Ex Parte: Liberty Mutual Insurance

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Ex Parte: Liberty Mutual Insurance Company and Horace
Mann Property and Casualty Insurance Company,
Respondents,

In Re:

Howell D. Thompson and Tara L. Thompson,
Appellants,

v.

Carlos D. Toney, Defendant.

Appellate Case No. 2023-000074

Appeal From Sumter County
R. Kirk Griffin, Circuit Court Judge

Unpublished Opinion No. 2025-UP-335
Heard November 14, 2024 – Filed October 1, 2025

AFFIRMED

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.

VINSON, J.: In this civil action, Howell D. Thompson (Howell) and Tara L.
Thompson (collectively, the Thompsons) appeal the circuit court's order granting
the motions of Liberty Mutual Insurance Co. (Liberty Mutual) and Horace Mann
Property and Casualty Insurance Co. (Horace Mann) (collectively, Carriers) to
dismiss. The Thompsons argue the circuit court erred by (1) dismissing the case
when the action was commenced against the at-fault driver; (2) relying on Louden
v. Morange1 to dismiss the case and ignoring controlling South Carolina authority;
(3) 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 (4) refusing to estop Liberty Mutual from raising a service defense
when it assured the Thompsons that no service-related issues existed and accepted
the circuit court's jurisdiction by requesting a transfer of venue. We affirm.

FACTS

Carlos D. Toney and Howell were involved in a two-vehicle motor vehicle
collision on June 2, 2017. Howell suffered injuries to his arms as a result. The
Thompsons reached a settlement with Toney and his liability carrier on September
9, 2019. As part of the settlement, the Thompsons signed a covenant not to
execute to protect their right to recover underinsured motorist (UIM) coverage
from their own insurance policies.

1
327 S.C. 465, 486 S.E.2d 525 (Ct. App. 1997).
The Thompsons filed a summons and complaint against Toney on December 5,
2019, alleging claims for negligence and loss of consortium. They served Carriers
under sections 38-5-70 2 and 38-77-160 3 of the South Carolina Code (2015) but
never served Toney.

Carriers filed separate answers to the complaint and both included a defense of
improper service upon Toney. Specifically, in its answer and first amended
answer, Liberty Mutual averred, "Insurer would show that [the Thompsons'] claims
are barred because Insurer and Defendant have not been served in accordance with
the South Carolina Rules of Civil Procedure." Liberty Mutual also alleged the
action was barred by the applicable statute of limitations. In the introductory
paragraph of its answer, Horace Mann stated, "Defendant, by and through the
[UIM] carrier, Horace Mann . . . ("Defendant") hereby answers the
[c]omplaint . . . ." In claiming improper service, Horace Mann stated, "[The
Thompsons] ha[ve] failed to obtain [s]ervice of [p]rocess against this Defendant
and for that reason, [the c]omplaint should be dismissed with prejudice."

Upon receiving Liberty Mutual's answer, counsel for the Thompsons asked counsel
for Liberty Mutual if its defenses of statute of limitations and improper service
were "serious omissions [it] w[ould] be filing a motion upon or more of a
boilerplate pleading at this stage of litigation." Counsel for Liberty Mutual
responded that the defenses were "[b]oilerplate at this stage."

From January 2020 to October 2021, the parties engaged in litigation and
discovery, conducting thirteen depositions, including Toney's deposition;
subpoenaing medical and cell phone records; and serving and responding to
interrogatories, requests for production, and requests to admit.

In an email dated October 26, 2021, counsel for the Thompsons stipulated they
never served Toney with the summons and complaint. The Thompsons also

2
§ 38-5-70 ("Every insurer shall . . . appoint in writing the director and his
successors in office to be its true and lawful attorney upon whom all legal process
in any action or proceeding against it must be served and . . . agree that any lawful
process against it which is served upon this attorney is of the same legal force and
validity as if served upon the insurer . . . .").
3
§ 38-77-160 ("No action may be brought under the [UIM] provision unless copies
of the pleadings in the action establishing liability are served in the manner
provided by law upon the insurer writing the [UIM] provision.").
admitted they never personally served Toney with the summons and complaint in
response to Liberty Mutual's request to admit.

