VI. Parties
A. General
The converse of the requirement for necessary parties is that a plaintiff need not sue all proper parties.162 Indeed, plaintiffs may sue as many or as few proper parties as they choose. However, Rule 19 of the federal and state rules of civil procedure places certain limitations on a litigant's right to go to court with only those parties he decides to sue. If a party decides not to sue specific persons who might have some involvement in the subject matter of the suit, the court must make several determinations. The court must order that the absent person be made a party to the suit if the absence of such a person from the suit (1) would not allow complete relief to be accorded to those already parties, (2) would impede the absent person's ability to protect an interest relating to the subject of the action, or (3) would create a substantial risk of incurring inconsistent obligations among those already parties. If such a person cannot be made a party, Rule 19(b) lists four factors for the court to use in determining whether in equity and good conscience the actions should proceed or be dismissed due to the absent person being regarded as indispensable.163
The court must consider several factors, including the following:
(1) to what extent the person's absence may create prejudice for him and for those already parties to the suit; (2) the extent to which the prejudice can be lessened or avoided through protective measures taken by the court; (3) whether a judgment rendered in the person's absence would be adequate; and (4) whether the plaintiff would have an adequate remedy if the action was dismissed.164
Some disagreement exists as to whether Rule 19 changed the prior law, which recognized three distinct categories of parties: indispensable, necessary, and proper.165 Regardless, in choosing whom to sue, Rule 19 provides parties with wide flexibility. Therefore, subject to the "indispensable party" limitation, parties may choose not to sue certain individuals even if such a choice results in a lack of complete relief or an impairment of certain interests among those already parties to the suit.
Other statutes that bear on this question include code sections 15-5-130 and -140, which address the appointment of a personal representative of a deceased out-of-state motor vehicle operator in either the county of residence of an interested party or where the accident occurred.
B. No Direct Action Rule
1. General
In spite of the flexibility under Rule 19, a common law rule in South Carolina prohibits third parties, in general, from bringing a direct action against an insurer for damages caused by the insured. The South Carolina Supreme Court has stated that "[a]t common law, no right to sue the insurer directly exists in the absence of privity of contract between the claimant and the insured... 'because direct actions against the insurer contravene common law, such a right must be expressly sanctioned by the legislature and not merely inferentially deduced.'"166 Further, the South Carolina Supreme Court has held that "no cause of action exists against an insurer for negligence in failing to determine coverage or adjust a third-party claim against the insured under an insurance policy."167
However, a well-settled common law exception to this rule comes into play when insurance is required by statute or...
