Court of Appeals of South Carolina
December 8, 2020, Heard; February 9, 2022, Filed
Opinion No. 5893

Reporter
2022 S.C. App. LEXIS 19 ; 2022 WL 386078 Isabelle MacKenzie, Appellant/Respondent, v. C&B Logging and Charles Brandon Barr, Respondents/Appellants. Notice: THIS DECISION IS NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED. Prior History: [1] Appeal From Florence County D. Craig Brown, Circuit Court Judge. Appellate Case No. 2018-001016.
Disposition: AFFIRMED
Core Terms

convictions, charges, circuit court, probative value, punitive damages, drug-related, prejudicial, negligent hiring, impeachment, purposes, criminal conviction, prior act, cases, crime of moral turpitude, substantially outweighed, unfair prejudice, false statement, moral turpitude, balancing test, supervision, dishonesty, outweighed, retention, training, truck
Case Summary

Overview
HOLDINGS: [1]-In an injured woman’s negligence suit, excluding portions of a truck driver’s criminal record from evidence to support the woman’s employment-related and punitive damage claims against the driver’s employer was not an abuse of discretion under either S.C. R. Evid. 403 or 609(a)(1) because simply showing that the driver had a criminal record was insufficient without showing it related to the employer’s decision to hire and retain the driver since nothing about them that indicated an increased likelihood that he would not follow safety procedures in pulling to the side of the road, and Rule 609(a)(1) included a Rule 403 balancing test.
Outcome
Evidentiary ruling affirmed.
LexisNexis® Headnotes

Civil Procedure > Appeals > Reviewability of Lower Court Decisions > Preservation for Review
HN1[ ] Reviewability of Lower Court Decisions, Preservation for Review
An appellate court need not address remaining issues when disposition of prior issue is dispositive.

Civil Procedure > Appeals > Standards of Review > Abuse of Discretion
Evidence > Admissibility > Procedural Matters > Rulings on Evidence
HN2[ ] Standards of Review, Abuse of Discretion
An appellate court’s review of the circuit court’s admission or exclusion of potentially relevant evidence is considered under a deferential standard. The court’s ruling to admit or exclude evidence will only be reversed if it constitutes an abuse of discretion amounting to an error of law. The trial court’s decision will not be reversed on appeal unless it appears the trial court clearly abused its discretion and the objecting party was prejudiced by the decision.

Evidence > Relevance > Exclusion of Relevant Evidence > Confusion, Prejudice & Waste of Time
Evidence > Relevance > Relevant Evidence
HN3[ ] Exclusion of Relevant Evidence, Confusion, Prejudice & Waste of Time
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. S.C. R. Evid. 403.

Evidence > … > Impeachment > Convictions & Other Criminal Process > Admissibility
Evidence > Relevance > Exclusion of Relevant Evidence > Confusion, Prejudice & Waste of Time
Evidence > … > Impeachment > Convictions & Other Criminal Process > Inadmissibility
HN4[ ] Convictions & Other Criminal Process, Admissibility
Convictions for crimes of moral turpitude are admissible to impeach the credibility of a witness when the circuit court, in its discretion, determines the conviction is not too remote in time and that the probative value of the conviction outweighs its prejudicial impact.

Evidence > Relevance > Exclusion of Relevant Evidence > Confusion, Prejudice & Waste of Time
Evidence > Relevance > Relevant Evidence
HN5[ ] Exclusion of Relevant Evidence, Confusion, Prejudice & Waste of Time
The moral turpitude test is no longer relevant under a S.C. R. Evid. 609 analysis.

Torts > Business Torts > Negligent Hiring, Retention & Supervision > Elements
HN6[ ] Negligent Hiring, Retention & Supervision, Elements
Negligent hiring and retention cases generally turn on two fundamental elements—knowledge of the employer and foreseeability of harm to third parties. From a practical standpoint, these elements are analyzed in terms of the number and nature of prior acts of wrongdoing by the employee, and the nexus or similarity between the prior acts and the ultimate harm caused.

Evidence > … > Impeachment > Convictions & Other Criminal Process > Admissibility
Evidence > Relevance > Exclusion of Relevant Evidence > Confusion, Prejudice & Waste of Time
HN7[ ] Convictions & Other Criminal Process, Admissibility
The balancing test required by the S.C. R. Evid. 609(a)(1) is that evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to S.C. R. Evid. 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted.

Evidence > Admissibility > Conduct Evidence > Prior Acts, Crimes & Wrongs
HN8[ ] Conduct Evidence, Prior Acts, Crimes & Wrongs
Though an on-the-record S.C. R. Evid. 403 analysis is required, an appellate court will not reverse the conviction if the trial judge’s comments concerning the matter indicate he was cognizant of the evidentiary rule when admitting the evidence of prior bad acts.

Evidence > … > Impeachment > Convictions & Other Criminal Process > Admissibility
Evidence > … > Impeachment > Convictions & Other Criminal Process > Inadmissibility
HN9[ ] Convictions & Other Criminal Process, Admissibility
For impeachment purposes, crimes of dishonesty or false statement are crimes in the nature of crimen falsi that bear upon a witness’s propensity to testify truthfully.

Evidence > … > Impeachment > Convictions & Other Criminal Process > Admissibility
Evidence > … > Impeachment > Convictions & Other Criminal Process > Inadmissibility
HN10[ ] Convictions & Other Criminal Process, Admissibility
The Supreme Court of South Carolina has repeatedly held that drug convictions generally are not admissible S.C. R. Evid. 609(a)(2). Conviction of a crime involving dishonesty or false statement is always admissible for impeachment purposes, regardless of the punishment. Narcotics convictions generally do not fall under this rule. Violations of narcotics laws are generally not probative of truthfulness.

