Brain Injury/Head Trauma Archives

SC Automobile Accident – Underinsured Motorist Claims – Single Accident or Two

Feb 26, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Wrongful Death

This recent SC Court of Appeals cases illustrates how very particular facts can make the difference in outcome. In serious accident cases, there is often the problem of insufficient total insurance coverage. First, the at-fault party’s insurance must be exhausted. Then, we look back at any underinsured motorist policies of our client. The difference in just a few facts can determine whether you are able to access more than one set of coverages. And that difference can mean tens of thousands of dollars. Having an insurance defense background is a huge advantage in reading and interpreting confusing and complicated policy language. Better make sure your attorney knows and understands the critical language issues in seeking all available coverage in your accident case.

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THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Carl Johnson, Appellant,

Timothy Chad Hunter, Respondent.

Appeal From Horry County
Honorable Thomas A. Russo, Circuit Court Judge

Opinion No. 4644
Heard November 17, 2009 – Filed January 11, 2010

AFFIRMED

Ian Maguire, of Myrtle Beach, for Appellant.

G. Michael Smith, of Conway, for Respondent.

KONDUROS, J.: Carl Johnson appeals the trial court’s finding he was involved in a single accident instead of two accidents for purposes of the underinsured motorist (UIM) coverage limits in his insurance policy. We affirm.

PROCEDURAL BACKGROUND/FACTS

Johnson was driving to work on U.S. Highway 701 in Horry County around 5:30 a.m. Timothy Hunter was traveling behind Johnson. A third party, Jose Dominguez, was traveling the opposite direction on Highway 701 when his vehicle crossed the center line into the path of Johnson’s pick-up truck. Johnson swerved to the right to avoid Dominguez. However, Dominguez’s truck still hit him, turning Johnson’s truck sideways in the road. His airbags deployed and he unbuckled his seatbelt to exit the vehicle. Before he could exit, Hunter’s vehicle hit Johnson a second time knocking him into the floorboard of his truck and causing him serious injury.

Johnson sued Hunter for negligence seeking to recover under his own underinsured motorist coverage with State Farm Mutual Automobile Insurance Company. The trial court found the events constituted one accident, limiting Johnson’s recovery to the maximum allowed for “each accident” under the State Farm policy. This appeal followed.

STANDARD OF REVIEW

In an action at law tried without a jury, the appellate court will not disturb the trial court’s factual findings unless they are not reasonably supported by the record. Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976). An action to determine whether coverage exists under an insurance policy is an action at law. Auto-Owners Ins. Co. v. Hamin, 368 S.C. 536, 540, 629 S.E.2d 683, 685 (Ct. App. 2006).

LAW/ANALYSIS

Johnson argues the circuit court erred in finding a single accident occurred thereby limiting recovery under his UIM coverage. We disagree.

Johnson’s UIM coverage sets limits for “each accident.” Therefore, the parties are concerned with what constitutes a single accident in the context of the policy. South Carolina does not appear to have addressed this precise issue but other jurisdictions have. Most courts have concluded the question whether one or more accidents occurred should be evaluated under the causation theory. The trial court employed the causation theory analysis and neither party appeals that ruling. Therefore, it is the law of the case.[1] See ML-Lee Acquisition Fund, L.P. v. Deloitte & Touche, 327 S.C. 238, 241, 489 S.E.2d 470, 472 (1997) (stating an unappealed ruling is the law of the case and should not be reconsidered by the appellate court).

“Under the cause approach, the insured’s single act of negligence is considered the occurrence from which all claims flow.” Am. Cas. Co. v. Heary, 432 F. Supp. 995, 997 (E.D. Va. 1977) (finding a single occurrence when insured crashed into a sign and barrier causing telephone pole and wires to fall damaging two other vehicles over a period of approximately one minute and fifteen seconds). “Courts applying the ’cause’ theory uniformly find a single accident ‘if cause and result are so simultaneous or so closely linked in time and space as to be considered by the average person as one event.'” Ill. Nat’l Ins. Co. v. Szczepkowicz, 542 N.E.2d 90, 92 (Ill. App. Ct. 1989) (citations omitted) (finding two accidents occurred when an automobile struck a tractor trailer, blocking both lanes, and a second automobile did not strike the tractor trailer until five minutes had elapsed and one lane had reopened).

When one negligent act or omission is the sole proximate cause, there is but one accident, even though there are several resultant injuries or losses. Hyer v. Inter-Ins. Exch. of Auto. Club, 246 P. 1055, 1057 (Cal. Ct. App. 1926) (finding a single accident when a negligent driver struck the insured’s car breaking off the steering wheel and the insured then collided with a second vehicle). Taken in its usual sense, the word “accident” means a single, sudden, unintentional occurrence and is used to describe the event, no matter how many persons or things are involved. St. Paul-Mercury Indem. Co. v. Rutland, 225 F.2d 689, 691 (5th Cir. 1955) (finding one accident when the insured’s truck negligently collided with a freight train, derailing the train and causing damage to sixteen cars and owners). An accident or occurrence in this context should be viewed from the perspective of cause and not effect. Olsen v. Moore, 202 N.W.2d 236, 241 (Wis. 1972) (finding one accident when the insured’s vehicle struck two vehicles almost simultaneously, and there was virtually no time or space interval between the two impacts, and the insured never regained control over the vehicle prior to striking the second automobile).

We could find no South Carolina cases directly on point. However, in Sossaman v. Nationwide Mutual Insurance Co., 243 S.C. 552, 135 S.E.2d 87 (1964), the court, in dicta, recognized the majority view regarding whether a single accident has occurred for purposes of insurance coverage.

A number of cases support the general position that where one proximate, uninterrupted and continuing cause results in injuries to more than one person or damage to more than one item of property there is a single accident or occurrence within the meaning of a liability insurance policy limiting the insurer’s liability to a certain amount for each accident or each occurrence.

Id. at 563, 135 S.E.2d at 93.[2]

Having considered the rationale behind the causation theory and its application in other cases,[3] we now turn to its application in this case. Johnson contends two distinct accidents occurred in this case because the time between the first and second impacts was “at least one and one-half to two minutes.” This is premised upon his conclusion it would have taken at least that long for his airbags to have deployed and for him to remove his seatbelt. He maintains the trial court erred in finding one accident without even making a determination about exactly how much time passed between the two collisions.

