UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TADLOCK PAINTING COMPANY,
Plaintiff-Appellee,

v.                                                                           No. 93-2021

THE MARYLAND CASUALTY COMPANY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, Chief District Judge.
(CA-91-3352)

Argued: June 8, 1994

Decided: September 20, 1996

Before WIDENER, MURNAGHAN, and WILKINS,*
Circuit Judges.

_________________________________________________________________

Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: E. Charles Dann, Jr., GOODELL, DEVRIES, LEECH &
GRAY, Baltimore, Maryland, for Appellant. John Leon Schurlknight,
Florence, South Carolina, for Appellee. ON BRIEF: Stefan A. Hage-
rup, GOODELL, DEVRIES, LEECH & GRAY, Baltimore, Mary-
land, for Appellant.
_________________________________________________________________

*Judge Wilkins heard oral argument in this case but recused himself
after certification to the Supreme Court of South Carolina and did not
participate in the consideration of this appeal. The opinion is filed by a
quorum of the panel pursuant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

I.

In April 1990, Tadlock Painting Company, based in Darlington,
South Carolina, began a painting project at an industrial job site
owned by Cargill, Inc. Later that year, Tadlock was notified that
"overspray" paint had accumulated on nearby cars. Tadlock was able
to clean the cars at its own expense, without involving its insurer,
Maryland Casualty Company. In October 1990, Tadlock again experi-
enced overspray paint problems, damaging numerous cars. Tadlock
decided to let its insurance company resolve the claims, so notified
its local Maryland Casualty agent in Darlington, who, in turn, con-
tacted Cargill and asked for information regarding the claims. On
November 9, 1990, Tadlock's local agent received the information
from Cargill and filed a claim form on Tadlock's behalf with Mary-
land Casualty's office in Greenville, South Carolina.

Maryland Casualty interviewed Dewey Tadlock, the president of
Tadlock Painting, on November 29, 1990. During this same time
period, beginning in early October 1990, a number of internal memo-
randa, telephone calls, and notes were made among different employ-
ees of Maryland Casualty. Apparently, an overspray paint claim was
unusual enough to prompt considerable discussion about how best to
handle it. On January 18, 1991, a Maryland Casualty employee who
was working on Tadlock's claim wrote to Maryland Casualty's home
office and asked for information about the status of the claim. The
memorandum noted that Maryland Casualty had been receiving a
number of telephone calls from representatives of Cargill and
Tadlock. On January 21, 1991, Maryland Casualty sent Tadlock a
reservation-of-rights letter, listing the failure timely to notify Mary-
land Casualty of the claims, the possibility that the claim involved the
discharge of pollutants, and the $500 per-claim deductible as possible
bases on which Maryland Casualty might deny the claim.

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After sending the January 21 letter to Tadlock, Maryland Casualty
employees again engaged in a series of discussions regarding
Tadlock's claim. On February 14, 1991, Maryland Casualty inter-
viewed Mr. Tadlock a second time. No vehicle inspections were per-
formed during that meeting. Maryland Casualty apparently had
decided to delay inspection of the damaged vehicles until it could
decide whether there was coverage under the policy.

On March 7, 1991, Mr. Tadlock called Maryland Casualty and told
it that Cargill had threatened legal action against Tadlock, Maryland
Casualty, and Tadlock's local Maryland Casualty agent. Maryland
Casualty wrote to Tadlock the next day, informing it that certain
requested information had not been received from Cargill, and no
coverage decision could be made without it. Internal correspondence
reveals that Maryland Casualty may have been contemplating a con-
tributory negligence defense.

On March 25, 1991, Maryland Casualty sent a letter to Tadlock
stating that it was exercising its discretionary right under the policy
to negotiate and settle the claims, although it would do so under a res-
ervation of rights because it had not been timely notified of the claim.
The letter further stated that the applicable deductible was $500 per
claim and that it would forward a request for reimbursement after the
negotiations had been completed. On April 25, 1991, Mr. Tadlock had
a conversation with an employee at Maryland Casualty in which Mr.
Tadlock disputed the application of the deductible. Rather than apply-
ing the deductible on a per-claim basis, as the contract explicitly pro-
vides, he apparently believed that the policy contained a one-time
deductible of $500.* The next day, Maryland Casualty sent Tadlock
a copy of the endorsement containing a $500 per-claim deductible.
On May 16, 1991, Maryland Casualty sent a letter to Tadlock request-
ing acknowledgment of the deductible and stating that it must have
written confirmation from Tadlock that it would pay the deductible
before Maryland Casualty would arrange for inspection and cleaning
of the damaged cars. Tadlock never sent the requested confirmation,
so Maryland Casualty did not proceed further with the claim. Mr.
_________________________________________________________________
*The District Court granted Maryland Casualty's motion for partial
summary judgment on the deductible issue. Tadlock has not appealed
that ruling.

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Tadlock later personally settled each of the claims under $500: he
would later testify that he so settled at least 70 claims, and that there
were four or five claims above $500 that he did not settle.

Thereafter, because of the delay involved in cleaning up the Cargill
employees' cars, Cargill apparently refused to consider Tadlock for
any of its painting jobs. According to Mr. Tadlock, Tadlock had been
Cargill's main painting contractor since 1984 but was not hired for
certain other painting jobs after the overspray incident.

