Green v. McGee: Carving Out Punitive Damages from Set-Offs and Preserving Joint-and-Several Liability for Reckless Tortfeasors

1. Introduction

This commentary examines the South Carolina Supreme Court’s August 2025 decision in Shannon P. Green & Darrell Russell v. Edward C. McGee & David Hudgins. The judgment resolves a complex post-trial dispute over how pre-suit settlement monies, jury fault allocations, and punitive-damage awards intersect under the Uniform Contribution Among Tortfeasors Act (the “Contribution Act,” S.C. Code §§15-38-10 et seq.).

After a mutual road-rage episode culminated in McGee ramming Green’s vehicle, a jury found McGee 60 % at fault and Hudgins 40 % at fault, and—critically—found both defendants acted “willfully, wantonly, and recklessly.” The jury awarded:

$88,546.78 in actual damages (joint verdict),
$35,000 in punitive damages against McGee, and
$35,000 in punitive damages against Hudgins.

Before filing suit, Green had already accepted McGee’s $100,000 policy limits from Nationwide in exchange for a covenant not to execute. Hudgins sought a credit (set-off) for that payment, sparking the litigation journey that ultimately led to the Supreme Court.

2. Summary of the Judgment

The Supreme Court reversed the Court of Appeals and re-calculated the post-verdict mathematics as follows:

Because the jury found reckless, wilful, and wanton conduct, subsection 15-38-15(F) barred apportioning liability by the 60 / 40 fault split; the defendants remain jointly and severally liable for the actual damages.
The $100,000 covenant payment applies only to compensate the “same injury”—i.e., the actual damages. It may not be used to diminish either defendant’s separate punitive-damage award.
Consequently:
- Hudgins receives a $100,000 credit against the joint $88,546.78 actual-damage award, wiping out that component but not the $35,000 punitive damages. Net judgment against Hudgins = $35,000.
- Progressive, Green’s UIM carrier (defending in McGee’s name), must pay the excess of the combined actual + punitive verdict against McGee over the $100,000 already paid: $123,546.78 – $100,000 = $23,546.78 (or less if policy limits are lower).

The matter is remanded for entry of judgment in those exact amounts.

3. Detailed Analysis

3.1 Precedents and Statutory Authorities Cited

Smith v. Tiffany, 419 S.C. 548 (2017) – Discussed the erosion of pure joint-and-several liability under §15-38-15(A).
Broome v. Watts, 319 S.C. 337 (1995) – Explained UIM carrier credits after settlements.
Laird v. Nationwide Ins., 243 S.C. 388 (1964) & Shuler v. Heitley, 209 S.C. 198 (1946) – Distinguished compensatory from punitive damages.
Mitchell v. Fortis Ins., 385 S.C. 570 (2009); BMW v. Gore, 517 U.S. 559 (1996); State Farm v. Campbell, 538 U.S. 408 (2003) – Articulated punitive-damages principles and reprehensibility factors.
Harleysville v. Heritage Cmtys., 420 S.C. 321 (2017) – Reiterated that punitive damages target the defendant’s conduct, not the plaintiff’s loss.

Each precedent reinforced two central propositions: (a) punitive and actual damages redress distinct interests and (b) §15-38-15’s percentage apportionment falls away when the conduct is reckless or intentional.

3.2 Statutory Interpretation & Legal Reasoning

Subsection 15-38-15(F) Controls
Because the jury labelled both tortfeasors “reckless, wilful, wanton,” subsection (F) explicitly states: “This section does not apply to a defendant whose conduct is wilful, wanton, reckless ….” Hence, the 50 % threshold and percentage apportionment in subsection (A) are irrelevant; joint-and-several liability revives in full for actual damages.
Set-Off Statute – §15-38-50
A good-faith covenant “reduces the claim against the others to the extent of any amount … paid for the same injury ….” The Court dissected “same injury”:
- Actual damages compensate one indivisible bodily injury to Green → qualifies.
- Punitive damages punish individualized misconduct → not the same injury; thus outside §15-38-50’s reach.
UIM Carrier Credit
Under §38-77-160 and Broome, an at-fault driver’s policy-limit payment decreases—not as a §15-38-50 set-off—but as a contractual credit against the UIM carrier’s obligation. Therefore Progressive, not Hudgins, benefits from that $100,000 vis-à-vis McGee’s share.

3.3 Impact of the Decision

The ruling establishes two clear precedents for South Carolina practice:

Punitive damages are insulated from covenant-based set-offs unless the payment explicitly covered punitive exposure—a rare circumstance.
Reckless or intentional tortfeasors cannot invoke percentage apportionment to limit liability; joint-and-several liability resurfaces in full.

Practical consequences include:

Settlement Strategy: Defendants seeking early settlements should specify whether the consideration is intended to cover punitive exposure; otherwise, co-defendants remain fully exposed for punitive awards.
Plaintiffs’ Leverage: Plaintiffs can negotiate high-value covenants with one tortfeasor without jeopardizing punitive-damage recovery from others.
UIM Litigation: Carriers must account for credits distinctly from statutory set-offs, adjusting reserves accordingly.
Trial Instructions: Courts must instruct juries on fault apportionment but advise counsel that percentages may be legally irrelevant if the fact-finder labels the conduct reckless.

4. Complex Concepts Simplified

Covenant Not to Execute (Not to Enforce Judgment): An agreement where the plaintiff promises not to collect any future judgment from a settling defendant in exchange for payment, yet can continue suing others.
Set-Off: A post-verdict credit that reduces the judgment against a non-settling defendant by amounts the plaintiff already received for the same injury.
Joint and Several Liability: Any one defendant can be required to pay the entire judgment, leaving contribution claims among defendants for internal allocation.
Underinsured Motorist (UIM) Coverage: First-party insurance that compensates an insured when the at-fault driver’s liability limits are insufficient.
Punitive vs. Actual Damages: Actual damages restore the plaintiff’s loss; punitive damages punish egregious conduct and deter repetition.

5. Conclusion

Green v. McGee delivers two pivotal holdings: (1) defendants found to have acted recklessly cannot rely on §15-38-15’s percentage allocation—joint-and-several liability persists; and (2) pre-suit payments for a covenant reduce only compensatory damages, not punitive awards, because punitive damages are not incurred for the “same injury.” The decision sharpens South Carolina’s demarcation between compensatory and punitive relief and realigns settlement calculus for multi-defendant, reckless-conduct cases. Litigants and insurers alike must recalibrate strategies in light of this authoritative clarification.