At Fried Goldberg LLC, we are committed to helping victims of truck accidents get justice. We also provide resources for attorneys on strategies and techniques that can help them win cases. That’s why we closely monitor court rulings – it’s important for us to be aware of any changes that could impact trucking litigation.
Here’s a summary of major court decisions and case law updates in South Carolina for 2025.
Year-End Case Law Update 2025
DEFAULT JUDGMENTS
A party in default can provide a meritorious defense to open a default by showing there is a meritorious defense as to the amount of damages or proximate cause, even if there is no meritorious defense as to liability, which will allow the court to alter the amount awarded at the default hearing. Green v. Johnson, 919 S.E.2d 894 (2025).
SETOFFS
A defendant is entitled to a setoff for any amounts paid by any liability carrier for a plaintiff’s injury against a compensatory damages award, but is not entitled to a setoff against a punitive damages award except for amounts paid by the defendant’s actual liability carrier. Green v. McGee, 919 S.E.2d 903 (2025).
If an insurer for a defendant pays its liability policy to the plaintiff, then the defendant is entitled to a setoff for the money paid to the plaintiff when there is a verdict against the same defendant. If an insurer for another defendant pays money to the plaintiff, then the plaintiff may designate what claim or injury the settlement is for as long as the designation is reasonable or the court may decide post-settlement what claim or injury the settlement was for, and the defendant is only entitled to a setoff if the same claim or injury is part of the verdict against the defendant. Owners Association v. Island Pointe, LLC, 445 S.C. 543, 915 S.E.2d 501 (2025).
If payment is made by the defendant or a joint tortfeasor, then the payment is not a collateral source, and the defendant is entitled to a setoff of these amounts from any verdict. Gipson v. Coffey & McKenzie, P.A., 445 S.C. 395, 914 S.E.2d 842 (2025).
DEPOSTIONS
Corporate Representative Deposition
A company has a responsibility to produce a corporate representative to respond to topics contained in a notice of deposition and to have the witness review all relevant documents and obtain all available information to respond to the topics, and the failure to produce such a witness warrants sanctions up to and including striking an answer. Welch v. Advance Auto Parts, Inc., 445 S.C. 640, 916 S.E.2d 320 (2025).
NEGLIGENCE
Industry Standards
Failure to follow industry standards and accepted practices within an industry can be considered as evidence of negligence. Abel v. Lack’s Beach Serv., 920 S.E.2d 283 (2025).
ADMISSIBILITY OF EVIDENCE
Evidence that goes to the bias or credibility of a witness should be allowed unless there is significant prejudice caused by the introduction of the evidence to the point that it could improperly sway a jury. Whitfield v. Schimpf, 444 S.C. 633, 911 S.E.2d 310 (2025).
PAIN & SUFFERING
Emotional Distress
A plaintiff may recover for emotional distress any time there is a physical harm caused to him, which consists of a physical impact from an outside source or physical manifestations caused by emotional distress. K.S. v. Richland School District Two, 445 S.C. 111, 912 S.E.2d 240 (2025).
Pre-impact fear of being hit and dying before impact has not been recognized as a recoverable element of damages under South Carolina law, and recovery may be limited to pain and suffering that occurred after impact. Abel v. Lack’s Beach Serv., 920 S.E.2d 283 (2025).
Expert testimony is not required to prove pain and suffering if there is a witness who testifies that a person who drowned was struggling and gasping for breath. Abel v. Lack’s Beach Serv., 920 S.E.2d 283 (2025).
PUNITIVE DAMAGES
A conscious failure to exercise due care warrants an award of punitive damages, including a situation where a reasonable person would have been conscious of the probability of an injury occurring from the conduct. Abel v. Lack’s Beach Serv., 920 S.E.2d 283 (2025).
Punitive damages are warranted when an employee violates internal company rules or a company violates industry standards, and these violations create a situation that the employee knows will be dangerous to the public. Gurwood v. GCA Servs. Group, Inc., 445 S.C. 324, 914 S.E.2d 149 (2025).
While an expert is not allowed to testify that a defendant was negligent or grossly negligent because it is a legal conclusion, the expert may testify that the defendant’s actions were reckless since this is not a true legal conclusion. Pratt v. Amisub of SC, Inc., 445 S.C. 199, 912 S.E.2d 268 (2025).
Violation of a building code is negligence per se and is evidence of recklessness and willfulness sufficient to support a claim for gross negligence or punitive damages. Wedgewood Condo Association v. Centex Homes, 2025 LX 436494.
BAD FAITH
The only claims available to an insured under an insurance contract are contractual claims and bad faith claims for failing to act in good faith and fair dealing with the insured, and there is no separate cause of action for negligence. Hood v. USAA, 445 S.C. 1, 910 S.E.2d 767 (2025).
When an insurer has a valid defense to liability, it can offer and settle for less than the claim’s objective value as long as the offer is reasonable, and the insurer is not required to offer its reserves or full settlement authority at mediation. Hood v. USAA, 445 S.C. 1, 910 S.E.2d 767 (2025).