Evidence > Relevance > Exclusion of Relevant Evidence > Confusion, Prejudice & Waste of Time
Evidence > Relevance > Relevant Evidence
HN11[ ] Exclusion of Relevant Evidence, Confusion, Prejudice & Waste of Time
The South Carolina court system relies on the trial court to determine when relevant evidence is inadmissible because its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. S.C. R. Evid. 403.
Counsel: J. Camden Hodge, Eric M. Poulin, and Roy T. Willey, IV, all of Anastopoulo Law Firm, LLC, of Charleston, for Appellant/Respondent.
Robert D. Moseley, Jr., and Megan M. Early-Soppa, both of Moseley Marcinak Law Group LLP, of Greenville, for Respondents/Appellants.
Judges: GEATHERS, J. WILLIAMS, C.J., and HUFF, A.J., concur.
Opinion by: GEATHERS
Opinion

GEATHERS, J.: In this negligence case, Isabelle MacKenzie (MacKenzie) argues that she should have been allowed to introduce into evidence certain prior charges and criminal convictions of a driver whose alleged negligence led to her injuries. On cross-appeal, C&B Logging and Charles Brandon Barr argue that if this court reverses the circuit court, it should then enter a directed verdict on MacKenzie’s employment-related claims because Barr was acting within the scope of his employment at the time of the accident. We affirm.1

FACTS/PROCEDURAL HISTORY
Charles Brandon Barr (Barr) was driving a company truck for C&B Logging (C&B) on the night of April 23, 2016, when he began wondering if the truck’s progressively flattening tire would be able to last until he reached [2] his destination. Deciding not to risk it, Barr stopped near a friend’s home, pulling across the road to the left side. Barr testified that he believed the friend could help reinflate the tire, but the friend was not at home. As Barr was pulling back onto the highway, Arthur Lee Gregg (Gregg)2 was coming from the opposite direction and about to round a curve a short distance away from Barr. Gregg rounded the curve before Barr could completely cross from the left lane of the highway into the correct lane. Gregg smashed into one of the rig’s axles, then skidded to a stop a short distance away. Following Gregg was MacKenzie, driving her motorcycle. With little time to react, MacKenzie slalomed her motorcycle between the two vehicles and went to the ground. MacKenzie did not hit either truck.3 MacKenzie filed suit against Barr and C&B for negligence on multiple grounds, including that C&B was liable for “negligently hiring, employing and/or retaining in employment . . . Barr,” as well as for inadequately supervising and training him. At trial, MacKenzie attempted to introduce into evidence a laundry list of former moving violations and drug-related charges and convictions against Barr to prove negligent hiring, training, supervision, retention, and entrustment by C&B.4 MacKenzie argued that the drug-related charges and convictions were admissible on multiple grounds. First, MacKenzie sought to show that Barr did not stop in search of air for his tire, but instead stopped for drug-related purposes.5 Second, MacKenzie relied on Green v. Hewett6 to argue that the drug-related charges and convictions were admissible because they demonstrated “a breach of duty to society as a whole”7 and “a history of bad decision making” relevant to whether C&B acted negligently in employing Barr. Finally, MacKenzie contended the charges and convictions [4] themselves could be used for impeachment purposes if Barr lied about the convictions on the stand.8
Barr and C&B argued that the charges and convictions related to drug possession were substantially more prejudicial than probative. The circuit court ruled that MacKenzie could introduce the traffic violations, but excluded the drug-related charges and convictions. The circuit court “d[id] not believe that they [were] probative, and any probative value [was] certainly outweighed by the potential prejudicial effect in this case.”
The jury found in favor of MacKenzie and awarded her $179,678.49 in actual damages. The jury also apportioned the blame between Barr and C&B, holding Barr liable for sixty percent of the damages and the company liable for the remaining forty percent. The jury did not award punitive damages to MacKenzie. These cross-appeals followed.

ISSUE ON APPEAL
Did the circuit court err in declining to admit evidence of Barr’s drug-related charges and convictions for the purposes of the negligent hiring and retention claim and the request for punitive damages against C&B?

STANDARD OF REVIEW
HN2[ ] An appellate court’s review of the circuit court’s admission or exclusion of potentially [*5] relevant evidence is considered under a deferential standard.
The court’s ruling to admit or exclude evidence will only be reversed if it constitutes an abuse of discretion amounting to an error of law. . . . The trial court’s decision will not be reversed on appeal unless it appears the trial court clearly abused its discretion and the objecting party was prejudiced by the decision.
Proctor v. Dep’t of Health & Envtl. Control, 368 S.C. 279, 313, 628 S.E.2d 496, 514 (Ct. App. 2006) (citations omitted).