On October 26, 2021, Liberty Mutual filed a motion to dismiss or, in the
alternative, motion for summary judgment on the ground that the Thompsons never
served Toney with the summons and complaint. Horace Mann also filed a motion
to dismiss for failure to obtain service of process seeking dismissal or summary
judgment on the grounds Toney had never been served. The circuit court granted
Carriers' motions and dismissed the case. 4 The Thompsons filed a motion to
reconsider, which the circuit court denied. This appeal followed.

STANDARD OF REVIEW

This court reviews a grant of summary judgment under the same standard that
governs the trial court. Simmons v. Berkeley Elec. Coop., Inc., 419 S.C. 223, 228,
797 S.E.2d 387, 390 (2016); Rule 56(c), SCRCP (providing summary judgment
"shall be rendered . . . if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law"). "[S]ummary judgment is proper when there is no
genuine issue as to any material fact and the moving party is entitled to judgment
as a matter of law." Simmons, 419 S.C. at 228, 797 S.E.2d at 390.

ANALYSIS

I. Preservation of Action Against At-Fault Driver5

First, we hold the Thompsons failed to preserve an action against Toney because
they neither personally served Toney with the summons and complaint nor
achieved personal service through his voluntary appearance within the applicable
statute of limitations.

The Thompsons filed this lawsuit on December 5, 2019, and the statute of
limitations expired June 2, 2020. See S.C. Code Ann. § 15-3-530(5) (2005)
(providing a three-year statute of limitations applies to claims for "any injury to the

4
Although the circuit court issued an order dismissing the case, the court analyzed
the motions as motions for summary judgment. We therefore review the order
dismissing the case as an order granting summary judgment.
5
We address the Thompsons' Issues I and II together.
person . . . not arising on contract"); Wiggins v. Edwards, 314 S.C. 126, 129, 442
S.E.2d 169, 170 (1994) (holding the statute of limitations for personal injury
claims arising from a car accident begins to run on the date of the accident); see
also Rule 3(a), SCRCP ("A civil action is commenced when the summons and
complaint are filed with the clerk of court if: (1) the summons and complaint are
served within the statute of limitations in any manner prescribed by law; or (2) if
not served within the statute of limitations, actual service must be accomplished
not later than one hundred twenty days after filing."). The Thompsons conceded
they did not personally serve Toney with the summons and complaint upon filing
but argue service was accomplished on May 15, 2020, when Toney appeared for
his deposition and gave testimony in this case. The Thompsons assert this
constituted a voluntary appearance equivalent to personal service to satisfy Rule
4(d), SCRCP.

