THE STATE OF SOUTH CAROLINA 

In The Court of Appeals 

Covil Corporation, by and through its duly appointed 

Receiver, Peter D. Protopapas, Respondent, 

v. 

Pennsylvania National Mutual Casualty Insurance 

Company, Appellant. 

Appellate Case No. 2020-001239 

Appeal From Richland County 

Jean Hoefer Toal, Acting Circuit Court Judge 

Opinion No. 5888 

Heard November 2, 2021 – Filed January 5, 2022 

AFFIRMED 

David G. Harris, II, Brady A. Yntema, and David L. 

Brown, all of Goldberg Segalla, LLP, of Greensboro, 

NC, for Appellant. 

Jescelyn Tillman Spitz, of Rikard & Protopapas, LLC, of 

Columbia, Jonathan M. Robinson and Shanon N. Peake 

of Smith Robinson Holler DuBose Morgan, LLC, of 

Columbia, G. Murrell Smith, Jr., of Smith Robinson 

Holler DuBose Morgan, of Sumter, and William Bradley 

Nes, of Washington, DC, all for Respondent. 
 

THOMAS, J.: Covil Corporation, by and through its duly appointed Receiver, 

Peter D. Protopapas (Covil), filed this action against Pennsylvania National Mutual 

Casualty Insurance Company (Penn) alleging breach of insurance contracts based 

on Penn's failure to participate in the settlement of an underlying claim against 

Covil. Penn appeals the circuit court's order granting partial summary judgment to 

Covil, arguing the court erred in (1) granting partial summary judgment where 

Covil's motion was not supported by sworn affidavits and summary judgment was 

premature; (2) finding Covil's late notice of the underlying claim did not bar 

coverage; and (3) holding coverage existed despite a products hazard and 

operations hazard exclusion in the Penn insurance contracts. We affirm. 

FACTS 

Covil is a corporation that operated between 1954 and 1991. Its operations 

"included the installation, repair, replacement, removal or disturbance of thermal 

insulation and other building materials." Covil's operations allegedly exposed 

persons to asbestos, resulting in claims and lawsuits against it. Penn insured Covil 

under comprehensive general liability policies between March 1986 and March 

1988. One of the lawsuits against Covil, Rollins v. Air & Liquid Systems Corp., 

alleged David Rollins was exposed to asbestos due to Covil's operations during the 

covered period. In November of 2018, the circuit court appointed Protopapas to 

serve as a Receiver for Covil. 

Rollins filed his action on April 22, 2019, alleging he suffered from mesothelioma 

due to, inter alia, exposure at home from his stepfather, who worked at the 

Bowater Paper Mill where Covil did work between 1986 and 1988. Rollins' at 

home exposure allegedly occurred because his stepfather routinely came home 

from work covered in asbestos dust between 1980 and 1991. 

On January 27, 2020, Covil's Receiver emailed Penn and requested it attend a 

court-ordered mediation to settle the Rollins action. The notice "respectfully 

request[ed] that the insurers provide and/or continue to provide a defense to Covil 

Corporation in these asbestos lawsuits. To the extent that a defense will not be 

provided, please advise so that [Covil] can take the actions necessary . . . ." The 

email indicated a copy of the Rollins complaint was attached. On February 3, 

2020, Covil tendered the complaint by letter to Penn for defense and indemnity. 

The letter requested Penn "immediately advise in writing whether [it would] . . . 

accept Covil's tender of [the] suit and . . . provide a full and complete defense of 

th[e] matter." 
Penn responded by sending a Non-Waiver Agreement to Covil's Receiver signed 

by Penn but not signed by Covil. Penn alleged it was notified of the pending 

lawsuit on January 27, 2020, and notified of the mediation on February 13, 2020. 

The mediation was held on February 25, 2020. Penn admitted it "attended the 

mediation, and expressed a willingness to contribute some amount to the 

settlement on behalf of Covil." The Receiver settled Rollins' claim for a 

confidential amount. 

On February 28, 2020, Covil filed this breach of contract action against Penn, 

alleging that although Penn attended the mediation, it refused to participate in the 

settlement and refused to contribute $50,000 to the settlement. Covil sought 

damages of up to $74,999.99 for breach of contract, including, inter alia, actual 

damages, consequential damages, attorney's fees, and prejudgment interest. On 

April 22, 2020, Covil filed a motion for partial summary judgment, arguing Penn 

wrongly refused to pay the settlement based on exclusions in its policies. 