LAW/ANALYSIS
MacKenzie argues that the circuit court erred in excluding portions of Barr’s criminal record that MacKenzie asserts supported her employment-related claims against C&B and her request for punitive damages.9 Specifically, MacKenzie contends that the circuit court was wrong to exclude, under Rule 403, SCRE, evidence of Barr’s drug-related charges and convictions. We disagree and find that the circuit court acted within its discretion in ruling as it did.
HN3[ ] “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Rule 403, SCRE.
According to MacKenzie, because of the circuit court’s exclusion [6] of the drug-related charges and convictions, “the jury was [allowed] to hear only part of the story” about Barr’s criminal history. MacKenzie notes that the “offenses were not so remote in time, but instead occurred in 2011 and 2012, and during the period in which [Barr] was employed by C&B Logging, LLC.” Admitting the convictions, in MacKenzie’s view, “could have led to the imposition of punitive damages.” However, allowing only part of the story is precisely the point of Rule 403: If the rest of the story is found by the court to be substantially more unfairly prejudicial than probative, it is to be excluded. See Rule 403, SCRE (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . .” (emphasis added)). The traffic violations allowed by the circuit court were proper for admission because the jury could view them as probative of a reason for caution on C&B’s part when it came to employing Barr. See Doe v. ATC, Inc., 367 S.C. 199, 206, 624 S.E.2d 447, 450 (Ct. App. 2005) (“Our review of negligent hiring and retention cases from other jurisdictions leads us to conclude that such cases generally turn on two fundamental elements—knowledge of the employer and foreseeability of harm to third parties. [7] . . . From a practical standpoint, these elements are analyzed in terms of the number and nature of prior acts of wrongdoing by the employee, and the nexus or similarity between the prior acts and the ultimate harm caused.” (emphasis added) (citation omitted)). Clearly, an employer could anticipate that someone who had previously improperly operated a motor vehicle could potentially cause harm when operating a motor vehicle in the scope of his employment.
However, the same is not true of the drug-related charges and convictions. As the circuit court found, the probative value of the evidence of Barr’s drug-related charges and convictions was virtually non-existent. For example, none of the charges or convictions MacKenzie sought to introduce involved operating a motor vehicle while under the influence of drugs or alcohol.10 Furthermore, even if they had, a trooper at the scene of the accident testified that he had no reason to believe that Barr was under the influence of drugs or alcohol at the time of the incident. Simply showing that Barr had a criminal record is not sufficient to admit the evidence without some showing that it was related to the ultimate issue in the case that is now [8] on appeal—namely, whether C&B’s decision to hire and retain Barr justified an award of punitive damages to MacKenzie. The issue was not why Barr pulled over to the side of the road, but his conduct as and after he did so—and whether C&B was negligent for the purposes of actual damages, and more culpable for the purposes of punitive damages, in employing him based on the risk that he would not operate his truck properly. See Doe, 367 S.C. at 206, 624 S.E.2d at 450 (“Our review of negligent hiring and retention cases from other jurisdictions leads us to conclude that such cases generally turn on two fundamental elements—knowledge of the employer and foreseeability of harm to third parties. . . . From a practical standpoint, these elements are analyzed in terms of the number and nature of prior acts of wrongdoing by the employee, and the nexus or similarity between the prior acts and the ultimate harm caused.” (emphasis added) (citation omitted)). And because the drug convictions lacked probative value on the underlying claim of negligent employment, they held no probative value as to punitive damages for the employment-related claims. Barr’s previous drug charges and convictions do not indicate that C&B showed a reckless disregard [9] for MacKenzie’s rights, because there was nothing about them that indicated an increased likelihood that Barr would not follow safety procedures in pulling to the side of the road. On the other hand, the unfairly prejudicial nature of the allegation that Barr had previously possessed narcotics, and the suggestion that he might have stopped on the side of the road to obtain the same, is self-evident when it comes to whether jurors might have improperly considered it in imposing punitive damages.
MacKenzie’s attempt to create a ground for admitting this evidence by pointing to language in Green v. Hewett does not change that. In Green, our supreme court ruled that the respondent’s previous conviction for participation in a drug conspiracy was a “crime of moral turpitude” that should have been admitted against the respondent under the common law rule about impeachment then in effect. Green v. Hewett, 305 S.C. 238, 240-42, 407 S.E.2d 651, 652-53 (1991). Green, who had been injured in an automobile accident, sued Hewett. At trial, the circuit court barred Green from using a federal conviction for a drug conspiracy to impeach Hewett’s credibility. Id. at 240, 407 S.E.2d at 651-52.
On appeal, the Green court found that “commission of such a crime is egregious enough such that it may be viewed as a breach of respondent’s [10] duty to his fellow man and society as a whole.” Id. at 241, 407 S.E.2d at 652. Importantly, the court also noted that the “respondent’s credibility as a witness was pivotal in this case.” Id. at 242, 407 S.E.2d at 653. MacKenzie argues that the court’s finding that a drug conspiracy offense is “egregious enough such that it may be viewed as a breach of respondent’s duty to his fellow man and society as a whole,” id. at 241, 407 S.E.2d at 652, can be translated into a statement that such crimes “harm[] not only the public (as is required to prove a claim of negligent hiring, supervision, or training), but harm[] society as a whole.” For that reason, MacKenzie contends, Barr’s drug charges and convictions are substantially probative of MacKenzie’s claim for punitive damages. However, despite MacKenzie’s protests to the contrary, the issue in Green was simply whether a drug conspiracy crime was admissible as a crime of moral turpitude for impeachment purposes. All of the language MacKenzie highlights from the decision must be viewed through the prism of what the court was deciding. And even the Green court suggested that there were limits on the use of such evidence. HN4[ ] “Convictions for crimes of moral turpitude are admissible to impeach the credibility of a witness when the [circuit [11] court], in [its] discretion, determines the conviction is not too remote in time and that the probative value of the conviction outweighs its prejudicial impact.” Id. at 242, 407 S.E.2d at 653; see also id. (“[T]he probative value of the conviction on the issue of credibility far outweighed any prejudicial impact on respondent.”).
The Green court’s consideration of whether the crime was a crime of moral turpitude had nothing to do with what evidence may be introduced to prove a negligent hiring claim or support a request for resulting punitive damages. HN5[ ] And that definition no longer has any relevance under South Carolina law when it comes to the admission of prior bad acts. See State v. Black, 400 S.C. 10, 23 n.5, 732 S.E.2d 880, 888 n.5 (2012) (“This [c]ourt has stated that the moral turpitude test is no longer relevant under a Rule 609 analysis.”); but see generally Baddourah v. McMaster, 433 S.C. 89, 856 S.E.2d 561 (2021) (analyzing “crime of moral turpitude” in relation to suspension from office).