Johnson places too much emphasis on the timing of the impacts. Most cases discussing the causation theory do not rely solely on the timing of events in determining whether or not one or two accidents occurred. While timing is frequently a part of the analysis, the courts place the most emphasis on whether or not one source of negligence set all the subsequent events in motion. Szczepkowicz, 542 N.E.2d at 90, heavily relied upon by Johnson, involved collisions occurring five minutes apart. The court recognized timing is only one factor to be considered.

National argues that the time span between collisions is not a factor this court can consider. This contention is without merit. Certainly one occurrence can result in injuries suffered over a period of time; in such a case, time would be irrelevant to a determination of the number of occurrences. The relevance of time between injuries is relevant, however, under other factual scenarios. In the instant case, the issue involves the reasonableness of a driver’s actions and his failure to take corrective measures after an accident; the time span between collisions is one factor that must be taken into account.

Id. at 93 n.3 (citations omitted) (emphasis added).

The question of whether a single accident occurred under the causation theory will turn on the particular facts of each case. The court will be required to look at all the circumstances, including timing, in its analysis.

Turning to the record before us, evidence supports finding the collisions resulted from Dominguez’s single act of negligence. Johnson testified approximately one and one-half to two minutes passed between impacts. However, he also testified he “couldn’t pin it down to two whole minutes, but [he] kn[e]w it was time.”

Hunter testified it felt like two or three seconds between the impacts “cause it just happened.” He further testified he was traveling one and one-half to two car lengths behind Johnson just prior to the accident, and he applied his breaks and skidded approximately fifteen feet before hitting Johnson. Johnson and Hunter both testified the highway had steady traffic on it at the time of the crash giving rise to an inference another vehicle would have been between Johnson and Hunter if they were actually one and one-half to two minutes apart.

Furthermore, Hunter was able to testify about witnessing the initial impact between Dominguez and Johnson indicating he was close enough behind Johnson to see the accident as it happened, but did not have time to stop. Importantly, Johnson testified he did not believe Hunter could have done anything to avoid hitting him. This statement contradicts Johnson’s assertion two accidents occurred and instead supports the finding that Hunter’s hitting the truck did not constitute a second, distinct negligent act but was simply an additional foreseeable consequence of Dominguez’s negligence.

CONCLUSION

Under the causation theory,[4] evidence in the record supports finding a minimal amount of time passed between the impacts and the second impact was not due to Hunter’s own independent negligence but was a foreseeable consequence of Dominguez’s negligent conduct. Consequently, the ruling of the trial court is

AFFIRMED.

SHORT and THOMAS, JJ., concur.

[1] Because the parties do not dispute analysis under the causation theory is appropriate, we are not called upon to determine whether South Carolina would adopt that analysis in similar cases. However, a review of relevant case law is necessary to understand the causation theory and whether the trial court properly applied it to the facts of this case.

[2] In Sossaman, the court was not required to determine whether a single accident occurred. In that case, the parties were arguing over the limitation of $5,000 per personal injury when wife was injured in a school bus accident and she and husband made claims for personal and property injury and loss of consortium respectively.

[3] Most cases from other jurisdictions discuss accident in the context of a liability policy. However, the rationale behind the causation theory still seems applicable when considering UIM coverage. One case espousing the causation theory maintains the very existence of limits means the parties to the insurance contract contemplated a cap on benefits for their own negligent actions. Under the effect theory, liability could be limitless depending on the number of parties injured. See St. Paul-Mercury Indem. Co. v. Rutland, 225 F.2d 689, 692 (Ga. 1955). Likewise, the parties contemplate a limit to UIM coverage for the negligence of other underinsured motorists whose actions could result in injury to the UIM holder by multiple parties.

[4] In Hartford Accident & Indemnity Co. v. Wesolowski, the court characterized its approach to this issue as the “event test,” providing the test for determining whether there has been one accident within a liability policy is if there has been but a single event of an unfortunate character that took place without one’s foresight or expectation. 305 N.E.2d 907, 910 (N.Y. 1973) (finding one occurrence when the insured vehicle struck an oncoming vehicle then ricocheted off and struck a second vehicle more than one hundred feet away a second or two later). Under either the causation test or the event test, the result in this case would be the same.

SC Automobile Accident – Seatbelt Laws – Violations Not Admissible in Civil Lawsuits

Feb 26, 2012 | Brain Injury/Head Trauma, Car Accidents, DUI & DWI, Personal Injury, Uncategorized, Wrongful Death

This recent SC Court of Appeals case reaffirms that violation of seat belt laws are not admissible in civil cases. Alleged violations cannot be used to show negligence or contributory negligence. In essence, this is one of the rare exceptions where a criminal violation is not allowed to play any role in a subsequent civil lawsuit. Of course, the law was intended to decrease incidences of serious injury, brain injury, or wrongful death. In that regard, the law has worked. However, as here, no amount of safety precautions can fully protect you and your family from head-on collisions. Be Safe. Get Home.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Tracey Sims, as Guardian for Emma G., a minor child under the age of eighteen (18), Appellant,

v.

Dewey V. Gregory, Jr., Respondent.

Appeal From Dorchester County
James C. Williams, Jr., Circuit Court Judge

Opinion No. 4649
Heard October 13, 2009 – Filed January 28, 2010

AFFIRMED

Grahame E. Holmes, Ronnie L. Crosby, and Matthew V. Creech, all of Walterboro, for Appellant.

Thomas Milligan, of Mt. Pleasant, for Respondent.

SHORT, J: Tracy Sims, as guardian for Emma G., a minor child under the age of 18, appeals from the trial court’s grant of summary judgment for Dewey Gregory in an action arising from a car accident. The trial court held (1) South Carolina law does not allow an alleged violation of a seatbelt law to be used as evidence of negligence, and (2) the injuries to the minor child were not caused by any negligence on part of Gregory but were caused by negligence of a third party. We affirm.

FACTS

This case arises from an automobile accident that occurred in Summerville, South Carolina. Gregory was driving his daughter, Emma G., home from school when the accident occurred. Stephen Welch crossed the center line on Highway 17A and struck Gregory’s automobile head-on. As a result of the accident, Emma G. suffered a brain injury. Sims, Emma G.’s mother, filed suit against Gregory on the ground that Gregory failed to properly restrain Emma G. prior to the collision.

Gregory filed a motion for summary judgment arguing Emma G. was properly restrained, and even if she was not, South Carolina law does not allow the violation of a seatbelt law to be used as evidence of negligence. Additionally, Gregory argued the accident was caused by the intervening negligence of a third party, Welch. In support of his position, Gregory submitted an affidavit, stating Emma G. was properly restrained at the time of the collision.