We hold Toney's appearance at this deposition, which was held by
videoconference, did not constitute a voluntary appearance sufficient to satisfy
Rule 4(d). See Rule 4(d), SCRCP (stating "[v]oluntary appearance by defendant is
equivalent to personal service"). In support of their argument, the Thompsons rely
on three cases. See S.C. Dep't. of Soc. Servs., ex rel. Roseboro v. Burris, 297 S.C.
537, 377 S.E.2d 578 (1989) (holding the defendant's voluntary appearance in a
paternity action was equivalent to personal service when the defendant admitted he
had sexual relations with the mother before the child's birth); Ex parte Cannon,
385 S.C. 643, 659-60, 685 S.E.2d 814, 823 (Ct. App. 2009) (holding that "[b]y
appearing and arguing the merits of the action multiple times before the circuit
court, . . . Cannon consented to the circuit court's personal jurisdiction and waived
any defense of lack of personal jurisdiction" when he and his counsel appeared at
five hearings and never objected to the circuit court's personal jurisdiction); Israel
v. Carolina Bar-B-Que, Inc., 292 S.C. 282, 287, 356 S.E.2d 123, 126-27 (Ct. App.
1987) (finding the defendant made a voluntary appearance when, despite his earlier
objections, he "continued to defend the suit after the [circuit court] permitted [the
plaintiff to amend the complaint] to change the capacity in which [he] was sued").
Unlike Burris, Cannon, and Israel, here the record contains no indication that
Toney was informed during the deposition that he was the defendant in the
Thompsons' lawsuit. Further, Toney made no arguments regarding the merits and
did not indicate he understood that he was a defendant or that he was appearing for
the purpose of defending himself in this lawsuit. Because he was never served
with the summons and complaint and made no voluntary appearance, we hold no
action was commenced against Toney.
Further, we hold the circuit court did not err by relying upon Louden in dismissing
the case. See 327 S.C. at 466, 486 S.E.2d at 525 (affirming the circuit court's order
granting summary judgment in favor of the at-fault driver when the plaintiff failed
to serve the at-fault driver within the applicable statute of limitations). In Louden,
the plaintiff filed a negligence action against the at-fault driver and served a copy
of the summons and complaint upon the UIM carrier but never served the at-fault
driver. Id. at 466-67, 486 S.E.2d at 526. This court held that "[s]ervice on the
at-fault driver [wa]s an essential component of the [plaintiff's] negligence action"
and "the named defendant in an action for benefits under a plaintiff's [UIM] policy
must be properly served with the summons and complaint prior to the running of
the statute of limitations." Id. at 469, 486 S.E.2d at 527. This court also rejected
the plaintiff's argument the trial court erred by dismissing her action based on the
statute of limitations because she properly served her UIM carrier, which she
contended was the real party in interest. See id. at 468, 486 S.E.2d at 526 ("Under
Rule 3(a), SCRCP, a civil action is commenced by the filing and service of a
summons and complaint. Service of the summons brings the defendant within the
court's jurisdiction and gives the court the power to render a personal judgment
against the person served. . . . The fact that any judgment rendered will not
ultimately be collected from the named defendant but from the insurance company
does not excuse the fundamental requirements of personal service. A court may
not enter a valid judgment against an individual over whom the court lacks
personal jurisdiction." (citation omitted)); see also § 38-77-160 ("No action may be
brought under the [UIM] provision unless copies of the pleadings in the action
establishing liability are served in the manner provided by law upon the insurer
writing the [UIM] provision. The insurer has the right to appear and defend in the
name of the underinsured motorist in any action which may affect its
liability . . . . In the event the automobile insurance insurer for the putative at-fault
insured chooses to settle in part the claims against its insured by payment of its
applicable liability limits on behalf of its insured, the [UIM] insurer may assume
control of the defense of action for its own benefit. No [UIM] policy may contain
a clause requiring the insurer's consent to settlement with the at-fault party.");
Williams v. Selective Ins. Co. of Se., 315 S.C. 532, 534-35, 446 S.E.2d 402, 404
(1994) (noting that "the intent of [section] 38-77-160 is to protect an insurance
carrier's right to contest its liability for [UIM] benefits. An insured must therefore
preserve the right of action against an at-fault driver so long as the [UIM] carrier
has not agreed to the amount and payment of [UIM] benefits"); Louden, 327 S.C.
at 468-69, 486 S.E.2d at 526-27 (finding section 38-77-160 requires an insured to
preserve his right of action against an at-fault driver to be able to seek UIM
benefits).
We read the foregoing authorities as containing a mandatory requirement that the
insured preserve an action against the at-fault driver to maintain a claim for UIM
coverage. See § 38-77-160 ("No action may be brought under the [UIM] provision
unless copies of the pleadings in the action establishing liability are served in the
manner provided by law upon the insurer writing the [UIM] provision."); see also
Williams, 315 S.C. at 534-35, 446 S.E.2d at 404 ("An insured must . . . preserve
the right of action against an at-fault driver so long as the [UIM] carrier has not
agreed to the amount and payment of [UIM] benefits"); Louden, 327 S.C. at
468-69, 486 S.E.2d at 526-27 (finding section 38-77-160 requires an insured to
preserve his right of action against an at-fault driver to be able to seek UIM
benefits). Under such reading, we hold the Thompsons were required to
commence this action against Toney—the at-fault driver and sole defendant in this
case—prior to the expiration of the statute of limitations to be able to seek UIM
benefits from Carriers. Because the Thompsons failed to serve Toney with process
and Toney made no voluntary appearance sufficient to satisfy Rule 4(d), SCRCP,
prior to the expiration of the statute of limitations, we conclude the circuit court did
not err by dismissing the case on the ground that the Thompsons failed to preserve
a right of action against Toney.