We have found no authority, and MacKenzie has cited none, suggesting that “crimes of moral turpitude” under any name have any relationship to whether C&B was negligent in the employment claims, or whether MacKenzie was entitled to punitive damages. See Doe, 367 S.C. at 206, 624 S.E.2d at 450 (“Our HN6[ ] review of negligent hiring and retention cases from other jurisdictions leads us to conclude [12] that such cases generally turn on two fundamental elements—knowledge of the employer and foreseeability of harm to third parties. . . . From a practical standpoint, these elements are analyzed in terms of the number and nature of prior acts of wrongdoing by the employee, and the nexus or similarity between the prior acts and the ultimate harm caused.” (emphasis added) (citation omitted)); Hundley ex rel. Hundley v. Rite Aid of S.C., Inc., 339 S.C. 285, 311, 529 S.E.2d 45, 59 (Ct. App. 2000) (“In order to receive an award of punitive damages, the plaintiff has the burden of proving by clear and convincing evidence the defendant’s misconduct was willful, wanton, or in reckless disregard of the plaintiff’s rights.” (quoting Lister v. NationsBank, of Delaware, N.A., 329 S.C. 133, 150, 494 S.E.2d 449, 458 (Ct. App. 1997)). In relation to her claims about the “moral turpitude standard,” MacKenzie argued to this court at oral argument that the evidentiary law in South Carolina before Rule 60911 became effective remains unchanged by the rule, relying largely on the fact that the reporter’s note to the rule includes a citation to Green.12 This is contrary to what the rule and its accompanying reporter’s note say: “Subsection (a) does change the law in South Carolina.” (Emphasis added.) Also, while the note to Rule 609 cites Green v. Hewett multiple times in references to Rule 609(a) and (b), it does so to lay out the former law that the rule is changing. [13] See Note on Rule 609, SCRE (“[T]he standard for balancing probative value against prejudicial effect was the same for all witnesses, to include the accused in a criminal case. Green v. Hewett, 305 S.C. 238, 407 S.E.2d 651 (1991). This subsection does not use the moral turpitude standard, but instead allows impeachment with a conviction for any crime which carries a maximum sentence of death or imprisonment for more than one year. Further, the rule provides for a different standard for balancing probative value and prejudicial effect for an accused who is a witness.” (emphases added)); id. (“The former case law did not set forth a time limit on the use of convictions for impeachment. Green v. Hewett, supra. . . . The ten year limit was adopted to help guide trial courts in making uniform determinations in this area.” (emphasis added)); see also Black, 400 S.C. at 23 n.5, 732 S.E.2d at 888 n.5 (“This [c]ourt has stated that the moral turpitude test is no longer relevant under a Rule 609 analysis.” (emphasis added)).
First, setting aside the need to perform a Rule 403 balancing test regarding the drug evidence, not all of Appellant’s evidence would have cleared even the initial threshold under Rule 609(a)(1) because that evidence either dealt with charges rather than convictions or did not fulfill the rule’s requirement that the conviction be “punishable by death or imprisonment in excess of one year under the law under which the witness was convicted . . . .” Rule 609(a)(1), SCRE (emphasis added).13
Further, Rule 609(a)(1) does require a Rule 403 balancing test, and in performing the Rule 403 balancing test, the circuit court considered whether the probative value of Barr’s previous convictions was “substantially outweighed by the danger of unfair prejudice.” See Rule 403, SCRE. HN7[ ] This is the balancing test required by the Rule 609(a)(1): “[E]vidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime [15] was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted . . .” (emphasis added). The circuit court found that “I do not believe that [the drug-related convictions] are probative, and any probative value is certainly outweighed by the potential prejudicial effect in this case.” While the circuit court did not specifically use the term “substantially outweighed,” the court found that the drug-related convictions had no probative value, meaning that virtually any unfair prejudice from the evidence would substantially outweigh its probative value. Cf. State v. King, 349 S.C. 142, 156-57, 561 S.E.2d 640, 647 (Ct. App. 2002) (upholding a “compressed Rule 403/404(b) analysis” that did not specifically outline the standard); id. at 156, 561 S.E.2d at 647 (“HN8[ ] Though an on-the-record Rule 403 analysis is required, this [c]ourt will not reverse the conviction if the trial judge’s comments concerning the matter indicate he was cognizant of the evidentiary rule when admitting the evidence of . . . prior bad acts.”). Nor would Barr’s offenses have qualified under the other prong of Rule 609(a), which concerns crimes of dishonesty. See Rule 609(a)(2) (“[E]vidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the [16] punishment.”).
HN9[ ] Our supreme court held in State v. Broadnax that “for impeachment purposes, crimes of ‘dishonesty or false statement’ are crimes in the nature of crimen falsi ‘that bear upon a witness’s propensity to testify truthfully.'” 414 S.C. 468, 476, 779 S.E.2d 789, 793 (2015) (quoting Adams v. State, 284 Ga. App. 534, 644 S.E.2d 426, 431-32 (Ga. Ct. App. 2007)), remanded on other grounds, 418 S.C. 227, 792 S.E.2d 587 (2015). The court cited with approval an explanation of the federal counterpart to Rule 609(a)(2) that included in the phrase “crimes involving dishonesty or false statement” the following: “crimes such as perjury, subornation of perjury, false statements, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused’s propensity to testify truthfully.” Id. at 476-77, 779 S.E.2d at 793 (quoting Stuart P. Green, Deceit and the Classification of Crimes: Federal Rule of Evidence 609(a)(2) and the Origins of Crimen Falsi, 90 J. CRIM. L. & CRIMINOLOGY 1087, 1090-91 (2000)).14
HN10[ ] In that vein, our supreme court has repeatedly held that drug convictions generally are not admissible under 609(a)(2). Green v. State, 338 S.C. 428, 432 n.3, 527 S.E.2d 98, 100 n.3 (2000) (“Conviction of a crime involving dishonesty or false statement is always admissible for impeachment purposes, regardless of the punishment. Narcotics convictions generally do not fall under this rule.” (citation [17] omitted)); State v. Bryant, 369 S.C. 511, 517, 633 S.E.2d 152, 155 (2006) (“Violations of narcotics laws are generally not probative of truthfulness.”); State v. Cheeseboro, 346 S.C. 526, 543, 552 S.E.2d 300, 309 (2001) (same proposition). Finally, Appellant appears to contend that our supreme court’s ruling in James v. Kelly Trucking Co. shows the court was unconcerned about the potential admission of evidence like the criminal convictions at issue in the current case. 377 S.C. 628, 661 S.E.2d 329 (2008). That assertion misses the mark. In James, our supreme court ruled, in response to a federal court’s question, “that South Carolina law does not prohibit a plaintiff from pursuing a negligent hiring, training, supervision, or entrustment claim once respondeat superior liability has been admitted . . . .” Id. at 634, 661 S.E.2d at 332. The defendant had contended that the admission of evidence which must be offered to prove a negligent hiring, training, supervision, or entrustment claim—evidence such as a prior driving record, an arrest record, or other records of past mishaps or misbehavior by the employee—will be highly prejudicial if combined with a stipulation by the employer that it will ultimately be vicariously liable for the employee’s negligent acts. Id. at 632, 661 S.E.2d at 331. But the court found that such concerns could be addressed through less restrictive means than cutting off the negligent [18] employment claims. Id. at 632-33, 661 S.E.2d at 331.
Nothing in James suggests that the coexistence of a respondeat superior claim and a negligent hiring claim somehow negates the applicability of Rule 403. In fact, one of the reasons the James court found that those claims could coexist was because of Rule 403. See id. at 632, 661 S.E.2d at 331 (“Primarily, we think the argument that an independent cause of action against an employer must be precluded to protect the jury from considering prejudicial evidence presumes too much. HN11[ ] Our court system relies on the trial court to determine when relevant evidence is inadmissible because its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Rule 403, SCRE.” (emphases added)). The circuit court in this case properly conducted that balancing test and found the evidence was not admissible. As we have already noted, we agree with that decision.