In response, Sims submitted an affidavit, claiming Gregory told her Emma G. was not properly restrained at the time of the accident because Emma G. was wearing only her lap belt and did not have on her shoulder harness. Additionally, Sims submitted an affidavit from her counsel, stating that Emergency Medical Services records indicated Emma G. was wearing only her lap belt at the time of the accident.

The trial court granted Gregory’s motion, holding Gregory was not negligent in causing the accident, the accident was solely the fault of a third party, and South Carolina law does not recognize or allow a cause of action for a violation of the seatbelt statute. This appeal followed.

STANDARD OF REVIEW

When reviewing the grant of a summary judgment motion, this court applies the same standard of review as the circuit court under Rule 56, SCRCP. Cowburn v. Leventis, 366 S.C. 20, 30, 619 S.E.2d 437, 443 (Ct. App. 2005). Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Id. To determine whether any triable issues of fact exist, the reviewing court must consider the evidence and all reasonable inferences in the light most favorable to the non-moving party. Id.

LAW/ANALYSIS

In granting summary judgment, the trial court ruled South Carolina law does not allow a violation of a seatbelt law to be used as evidence of negligence. We agree.

In 1989, the General Assembly passed a statute requiring all drivers and occupants of motor vehicles to use safety belts. S.C. Code Ann. § 56-5-6520 (Supp. 2008). The mandatory seatbelt law states, “[t]he driver and every occupant of a motor vehicle . . . must wear a fastened safety belt. . . . The driver is charged with the responsibility of requiring each occupant seventeen years of age or younger to wear a safety belt or be secured in a child restraint system. . . .” Id. Simultaneously, the General Assembly refused to allow the use of evidence in a civil action showing that a driver or occupant of a motor vehicle failed to use a safety belt. S.C. Code Ann. § 56-5-6540(C) (Supp. 2008). Specifically, section 56-5-6540(C), which delineates the penalties for a violation of the mandatory seatbelt law, states, “[a] violation of this article is not negligence per se or contributory negligence, and is not admissible as evidence in a civil action.”

The cardinal rule of statutory construction is to determine and give effect to the intent of the legislature. Charleston County Sch. Dist. v. State Budget & Control Bd., 313 S.C. 1, 5, 437 S.E.2d 6, 8 (1993). The best evidence of legislative intent is the text of the statute. Wade v. State, 348 S.C. 255, 259, 559 S.E.2d 843, 844 (2002) (internal quotations and citations omitted). If the terms of the statute are clear, the court must apply those terms according to their literal meaning. City of Columbia v. Am. Civil Liberties Union of S.C., Inc., 323 S.C. 384, 387, 475 S.E.2d 747, 749 (1996).

In the present case, section 56-5-6540(C) clearly states a violation of the mandatory seatbelt law cannot be used as evidence in a civil action to show that a driver or occupant of a motor vehicle failed to use a safety belt. Even if we assume Gregory violated the seatbelt law by failing to ensure Emma G. was wearing her safety belt, section 56-5-6540(C) precludes any evidence of Gregory’s alleged violation to be used in a civil trial to show he failed to restrain Emma G. See Clark v. Cantrell, 332 S.C. 433, 451, 504 S.E.2d 605, 614-15 (Ct. App. 1998) (“[Section 56-5-6540(C)] precluded the use of evidence in a civil action showing that a driver or occupant of a motor vehicle failed to wear a safety belt.”). The language of the statute is clear, and as such, we must give effect to that language, and conclude the trial court properly granted summary judgment in favor of Gregory.

Nonetheless, Sims argues her claims of common law negligence would survive even after the enactment of sections 56-5-6520 and 56-5-6540. We disagree.

The South Carolina Supreme Court has held that absent a statutory duty, there was no common law duty to wear a safety belt. Keaton v. Pearson, 292 S.C. 579, 580, 358 S.E.2d 141, 141 (1987). In Keaton, our supreme court stated it was the province of the General Assembly to impose a duty to wear a safety belt. Id. Our General Assembly accepted this invitation, and two years after the Keaton decision enacted the mandatory safety belt law. Clark, 332 S.C. at 451 n.11, 504 S.E.2d at 615 n.11. The only duty to wear a safety belt is statutory. As such, Sims’ argument fails.[1]

CONCLUSION

Accordingly, the trial court’s decision is

AFFIRMED.

WILLIAMS and GEATHERS, JJ., concur.

[1] Both parties argue about the application of section 56-5-6460. This section states, “[a] violation of this article shall not constitute negligence, per se, contributory negligence nor be admissible as evidence in any trial of any civil action.” However, this section only applies to children five years or younger. S.C. Code Ann. § 56-5-6410 (Supp. 2008). At the time of the accident, Emma G. was seven years old. Thus, section 56-5-6460 is inapplicable to this case.

SC Large Truck Accident – Pedestrian Accident – Blood Alcohol Evidence

Feb 26, 2012 | Brain Injury/Head Trauma, Car Accidents, DUI & DWI, Personal Injury, Uncategorized

This recent SC Court of Appeals case discusses the importance of keeping some evidence away from a jury because its probative value is outweighed by potential prejudice. Here, a drunk driver was involved in a single car accident during which she ran her car off the roadway. Then, after surviving that accident, she was struck by a large commercial truck when she was standing by the road. Her injuries were catastrophic, and the fact that she was struck by the large truck was clear. However, this case became aggressively contested as to the issue of where she was standing when hit. It became a “battle of the experts.” In serious accident cases, the attorneys must be experienced trial litigators, and they must be willing to go “all the way” in order to get a fair and just result. You have to be able to fight to win.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Savannah K. Johnson, Personal Representative of the Estate of Susan Johnson, Respondent,

Horry County Solid Waste Authority, Appellant.

Appeal From Horry County
J. Michael Baxley, Circuit Court Judge

Opinion No. 4716
Heard May 19, 2010 – Filed July 28, 2010

AFFIRMED

Douglas C. Baxter, of Myrtle Beach and Mason A. Summers, of Columbia, for Appellant.

Luke A. Rankin, of Conway, for Respondent.

KONDUROS, J: Horry County Solid Waste Authority (the County) appeals the trial court’s decision to suppress evidence regarding the decedent’s blood alcohol level in this wrongful death action. The County also claims the trial court erred in referencing the South Carolina Commercial Driver’s License Manual (the CDL Manual) in its charge to the jury warranting a new trial. We affirm.

