SC NC Children Injury – Not a Sweet Teddy Bear

The article below reaffirms the real need for aggressive products liability lawyers. Yet again, a manufacturer has released a dangerous product into the market with serious flaws that are acknowledged only “after the fact.” There was already government oversight. And yet, children and their parents were still left unprotected. I am proud to be a plaintiff’s attorney who fights for those harmed by dangerous products. Despite all of the “tort reform” efforts by insurance carriers, personal injury lawyers willing to take cases to juries remain the best hope for those injured by the callous indifference of companies.

At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys.  We welcome an opportunity to sit down and personally review your case. Call us today for a private consultation. www.rjrlaw.com

 

The Colorful Hearts Teddy Bear has been recalled by Build-A-Bear Workshop

For the third time this year, Build-A-Bear Workshop has discovered a potentially dangerous defect in its toys.

The Overland-based toy retailer is recalling 297,200 “Colorful Hearts Teddy Bears” because the toy’s plastic eyes can fall out, posing a potential choking hazard to children.

The news also comes on the heels of the U.S. Consumer Product Safety Commission’s announcement last week that Build-A-Bear agreed to pay a $600,000 penalty to settle allegations that it previously failed to report a dangerous defect involving its toy bear beach chair, which was eventually recalled in 2009. In that settlement, Build-A-Bear denied the commission’s allegations.

In this most recent recall, the colorful hearts bears — which were made in China — sold for $18 in stores and online from April of this year through this month. No injuries have been reported.

Jill Saunders, a company spokeswoman, wrote in an emailed statement that the bears passed an independent laboratory’s testing evaluation before being sold. But the company then observed that some production runs used ‘substandard fabric” that may tear around the bear’s eyes.

“We discovered the issue while doing ongoing quality and safety checks and immediately reported the issue to the CPSC and began the recall process,” she said. “That we have conducted three product recalls this year despite the fact that we have not received a single injury report related to any of those three products clearly demonstrates how seriously we take product safety.”

Patty Davis, a spokeswoman for the product safety commission, said Build-A-Bear reported the issue to the government this week.

“Any time a firm recalls a product, there is potential danger involved for consumers,” she said. “In this case, it involved young children, so we acted as quickly as possible.”

Consumers can return these bears to any Build-A-Bear store, where they will receive a coupon for any other available stuffed animal.

Ed Mierzwinski, consumer advocate for U.S. PIRG , the national association of state Public Interest Research Groups, said eyes falling off stuffed animals and dolls is a well-known problem that can lead to a choking hazard.

“Kids kiss their dolls,” he said. “Kids chew on their dolls. What’s going to fall off first is their eyes.”

Mierzwinski said he’s glad the company issued this recall — and that no injuries have been reported.

Still, he’s troubled by this year’s recalls and the penalty involving the 2009 recall.

“This company — its recent time line — gives me some concern that they really need to review their management and their risk analysis to make sure they are in compliance with the law to protect children,” Mierzwinski said.

RECENT RECALLS

Last month, Build-A-Bear and the commission announced a recall of a pink inflatable inner tube that poses a strangulation hazard if pulled over a small child’s head. The company said it had received one report of a 3-year-old girl pulling the inner tube over her head and having difficulty removing it. The inner tube is 9 inches in diameter.

The inner tube was part of a three-piece Fruit Tutu Bikini swimwear set for teddy bears. It was sold for $12.50 and was available in stores and online from April 2011 to August 2011. About 20,830 units were distributed.

And in August, Build-A-Bear recalled its “Love.Hugs.Peace” lapel pin because the paint on it contained an excessive level of lead. The company did so after initially defending the safety of the product when a California-based consumer health advocacy group raised concerns about it last year.

Besides three recalls in the past year, Build-A-Bear was accused of failing to report injuries from an item recalled in 2009. According to the product safety commission, the toy retailer learned of 10 reports of injury related to its toy bear beach chairs between July 2007 and January 2009. The toy beach chairs — about 260,000 of which were sold over a seven-year span — had sharp edges on their wooden folding frame that regulators said could pinch or even amputate a child’s fingertip.

But the company did not notify regulators of the incidents until two months before a recall was issued in 2009.

Under federal law, manufacturers and retailers are required to report to regulators within 24 hours upon receiving information that a product contains a defect that could create a substantial hazard or unreasonable risk of serious injury or death.