Statutory Changes to the Law in 2025
S.C. § 15-38-15
A defendant is only jointly and severally liable if he is 50% or more at fault. S.C. § 15-38-15(A) If a defendant’s conduct is willful, wanton, reckless, intentional, or involves the use or sale of illegal drugs, the defendant is jointly and severally liable for all of plaintiff’s damages. S.C. § 15-38-15(F) In all other circumstances, the defendant is allowed to add nonparties (and settling defendants as nonparties) to the verdict form to allow a defendant the opportunity to reduce his percentage of fault by the fault of the nonparties. S.C. § 15-38-15(C)
The new law does NOT allow nonparties to be added to the verdict form or to be considered in determining percentages of fault if:
- The nonparty’s actions were willful, wanton, reckless, or intentional;
- The nonparty was immune to suit by the plaintiff or not subject to suit in the action;
- The nonparty is vicariously liable for the defendant’s actions, or the defendant is vicariously liable for the nonparty’s actions; or
- The cause of action is for strict liability.
S.C. § 15-38-15(H)
The new law allows settling nonparties to be added to the verdict form and considered for percentages of fault without any type of advance notice given to the plaintiff. S.C. § 15-38-15(G)(4) For other nonparties, the defendant must give notice to the plaintiff within 180 days of the commencement of the lawsuit of the identity of the nonparty and the intent to add them to the verdict form (or later time for good cause shown). S.C. § 15-38-15(G) After a notice of nonparty fault is provided by the defendant, the plaintiff has the option of adding the nonparty as a defendant and having the amendment relate back to the original filing date of the complaint. S.C. § 15-38-15 (G)(1) In such a situation, the nonparty would become a defendant, and the plaintiff would have the burden of proving fault, like with any claim against a defendant. If the nonparty is not added as a defendant, the original defendant bears the burden of proving the fault of the nonparty, and the plaintiff may challenge that the defendant has evidence to prove the fault of the nonparty through a motion for summary judgment or a directed verdict at trial.
S.C. § 15-38-15(G)(2-3)
According to the statute, the jury in the first phase is required to return a verdict on the amount of the plaintiff’s damages, unreduced for fault, and the comparative fault of the plaintiff. S.C. § 15-38-15(C) If the plaintiff’s fault is less than 50%, then any defendant may move the court for the jury to decide the percentages of fault of all defendants and applicable nonparties in a second phase. S.C. § 15-38-15(C)(3) In this second phase, the parties are not allowed to present additional evidence of fault but are allowed to make additional closing arguments to the jury. S.C. § 15-38-15 (C)(3)(b) While the statute does not address situations where the plaintiff is not alleged to be at fault, it is presumed that in such a situation there would not be multiple phases and there would only be one phase of trial where the jury would be deciding the amount of plaintiff’s damages and apportioning fault among any defendants and applicable nonparties.
An employee and a vicariously liable employer are considered one entity for apportionment of fault. S.C. § 15-38-15(C)(3)(a) A DUI driver charged under S.C. § 56-5-2930, 2933, or 2945 shall be added to the verdict form upon a timely motion regardless of any possible exemptions. S.C. § 61-2-47 If a verdict is against both a DUI defendant charged under S.C. § 56-5-2930, 2933, or 2945 and an entity that provided alcohol to him in violation of the dram shop laws, the provider of the alcohol is jointly and severally liable for 50% of the plaintiff’s actual damages if a verdict is returned against both defendants. S.C. § 61-2-47. The statute is not clear as to whether this “cap” on damages against the provider of alcohol also applies if the DUI driver is a nonparty on the verdict form versus an actual defendant at trial.
A defendant will not be allowed a setoff for settlement amounts paid by a nonparty that is added to the verdict form, and is only allowed a setoff for amounts paid by a nonparty if the nonparty is not included on the verdict form. S.C. § 15-38-15(E)
S.C. § 61-2-147
There are special apportionment rules for dram shop liability. Assuming that the proper procedures are followed, the individual DUI driver must be added as a nonparty any time the driver has been charged under S.C. § 56-5-2930, 2933, or 2945, regardless of the willfulness or reckless nature of the driver’s conduct. S.C. § 61-2-147(A). This provision does not apply if the DUI driver is not charged with one of these offenses, and the standard nonparty rules would apply in this situation.
The law appears to be designed to limit the provider of alcohol’s liability to only 50% of the plaintiff’s damages. S.C. § 61-2-147 (A). However, this limitation is only applicable if the DUI driver is charged under S.C. § 56-5-2930, 2933, or 2945. In addition, the law states that “if a verdict is rendered against both a licensee and a defendant,” then the licensee is “jointly and severally liable for fifty percent of the plaintiff’s actual damages.” S.C. § 61-2-147(A). The term “defendant” normally refers to a party that has been sued by the plaintiff and is a defendant at trial, and the statute refers to a nonparty as a “tortfeasor,” “nondefendant tortfeasor,” or “settling tortfeasor.” There is a good argument that the 50% limitation is only applicable if the DUI driver is actually named as a defendant at trial, versus being added as a nonparty to the verdict form.