FACTS

Susan Johnson (Decedent) was involved in a one-car, roll-over accident around 4 a.m. on January 5, 2005. Decedent drove off the right side of the road and then over-corrected, causing the accident. Her vehicle, a black sports utility vehicle (SUV), came to rest facing oncoming traffic and inside the safe zone of the road.[1] Tommy Bell approached Decedent’s vehicle driving a Horry County Solid Waste Authority Truck. Bell testified he saw Johnson’s vehicle, then a blur, and then he felt a bump. He pulled over and saw Decedent’s body lying on the side of the road and called 911. Decedent suffered catastrophic injuries having been crushed between the County’s truck and her SUV. Her daughter, Savannah Johnson, brought a wrongful death action against the County as person representative of Decedent’s estate.

At trial, Johnson made a motion in limine to exclude evidence of Decedent’s blood alcohol level, which was .14, and evidence showing traces of marijuana and cocaine in Decedent’s bloodstream. Johnson argued no independent evidence linked Decedent’s intoxication to the second accident. At the trial court’s request, the County attempted to establish such a connection. The County raised several pieces of evidence. First, Lieutenant Robert Lee, a South Carolina State Trooper and head of the Major Accident Investigation Team for the Pee Dee Region, had testified in his deposition that Decedent’s single-car accident occurred because she was under the influence of alcohol or drugs and ran off the shoulder of the road. He stated fatigue may have also been a factor. The County also argued its expert, James Middleton, would testify Decedent was standing on the white line separating the safe zone and road at the time of impact and that her intoxication would have impaired her judgment. Finally, the County also indicated the cocaine and marijuana in Decedent’s system had been ingested within hours of the accident.[2]

Johnson maintained Lee’s explanation for the first accident was not really independent but was colored by his knowledge of Decedent’s toxicology report. Johnson also argued Middleton’s deposition testimony was ambiguous and did not give a definite opinion as to where Decedent was standing when she was struck.

After hearing arguments, the trial court granted Johnson’s request to exclude the evidence. The trial court concluded no evidence indicated Decedent’s intoxication contributed to the second accident and the evidence was substantially more prejudicial than probative under Rule 403, SCRE. The trial court indicated the motion could be reconsidered upon presentation of sufficient evidence that Decedent’s intoxication contributed to the accident.

Johnson called Lieutenant Lee at trial.[3] He testified his investigation and conclusions focused on a tire print found on the white line separating the road from the safe zone. He testified the tire print matched the print of the County’s truck and such a print would only be made when a vehicle had an impact against another object sufficient to create a vibration, stamping the print onto the line. Lieutenant Lee further testified in his opinion, based on Decedent’s injuries and the damage to the County’s truck and the SUV, Decedent was not in the road at the time she was struck.

The redacted deposition testimony of pathologist Dr. Edward Proctor, Jr. was read into the record. He testified Decedent’s injuries were consistent with her being hit on the right side of her body and being rotated around as the truck pinned her against her SUV. Dr. Proctor also stated Decedent would have been standing relatively close to her car for the injuries to have occurred the way they did. He opined this would likely mean she was either standing inside or no further than on the white line delineating the road from the safe zone.

Another expert in accident reconstruction, Woodrow Poplin, testified next. Poplin stated in his expert opinion, the County’s truck had drifted over into the safe zone and struck Decedent.[4] He opined Decedent was not across the white line separating the road and safe zone but was just inside it, right at its edge. Like Lee, Poplin believed the tire print on the white line was made by the County’s truck. Poplin also testified he believed Decedent had moved her vehicle into the safe zone during the time between the first and second accidents.

At this time, the County again sought to have the drug and alcohol evidence admitted into the record, arguing Poplin’s testimony that Decedent had moved her SUV should change the trial court’s analysis. The County maintained Decedent’s driving the vehicle into an unsafe position, not far enough off the road, made her driving under the influence a contributing factor in the second accident. The trial court again excluded the evidence concluding the link between Decedent’s intoxication and the second accident was too tenuous.

Decedent’s ex-husband testified he saw her at a local bar and grill earlier in the evening on the night of the accident. The two spoke briefly, but he did not observe Decedent’s activities and did not see her consume any alcohol.

The defense called its accident reconstruction expert, James Middleton. Middleton disagreed with the other experts regarding the tire print. Based on his analysis, the tire print was not necessarily made by the County’s truck. In his opinion, Decedent was standing in the road “straddling the white line” at the time she was struck.

Johnson had asked Bell about the amount of sleep he had gotten prior to the accident and attempted to establish through Middleton that Bell’s fatigue could have been a factor in the second accident. In allowing such questioning, the trial court assured the County that it could likewise question witnesses about circumstantial evidence of Decedent’s alcohol consumption. In response, the County indicated no witness could testify to seeing Decedent consume alcohol, but her mere presence at the bar prior to the accident was at least circumstantial evidence of her intoxication.

When that discussion was concluded, the parties stipulated Middleton would have testified the level of alcohol in Decedent’s bloodstream would have impaired her judgment and that her intoxication contributed to the second accident. The County did not raise the blood alcohol evidence again.

The jury found the County eighty-five percent negligent for Decedent’s injuries and found Decedent fifteen percent negligent and awarded damages in the amount of $500,000.[5] This appeal followed.

LAW/ANALYSIS

I. Admission of Blood Alcohol Evidence

The County contends the trial court erred in concluding Decedent’s blood alcohol was inadmissible because insufficient evidence linked her intoxication to the second accident, making the evidence substantially more prejudicial than probative. We disagree.

Evidence is relevant and admissible if it tends to establish or make more or less probable some matter in issue. Rule 401, SCRE; Rule 402, SCRE. However, otherwise relevant evidence may be excluded when its probative value is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .” Rule 403, SCRE. “Unfair prejudice means an undue tendency to suggest a decision on an improper basis.” State v. Owens, 346 S.C. 637, 666, 552 S.E.2d 745, 760 (2001)overruled on other grounds by State v. Gentry, 368 S.C. 93, 610 S.E.2d 494 (2005). “An appellate court reviews Rule 403 rulings pursuant to an abuse of discretion standard and gives great deference to the trial court.” Lee v. Bunch, 373 S.C. 654, 658, 647 S.E.2d 197, 199 (2007). “A trial judge’s decision regarding the comparative probative value and prejudicial effect of evidence should be reversed only in exceptional circumstances.” State v. Adams, 354 SC. 361, 378, 580 S.E.2d 785, 794 (Ct. App. 2003).

