d at 119; Castell v. Stephenson Fin. Co., 135 S.E.2d 311, 313 (S.C. 1964).
Here, the record is undisputed that USAA never assumed ownership over Davidson's vehicle. Though USAA arranged to have the vehicle towed, Davidson appears to retain the vehicle's title, and the towing company has possession of the vehicle. Even if the towing company's possession of the vehicle was somehow imputable to USAA, Davidson allowed the towing company to take possession of his vehicle so that it could be assessed. Therefore, the towing company's possession of his vehicle cannot be described as “unauthorized” or a “wrongful act.” See Owens, 220 S.E.2d at 119; Castell, 135 S.E.2d at 313; see also Walters v. Canal Ins. Co., 363 S.E.2d 120, 122 (S.C. Ct. App. 1987) (rejecting an insured's claim that the insurance company converted his vehicle because the insured authorized or acquiesced in the vehicle's towing and inspection). Consequently, Davidson fails to forecast any evidence that USAA assumed ownership over his vehicle or that USAA did so without authorization or wrongfully. USAA is entitled to summary judgment on Davidson's conversion claim. See Fed.R.Civ.P. 56(c)(1)(B).
3.Statutory Claims
USAA argues that, as a matter of law, Davidson cannot maintain a private right of action for purported violations of the South Carolina Insurance Trade Practices Act and the South Carolina Claims Practices Act. The court agrees. The South Carolina Supreme Court has unequivocally held that these statutes create an administrative remedy rather than a private right of action. Masterclean, Inc. v. Star Ins. Co., 556 S.E.2d 371, 377 (S.C. 2001). Therefore, USAA is entitled to judgment as a matter of law on Davidson's claims based on USAA's purported violations of the statutes.
RECOMMENDATION
Based on the foregoing, the court recommends that USAA's motion for summary judgment be granted. (ECF No. 44.)
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.' ” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).