In its defense, Build-A-Bear said it did not have enough information at the time to conclude that the defects could create such a hazard or risk. So it does not believe it violated that reporting requirement.

“When Build-A-Bear Workshop had sufficient information … it promptly began working with CPSC in March of 2009 on the voluntary recall of the toy bear chair,” the retailer said in a statement.

This article was originally posted in the St. Louis Post Dispatch on December 24, 2011 by Kavita Kumar.

SC NC Products Liability – Chevy Volt Recall – A Hard Charge

The article below highlights the risks of new technology and the need for experienced products liability lawyers. Yet again, a manufacturer has prematurely released a dangerous product onto the general public with serious internal flaws that are acknowledged “after the fact.” There was already government oversight. And yet, owners were still left unprotected. I am proud to be a plaintiff’s attorney who fights for those harmed by dangerous products. Despite all of the “tort reform” efforts by insurance carriers, juries and personal injury lawyers willing to fight remain the last hope for those who are injured by the callous indifference of companies.

At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the criminal, insurance defense, and medical aspects of complex cases. We welcome an opportunity to sit down and personally review your case. Call us today for a private consultation. www.rjrlaw.com

DETROIT (AP) — General Motors will strengthen the structure around the batteries in its Volt electric cars to keep them safe during crashes, a person briefed on the matter said Thursday.

GM will ask Volt owners to return the cars to dealers for structural modifications, said the person, who did not want to be identified because GM executives plan to announce the repairs later Thursday.

The fixes are similar to a recall and involve about 8,000 Volts sold in the U.S. in the past two years. GM is making the repairs after three Volt batteries caught fire following crash tests done by federal safety regulators. The fires occurred seven days to three weeks after tests and have been blamed on a coolant leak that caused an electrical short.

GM’s move is considered a step below a recall, which would be issued by a car company and the National Highway Traffic Safety Administration.

NHTSA and GM have said the electric cars are safe and that no fires have occurred after crashes on real-world roadways.

The Volt has a T-shaped, 400-pound (181-kilogram) battery pack that can power the car for about 35 miles (56 kilometers). After that, a small gasoline generator kicks in to run the electric motor.

NHTSA has been investigating the batteries after a Volt caught fire in June at a crash test facility in Wisconsin. The fire broke out three weeks after a side-impact crash test.

GM said the Volt’s battery should have been drained after the crash, but it never told NHTSA to do that. Later, two GM executives said the company had no formal procedure to drain the batteries until after the June fire. GM has said that the liquid solution used to cool the Volt’s battery leaked and crystallized, causing an electrical short that touched off the fire.

The company now sends out a team to drain the batteries after being notified of a crash by GM’s OnStar safety system.

The company sold 7,671 Volts last year, falling short of its goal of 10,000. It was outsold last year by its main electric car competitor, the Nissan Leaf, at 9,674.

Article originally published by Associated Press on January 5, 2012

 

SC NC Motorcycle Accidents – Airbags for Riders

Safety Sphere Motorcycle Airbag Suit Turns You into a Giant Orange

December 17th, 2011by: Technabob

I’m one of those guys who thinks motorcycles are really cool, but I don’t ride one. I think it’s because I’ve always been convinced that I’d end up killing myself if I tried to negotiate the slick roads and maniac drivers of Chicago in the winter time. I actually knew a guy in college who rode a motorcycle and got in an accident and ended up as a paraplegic, so that doesn’t help with my anxieties.

But if I were to take up motorcycle riding, this would be protective gear which would convince me to ride.

safety sphere

Designed by Rejean Neron, the Safety Sphere is exactly what it sounds like. It’s a special bike suit that automatically inflates into a sphere, enveloping the rider and protecting them from injury if they ever go flying off the bike in a crash. The suit inflates to its full capacity in 5/100ths of a second, and fills with compressed air to cushion the impact. The sphere is made up of two layers of fabric, including an inner layer of thin elastic material, and an outer layer of parachute-type cloth. A battery connects to an electric ignition which triggers nitrocellulose canister, inflating the suit in the event of an impact.

Yes, the resulting expanded suit looks completely ridiculous. I’m reminded of that part ofWilly Wonka where Violet Beuregarde turns into a blueberry, except this time you’ll be turning into a navel orange. Still, I’d rather look stupid than end up dead. From the looks of things, you might still need some Oompa Loompas to come rescue you after an accident, too.