Moreover, we reject the Thompsons' additional argument that Carriers were
responsible for disproving service. See Moore v. Simpson, 322 S.C. 518, 523, 473
S.E.2d 64, 66 (Ct. App. 1996) ("The plaintiff has the burden to establish that the
court has personal jurisdiction over the defendant.").

As to the Thompsons' contention the circuit court erred in finding Louden was
dispositive when they raised wavier and estoppel arguments against Carriers that
the Louden court did not address, we find the Thompsons' argument is without
merit. The circuit court considered and rejected the Thompsons' waiver and
estoppel arguments. We address these rulings below.

II. Waiver

The Thompsons argue Carriers waived any service-related defenses by failing to
adequately assert the defenses in their answers; failing to immediately raise any
service-related issues in a Rule 12(b), SCRCP, motion; and participating in robust
litigation for nearly three years. We address each of these arguments in turn.

A. Sufficiency of Answer
The Thompsons argue that Unisun Insurance v. Hawkins, 342 S.C. 537, 537 S.E.2d
559 (Ct. App. 2000), is controlling and that Carriers waived their service-related
defenses by failing to plead them with specificity. We disagree.

In Unisun, this court held the defendant "failed to properly plead the defense of
insufficiency of service of process either by motion or in his answer" and thus
waived the defense. 342 S.C. at 543, 537 S.E.2d at 562. This court found "the
averment that Unisun 'failed to serve [the defendant] within the three-year statute
of limitations' [wa]s insufficient, standing alone, to raise the defense of
insufficiency of service of process." Id. at 542-43, 537 S.E.2d at 562. This court
further found that "[the defendant] failed to identify that he was moving to
challenge service of process pursuant to Rule 12[, SCRCP,] and failed to specify
any defects in the service of process." Id. at 543, 537 S.E.2d at 562. The court
held that because the defendant "failed to challenge the service of process
properly," he "also waived his statute of limitations defense." Id.

We hold the circuit court did not err by ruling that Carriers sufficiently pled
defenses of improper service because their pleadings contained more specificity
than those at issue in Unisun. Here, Liberty Mutual stated in its answer, "Insurer
would show that [the Thompsons'] claims are barred because Insurer and
Defendant have not been served in accordance with the South Carolina Rules of
Civil Procedure." The introductory paragraph in Horace Mann's answer stated,
"Defendant, by and through the [UIM] carrier, Horace Mann . . . ("Defendant")
hereby answers the [c]omplaint . . . ." In claiming improper service, Horace Mann
stated, "[The Thompsons] ha[ve] failed to obtain [s]ervice of [p]rocess against this
Defendant and for that reason, [the c]omplaint should be dismissed with
prejudice." Further, Liberty Mutual specifically referenced section 38-77-150 of
the South Carolina Code (2015)6 in its answer, and when it amended its answer
(with the Thompsons' consent) to change "uninsured" to "underinsured," it added a
reference to section 38-77-160. We hold Liberty Mutual's allegation the defendant
had not been served in accordance with the Rules of Civil Procedure was sufficient
to raise a defense of improper service. Similarly, we hold Horace Mann's
allegation that the Thompsons failed to obtain service of process against Toney
was likewise sufficient to raise a defense of improper service.