CONCLUSION
For the foregoing reasons, the circuit court’s ruling is
AFFIRMED.
WILLIAMS, C.J., and HUFF, A.J., concur.

United States District Court for the Middle District of Alabama, Northern Division
February 10, 2022, Decided; February 10, 2022, Filed
CASE NO. 2:20-CV-987-WKW

Reporter
2022 U.S. Dist. LEXIS 23994 *; 2022 WL 420767
STEVEN BENNETT, Plaintiff, v. PROGRESSIVE SPECIALTY INSURANCE COMPANY, Defendant.PROGRESSIVE SPECIALTY INSURANCE COMPANY, Third-Party Plaintiff, v. LG TRUCKING, LLC, and GRADY HOLMES, SR., Third-Party Defendants.
Core Terms

Trucking, res judicata, endorsement, final judgment, pleadings, preclusion, parties, insurance policy, motor carrier, summary judgment, insured, tractor, argues, merits, motion for judgment, first case, counterclaim, declaratory, third-party, state court, relitigate, Transport, contested, driver
Counsel: [1] For Steven Bennett, Plaintiff: Michael J. Crow, LEAD ATTORNEY, Beasley Allen Crow Methvin Portis & Miles PC, Montgomery, AL. For Progressive Specialty Insurance Company, Defendant: Alex Lafayette Holtsford, Jr., Steven Anthony Higgins, LEAD ATTORNEYS, Holtsford Gilliland Higgins Hitson & Howard, PC, Montgomery, AL; Robert Daniel Moseley, Jr., LEAD ATTORNEY, PRO HAC VICE, Moseley Marcinak Law Group, Greenville, SC. For Progressive Specialty Insurance Company, ThirdParty Plaintiff: Alex Lafayette Holtsford, Jr., Steven Anthony Higgins, LEAD ATTORNEYS, Holtsford Gilliland Higgins Hitson & Howard, PC, Montgomery, AL; Robert Daniel Moseley, Jr., LEAD ATTORNEY, Moseley Marcinak Law Group, Greenville, SC. LG Trucking, LLC, ThirdParty Defendant, Pro se, Smiths Station, AL. Grady Holmes, Sr., doing business as, Holmes Transport, ThirdParty Defendant, Pro se, Smiths Station, AL. For Progressive Specialty Insurance Company, Counter Claimant: Alex Lafayette Holtsford, Jr., Steven Anthony Higgins, LEAD ATTORNEYS, Holtsford Gilliland Higgins Hitson & Howard, PC, Montgomery, AL; Robert Daniel Moseley, Jr., LEAD ATTORNEY, Moseley Marcinak Law Group, Greenville, SC. For Steven Bennett, Counter Defendant: [2] Michael J. Crow, LEAD ATTORNEY, Beasley Allen Crow Methvin Portis & Miles PC, Montgomery, AL.
Judges: W. Keith Watkins, UNITED STATES DISTRICT JUDGE.
Opinion by: W. Keith Watkins
Opinion

MEMORANDUM OPINION AND ORDER
Before the court is Progressive Specialty Insurance Company’s (“Progressive”) motion to dismiss, (Doc. # 15), which the court has construed as a motion for judgment on the pleadings, (Doc. # 16), and which Progressive has subsequently amended, (Doc. # 17). Also before the court is Progressive’s motion for entry of default against the third-party defendants (Doc. # 32) and motion for summary judgment. (Doc. # 40.) For the reasons stated below, Progressive’s motion for judgment on the pleadings, (Docs. # 15, 17), is due to be granted, and Progressive’s other motions, (Docs. # 32, 40), are due to be denied as moot.

I. JURISDICTION AND VENUE
Under 28 U.S.C. § 1332, subject matter jurisdiction is proper over Bennett’s claim against Progressive, as Bennett is a citizen of Arkansas; Progressive is an Ohio corporation with its principal place of business in Ohio; and the amount in controversy is greater than seventy-five thousand dollars. (Doc. # 1 at 1.) Subject matter jurisdiction over Progressive’s counterclaim is proper under [*3] 28 U.S.C. § 1332 for the same reasons, and it is additionally proper under 28 U.S.C. § 1367 as it is so related to Bennett’s claim as to form part of the same case or controversy. (Doc. # 30.) Subject matter jurisdiction over Progressive’s claims against LG Trucking, LLC, and Grady Holmes, Sr., is proper under 28 U.S.C. § 1332, as Progressive is an Ohio corporation with its principal place of business in Ohio; LG Trucking is an Alabama limited liability company whose sole member resides in Alabama; Grady Holmes, Sr., is a citizen of Alabama; and the amount in controversy is greater than seventy-five thousand dollars. (Doc. # 27 at 2.) Subject matter jurisdiction over the third-party claims is additionally proper under 28 U.S.C. § 1367, as they are so related to Bennett’s claim as to form part of the same case or controversy. The parties do not contest personal jurisdiction or venue.

II. STANDARD OF REVIEW
When evaluating a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, the court uses standards similar to those used under Rule 12(b)(6). The court must review the pleadings and all materials incorporated by reference. Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002). “Judgment on the pleadings is appropriate when there are no material facts in dispute, and judgment may be rendered by considering the substance [*4] of the pleadings and any judicially noticed facts.” Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998). At the Rule 12(c) stage, the court “accept[s] the facts in the complaint as true and . . . view[s] them in the light most favorable to the nonmoving party.” Id.
Facts can be judicially noticed, and therefore available for consideration in deciding a Rule 12(c) motion, if they are “generally known within the trial court’s territorial jurisdiction” or if they “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Taking judicial notice of filings and orders in a previous action is authorized, Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1279 (11th Cir. 1999), especially for determining the preclusive effect of the prior case. See Horne v. Potter, 392 F. App’x 800, 802 (11th Cir. 2010).