Penn filed a return to the motion for summary judgment, arguing the first notice it 

had of the lawsuit was the email sent on January 27, 2020. Penn argued Covil was 

served with the Rollins action in April of 2019, Rollins was deposed in February 

and June of 2019 without any notice to Penn, and the parties engaged in other 

discovery as required by the Master Asbestos Discovery/Scheduling Order. Penn 

argued that due to the late notice, it was unable to evaluate the potential coverage 

prior to the mediation. Penn also argued the "Completed Operations Hazard and 

Products Hazard" exclusion in the policies barred coverage. In addition, Penn 

argued summary judgment was premature because it had not had a full and fair 

opportunity for discovery. 

Citing Re: Operation of the Trial Courts During the Coronavirus Emergency, 

South Carolina Supreme Court Order dated April 3, 2020, the trial court found the 

motions had been fully and comprehensively briefed and a hearing was 

unnecessary. The court found Penn failed to prove the exclusions it relied on 

barred coverage. The court also found Penn's late notice defense was "not a valid 

defense to breach of its insurance contract with Covil." Thus, by order filed 

August 13, 2020, the court found Penn was "required to indemnify Covil against 

the settlement of the Rollins action." 

Penn moved for reconsideration, again arguing it had late notice, its policy 

exclusion applied, and summary judgment was premature because discovery was 

not yet completed. The court denied the motion. This appeal followed. 
 

 

STANDARD OF REVIEW 

"When reviewing the grant of a summary judgment motion, the appellate court 

applies the same standard that governs the trial court under Rule 56(c), SCRCP . . . 

." Callawassie Island Members Club, Inc. v. Dennis, 429 S.C. 493, 497, 839 

S.E.2d 101, 103 (Ct. App. 2019), cert. denied, Jan. 22, 2021. The standard in Rule 

56(c) "provides that summary 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." Id. 

LAW/ANALYSIS 

I. Unsupported and Premature Grant of Summary Judgment 

Penn argues the circuit court's grant of summary judgment was improper because it 

was unsupported and premature. We disagree. 

A. Unsupported 

For the first time on appeal, Penn argues the circuit court erred in granting 

summary judgment because Covil's motion for summary judgment was 

unsupported by failing to include affidavits or authenticated documents. Because 

this issue was neither raised to nor ruled upon by the circuit court, it is not 

preserved 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 [court] to 

be preserved for appellate review."). 

B. Premature 

Penn also argues the circuit court erred in granting summary judgment because it 

was premature and denied it a full and fair opportunity to complete discovery. We 

disagree. 

As noted by the circuit court, this action arises out of the Rollins asbestos personal 

injury action against Covil. There is no dispute that the exposure to asbestos 

alleged in Rollins occurred while Covil was performing operations at the Bowater 

Paper Mill during the period of Penn's policy number 515 5028 537, which was 

effective March 31, 1986, to March 31, 1987. As stated by the circuit court, "[t]he 
principal dispute [in this case] is whether an exclusion in the Penn . . . policy 

applies to bar coverage for the Rollins action." As also found by the circuit court, 

Penn failed to submit a Rule 56(f) affidavit explaining the discovery it needed to 

conduct. Penn merely presented an "unsupported . . . and self-serving assertion 

that it needed additional time for discovery . . . ." 

In its argument regarding prematurity, Penn relies on Baughman v. American 

Telephone & Telegraph Co., 306 S.C. 101, 410 S.E.2d 537 (1991). In Baughman, 

our supreme court reversed a grant of summary judgment to the defendant as 

premature. Id. at 114, 410 S.E.2d at 545. However, the court in Baughman found 

the plaintiffs had demonstrated a likelihood that further discovery would uncover 

additional, relevant evidence. Id. at 112, 410 S.E.2d at 544. Also, the court found 

the plaintiffs had not been dilatory in seeking discovery. Id. at 113, 410 S.E.2d at 

544. 

Here, even if Penn was not dilatory for failing to provide evidence it began 

discovery between the filing of this action in February 2020 and the filing of the 

court's order granting partial summary judgment in August 2020, it did not 

demonstrate further discovery would uncover additional, relevant evidence. 

Instead, it argues the additional discovery was needed to support the issues raised 

in this appeal: late notice and the applicability of exclusions in the policies. 

However, as found by the circuit court, Penn failed to submit a Rule 56(f) affidavit 

setting forth the discovery it needed to conduct. Thus, we find no reversible error. 