B. Failure to File Timely Rule 12(b) Motions

6
§ 38-77-150 (setting forth the uninsured motorist (UM) provisions and
establishing requirements for service when UM coverage is at issue).
The Thompsons next argue the circuit court erred by construing Carriers' motions
as motions for summary judgment rather than Rule 12(b), SCRCP, motions. The
Thompsons contend that had the circuit court properly construed these motions as
Rule 12(b) motions, the motions would have been untimely. The Thompsons
further assert that if Carriers had timely raised the service issue, they could have
cured the defect before the expiration of the statute of limitations. We disagree.

Although 12(b) requires that a motion asserting insufficient service of process be
made before pleading, this does not preclude Carriers from raising such defense in
their answer and then arguing the issue along a with a defense of expiration of the
statute of limitations in a motion for summary judgment. See Rule 12(b), SCRCP
("Every defense, in law or fact, to a cause of action in any pleading . . . shall be
asserted in the responsive pleading thereto if one is required, except that the
following defenses may at the option of the pleader be made by motion: (1) lack of
jurisdiction over the subject matter, (2) lack of jurisdiction over the person,
(3) improper venue, (4) insufficiency of process, (5) insufficiency of service of
process . . . . A motion making any of these defenses shall be made before pleading
if a further pleading is permitted. No defense or objection is waived by being
joined with one or more other defenses or objections in a responsive pleading or
motion." (emphases added)); see also Rule 12(g), SCRCP ("A party who makes a
motion under this rule may join with it any other motions herein provided for and
then available to him. If a party makes a motion under this rule but omits
therefrom any defense or objection then available to him which this rule permits to
be raised by motion, he shall not thereafter make a motion based on the defense or
objection so omitted . . . ."); Rule 12(h)(1), SCRCP ("A defense of lack of
jurisdiction over the person, improper venue, insufficiency of process,
insufficiency of service of process . . . is waived (A) if omitted from a motion in
the circumstances described in subdivision (g) or (B) if it is neither made by
motion under this rule nor included in a responsive pleading or an amendment
thereof permitted by Rule 15(a) to be made as a matter of course."); Rule 56(b),
SCRCP ("A party against whom a claim, counterclaim, or cross-claim is asserted
or a declaratory judgment is sought may, at any time, move with or without
supporting affidavits for a summary judgment in his favor as to all or any part
thereof."); Rule 56(c), SCRCP ("The judgment sought shall be rendered forthwith
if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law."). Carriers raised the service defenses in their answers and then brought a
motion to dismiss, or in the alternative, for summary judgment. Because nothing
precluded them from raising these arguments in a motion for summary judgment,
we hold Carriers timely raised the defense of improper service, and the circuit
court did not err by deciding Carriers' motion as a motion for summary judgment.

C. Waiver by Participation in Litigation

The Thompsons next argue Carriers waived any service-related defenses by
participating in protracted litigation for almost two years and cite to Maybank v.
BB&T Corp., 416 S.C. 541, 787 S.E.2d 498 (2016), to support this contention. The
Thompsons additionally assert the doctrine of laches barred Carriers'
service-related defenses because they failed to raise these issues earlier in
litigation. We disagree and hold the circuit court did not err by finding Carriers
did not waive these defenses by participating in litigation for almost two years.

Waiver is a "voluntary and intentional relinquishment or abandonment of a known
right." Strickland v. Strickland, 375 S.C. 76, 85, 650 S.E.2d 465, 470 (2007)
(quoting Parker v. Parker, 313 S.C. 482, 487, 443 S.E.2d 388, 391 (1994)). "It
may be expressed or implied by a party's conduct . . . ." Parker, 313 S.C. at 487,
443 S.E.2d at 391. We find nothing in Carriers' conduct which demonstrates a
waiver of their rights under section 38-77-160.