III. BACKGROUND
On June 25, 2018, Plaintiff Steven Bennett was driving a pickup truck northbound on Highway 165 in Russell County, Alabama. In the opposite lane of Highway 165—a two-lane highway—Robert Atkin was driving a tractor-trailer southbound, when a car ahead of him in the southbound lane stopped to yield to oncoming traffic. Atkin, allegedly because of his failure to keep a proper lookout, did not immediately see the stopped car ahead of him. When Atkin eventually saw the vehicle, he aggressively applied his brakes, causing the momentum [5] of his trailer to push the trailer past the tractor, essentially folding the tractor-trailer at its pivot point. This “jackknifing” of the tractor-trailer forced the tractor into the northbound lane. The tractor collided with Bennett’s pickup truck, shattering his left arm. (Doc. # 1 at 2.) Atkin was an employee of LG Trucking, LLC, and Grady Holmes, Sr. Grady Holmes, Sr., was engaged in the trucking business under the name Holmes Transport. (Doc. # 1 at 2.) Before the accident, Holmes Transport acquired insurance for an unrelated tractor and trailer from Defendant, Progressive Specialty Insurance Company (“Progressive”). Holmes Transport later altered to policy to cover a different tractor, also not involved in this incident, and to add LG Trucking, LLC, as an additional insured party. At the time of the accident, the tractor operated by Atkin was not listed on any policy issued by Progressive. (Doc. # 1 at 3.) On August 16, 2018, Bennett filed a lawsuit in the Circuit Court of Russell County, Alabama, bringing state claims of negligence and wantonness against LG Trucking, LLC, and Grady Holmes, Sr. (Doc. # 1 at 3-4.) While the state court action was pending, Progressive filed suit in [6] this court, seeking a declaration as to whether the insurance policies provided coverage for the crash. (Doc. # 1 at 4; Doc. # 1 in Case No. 3:18-CV-775-ECM.) Specifically, Progressive’s prior action asked for “a declaration as to whether there is any defense or indemnity duties in the action pending in state court” and asked for “specific rulings and findings as to whether Progressive owes any duty or obligations or responsibilities to pay damages or any part of a judgment which may be rendered in [the state court case].” (Doc. # 1 in Case No. 3:18-CV-775-ECM at 7-8 (emphasis added).) Bennett answered the complaint, asserting the following as an affirmative defense:

1. Defendant Bennett pleads he is entitled to the benefits of Defendant LG Trucking, LLC’s MCS-90 endorsement which attaches to [the contested insurance policies].
2. The MCS-90 endorsement issued by Petitioner Progressive insures that Petitioner Progressive agrees to pay with the limits of liability described within [the contested insurance policies] any final judgment recovered against Defendant LG Trucking, LLC or any of its insured, resulting from negligence in the operation, maintenance or use of motor vehicles subject [*7] to the financial responsibility requirements of §§ 29 and 30 of the Motor Carrier Act of 1980 regardless of whether or not each motor vehicle is specifically described in the policy.
3. The MCS-90 applies to motor carriers of property who satisfy their financial responsibility requirements prescribed under Title 49 § 387.7 of the CFR.
   (Doc. # 11 in Case No. 3:18-CV-775-ECM at 2-3.)
   In fact, Progressive had never issued an MCS-90 endorsement on the contested policies prior to the accident. Progressive did not issue an MCS-90 endorsement until roughly a month after Bennett filed his answer. (Doc. # 1 at 3.) Bennett received notice of these facts in discovery in the first federal case.
   In the prior case, Progressive moved for summary judgment, noting that the contested policies did not provide liability insurance, did not list Atkin as a rated driver, and did not cover the involved tractor. (Doc. # 25 in Case No. 3:18-CV-775-ECM.) Although Progressive never mentioned the MCS-90, the motion sought summary judgment “on all claims asserted by Progressive in its Declaratory Judgment Complaint.” (Doc. # 25 in Case No. 3:18-CV-775-ECM at 21.) Bennett’s one line response conceded the motion: “Respondent [8] Steven Bennett agrees the petitioner’s Motion for Summary Judgment is due to be granted.” (Doc. # 29 in Case No. 3:18-CV-775-ECM.) The court found that Progressive’s arguments in favor of summary judgment were meritorious and granted summary judgment, noting that “neither the subject vehicle nor ther driver were covered by any of the potentially relevant insurance policies.” (Doc. # 32 in Case No. 3:18-CV-775-ECM at 4.) Final judgment in favor of Progressive was entered on November 22, 2019. (Doc. # 33 in Case No. 3:18-CV-775-ECM.) Bennett did not appeal the judgment or file any motion for relief from the judgment. On October 29, 2020, the underlying state court case was tried as to damages, and judgment was entered in favor of Bennett and against LG Trucking, LLC, and Grady Holmes, Sr., in the amount of $929,556.00. (Doc. # 1 at 4.) Bennett then brought the present suit in this court on December 2, 2020, seeking full satisfaction of the judgment from Progressive. (Doc. # 1 at 4-6.) Progressive answered the complaint on January 13, 2021, and subsequently moved to dismiss the complaint. (Doc. # 7; Doc. # 15.) Because a motion to dismiss was procedurally improper, the court construed the [9] motion as a motion for judgment on the pleadings. (Doc. # 16.) Progressive thereafter filed an amended motion for judgment on the pleadings, (Doc. # 17), Bennett filed a response, (Doc. # 21), and Progressive filed a reply, (Doc. # 23).
   On July 1, 2021, Progressive, with leave of the court, filed a third-party complaint against LG Trucking, LLC, and Grady Holmes, Sr., asserting that Progressive is entitled to indemnification from LG Trucking, LLC, and Grady Holmes, Sr., if a judgment is entered against Progressive in this action. (Doc. # 27 at 8-9.) On July 6, 2021, Progressive, with leave of the court, filed an amended answer, adding a counterclaim for declaratory judgment against Bennett. (Doc. # 30 at 9-12.) Service of process on the third-party defendants was completed on July 9, 2021, but they have never entered an appearance in this court. (Doc. # 31.)

IV. DISCUSSION
This action reunites parties who met years ago in this same court to answer the same question: Is Progressive obligated to pay any part of the state court judgment against LG Trucking, LLC, and Grady Holmes, Sr.? Progressive argues that this second case is barred by res judicata. (Doc. # 17 at 1.) Bennett argues that [*10] the first case never decided the particular claim that he now raises. (Doc. # 21 at 3-4.) But no matter whether his argument was addressed or not, the time to raise new arguments has passed and preclusion has attached. In the words of Shakespeare, “the hurly-burly’s done, . . . the battle’s lost and won.” William Shakespeare, Macbeth act 1, sc. 1, l. 3-4.