See Rule 56(e), SCRCP ("When a motion for summary judgment is made and 

supported as provided in this rule, an adverse party may not rest upon the mere 

allegations or denials of his pleading, but his response, by affidavits or as 

otherwise provided in this rule, must set forth specific facts showing that there is a 

genuine issue for trial."); Rule 56(f), SCRCP (applying when it appears "from the 

affidavits of a party opposing the motion that he cannot for reasons stated present 

by affidavit facts essential to justify his opposition"); Doe ex rel. Doe v. Batson, 

345 S.C. 316, 320, 548 S.E.2d 854, 856 (2001) (stating that a party opposing 

summary judgment is required to come forward with affidavits or other supporting 

documents demonstrating the existence of a genuine issue for trial); id. at 321, 548 

S.E.2d at 857 (finding Rule 56(f), SCRCP "requires the party opposing summary 

judgment to at least present affidavits explaining why he needs more time for 

discovery"). 

II. Late Notice 
Penn argues the circuit court erred in finding Covil's late notice of the Rollins 

lawsuit did not bar coverage for Covil. We disagree. 

The policies at issue contained notice provisions as follows: 

Insured's Duties in the Event of Occurrence, Claim[,] 

or Suit. 

(a) In the event of an occurrence, written notice 

containing particulars sufficient to identify the insured . . 

. shall be given by or for the insured to [Penn] . . . as soon 

as practicable. 

(b) If claim is made or suit is brought against the 

insured, the insured shall immediately forward to [Penn] 

every demand, notice, summons[,] or other process 

received . . . . 

The circuit court found that although Penn argued a late notice defense, it admitted 

"a representative of Penn . . . attended the mediation and expressed a willingness to 

contribute toward [the] settlement on behalf of Covil." The court also found Penn 

hired the same defense counsel as the other insurers, had access to the same 

evidence as the other insurers, and deliberately decided not to contribute by 

"presumably" relying on its policy exclusions. Without citing waiver, the circuit 

court appears to have concluded Penn waived its rights under the notice provision 

by attending the mediation. Although Penn sent Covil a Non-Waiver Agreement, 

it admitted it thereafter attended the mediation and expressed a willingness to 

contribute toward settlement on behalf of Covil. In addition, Penn did not cite to 

any discovery it attempted to undertake during the pendency of the action between 

February 2020, when the action was filed, and August 2020, when the circuit court 

ruled on Covil's motion for partial summary judgment. 

"An insurance contract, like any other contract, may be altered by the contracting 

parties, and the insurer may, of course, waive any provision for forfeiture therein." 

Fender v. New York Life Ins. Co., 158 S.C. 331, 340, 155 S.E. 577, 580 (1930) 

(quoting Gandy v. Orient Ins. Co., 52 S.C. 224, 229, 29 S.E. 655, 656 (1898)). 

"Waiver is the voluntary and intentional relinquishment of a known right." 

Provident Life & Acc. Ins. Co. v. Driver, 317 S.C. 471, 478, 451 S.E.2d 924, 928 

(Ct. App. 1994) (per curiam). "Acts that are inconsistent with the continued 

assertion of a right may also give rise to a waiver." Id. Although waiver is an 

affirmative defense and must be specifically pled, waiver may be inferred by acts 

inconsistent with the known right despite the failure to specifically plead waiver. 
Id.; Lawrimore v. Am. Health & Life Ins. Co., 276 S.C. 112, 114, 276 S.E.2d 296, 

297 (1981). 

In this case, the circuit court relied on Penn's attendance at the mediation and 

Penn's expressed willingness to contribute to the settlement. We find Penn's 

actions at mediation inferred a waiver of its right to timely notice. See Dreher v. 

S.C. Dep't of Health & Env't Control, 412 S.C. 244, 250, 772 S.E.2d 505, 508 

(2015) ("[A]n appellate court may affirm the lower court's decision for any reason 

appearing in the record[. T]he prevailing party may—but is not required to—raise 

additional sustaining grounds to support the lower court's decision."); Rule 220(c), 

SCACR ("The appellate court may affirm any ruling, order, decision or judgment 

upon any ground(s) appearing in the Record on Appeal."). 

III. Exclusion 

Penn argues the circuit court erred in finding its products hazard and completed 

operations hazards exclusion did not apply to bar coverage. We disagree. 