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This is one of those articles that may seem a little far fetched at first. However, given the seriousness of motorcycle injuries and the frequency of such accidents on our roadways, perhaps we should take another look. I like the bright orance safety suit. Afterall, just like with airbags in automobiles, you never want to actually need them. But, despite being as safe as possible, a serious motorcycle accident can occur in an instant because of another driver’s inattention or carelessness. This suit could very well become standard safety equipment for motorcyclists one day. We thank Technabob for introducing this cool technology that may be able to prevent serious injury or even death.

At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they collectively understand the criminal, insurance defense, and medical aspects of complex injury cases. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today for a private consultation. www.rjrlaw.com


SC NC Serious Injury Accident Cases – Wrongful Death

This recent SC Supreme Court opinion demonstrates the legal complexities of serious wreck cases. Fortunately, automobile accidents involving trains, as in the case below, are rare. However, this case also illustrates how experience really does count in serious injury cases. Each case is unique, and every aspect must be considered. A seemingly insignificant fact may later prove to be critical. Early investigation and real trial experience is often key to the outcome of cases. Better be sure your attorney is aggressive and experienced in handling complex injury and wrongful death cases.

At Reeves, Aiken, Hightower & Burns, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the criminal, insurance defense, and medical aspects of complex cases. We welcome an opportunity to sit down and personally review your case. Call us today for a private consultation. www.rjrlaw.com

THE STATE OF SOUTH CAROLINA
In The Supreme Court


Beaulah Platt, as guardian for Asia Platt, a minor under the age of fourteen years, as Personal Representative of the Estate of Valerie Marie Platt, deceased, and as Personal Representative of the Estate of William Leroy Platt, deceased, Petitioner,

v.

CSX Transportation, Inc., and South Carolina Department of Transportation, Defendants,

of whom South Carolina Department of Transportation is Respondent.


ON WRIT OF CERTIORARI TO THE COURT OF APPEALS


Appeal from Berkeley County
Roger M. Young, Circuit Court Judge


Opinion No. 26849
Heard April 6, 2010 – Filed August 9, 2010


AFFIRMED IN PART, VACATED IN PART


David L. Savage, of Savage & Savage, of Charleston; John E. Parker, Ronnie L. Crosby and Matthew V. Creech, all of Peters, Murdaugh, Parker, Eltzroth & Detrick, of Hampton, for Petitioner.

Jonathan J. Anderson, Lisa A. Reynolds and Eric M. Johnsen, all of Anderson and Reynolds, of Charleston, for Respondent.


CHIEF JUSTICE TOAL: Petitioner brought wrongful death and survival actions against CSX Transportation, Inc. (CSX) and the South Carolina Department of Transportation (SCDOT) stemming from a collision between an automobile and a freight train.  Petitioner settled the claims against CSX, and the trial court granted summary judgment in favor of SCDOT.  The court of appeals affirmed, and we granted Petitioner’s request for a writ of certiorari to review the court of appeals’ decision.

FACTS/PROCEDURAL BACKGROUND

On June 19, 1999, an automobile (the Vehicle) carrying four passengers (one adult male, one adult female, one boy child, and one girl child) was struck by a freight train at the intersection of US 52 and Red Bank Road in Berkeley County.  The girl child, the only survivor, was thrown from the Vehicle upon impact and suffered severe physical injuries.

US 52 intersects Red Bank Road at approximately a 45 degree angle, with the railroad track running parallel to US 52.  Red Bank Road runs generally east-to-west, and US 52 runs generally north-to-south.  An automobile travelling west on Red Bank Road approaching US 52 would first encounter the railroad tracks, cross the tracks, and then, within several car lengths, come to the intersection with US 52, which is equipped with a traffic light.  The Vehicle was travelling west on Red Bank Road; thus, it came upon the railroad tracks before reaching the traffic light at the US 52/Red Bank Road intersection.

Safety devices and warning signals at the intersection of the railroad track with Red Bank Road include cantilevered gate arms, flashing lights, warning bells, and “Do Not Stop on Tracks” signage.  The traffic lights are designed to work in concert with the warning signals to prevent collisions.  Specifically, as a train approaches the intersection, a signal is sent to SCDOT’s traffic light system and the preemption cycle is initiated, overriding the normal system operation.  The preemption cycle is pre-programmed to run through the light phases (green, yellow, and red) to clear any traffic off the tracks before the train arrives at the intersection.  There are several different preemption cycles that may run, depending upon what phase the traffic lights are in when the preemption signal is received.  The ultimate goal, regardless of which preemption cycle is run, is for a red light to be showing at Red Bank Road when the train arrives.