One of the leading cases in this area is Lee, 373 S.C. at 654, 647 S.E.2d at 197. In Lee, the South Carolina Supreme Court determined evidence of Lee’s blood alcohol content was relevant and admissible.[6] Id. at 659, 647 S.E.2d at 200. In making this determination, the court relied upon corroborating evidence that Lee had been drinking at the time of the accident and that his intoxication was a cause of the accident. Id. at 658-59, 647 S.E.2d at 199-200. Lee admitted to drinking shortly before the wreck and expert testimony showed Lee’s blood alcohol level would have impaired his judgment and ability to operate a motorcycle. Id. An eyewitness also saw Lee going over the speed limit, and the accident occurred left of the center line. Id. at 659, 647 S.E.2d at 200.

Kennedy v. Griffin, 358 S.C. 122, 595 S.E.2d 248 (Ct. App. 2004), stands in contrast. In Kennedy, a tractor-trailer turned left in front of Kennedy as he approached in his pickup truck. Id. at 125-26, 595 S.E.2d at 249. Kennedy struck the eighteen-wheeler on its rear set of tires. Id. According to a witness, Kennedy had enough time to see the truck and apply his brakes sooner than he did. Id.at 126, 595 S.E.2d at 250. The other driver indicated he believed he had a safe distance to make the turn, while Kennedy testified the tractor-trailer bolted out in front of him. Id. This court reversed the trial court’s admission of toxicology reports showing the presence of marijuana in Kennedy’s bloodstream. Id. at 128-29, 595 S.E.2d at 251. The court reasoned no evidence regarding the level of marijuana in Kennedy’s system or how long it had been present was presented. Id. at 128, 595 S.E.2d at 251. Also, no witnesses testified Kennedy smelled of marijuana and no marijuana was found at the accident scene. Id. Furthermore, the circumstances of the accident did not “necessarily suggest that [Kennedy] was driving under an impairment.” Id. Under those circumstances, the court concluded, the danger of unfair prejudice substantially outweighed the probative value of the toxicology report. Id. at 128-29, 595 S.E.2d at 251.

This case lies between Lee and Kennedy. We have more corroborating evidence than in Kennedy. The toxicologist’s unredacted deposition testimony indicated Decedent had ingested marijuana and cocaine within hours of her death. That testimony also revealed Decedent’s blood alcohol level to be well in excess of the limit for driving under the influence. Decedent’s ex-husband testified she was at a bar from approximately midnight until 4 a.m. the night of the accident, and Lieutenant Lee testified in his deposition that the circumstances of Decedent’s first accident indicated it occurred because she was intoxicated or possibly fatigued. Furthermore, Middleton, at trial, placed Decedent at least partially in the road at the time of impact.

However, no one witnessed the first or second accident, and there is no “smoking gun” like in Lee, when the accident inarguably occurred to the left of the center line. Taking the second accident independently, the County presented no evidence Decedent’s intoxication contributed to her being struck by the County’s truck. In attempting to establish the link between intoxication and the second accident, no expert testimony was proffered for the trial court’s consideration regarding how her judgment would have been impaired with respect to staying out of the road. Almost all the expert testimony placed Decedent within the safe zone at the time of impact. Even Bell testified he did not see Decedent in the road. Furthermore, although Decedent’s ex-husband placed her at a bar prior to the accident, he did not testify to seeing her consume any alcohol.

Essentially, the jury was presented with a battle of the experts. Middleton testified that in his opinion, Decedent was straddling the white line when she was struck. However, that opinion, as well as the other expert opinions, was rendered on the physical evidence at the scene of the accident. Her intoxication would not have changed the expert opinion of any of the witnesses, and the jury simply had to choose which expert they believed based on their explanations of how the accident occurred.

Under the circumstances, evidence of Decedent’s blood alcohol level was relevant and had some probative value. However, giving due deference to the trial court’s decision, we agree the prejudice created by admitting Decedent’s blood alcohol level substantially outweighed the probative value. Therefore, the trial court’s ruling excluding the evidence is affirmed.

II. Jury Charge

The County takes exception to the portion of the trial court’s jury charge referencing the CDL Manual. The County argues the trial court erred in charging from the CDL Manual because doing so imposed a higher standard of care on Bell as a commercial driver when the CDL Manual guidelines do not carry the force of law. We disagree.

The objectionable portion of the jury charge is as follows:

I charge you that South Carolina’s commercial driver[‘]s license program requires high standards and skills of commercial motor vehicle operators.

In reference to staying centered in a lane, I charge you that the [CDL] Manual states that a driver needs to keep the vehicle centered in the lane to keep safe clearance on either side. If the vehicle is wide, there is little room to spare.

In reference to how far ahead to look, the [CDL] [M]anual states that most good drivers look twelve to fifteen seconds ahead. That means looking ahead the distance you will travel in twelve to fifteen seconds. At lower speeds, that’s about one block. At highway speeds it’s about a quarter of a mile assuming [visibility] permits. If you’re not looking that far ahead, you may have to stop too quickly to make the quick lane changes.

The County lodged an objection stating: “We talked earlier about the charge, about the South Carolina Commercial Driver’s License Program requires higher standards, skills, and I don’t think the mere fact that someone has a CDL they then have a higher standard of care than anyone else on the roadway.” Johnson argues this issue is not preserved for our review because the County did not specifically state the CDL Manual does not carry the weight of law. We disagree. Questioning whether the CDL Manual established a particular standard of care, as the common law or statue may, implicitly calls into question the force of the CDL Manual as something less than law. See State v. Hamilton, 344 S.C. 344, 361, 543 S.E.2d 586, 595 (Ct. App. 2001) overruled on other grounds by State v. Gentry, 368 S.C. 93, 610 S.E.2d 494 (2005) (“In order to preserve for review an alleged error, the objection should be sufficiently specific to bring into focus the precise nature of the alleged error so it can be reasonably understood by the trial [court].”). Therefore, we will proceed to the merits of this issue.

The information contained in this charge was already introduced through the testimony of Bell himself and Poplin. Nevertheless, jury instructions are to charge the current and correct law of the state, and the County is correct in pointing out the CDL Manual does not carry the force of law. See McCourt v. Abernathy, 318 S.C. 301, 306, 457 S.E.2d 603, 606 (1995) (“The trial judge is required to charge only the current and correct law of South Carolina.”). Consequently, the trial court erred in referencing the manual and its guidelines when charging the jury.

In reviewing jury charges for an alleged error, the appellate court “must consider the court’s jury charge as a whole in light of the evidence and issues presented at trial. If, as a whole, the charges are reasonably free from error, isolated portions which might be misleading do not constitute reversible error.” Keaton ex rel. Foster v. Greenville Hosp. Sys., 334 S.C. 488, 497, 514 S.E.2d 570, 575 (1999).