On an endorsement page entitled "Exclusion," the policy states that bodily injury 

liability coverage does not apply to bodily injury "included within the Completed 

Operations Hazard or the Products Hazard." The definitions section of the 

policy provides as follows: 

"[C]ompleted operations hazard" includes bodily 

injury . . . arising out of operations or reliance upon a 

representation or warranty made at any time with respect 

thereto, but only if the bodily injury . . . occurs after 

such operations have been completed or abandoned and 

occurs away from premises owned by or rented to the 

named insured. "Operations" include materials, parts[,] 

or equipment furnished in connection therewith. 

Operations shall be deemed completed at the earliest of 

the following times: 

(1) when all operations to be performed by or on behalf 

of the named insured under the contract have been 

completed[,] 

(2) when all operations to be performed by or on behalf 

of the named insured at the site of the operations have 

been completed[,] or 
(3) when the portion of the work out of which the injury 

or damage arises has been put to its intended use by any 

person or organization other than another contractor or 

subcontractor engaged in performing operations for a 

principal as a part of the same project. 

(Italics added.)

 The policy defines "products hazard" as follows: 

"[P]roducts hazard" includes bodily injury . . . arising 

out of the named insured's products or reliance upon a 

representation or warranty made at any time with respect 

thereto, but only if the bodily injury . . . occurs away 

from premises owned by or rented to the named insured 

and after physical possession of such products has been 

relinquished to others. 

According to Penn, the products hazard exclusion applies if (1) the bodily injury 

arises out of the insured's products; (2) the bodily injury occurs away from the 

insured's premises; and (3) physical possession of the products has been 

relinquished. Penn argues Rollins designated Covil as a "Product Defendant" in 

his complaint; thus, only products liability claims (rather than premises liability 

claims) were asserted against Covil. Penn next argues Covil relinquished 

possession of the products as they were installed during the work rather than at the 

end of the contract at Bowater, and because Rollins alleged exposure due to "takehome" exposure, physical possession of Covil's products must necessarily have 

been relinquished. Penn maintains the exclusion applied because the exposure to 

asbestos during the policy period took place after Covil either completed its work 

on the Bowater contract or after Covil relinquished possession of the products it 

installed at Bowater. 

Quoting Roger C. Henderson, Insurance Protection for Products Liability and 

Completed Operations−What Every Lawyer Should Know, 50 Neb. L. Rev. 415, 

441 (1971), the circuit court found "it is established that the risk insured by the 

'products hazard' and the 'completed operations hazard' is 'the possibility that the 

goods, products[,] or work of the insured, once relinquished or completed, will 

cause bodily injury or damage to property other than the product or completed 

work itself . . . .'" The court rejected Penn's argument that Covil relinquished its 

possession of its product during the relevant period. 
Penn argues several cases cited by the circuit court support its arguments. The 

circuit court cited Friestad v. Travelers Indemnity Co., 393 A.2d 1212 (Pa. Super. 

Ct. 1978). In Friestad, the court noted the following: 

Regardless of the involvement of the insured's products, 

so long as an accident occurs on the insured's business 

premises or away from his premises, but while he has the 

jobsite under his control, the premises operations clause 

obtains and coverage is afforded thereunder. It is only 

after he has relinquished control of a jobsite that the 

products hazard or completed operations hazard 

exclusions will operate to deny coverage. 

Id. at 1215 n.5. In Friestad, the insured heating company installed a furnace, 

which caused a fire due to faulty installation. Id. at 1213. In a declaratory 

judgment action, the trial court entered judgment in favor of the insurer. Id. at 

1212. The appellate court reversed, finding the trial court erred in determining the 

installation of the furnace "fell within the products hazard provision of the 

contract." Id. at 1217. Penn relies on language in Friestad that states "it is more 

preferable . . . to define the products hazard in terms of products liability law, and 

apply the exclusion only when a product, rather than a service, is the [c]ause in 

fact of damages . . . ." Id. (emphasis added). 

Similarly, Penn argues Heyward v. American Casualty Co., 129 F. Supp. 4 

(E.D.S.C. 1955), also relied upon by the circuit court, supports its position because 

the court in Heyward refused to exclude coverage under a products hazard 

exclusion where the injuries were caused by negligent installation of a heating and 

plumbing unit. Id. at 8−9; see also B&R Farm Servs., Inc. v. Farm Bureau Mut. 