We find the facts of Maybank are distinguishable. In that case, our supreme court
upheld the trial court's finding the corporate defendant waived its personal
jurisdiction defense by "gambl[ing] that it could argue personal jurisdiction on the
eve of trial after actively participating in litigation over the course of two and a half
years." 416 S.C. at 566, 787 S.E.2d at 511. The corporate defendant in Maybank
was the direct defendant in the action and it based its personal jurisdiction
argument upon the grounds that it was an out-of-state business with insufficient
ties with this state. Id. at 564, 787 S.E.2d at 510. Unlike the corporate defendant
in Maybank, however, Carriers' participation in this case is based upon their
position as the UIM carriers pursuant to section 38-77-160. Carriers' actions
demonstrate they were preparing for litigation under the assumption Toney had
been served. Although two years is a lengthy period, we find Carriers did not
waive these defenses by participating in litigation. See Williams, 315 S.C. 532,
446 S.E.2d 402.

As to the Thompsons' argument that the doctrine of laches barred Carriers'
service-related defenses, we hold they failed to preserve this argument for
appellate review. See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733
(1998) ("It is axiomatic that an issue cannot be raised for the first time on appeal,
but must have been raised to and ruled upon by the trial judge to be preserved for
appellate review.").

For the foregoing reasons, we hold the circuit court did not err in finding Carriers
did not waive their service-related defenses by failing to raise the defenses with
specificity in their answers; failing to assert them in a 12(b), SCRCP, motion; or by
engaging in litigation and discovery for two years.

D. Prejudice to Toney

The Thompsons argue the circuit court erred by considering prejudice to Toney in
granting Carriers' motions. Because we hold the circuit court did not err by finding
Carriers did not waive their service-related defenses, we need not address this
argument. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613,
518 S.E.2d 591, 598 (1999) (holding an appellate court need not address remaining
issues when disposition of a prior issue is dispositive).

III. Estoppel

The Thompsons argue 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. The Thompsons maintain 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 disagree.

"In its broadest sense, equitable estoppel is a means of preventing a party from
asserting a legal claim or defense that is contrary or inconsistent with his or her
prior action or conduct." Rodarte v. Univ. of S.C., 419 S.C. 592, 601, 799 S.E.2d
912, 916 (2017) (quoting 28 Am. Jur. 2d Estoppel and Waiver § 27 (2011)).

The elements of equitable estoppel as related to the party
being estopped are: (1) conduct which amounts to a false
representation, or conduct which is calculated to convey
the impression that the facts are otherwise than, and
inconsistent with, those which the party subsequently
attempts to assert; (2) the intention that such conduct
shall be acted upon by the other party; and (3) actual or
constructive knowledge of the real facts. The party
asserting estoppel must show: (1) lack of knowledge, and
the means of knowledge, of the truth as to the facts in
question; (2) reliance upon the conduct of the party
estopped; and (3) a prejudicial change of position in
reliance on the conduct of the party being estopped.

Id. at 601, 799 S.E.2d at 916-17 (footnote omitted) (quoting Strickland, 375 S.C. at
84, 650 S.E.2d at 470).

We find the Thompsons failed to demonstrate the elements required to establish
estoppel. See id. As to the elements related to the party to be estopped, the
Thompsons failed to show Liberty Mutual made a false representation or otherwise
engaged in conduct that was calculated to mislead the Thompsons. Liberty Mutual
told the Thompsons 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 the
Thompsons to act on the impression that it would never pursue these defenses.
Furthermore, Liberty Mutual made this statement in January when there were still
five months left during which the Thompsons could have served Toney within the
statute of limitations. Similarly, the Thompsons failed to show Liberty Mutual had
actual or constructive knowledge of the real facts. Liberty Mutual stated only that
it raised certain defenses to be sure they were not waived and that these defenses
were boilerplate at the time. The record contains no indication Liberty Mutual had
actual knowledge at the time it made the statement that Toney had not been served.