A. Res Judicata
In the American system of jurisprudence “the usual rule is that merits of a legal claim once decided in a court of competent jurisdiction are not subject to redetermination in another forum.” Kremer v. Chem. Constr. Corp., 456 U.S. 461, 485, 102 S. Ct. 1883, 72 L. Ed. 2d 262 (1982). According to the doctrine of res judicata—also known as “claim preclusion”—a “final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S. Ct. 2424, 69 L. Ed. 2d 103 (1981). Once a final judgment has been entered in a court of competent jurisdiction, the parties are precluded from relitigating claims that were raised and could have been raised in that action. Long v. Sec’y, Dep’t of Corr., 924 F.3d 1171, 1178 (11th Cir. 2019); Likes v. DHL Express (USA), Inc., 787 F.3d 1096, 1099 n.4 (11th Cir. 2015); Kizzire v. Baptist Health Sys., Inc., 441 F.3d 1306, 1308 (11th Cir. 2006).
Res judicata is a judicially crafted doctrine “with the purpose of both giving finality to parties who have already litigated a claim and promoting judicial economy . . . .” Eastman Kodak Co. v. Atlanta Retail, Inc., 456 F.3d 1277, 1284 (11th Cir. 2006). An unfettered ability to relitigate [11] the same claims would increase the likelihood of courts rendering inconsistent judgments, which would inhibit the creation of clear precedents upon which the common-law system is founded. Taylor v. Sturgell, 553 U.S. 880, 892, 128 S. Ct. 2161, 171 L. Ed. 2d 155 (2008); Montana v. United States, 440 U.S. 147, 153-54, 99 S. Ct. 970, 59 L. Ed. 2d 210 (1979); Borrero v. United Healthcare of New York, Inc., 610 F.3d 1296, 1307 (11th Cir. 2010). The rule of law requires consistency in judicial decisions, and res judicata helps create such consistency, thereby avoiding confusion and encouraging parties to rely on judicial decisions. Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980). The doctrine of res judicata conserves judicial resources as well as the temporal and financial resources of the parties. Allen, 449 U.S. at 94; Montana, 440 U.S. at 153-54; Borrero, 610 F.3d at 1307. Once a case has been decided, it would be unfair to give the losing party multiple opportunities to relitigate the same claim, needlessly burdening the prevailing party and the courts. Parklane Hosiery Co. Inc. v. Shore, 439 U.S. 322, 326, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979). “Without the principles of res judicata, a wealthy party could repeatedly relitigate a [claim] until the opposing party wearied of the fray, became impoverished, or both.” Greiner v. De Capri, 403 F. Supp. 3d 1207, 1222 (N.D. Fla. 2019) (providing an excellent statement of the principles of res judicata heavily borrowed herein). “The preclusive effect of a federal-court judgment is determined by federal common law.” Taylor, 553 U.S. at 891. “In the Eleventh Circuit, a party seeking to invoke the doctrine of res judicata must establish its propriety by satisfying four initial elements: 12 the prior decision must have been rendered by a court of competent jurisdiction; (2) there must have been a final judgment on the merits; (3) both cases must involve the same parties or their privies; and (4) both cases must involve the same causes of action.” Mann v. Palmer, 713 F.3d 1306, 1311 (11th Cir. 2013) (quoting In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001)). “Cause of action” is defined broadly under Eleventh Circuit law: “[I]f a case arises out of the same nucleus of operative fact, or is based upon the same factual predicate, as a former action, that the two cases are really the same ‘claim’ or ’cause of action’ for purposes of res judicata.” Id. (quoting In re Piper Aircraft, 244 F.3d at 1297). If “the claim in the new suit was or could have been raised in the prior action . . . , res judicata applies.” Id. (quoting In re Piper Aircraft, 244 F.3d at 1296.)1
Bennett tacitly concedes that the parties to this case are identical to the prior case and that this court was a court of competent jurisdiction to consider his claims. However, Bennett argues that the MCS-90 endorsement claim was never decided in the first case and that the MCS-90 claim was not ripe for adjudication in the prior suit. Understanding this argument necessitates some understanding of the MCS-90.

B. The MCS-90 Endorsement
The MCS-90 is a product of the Motor Carrier Act of 1980. See 49 U.S.C. § 13101 et seq. Congress [*13] passed the Motor Carrier Act “to address abuses that had arisen in the interstate trucking industry which threatened public safety, including the use by motor carriers of leased or borrowed vehicles to avoid financial responsibility for accidents that occurred while goods were being transported in interstate commerce.” Canal Ins. Co. v. Distribution Servs., Inc., 320 F.3d 488, 489 (4th Cir. 2003).
Pursuant to the Motor Carrier Act, the Department of Transportation requires certain motor carriers to obtain an insurance policy containing an MCS-90 endorsement “providing that the insurer will pay within policy limits any judgment recovered against the insured motor carrier for liability resulting from the carrier’s negligence.” Waters v. Miller, 564 F.3d 1355, 1357 (11th Cir. 2009) (quoting Illinois Cent. R. Co. v. Dupont, 326 F.3d 665, 666 (5th Cir. 2003)) (alteration adopted). “Basically, the MCS-90 makes the insurer liable to third parties for any liability resulting from the negligent use of any motor vehicle by the insured, even if the vehicle is not covered under the insurance policy.” T.H.E. Ins. Co. v. Larsen Intermodal Servs., Inc., 242 F.3d 667, 671 (5th Cir. 2001).
Although the insurance policies at issue here did not have an MCS-90 endorsement at the time of the crash, Bennett argues that an endorsement was required under federal regulations and therefore ought to be read into the policies.

