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Witness Affidavit Not Wanted Earlier than ‘John Doe’ Auto Swimsuit Filed – SC Supreme Court docket



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A driver could file a “John Doe” civil motion in opposition to an unknown driver, even with out first acquiring an assertion from a third-party witness. However an affidavit have to be produced promptly upon request, the South Carolina Supreme Court docket determined Wednesday.


The courtroom was confronted with a query about South Carolina’s uninsured motorist legislation, after an 2015 accident injured a passenger in Fairfield County. The passenger, Peter Rice, filed swimsuit in opposition to the unidentified driver who allegedly veered throughout the middle line of a freeway and compelled the automobile Rice was in, pushed by Bobby Rae Dye, off the street and right into a tree.

Progressive Insurance coverage Co. was listed because the uninsured motorist service within the case, based on the movement to dismiss in Fairfield County Circuit Court docket.


“This case presents the query of whether or not compliance with the witness affidavit requirement in subsection 38-77-170(2) of the South Carolina Code (2015) is a situation precedent to the submitting of a ‘John Doe’ civil motion. We maintain it isn’t,” Justice John Cannon Few wrote in the opinion.

Moderately, the witness assertion could also be produced after the graduation of the lawsuit, however the affidavit ought to be produced promptly. “If it isn’t, the motion is topic to dismissal,” the courtroom stated.

The excessive courtroom upheld an appeals court decision, however for various causes, and remanded the case for trial.


Within the proceedings, Rice filed his civil motion in opposition to Doe. Doe really answered, and Rice produced the witness affidavit a day later, the courtroom defined. Months later, Doe filed a movement to dismiss, arguing that Rice had didn’t adjust to the legislation and produce an affidavit earlier than litigation started in accidents with out bodily contact between the automobiles.

A trial decide agreed – after a earlier decide had differed on the matter – and dismissed the swimsuit. The state Court docket of Appeals reversed that call, deciding that the second trial decide had no authority to overrule one other decide. The Supreme Court docket sidestepped that time, discovering {that a} witness affidavit will not be required earlier than the submitting of a John Doe motion.


“Our evaluation is straightforward—the statute doesn’t present that the affidavit have to be filed as a situation precedent to submitting the motion,” the justices famous. However they acknowledged {that a} witness is important.

“Initially, subsequently, we marvel why any plaintiff in such a case wouldn’t be keen to supply the affidavit on the earliest alternative,” the courtroom stated. The plaintiff should produce the affidavit within the discovery course of.


“Our courts is not going to countenance the usage of delay in producing the affidavit as a component of technique,” the opinion reads.

South Carolina


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