As to the elements related to the party claiming estoppel, we hold the Thompsons
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, the Thompsons had the
burden of serving Toney and establishing personal jurisdiction. See Moore, 322
S.C. at 523, 473 S.E.2d at 66 ("The plaintiff has the burden to establish that the
court has personal jurisdiction over the defendant."); see also Rule 3(a), SCRCP
("A civil action is commenced when the summons and complaint are filed with the
clerk of court if: (1) the summons and complaint are served within the statute of
limitations . . . ."). Thus, we hold the Thompsons failed to demonstrate reliance
upon Liberty Mutual's representation or a resulting prejudicial change in position.

The Thompsons further argue Carriers waived their service defense by filing a
motion related to venue without simultaneously raising insufficiency of service and
lack of personal jurisdiction over Toney. We disagree.
Rule 12, SCRCP, provides a defense may be waived if it is not joined in a Rule 12
motion asserting other grounds for dismissal available under Rule 12. See Rule
12(g) ("A party who makes a motion under [Rule 12] may join with it any other
motions herein provided for and then available to him. If a party makes a motion
under this rule but omits therefrom any defense or objection then available to him
which this rule permits to be raised by motion, he shall not thereafter make a
motion based on the defense or objection so omitted . . . ."). Here, however,
Liberty Mutual made no earlier Rule 12 motion. Rather, it made its first Rule 12
motion when it made the motion to dismiss that is the subject of this appeal.
Liberty Mutual did not bring its earlier motion to transfer venue as a Rule 12
motion and did not reference Rule 12(b)(3) within the motion. See Rule 12(b)(3)
(providing a defense of improper venue may be made by motion). Instead, Liberty
Mutual cited to section 15-7-30 of the South Carolina Code (Supp. 2024) in its
motion, asserting a transfer of venue from Sumter to Lexington County would be
more convenient for witnesses and the ends of justice would be promoted by such
change. 7 Moreover, Liberty Mutual did not argue venue in Sumter was improper.
Thus, we hold Liberty Mutual did not waive a defense of improper service of
process by failing to assert it at the same time it brought its motion to transfer
venue.

Based on the foregoing, we hold the circuit court did not err by finding the
Thompsons failed to demonstrate the elements required to establish estoppel and
that Liberty Mutual did not waive its service-related defenses by making a motion
to transfer venue.

CONCLUSION

We hold the circuit court did not err by granting Carriers' motions to dismiss.

AFFIRMED.

THOMAS, J., concurs.

7
See § 15-7-30(C) ("A civil action tried pursuant to this section against a resident
individual defendant must be brought and tried in the county in which the:
(1) defendant resides at the time the cause of action arose; or (2) most substantial
part of the alleged act or omission giving rise to the cause of action occurred."); see
also S.C. Code Ann. § 15-7-100(A)(3) (Supp. 2024) ("The court may change the
place of trial if: . . . the convenience of witnesses and the ends of justice would be
promoted by the change.").
HEWITT, J., concurs in a separate opinion.

HEWITT, J., concurring: I agree with the majority that the best reading of the
relevant authorities provides that there is a mandatory requirement that an action
against the at-fault driver be preserved in order for an insured to maintain a claim
for underinsured motorist coverage. See S.C. Code Ann. § 38-77-160 (2015);
Williams v. Selective Ins. Co. of Se., 315 S.C. 532, 534–35, 446 S.E.2d 402, 404
(1994); Louden v. Moragne, 327 S.C. 465, 469, 486 S.E.2d 525, 527 (Ct. App.
1997). If, however, properly serving the at-fault driver is not an absolute
requirement, but instead relates to a defense that the court lacks personal
jurisdiction over the at-fault driver, I believe both insurance companies failed to
adequately object to personal jurisdiction, and I would reverse on that basis. See
Unisun Ins. v. Hawkins, 342 S.C. 537, 541–43, 537 S.E.2d 559, 561–62 (Ct. App.
2000) (explaining "objections to the sufficiency of service of process must be
specific and must point out in what manner the plaintiff has failed to satisfy the
rule relating to the service provisions," and holding failure to adequately allege
insufficiency of service and process results in a waiver of the defense as well as a
waiver of a statute of limitations defense).