At trial, Petitioner alleged SCDOT was negligent in: (1) failing to coordinate the active warning devices with the traffic signals; (2) failing to properly sequence the lights during the preemption cycle; (3) sequencing the lights so as to create a trap for motorists; and (4) failing to warn motorists of the dangers of being trapped between the gate arms.

The trial court granted SCDOT’s motion for summary judgment, finding: (1) SCDOT only had a duty to warn CSX of defects in the warning system, and it fulfilled that duty, and (2) the gate arms were the proximate cause of the accident and there was no evidence establishing otherwise.  The trial court mentions but did not rule on the issue of SCDOT’s potential immunity under the South Carolina Tort Claims Act (SCTCA) and federal preemption under the Railroad Safety Act of 1970 because it found SCDOT’s traffic signals were not a proximate cause of the accident.

The court of appeals affirmed the trial court’s grant of summary judgment, holding: (1) the public duty rule bars Petitioner’s claim; (2) Petitioner’s state law claims are preempted by federal regulations; and (3) the gate arms were the proximate cause of the accident, not the traffic lights.  Platt v. CSX Transp., Inc., 379 S.C. 249, 665 S.E.2d 631 (2008).

 ISSUES

Petitioner presents the following issues for review:

(1) Did the court of appeals err in holding the public duty rule barred Petitioner’s claim on SCDOT’s negligence regarding the traffic lights?

(2) Did the court of appeals err in holding Petitioner’s claims were preempted by federal law?

(3) Did the court of appeals err in holding the record lacked evidence to establish the traffic signals as a proximate cause of the acciden


STANDARD OF REVIEW

Summary judgment is appropriate where there is no genuine issue of material fact and it is clear that the moving party is entitled to a judgment as a matter of law.  Rule 56(c), SCRCP.  In determining whether any triable issues of fact exist, the evidence and all inferences that can be reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Koester v. Carolina Rental Ctr., 313 S.C. 490, 493, 443 S.E.2d 392, 394 (1994).  When reviewing a grant of summary judgment, the appellate court applies the same standard applied by the trial court.  Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002).

ANALYSIS

SCDOT alleges and the court of appeals held that the public duty rule bars Petitioner’s negligence claims based on statutory obligations.  We agree.

An essential element in a cause of action based upon negligence is the existence of a legal duty of care owed by the defendant to the plaintiff. Doe v. Greenville County Sch. Dist., 375 S.C. 63, 72, 651 S.E.2d 305, 309 (2007). Without a duty, there is no actionable negligence.  Id.  A plaintiff alleging negligence on the part of a governmental actor or entity may rely either upon a duty created by statute or one founded on the common law. Arthurs ex rel. Estate of Munn v. Aiken County, 346 S.C. 97, 104, 551 S.E.2d 579, 582 (2001). When the duty is created by statute, we refer to this as a “special duty,” whereas when the duty is founded on the common law, we refer to this as a legal duty arising from “special circumstances.” See id. at 109-10, 551 S.E.2d at 585 (explaining that this Court restricts the term special duty to those arising from statutes, whereas a legal duty arising from a “special circumstance” is created under the common law).

Under the public duty rule, public officials are not liable to individuals of the public for negligence in discharging their statutory obligations.  Tanner v. Florence County Treasurer, 336 S.C. 552, 561, 521 S.E.2d 152, 158 (1999).  A public official may be liable if he owed a special duty of care to the individual, as determined by a six-factor test, assessing whether: (1)  an essential purpose of the statute is to protect against a particular kind of harm; (2) the statute imposes on a specific public officer a duty to guard against or not cause that harm; (3) the class of persons the statute intends to protect is identifiable before the fact; (4) the plaintiff is a person within that class; (5) the public officers know or should know of the likelihood of harm to the class if he fails in his duty; and (6) the officer is given sufficient authority to act in the circumstances or he undertakes to act in the exercise of his office.  Jensen v. Anderson County Dep’t of Soc. Servs., 304 S.C.195, 200, 403 S.E.2d 615, 617 (1991).

Petitioner does not contend that the six-factor test is met in this case.  Rather, she argues the public duty rule is not dispositive because SCDOT has a common law duty to properly repair and maintain the state highway system, which she contends the court of appeals erroneously failed to consider when it affirmed the trial court’s grant of summary judgment.  We find Petitioner’s common law argument is not preserved for appellate review.