In this case, the charge, read as a whole, indicates the standard of care to establish negligence is that of a reasonable person. The trial court instructed:

Negligence means that a person did not use the same amount of care that a person of ordinary reason and prudence would exercise in the same circumstances. . . . It can be said that a negligent person has done something that a reasonable person would not have done, if faced with the same situation; or, on the other hand failed to do something that a reasonable person would have done if faced with the same situation . . . . Now that is negligence.

The trial court further charged the jury regarding the laws of South Carolina pertaining to the operation of a motor vehicle.

I charge you under South Carolina law that the driver of an automobile also has a duty to keep the automobile under proper control so that the driver is able to slow down, stop, or turn the automobile to avoid colliding with other vehicles, pedestrians, and objects lawfully on the road.

I charge you that the driver of a vehicle approaching a person engaged about an automobile in the highway owes that person the duty to exercise reasonable care to avoid injuring him.

I charge you that the first duty of a motorist is to keep a sharp lookout to discover presence of those who might be in danger, and if he performs that duty and discovers that someone is in danger, a second duty arises to use every possible available means to avert injury and, if [a] motorist fails to perform that duty, his negligence is a proximate and immediate cause of injury.

I charge you that the discovery of danger by the defendant or the duty to discover it in exercise of due care includes the duty under the circumstances to appreciate peril in time to take steps necessary to avert an accident.

I charge you that a driver on the public roads owes a duty to keep a proper lookout for persons or objects upon the highway. That duty is not merely one of looking, but one of seeing.

I charge you that a person using the public roadways of this state owe a duty to exercise ordinary care at all time to avoid an accident.

These charges all address the care that any driver is required to exhibit in operating a motor vehicle. Furthermore, the trial court’s general charge on the meaning of negligence comports with requiring a driver to use the ordinary care another driver would use under the same circumstances. On the whole, the trial court’s jury instructions properly stated the appropriate standard of care so that we do not believe the reiteration of some guidelines from the CDL Manual prejudiced the County. Accordingly, we do not believe the trial court committed reversible error in including the CDL Manual reference in the jury instructions.

CONCLUSION

We affirm the trial court’s decision to exclude evidence of Decedent’s blood alcohol level because a sufficient link was not established between her intoxication and the second accident and because the probative value of the evidence was substantially outweighed by the likelihood of unfair prejudice. Additionally, we find the trial court did not commit reversible error by referencing the CDL Manual in the charge when the instructions, as a whole, accurately conveyed the proper standard of care to be applied by the jury. Based on all of the foregoing, the rulings of the trial court are

AFFIRMED.

HUFF and THOMAS, JJ., concur.

[1] This area may commonly be called the emergency lane or shoulder of the road, but we will refer to it as the safe zone. The safe zone in this case is the area to the right side of the white line demarking the end of the actual road.

[2] The pathologist’s testimony on this point was not specifically brought to the attention of the trial court at this time, but the pathologist’s unredacted deposition was proffered and it supports this contention. His redacted deposition was read into the record.

[3] Lieutenant Lee was technically a First Sergeant the day he testified at trial with his promotion due to take effect four days later.

[4] Bell did not dispute evidence that his tire was over the white line demarcating the road from the safe zone.

[5] This amount was capped at $300,000 pursuant to the South Carolina Tort Claims Act, Section 15-78-120(1) of the South Carolina Code (2005).

[6] This decision affirmed the trial court.

SC Automobile Accident – Pedestrian Injury – Denial of Coverage

Feb 26, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Wrongful Death

In this recent SC Court of Appeals case, the issue of what constitutes being “upon” a vehicle was discussed in order to determine if a seriously injured pedestrian could recover benefits under his own underinsured motorist insurance policy. This decision shows how aggressively insurance carriers will fight and defend denial of coverage in serious accident cases. Given the difficult, prolonged economic downturn, it is becoming more common to have to look to underinsured and even uninsured motorist policies to try and find sufficient insurance coverage. First, you need to make sure your attorney understands these complicated insurance policy language questions. Then, your attorney has to be willing to go to Court and fight your insurance company on your behalf. The difference can literally mean resolving your case for less than you are owed or legally due.

THE STATE OF SOUTH CAROLINA In The Court of Appeals

South Carolina Farm Bureau Mutual Insurance Company, Appellant,

Henry Kennedy, Respondent.

Appeal From Laurens County J. Mark Hayes, II, Circuit Court Judge

Opinion No. 4738 Heard May 18, 2010 – Filed September 15, 2010

REVERSED

Karl S. Brehmer and L. Darby Plexico, III, of Columbia, for Appellant.

Eric H. Philpot, of Greenville, for Respondent.

SHORT, J.: South Carolina Farm Bureau Mutual Insurance Company (Farm Bureau) appeals from the trial court’s order finding Henry Kennedy was entitled to underinsured motorist (UIM) coverage, arguing the court erred in finding Kennedy was occupying the manure truck when he was hit by the pickup truck because he was not “upon” the insured vehicle at the time of the accident. We reverse.

FACTS

On October 23, 2002, Kennedy was hurt in a pedestrian-vehicle accident.^[1] Kennedy was employed by Irons Poultry Farms, Inc. (Irons Poultry), and at his employer’s direction, Kennedy drove the company’s manure truck to a restaurant to tell the owner he could pick up some chicken feed at his employer’s farm. After delivering the message, Kennedy paused in the restaurant parking lot to talk to his half-brother, Teddy Robinson, who worked at the restaurant. While Kennedy was talking to Robinson, an accident occurred on the highway adjacent to the parking lot, and one of the vehicles careened into the parking lot, striking Kennedy and Robinson who were standing behind the manure truck. The vehicle that struck Kennedy was a pickup truck driven by George Counts. Kennedy sustained injuries with medical costs and lost wages totaling more than $64,000; however, he settled with Counts’ insurance company for $50,000 in exchange for a covenant not to execute. Kennedy then made a demand for the full amount of UIM coverage available under Irons Poultry’s policy with Farm Bureau. The policy provided UIM coverage in the amount of $50,000 per individual, and $100,000 per occurrence. Farm Bureau denied Kennedy coverage, claiming Kennedy was not entitled to UIM coverage under the policy because he was not occupying Irons Poultry’s manure truck at the time of the accident as required by the policy to qualify for UIM coverage. Farm Bureau’s policy defined “occupying” as “having actual physical contact with an auto while in, upon, entering, or alighting from it.” On April 21, 2004, Farm Bureau filed a declaratory judgment action to determine if Kennedy was entitled to UIM coverage under Farm Bureau’s commercial auto policy issued to Irons Poultry. Kennedy filed a motion for summary judgment, asserting he was entitled to coverage under the policy because the evidence conclusively proved he was pinned between the manure truck and Counts’ truck, thus establishing he was “upon” the truck. The case was set for a non-jury trial on May 11, 2005. Before trial, Kennedy requested Judge Saunders hear his motion for summary judgment. Judge Saunders granted the motion in an order dated June 16, 2005.^[2] Farm Bureau filed a motion for reconsideration, which was denied. Farm Bureau then filed an appeal with this court. After oral arguments on the case, this court found a genuine issue of material fact existed as to whether Kennedy was pinned or knocked against the manure truck. Therefore, in an unpublished opinion, this court reversed the circuit court’s decision granting summary judgment to Kennedy, and remanded the case to the circuit court for a hearing on the merits.^[3] Kennedy filed a Petition for Rehearing with this court, which was denied. Upon remand from this court, the non-jury trial was conducted on July 15 and 17, 2008.^[4] Several months later, Judge Hayes filed his order finding Kennedy was entitled to UIM coverage because he was momentarily pinned against the manure truck during the accident; therefore, he was “upon” the insured vehicle and “occupying” it according to the policy.^[5] This appeal followed.

