An insurance company is going to have to defend allegations that it used a white man’s race against him in denying his claim that he was injured in a vehicle collision, the South Carolina federal court ruled Sept. 28.

U.S. District Judge Michelle Childs denied a motion to dismiss John Garrett’s claims of outrage, negligence, gross negligence, and negligence per se, as well as a motion to dismiss his claim under 42 U.S. Code § 1981 — a civil rights act intended to ensure that everyone has the same right to make and enforce contracts.

The lawsuit stems  from a vehicle collision with another driver, Melvin Bromell, who was driving a vehicle owned by his employer, Heritage Hauling.

According to Garrett, a Travelers insurance adjuster told Garrett’s attorney that the “racial considerations” were favorable, and that they were a factor in denying Garrett’s claim.

Garrett is white. Bromell is African-American.

Attorneys for the defendants, William Davis and Mariel Norton of Baker, Ravenel & Bender in Columbia, did not return a message seeking comment. Nor did Garrett’s attorney, Ryan Andrews of Cobb, Dill & Hammett in Mount Pleasant.

Garrett, who says he was injured in the Jan. 12, 2016 collision, made a claim, through counsel, under a Heritage automotive liability insurance policy provided by Travelers. His counsel made a settlement demand and, according to court records, was informed by Travelers’ adjuster, Alexis Winburn, that the insurer was denying his claim. Garrett says that’s when his attorney spoke with Winburn and was told that the drivers’ races were used in making the decision to deny the claim.

In addition to his claims pursuant to Section 1981 and the aforementioned torts, Garrett alleged violations of the 5th and 14th Amendments.

Childs dismissed the constitutional claims after finding that the defendants are not state actors, and dismissed the civil conspiracy claim without prejudice because Garrett failed to plead separate, independent facts in furtherance of the conspiracy and failed to plead special damages.

But the court declined to toss the negligence claims and the alleged 1981 violation.

To establish a 1981 claim, a plaintiff has to prove that a defendant intended to racially discriminate and that the discrimination interfered with a contractual interest.

While Childs conceded that Garrett is a third-party to the insurance policy who, under state law cannot sue an insurer to enforce the contract, she also noted that Section 1981 is a two-part statute mandating that a person’s right to “make” a contract cannot be impaired, either.

“The denial of Garrett’s alleged claim for the insurance proceeds as a result of the collision, on the basis of race falls within the confines of section 1981 because Travelers prevented Garrett from having the opportunity to make a contract,” Childs wrote, finding that Garrett’s inability to enter into a settlement agreement impaired his ability to make a contract.

Further, the court found, Section 1981 contains a duty not to discriminate in making or enforcing contracts that, if breached, would make the defendants liable under a theory of negligence per se.

“Garrett wanted to settle his claim with Defendants, which would allow him to make a contract with them,” Childs wrote.

Constance Anastopoulo, a law professor at the Charleston School of Law who has extensive experience dealing with insurance bad-faith cases, called the court’s ruling on the Section 1981 issue “unique and novel” because of the race element, and the way that Garrett’s counsel presented his case.

“What is interesting is the way it’s couched as a 1981 case … and the way it’s couched around not only to enforce a contract, which he wouldn’t prevail on, but to make a contract and then they categorized the potential settlement of the insurance claim as his ability to make a contract,” she said.

Anastopoulo was also surprised that the outrage claim, a “standard claim,” survived.

“That is kind of unusual too, because in South Carolina it’s a very high bar to get past … I’ve seen outrage claims thrown out all the time,” she said. “Maybe given that it’s race, that might put it in a different context and therefore it survives.”


The 19-page decision is Garrett v. Bromell (Lawyers Weekly No. 002-149-17). A digest of the opinion is available online at

Follow Heath Hamacher on Twitter @SCLWHamacher

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