While Petitioner pleaded common law negligence in her complaint, the trial court did not rule on that issue, and Petitioner did not file a motion to alter or amend the judgment.  See I’on L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 526 S.E.2d 716 (2000) (stating if the trial court fails to rule upon an issue raised to it, the losing party must file a motion to alter or amend the judgment to preserve that issue for appellate review).  In fact, Petitioner did not fully assert a common law basis for SCDOT’s duty until her reply brief to the court of appeals.  For these reasons, we hold Petitioner did not properly preserve the issue of a common law duty for appellate review.  See Lucas v. Rawl Family Ltd. P’ship, 359 S.C. 505, 511, 598 S.E2d 712, 715 (2004) (stating issue may not be raised for the first time on appeal).

Because Petitioner’s common law argument is unpreserved and the court of appeals correctly affirmed the grant of summary judgment regarding SCDOT’s statutory obligations, Petitioner is unable to establish SCDOT owed a legal duty to Petitioner.  See Doe, 375 S.C. at 72, 651 S.E.2d at 309.  Without this essential element, Petitioner cannot prevail on her negligence claim.  See id. 

Having found Petitioner is unable to establish a legal duty, we need not address Petitioner’s remaining issues.  See Futch v. McAllister Towing of Greenville, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (recognizing that appellate court need not address remaining issues when determination of one issue is dispositive).  Accordingly, we affirm the court of appeals as to the public duty rule, and vacate the remainder of that opinion.

CONCLUSION

The trial court properly granted summary judgment on SCDOT’s statutory duty, and the court of appeals correctly affirmed on that ground.  Petitioner failed to preserve her common law duty argument; thus, she cannot establish SCDOT owed her a legal duty.  Therefore, the court of appeals is affirmed in part and vacated in part.

PLEICONES, BEATTY, JJ., and Acting Justices James E. Moore and John H. Waller, Jr., concur.


Importance of Underinsured Motorist Coverage (UIM) in SC Auto Accidents

This recent SC Supreme Court opinion shows the absolute importance of purchasing underinsured motorist coverage protection and in the largest amounts you can afford. As personal injury attorneys, we know how important proper coverage is and what a critical difference it can make in a serious accident case. We regularly have clients whose injuries and medical costs greatly exceed the available coverage. And with this bad economy, more and more individuals are driving on our roads with “minimum limits” or even no insurance despite law requiring same. The great news is that underinsured (UIM) and uninsured motorist coverage (UM) is relatively inexpensive. Just a few dollars more per year can get you and your family real protection if they become seriously injured or killed in an accident. We actively encourage you to review your car insurance policy today and make certain you are properly covered.


At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the criminal, insurance defense, and medical aspects of complex cases. We welcome an opportunity to sit down and personally review your case. Call us today for a private consultation. www.rjrlaw.com

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Deborah J. Wiegand, individually, and as Personal Representative of the Estate of Vincent Carroll Wiegand, Respondent,

v.

United States Automobile Association, Appellant.


Appeal From Pickens County
Larry R. Patterson, Circuit Court Judge


Opinion No.  26919
Heard November 18, 2010 – Filed January 31, 2011


REVERSED


William O. Sweeny, III, Esquire & William R. Calhoun, Jr., both of Sweeny Wingate & Barrow, PA, of Columbia, for Appellant.

Samuel Darryl Harms, of Harms Law Firm, PA, of Greenville, for Respondent.


JUSTICE HEARN:  We are asked to determine whether United States Automobile Association (USAA) made a meaningful offer of underinsured motorist coverage (UIM coverage) to Vincent Wiegand (Wiegand), who was killed in a car accident after multiple years of insurance coverage from USAA.   Because we believe that USAA met its burden with regards to Section 38-77-350 of the South Carolina Code (1997), we reverse.

FACTUAL BACKGROUND

Wiegand was driving home from work when he was hit head-on and killed by a drunk driver.  The drunk driver was at-fault and only had $50,000.00 in available liability insurance.  While those policy limits were paid to Wiegand, his damages greatly exceeded the limits of the drunk driver’s policy.   Beginning in 1980, Wiegand’s cars had been insured with USAA.