Ins. Co., 483 N.E.2d 1076, 1077 (Ind. 1985) (finding the products hazard exclusion 

did not apply because the claims regarding the accidental release of fertilizer into a 

creek had nothing to do with a defect in a product, but instead arose due to the 

negligent release of the product). 

We find these cases do not support Penn's argument that the products hazard 

exclusion applied. Covil argues the products hazard exclusion applies only when 

injury is caused by a defective product placed into the stream of commerce, or 

when injury is caused by the insured's completed work. Here, we find Covil had 

neither placed a product into the stream of commerce nor relinquished possession 

of the product while installing it at the Bowater jobsite during the policy period 
 

 

when Rollins' stepfather was exposed to asbestos; thus, Penn could not establish 

the applicability of the products hazard exclusion.1 

Penn also argues the exclusion applies as a completed operations hazard. Penn 

describes the exclusion as applying to claims (1) arising out of Covil's operations, 

(2) after such operations are completed, and (3) if the bodily injury occurs away 

from Covil's premises. Penn argues Rollins is allegedly suffering from 

mesothelioma arising out of Covil's installation of insulation where his stepfather 

worked. According to Penn, "[t]he determinative issue is whether . . . Rollins' 

exposure to asbestos occurred after Covil's operation[s] were completed." Penn 

argues a genuine issue of material fact exists, which should have precluded 

summary judgment, as to whether the "take-home" exposure occurred while a 

portion of Covil's operations had already been put to their intended use. Finally, 

Penn relies on In re The Wallace & Gale Co., 385 F.3d 820 (4th Cir. 2004), and 

argues the exclusion applies if the exposure occurred during an insured's operations 

and continued thereafter. 

In Wallace & Gale, the argument was made that the completed operations hazard 

exclusion did not apply to asbestos-related claims because the alleged bodily injury 

did not begin after the insured's operations ended. Id. at 833–34. The court stated: 

That argument, however, on its face is far broader than 

the district court's decision we have quoted . . . . For 

example, a claimant's initial exposure which occurred 

while Wallace & Gale was still conducting operations 

was not subject to any aggregate limit for policies in 

effect at that time even if the exposure extended beyond 

the operations of Wallace & Gale. Also, if exposure 

which began during operations continued after operations 

were completed, the aggregate limits of policies which 

came into effect after operations would apply, but, as 

1

 Penn argues the circuit court's finding that there is no evidence indicating Covil 

supplied asbestos insulation to the Bowater facility during the covered period is 

inconsistent with the court's other findings. This argument was neither raised to 

the circuit court in Penn's motion for reconsideration nor ruled upon in the order 

denying reconsideration. See Wilder Corp., 330 S.C. at 76, 497 S.E.2d at 733 ("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 [court] to be preserved for appellate 

review."). 
stated, the aggregate limits would not apply to those 

policies in effect at the time of the exposure during 

Wallace & Gale's operations. 

Id. at 834. Covil argues Wallace & Gale does not involve the application of policy 

exclusions, but concerns the inception dates of each of many policies covering the 

claimant's injuries and concludes if a claimant's initial exposure occurred while the 

insured was conducting operations, the claim would be covered without an 

aggregate limit of liability. 

As previously noted, the circuit court found Penn provided no evidence to support 

the application of the completed operations exclusion. Covil's work was 

performed under the subcontract, which was entered into on February 26, 1986, 

and performed between March 11, 1986, and January 25, 1987. The policy at issue 

provided coverage during this period. We find because Rollins was exposed to 

asbestos during the period of the contract coverage, the completed operations 

exclusion did not apply. Because Rollins' bodily injury was not excluded under the 

definitions of either products hazard or completed operations, we affirm the circuit 

court's finding that the exclusion did not apply. See Auto Owners Ins. Co. v. 

Rollison, 378 S.C. 600, 606, 663 S.E.2d 484, 487 (2008) ("An insurance policy is 

a contract between the insured and the insurance company, and the terms of the 

policy are to be construed according to contract law."); McPherson ex rel. 

McPherson v. Michigan Mut. Ins. Co., 310 S.C. 316, 319, 426 S.E.2d 770, 771 

(1993) ("[R]ules of construction require clauses of exclusion to be narrowly 

interpreted, and clauses of inclusion to be broadly construed. This rule of 

construction inures to the benefit of the insured."). 

CONCLUSION 

Based on the foregoing, the order on appeal is 

AFFIRMED. 

GEATHERS, J., and HUFF, A.J., concur.