STANDARD OF REVIEW

Declaratory judgment actions are neither legal nor equitable; therefore, the standard of review is determined by the nature of the underlying issue. Hardy v. Aiken, 369 S.C. 160, 164, 631 S.E.2d 539, 541 (2006). “When the purpose of the underlying dispute is to determine whether coverage exists under an insurance policy, the action is one at law.” Auto-Owners Ins. Co. v. Hamin, 368 S.C. 536, 540, 629 S.E.2d 683, 685 (Ct. App. 2006). “In an action at law tried without a jury, the appellate court will not disturb the trial court’s findings of fact unless they are found to be without evidence that reasonably supports those findings.” Id.

LAW/ANALYSIS

Farm Bureau argues the trial court erred in finding Kennedy was occupying the manure truck when he was hit by the pickup truck because he was not upon the manure truck at the time of the accident. We agree. The general rules of contract construction apply to insurance policies. MGC Mgmt. of Charleston, Inc. v. Kinghorn Ins. Agency, 336 S.C. 542, 548, 520 S.E.2d 820, 823 (Ct. App. 1999). “[T]he law is clear that, in construing an insurance contract, all of its provisions must be considered together.” Id. “Therefore, the court must consider the entire contract between the parties to determine the meaning of its provisions, and that construction will be adopted which will give effect to the whole instrument and each of its various parts, so long as it is reasonable to do so.” Id. “This court must enforce, not write, contracts of insurance and we must give policy language its plain, ordinary, and popular meaning.” Id. at 548-49, 520 S.E.2d at 823. “An insurer’s obligation under a policy of insurance is defined by the terms of the policy itself, and cannot be enlarged by judicial construction.” Id. “[A]mbiguous or conflicting terms in an insurance policy must be construed liberally in favor of the insured and strictly against the insurer.” Id. “However, if the intention of the parties is clear, courts have no authority to torture the meaning of policy language to extend or defeat coverage that was never intended by the parties.” Id. Farm Bureau’s policy defined “occupying” as “having actual physical contact with an auto while in, upon, entering, or alighting from it.” In this case, Kennedy was not getting in or out of the manure truck at the time of the accident. He was standing near the truck when he was hit. Kennedy argues the pickup truck hit him and briefly pinned him against the manure truck. The issue now before us is whether the impact of the pickup truck pushing Kennedy into the manure truck was enough for Kennedy to have been “upon” the manure truck so as to fall under the policy. Two South Carolina cases have dealt with similar issues, but neither is the exact issue presented in this case. In McAbee v. Nationwide Mutual Insurance Co., 249 S.C. 96, 98-99, 152 S.E.2d 731, 732 (1967), our supreme court was presented with the sole question of whether the insured, while standing on the ground with his back against a parked truck in an effort to keep a tractor from rolling against him, was “upon” the truck within the meaning of the policy.[6] The court stated it did not think the meaning of the word “upon” is restricted to “on top of,” such as a person resting the weight of his or her body upon the vehicle or being supported by the vehicle. Id. at 100, 152 S.E.2d at 732. The court noted that according to Webster’s Third New International Dictionary, “[o]ne of the common and ordinary meanings of the word ‘upon’ is that of ‘contact with’.” Id.; see S.C. Prop. & Cas. Guar. Ass’n v. Yensen, 345 S.C. 512, 518 n.2, 548 S.E.2d 880, 883 n.2 (Ct. App. 2001) (stating that McAbee discussed that the term “upon” was synonymous with “contact with”). The court stated that because the policy contained no restrictions as to how or in what manner the insured was to be upon the vehicle, the court thought “it reasonable to conclude that the parties contemplated a construction of the word that would include actual physical contact with the vehicle the insured was using.” Id. at 100, 152 S.E.2d at 732-33. Therefore, the court held the insured was in actual physical contact with the vehicle and was “upon” it within the meaning of the policy provision when he placed his back against the vehicle in an attempt to protect himself from the rolling tractor. Id. at 100, 152 S.E.2d at 733. This case is distinguishable from McAbee because in McAbee, the insured had his back to the truck and was pushing against it when he was crushed to death. Therefore, the insured was physically touching the truck when he was killed. Here, Kennedy was near the manure truck when he was hit by the other vehicle and asserts he was pushed into the manure truck by the pickup truck. Therefore, Kennedy was not physically touching the truck when he was first hit by the pickup truck. In South Carolina Property and Casualty Guaranty Ass’n v. Yensen, 345 S.C. 512, 518, 548 S.E.2d 880, 883 (Ct. App. 2001), this court held the owner of a disabled car, Yensen, was not “occupying” a tow truck when a car struck him as he stood alongside his disabled car. The court found Yensen was not an “insured” entitled to UIM benefits under the tow truck owner’s policy, even though he intended to occupy the tow truck for a ride, because at the time of the accident he was not in, upon, getting in, on, out or off the truck, and no causal connection existed between the truck and the injuries. Id. at 518-20, 548 S.E.2d at 883-84. The tow truck’s policy defined “insured” as “anyone else ‘occupying’ a covered auto.” Id. at 517, 548 S.E.2d at 883. According to the policy, “occupying” was defined as “in, upon, getting in, on, out or off.” Id. Therefore, this court determined Yensen was not occupying the tow truck as the policy defined that term. Id. at 518, 548 S.E.2d at 883. The court found that under the plain meaning of the words, Yensen was not “in, upon, getting in, on, out or off” the tow truck at the time of the accident. Id. at 518-19, 548 S.E.2d at 883. While the court noted there was some testimony Yensen intended to leave the scene in the tow truck, he was not “in or on” or in the process of getting into the truck at the time of the accident. Id. Yensen is also distinguishable from this case because in Yensen the court noted Yensen