C. Application of Preclusion Principles
Bennett raises two primary [14] arguments against preclusion. First, he argues that the first action only addressed two narrow issues: “(1) Whether the subject truck was an insured vehicle under either policy; and (2) Whether driver Robert Atkin was an insured under either policy when he was not listed as a ‘rated driver.'” (Doc. # 21 at 3.) Because, in Bennett’s view, the case did not address the applicability of an MCS-90 endorsement, he argues that there has been no final judgment on the merits of his claim. Second, Bennett argues that his claim was not ripe at the time of the first judgment. An injured party can demand payment from the insurance company under the MCS-90 “when the underlying insurance policy does not provide coverage and either (1) no other insurance policy is available to satisfy the judgment against the motor carrier, or (2) the motor carrier’s insurance coverage is insufficient to meet the federally-mandated minimum level.” Carolina Cas. Ins. Co. v. Yeates, 584 F.3d 868, 884 (10th Cir. 2009) (emphasis removed). Because he did not meet the prerequisites for demanding payment under the MCS-90 at the time of the prior judgment, Bennett contends that the applicability of the MCS-90 could not have been litigated in the first case. (Doc. # 21 at 8. (“Therefore, in [15] this case, two orders were necessary for Bennett’s demand for payment pursuant to the MCS-90 endorsement to ripen. First, a court needed to rule that the insurance policy did not cover the wreck. Judge Marks did this in Progressive’s first declaratory judgment action. Second, a court needed to enter a judgment against the Defendant motor carriers in favor of Bennett. When this occurred on October 29, 2020, Bennett could finally pursue the MCS-90 endorsement claim.”).)
Bennett’s first argument fails for multiple reasons. First, the judgment in the first case was far broader than the two narrow issues identified by Bennett. Progressive’s complaint sought “specific rulings and findings as to whether Progressive owes any duty or obligations or responsibilities to pay damages or any part of a judgment which may be rendered in [the state court case].” (Doc. # 1 in Case No. 3:18-CV-775-ECM at 7-8 (emphasis added).) Progressive did not simply ask whether Atkin was a covered driver and whether the vehicle was a covered vehicle. Progressive sought a declaration that would put the whole incident behind it. Progressive’s motion sought summary judgment “on all claims asserted by Progressive in its [16] Declaratory Judgment Complaint,” (Doc. # 25 in Case No. 3:18-CV-775-ECM at 21), and that is exactly the relief that was granted. Even if the MCS-90 had to be specially invoked in order for preclusion to attach, Bennett did invoke the MCS-90. In his answer, Bennett clearly pled MCS-90 coverage. Preclusion does, of course, require a “final judgment on the merits,” Mann, 713 F.3d at 1311, but that does not mean that the claim has to be fully briefed and discussed in the court’s opinion. The “final judgment on the merits” element is simply a safeguard against the accidental attachment of preclusion when a case is dismissed without prejudice on technical grounds. See Solis v. Glob. Acceptance Credit Co., L.P., 601 F. App’x 767, 770 (11th Cir. 2015). So long as the ruling is of the kind which turns on the substance of the action—such as a dismissal for failure to state a claim or a summary judgment—then the element is satisfied. Anything pending on the periphery of the action is subsumed into the final ruling. In Greiner v. De Capri, for example, a husband filed a counterclaim in a divorce proceeding asserting a claim for breach of contract against his wife. 403 F. Supp. 3d at 1214. After the filing of the counterclaim, there was no further discussion of the breach in the record, and the court did not award any relief to the husband [17] based on the breach. Id. Nonetheless, the final judgment entered in the divorce action counted as an adjudication on the merits. Id. at 1224 & n.6 (“Nothing in the phrase ‘adjudicated on the merits’ requires the state court to have explained its reasoning process.” (quoting Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001)).
But mentioning the MCS-90 in the answer was not necessary for preclusion to attach. For federal judgments, res judicata covers not only the litigated claims, but also the claims that “could have been raised in the prior action.” Mann, 713 F.3d at 1311. And, contrary to Bennett’s second argument, the MCS-90 claim could have been litigated in the first case.
Bennett’s argument that he could not have recovered anything under the MCS-90 at the time of the first judgment misses the mark. A declaratory judgment action tests the insurance carrier’s potential liability without regard for how the underlying action will later resolve or whether any money will eventually be awarded pursuant to the declaration. The applicability of an MCS-90 endorsement can and has been tested prior to the rendering of a judgment in the underlying action. See, e.g., Nat’l Specialty Ins. Co. v. ABS Freight Transp., Inc., 91 F. Supp. 3d 1258, 1264 (S.D. Fla. 2014), aff’d sub nom. Nat’l Specialty Ins. Co. v. Martin-Vegue, 644 F. App’x 900 (11th Cir. 2016).
This case arises out of the same nucleus of operative fact as the first case. When faced [*18] with Progressive’s action for declaratory judgment, Bennett was required to raise his MCS-90 argument in order to recover under that theory. See Fed. R. Civ. P. 13(a)(1) (requiring defendants to raise claims that “arise[] out of the transaction or occurrence that is the subject matter of the opposing party’s claim”). Because he did not, his claim is precluded under the doctrine of res judicata.2 When it is apparent from the face of the complaint and from judicially-noticeable facts that all claims are precluded, a judgment on the pleadings under Rule 12(c) is appropriate.

V. CONCLUSION
For the reasons stated above, it is ORDERED that Progressive’s motion for judgment on the pleadings (Doc. # 15; Doc. # 17) is GRANTED. Bennett’s claim against Progressive is DISMISSED with prejudice; Progressive’s counterclaim against Bennett is DISMISSED with prejudice; and Progressive’s claims against the third-party defendants are DISMISSED as moot. Progressive’s remaining motions (Docs. # 32, 40) are DENIED as moot.
A final judgment will be entered separately.
DONE this 10th day of February, 2022.
/s/ W. Keith Watkins
UNITED STATES DISTRICT JUDGE

FINAL JUDGMENT
In accordance with the order entered on this date, it is the ORDER, JUDGMENT, [*19] and DECREE of the court that Plaintiff’s claim against Progressive Specialty Insurance Company (“Progressive”) is DISMISSED with prejudice; Progressive’s counterclaim against Plaintiff is DISMISSED with prejudice; and Progressive’s claims against the third-party defendants are DISMISSED as moot.
The Clerk of the Court is DIRECTED to enter this document on the civil docket as a Final Judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.
DONE this 10th day of February, 2022.
/s/ W. Keith Watkins
UNITED STATES DISTRICT JUDGE