After the first ten years of receiving automobile insurance coverage from USAA, Wiegand received a form entitled “Offer of Optional Additional Uninsured and Underinsured Automobile Insurance Coverages.”   It is undisputed that Wiegand signed the form, but the parties disagree over who actually completed the form: Wiegand or another person.   Regardless of who completed the form, next to the question “do you wish to purchase underinsured motorist coverage,” the box marked “no” was checked.  The form contained the following pertinent language:

Underinsured motorist coverage compensates you, or other persons insured under your automobile insurance policy, including passengers within your motor vehicle, for amounts that you, or your passengers, may be legally entitled to collect as damages from an owner or operator of an at-fault underinsured motor vehicle.  An underinsured motor vehicle is a motor vehicle that is covered by some form of liability insurance, but that liability insurance coverage is not sufficient to fully compensate you for your damages.   His policy pays the limits first, then yours pays the lessor of (1) the remaining loss, or (2) your UIM limits.

Your automobile insurance policy does not provide any underinsured motorist coverage.  You have, however, a right to buy underinsured motorist coverage in limits up to the limits of liability coverage you carry under your automobile insurance policy.  Limits of underinsured motorist coverage, together with the additional premiums you will be charged, are shown upon this form.. . . .In the future, if you wish to increase or to decrease your limits of additional uninsured or underinsured coverage, you must then contact us.

From 1990 to 2004, Wiegand had continuous USAA coverage.   Wiegand’s policy with USAA at the time of the accident had liability limits of $25,000.00 per person and $50,000.00 per accident.  USAA paid Wiegand’s estate $26,000.00 for personal injury protection benefits, and seatbelt and airbag benefits.

Deborah J. Wiegand (Wife), individually and as personal representative of Wiegand’s estate, commenced this action against USAA to recover UIM benefits for the damages in excess of the amounts tendered by the other driver.   Wife sought reformation of the policy to include UIM coverage in the same limits as the liability coverage.  Both parties filed motions for summary judgment.

The circuit court granted Respondent’s motion for summary judgment, finding USAA had not made a meaningful offer of UIM coverage to Wiegand.   This appeal followed.

ISSUES

USAA raises three issues on appeal:

1. Did the circuit court err in declining to hold that Wiegand waived his right to claim UIM benefits by specifically declining the limit of coverage to which the circuit court reformed the policy and by refusing to purchase UIM coverage?
2. Did the circuit court err in failing to give USAA the benefit of the conclusive presumption that the UIM offer was meaningful based on section 38-77-350?
3. Did the circuit court err in holding that a meaningful offer of UIM coverage was not made to Wiegand as required by State Farm Mutual Automobile Insurance v. Wannamaker, 291 S.C. 518, 354 S.E.2d 555 (1987)?

LAW AND ANALYSIS

Where cross motions for summary judgment are filed, the parties concede the issue before us should be decided as a matter of law.  Whether a form complies with the requirements of section 38-77-350(A) is a question of law for this Court.   See Grinnell Corp. v. Wood, 389 S.C. 350, 357 n.3, 698 S.E.2d 796, 799 n.3 (2010).  “Questions of law may be decided with no particular deference to the trial court.”  S.C. Dep’t of Transp. v. M&T Enters. of Mt. Pleasant, LLC, 379 S.C. 645, 654, 667 S.E.2d 7, 12 (Ct. App. 2008); see also Moriarty v. Garden Sanctuary Church of God, 341 S.C. 320, 327, 534 S.E.2d 672, 675 (2000).   USAA contends that under either section 38-77-350(A) or Wannamaker, a meaningful offer of UIM coverage was made to Wiegand.   Wife contends that USAA cannot meet its burden under either the statute or Wannamaker to prove that a meaningful offer was made, and in addition, cannot take advantage of the presumption found in section 38-77-350(B).  We agree with USAA that a meaningful offer was made and reverse the circuit court’s grant of summary judgment.

The General Assembly, in response to Wannamaker, passed an act, codified as section 38-77-350, establishing requirements for forms offering UIM coverage.  See Automobile Insurance Reform Act of 1989, § 22.  Section 38-77-350(A) mandates the director of the Department of Insurance or his designee to approve a form, which at a minimum, must provide:

(1) A list of all available limits and the range of premiums for the limits;

(2) A brief and concise explanation of the coverage;

(3) A space for the insured to sign the form which acknowledges that he has been offered the optional coverages;

(4) A space for the insured to mark whether the insured chooses to accept or reject the coverage and a space for the insured to select the limits of coverage he desires; and

(5) The mailing address and telephone number of the Insurance Department which the applicant may contact if the applicant has any questions that the insurance agent is unable to answer.[1]

This form must be used by insurers in offering optional coverages.  See id.  It is important to note “[f]ailure to comply with section 38-77-350(A) does not automatically require judicial reformation of a policy. Rather, even where an insurer is not entitled to the presumption [in section 37-77-350(B)] that it made a meaningful offer, it may prove the sufficiency of its offer by showing that it complied with Wannamaker.” See Grinnell Corp., 389 S.C. at 357, 698 S.E.2d at 799-800 (citing Croft v. Old Republic Ins. Co., 365 S.C. 402, 420, 618 S.E.2d 909, 918 (2005)).