Tadlock filed a complaint against Maryland Casualty in the South
Carolina Court of Common Pleas on October 8, 1991, seeking lost
profits, punitive damages, costs, and attorneys' fees, together exceed-
ing $2 million. Maryland Casualty then removed the action to the
United States District Court for the District of South Carolina. After
Tadlock had presented its case at trial, after both parties had rested,
and again following entry of the verdict, the District Court denied
Maryland Casualty's motions for judgment as a matter of law with
respect to liability for both compensatory and punitive damages. The
District Court rested its decision in large part upon its belief that
Tadlock could proceed on the theory that Maryland Casualty had
breached an implied covenant of good faith and fair dealing in its han-
dling of Tadlock's claim, even in the absence of an express contrac-
tual duty to investigate the claim. The jury returned a verdict for
Tadlock in the amount of $15,552, which represented a twenty per-
cent profit on the jobs Tadlock would have performed for Cargill had
the insurance claim been handled in a more timely fashion, plus an
amount to compensate Tadlock for the expense of appraisals incurred
when Mr. Tadlock personally settled the claims. In a separate verdict,
the jury also awarded Tadlock $200,000 in punitive damages.

After various unsuccessful post-trial motions--including motions
for a new trial and for a reduction of the punitive damages award--
Maryland Casualty appealed. The company contended that South Car-
olina law does not require an insurance carrier to investigate and set-
tle third-party claims when no suit has been filed against its insured
and in the absence of contractual language to the contrary. Maryland
Casualty also argued that, even if an implied covenant of good faith
and fair dealing did apply, the District Court had erred when it denied
the company's motions for judgment because Tadlock had not pres-

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ented sufficient evidence to persuade a reasonable juror that the com-
pany had violated such a covenant or that $15,552 in compensatory
damages or punitive damages in any amount were warranted. Mary-
land Casualty also contended that, in the absence of any proof of a
conflict of interest, the District Court had erred when it told the jury
that, when there is a conflict of interest between an insurer and an
insured, the insured's interest must take precedence.

Tadlock argued that, under South Carolina law, an insurer's bad-
faith failure to investigate a claim constitutes a breach of an implied
covenant of good faith and fair dealing. Tadlock disputed Maryland
Casualty's other allegations of error as well.

Finding no controlling South Carolina precedent on the implied
covenant issue, we certified the question to the Supreme Court of
South Carolina. On July 15, 1996, that court issued its response. After
reviewing authorities in South Carolina and other jurisdictions, the
court stated:

          We recognize the existence of a cause of action for breach
          of the implied covenant of good faith and fair dealing by an
          insured against his or her insurer for consequential damages
          allegedly suffered because of the insurer's bad faith han-
          dling of third party claims. Furthermore, we decline to make
          breach of an express contractual provision a prerequisite to
          bringing the action.

Tadlock Painting Co. v. Maryland Casualty Co. , No. 24465, at 18
(S.C. July 15, 1996).

II.

When an appellant objects to the jury instructions given at trial, we
must determine "whether the instructions construed as a whole, and
in light of the whole record, adequately informed the jury of the con-
trolling legal principles without misleading or confusing the jury to
the prejudice of the objecting party." Spell v. McDaniel, 824 F.2d
1380, 1395 (4th Cir. 1987), cert. denied, 484 U.S. 1027 (1988). Under
that standard, we find the District Court's instructions concerning
conflicts of interest unobjectionable.

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III.

We will not overturn the District Court's denial of Maryland Casu-
alty's motions for judgment as a matter of law unless, reviewing the
matter de novo, and "without weighing the evidence or assessing wit-
ness credibility, we conclude that reasonable people could have
returned a verdict only for" Maryland Casualty. Cooper v. Dyke, 814
F.2d 941, 944 (4th Cir. 1987). We must view the evidence in the light
most favorable to Tadlock and give Tadlock the benefit of all reason-
able inferences from the evidence presented at trial. Trandes Corp. v.
Guy F. Atkinson Co., 996 F.2d 655, 660 (4th Cir.), cert. denied, 510
U.S. 965 (1993). "The grant or denial of a new trial is reviewed for
abuse of discretion." Benesh v. Amphenol Corp. (In re Wildewood
Litig.), 52 F.3d 499, 502 (4th Cir. 1995).

In light of the South Carolina Supreme Court's ruling, and having
carefully reviewed the parties' arguments and the record, we have
concluded that the District Court did not err when it denied Maryland
Casualty's motions for judgment as a matter of law as to liability for
compensatory damages. We find that a reasonable juror could con-
clude, based on the evidence presented, that Maryland Casualty did
not handle Tadlock's claim fairly and in good faith and that Tadlock
was therefore entitled to compensatory damages totaling $15,552.
Because we find that there was sufficient evidence from which a rea-
sonable juror could conclude that Maryland Casualty breached an
implied covenant of good faith and fair dealing, we also hold that the
District Court did not abuse its discretion when it denied Maryland
Casualty's motion for a new trial.

With respect to the matter of punitive damages, though, we find
that the District Court erred. Tadlock was entitled to receive punitive
damages only if it demonstrated that Maryland Casualty had willfully,
wantonly, or recklessly breached the implied covenant of good faith
and fair dealing. Rogers v. Florence Printing Co., 106 S.E.2d 258,
263 (S.C. 1958). "The test by which a tort is to be characterized as
reckless, wilful or wanton is whether it has been committed in such
a manner or under such circumstances that a person of ordinary rea-
son or prudence would then have been conscious of it as an invasion
of the plaintiff's rights." Id. We find no evidence in the record that

                    6
could lead a reasonable juror to conclude that, in its handling of
Tadlock's claim, Maryland Casualty so acted.

IV.

We therefore affirm the jury's award of $15,552 in compensatory
damages, but remand the case to the District Court with instructions
to vacate the award of $200,000 in punitive damages.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

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