USAA’s form contains a brief and concise explanation of UIM coverage on the first page, detailing in one paragraph what UIM coverage pays for, who gets compensated, and what “underinsured motor vehicle” means.   The form contains every UIM limit which USAA was approved to sell by the Department of Insurance, along with specific language on how to decrease or increase UIM coverage.  There was a space for Wiegand to mark whether he chose to accept or reject coverage, select the limits of coverage he desired, and sign the form acknowledging he had been offered optional coverage.  Finally, the form contained the mailing address and telephone number of the Department of Insurance.

Additionally, USAA’s form was approved by the appropriate entity in Janaury 1990.  While approval alone is not dispositive of whether a form meets section 38-77-350(A)’s requirements, see Progressive Casualty Insurance Co. v. Leachman, 362 S.C. 344, 608 S.E.2d 569 (2005), we believe it lends support to the view that USAA satisfied the requirements.  Therefore, we conclude that USAA met section 38-77-350(A)’s requirements and now turn to whether USAA can take advantage of the presumption in section 38-77-350(B).

Section 38-77-350(B) provides a conclusive presumption of informed selection in favor of the insurer if specific criteria are met once the form is found to be in compliance with (A).  Wiegand signed the form in 1990.  Because of the presumption against retroactivity of statutes, our analysis will only deal with the section as it existed in 1990.[2]  In that version of the statute, the insured must have properly completed and executed the form.  See S.C. Code Ann. § 38-77-350(B) (1990).  The insurer has the burden of establishing that the requirements have been met in order to take advantage of the presumption.  See Floyd v. Nationwide Mut. Ins. Co., 367 S.C. 253, 262-63, 626 S.E.2d 6, 12 (2005).

Contrary to the circuit judge’s finding, USAA presented sufficient evidence to show that Wiegand both completed and executed the form.  The offer form was processed by USAA and never returned to Wiegand to complete, which it would have been if the form was not completed correctly.  Wiegand signed the bottom of the form indicating whether he wished to purchase coverage and signed his name under the check marks, which were similar to check marks made by Wiegand on similar forms.  Wiegand was insured by USAA from 1990 to 2005 with annual reports sent from USAA that stated no UIM coverage was applicable to his vehicles; Wiegand never informed USAA that a mistake had been made and he actually wanted UIM coverage.

Wife argues that USAA cannot meet its burden because no one can testify who checked the “no” boxes on the form signed by Wiegand.  While this is true, nothing in the statutes, rules, or case law requires direct evidence as to who checked the boxes for the burden to be met.  It is enough that Wiegand signed the acknowledgment which included the sentence “I have indicated whether or not I wish to purchase each coverage in the space provided” along with the other evidence mentioned above to find that USAA met its burden.  We hold USAA can take advantage of the presumption found in section 38-77-350(B), and that a meaningful offer was made to Wiegand.

Because we find the matter dispositive on the issue of meaningful offer under the statute, we decline to address the remaining issues on appeal.  See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999).  Therefore, we reverse the circuit court’s grant of summary judgment in favor of Wife and remand the case to the circuit court to enter judgment in accordance with this opinion.

REVERSED.

ACTING CHIEF JUSTICE PLEICONES, KITTREDGE, J., and Acting Justices James E. Moore and J. Ernest Kinard, concur.

[1] The version of section 38-77-350(A) in effect at the time of USAA’s offer to Vincent contained the same language, except that “Chief Insurance Commissioner” was listed instead of “the director of the Department of Insurance or his designee.”

[2] In 2006, the statute was amended so that the presumption applies if the form was completed by an insurance producer or representative of the insurer and the insured only signed the form.  See S.C. Code Ann. § 38-77-350(B) (Supp. 2009).  At oral argument, Wife conceded that under this version of the statute, USAA would be entitled to the presumption.