may or may not have intended to get into the tow truck, which was the insured vehicle from which he was seeking coverage. In this case, Kennedy had driven the manure truck to the restaurant and was intending to leave the restaurant in the manure truck; therefore, there was no question of his intent to depart in the insured vehicle. However, like Yensen, Kennedy was not “in, upon, getting in, on, out or off” the manure truck at the time of the accident. Kennedy had departed the truck, gone inside the restaurant, and then returned to the parking lot to talk to Robinson near the vehicle. Although there was testimony Kennedy was headed back to the manure truck when he was hit, he was not “getting in” the truck when he was struck by Counts’ pickup truck. In Yensen, this court noted that in Whitmire v. Nationwide Mutual Insurance Co., 254 S.C. 184, 191-92, 174 S.E.2d 391, 394-95 (1970),[7] our supreme court “held that where a passenger was struck while within two or three feet of the car he had immediately ‘alighted from,’ that passenger may collect uninsured motorist coverage from the insurer of the car he had been riding in.” Yensen, 345 S.C. at 519, 548 S.E.2d at 883-84. Yensen argued Whitmire was controlling because Yensen intended to occupy the tow truck and, thus, he should have been able to collect insurance from the tow truck’s insurance provider. Id. This court found Whitmire was distinguishable because there, the plaintiff had unquestionably been occupying the car, whereas in Yensen, at most, Yensen’s intent to occupy the tow truck was expressed after the accident and during litigation. Id. at 519, 548 S.E.2d at 884. This court stated it was reluctant to extend Whitmire to the facts in Yensen because Yensen was not “still engaged in the completion of those acts reasonably to be expected from one getting out of an automobile under similar conditions.” Id. (quoting Whitmire, 254 S.C. at 191, 174 S.E.2d at 394). In Whitmire, the court noted “[t]he words ‘in’ and ‘upon’ encompass situations where a person has some physical contact with the vehicle at the time of injury.” 254 S.C. at 191, 174 S.E.2d at 394. Here, if Kennedy had been hit soon after he had alighted from the manure truck, under Whitmire, he would have been deemed to have been “occupying” the truck; however, Kennedy had gone inside the restaurant, returned to the parking lot, and was standing near the truck talking when the accident occurred. Therefore, he was not “occupying” the truck as a result of having recently alighted from the truck because of the intervening act of going into the restaurant. While McAbee and Yensen are helpful, they are not dispositive of the issue in this case. Therefore, we look to other jurisdictions for guidance on this issue. Many states have been faced with a similar issue and some have adopted tests to determine whether a person is “occupying” a vehicle as to have coverage under an insurance policy. In Utica Mutual Insurance Co. v. Contrisciane, 473 A.2d 1005, 1009 (Pa. 1984), the Pennsylvania Supreme Court established a four-part test to determine whether a person engaged in the lawful use of an insured vehicle will be considered to be “occupying”[8] that vehicle within the meaning of the policy: (1) there is a causal relation or connection between the injury and the use of the insured vehicle; (2) the person asserting coverage must be in a reasonably close geographic proximity to the insured vehicle, although the person need not be actually touching it; (3) the person must be vehicle oriented rather than highway or sidewalk oriented at the time; and (4) the person must also be engaged in a transaction essential to the use of the vehicle at the time. See also Loyd v. State Auto. Prop. & Cas. Co., 265 S.W.3d 901, 905 (Mo. Ct. App. W.D. 2008) (stating the four-part test “does express reasonable and sensible considerations to determine whether a person is occupying a vehicle,” but declining to adopt the test); Cuevas v. State Farm Mut. Auto. Ins. Co., 130 N.M. 539, 541 (N.M. Ct. App. 2001) (citing the Utica test, and noting it has been adopted in the majority of jurisdictions and “is broader and is concerned with whether ‘the person claiming benefits was performing an act (or acts) which is (are) normally associated with the immediate ‘use’ of the [vehicle]'” (quoting Utica, 473 A.2d at 1009));Downing v. Harleysville Ins. Co., 602 A.2d 871, 874 (Pa. 1992) (applying the Utica test); General Accident Ins. Co. of Am. v. Olivier, 574 A.2d 1240, 1241 (R.I. 1990) (finding the Utica test persuasive); Roden v. Gen. Cas. Co. of Wisc., 671 N.W.2d 622, 627-28 (S.D. 2003) (noting a majority of the jurisdictions have adopted the four-part test established in Utica and finding “the four-part test set forth above should be utilized in this jurisdiction when determining whether or not an individual is ‘occupying’ the insured vehicle under the policy definitions”). In Moherek v. Tucker, 230 N.W.2d 148, 151-52 (Wis. 1975), the Supreme Court of Wisconsin adopted a different test to determine whether an injured party was “occupying” the vehicle.[9] The test considered whether the party was vehicle-oriented or highway-oriented at the time of the injury. Id.; Kreuser by Kreuser v. Heritage Mut. Ins. Co., 461 N.W.2d 806, 808 (Wis. Ct. App. 1990) (“InMoherek, the supreme court established a test to determine whether or not an injured party was ‘occupying’ the vehicle. The test considers whether the party was vehicle-oriented or highway-oriented at the time of the injury.”). “[A] person has not ceased ‘occupying’ a vehicle until he has severed his connection with it – i.e., when he is on his own without any reference to it. If he is still vehicle-oriented, as opposed to highway-oriented, he continues to ‘occupy’ the vehicle.” Moherek, 230 N.W.2d at 151 (quotingAllstate Ins. Co. v. Flaumenbaum, 308 N.Y.S.2d 447, 462 (N.Y. Sup. Ct. 1970)). In Kreuser, the court of appeals noted the “vehicle-orientation” test considers the nature of the act engaged in at the time of the injury and the intent of the person injured, and added a third consideration: whether the injured person was within the reasonable geographical perimeter of the vehicle. 461 N.W.2d at 808. In Wickham v. Equity Fire and Casualty Co., 889 P.2d 1258, 1261 (Okl. Ct. App. 1994), the Oklahoma Court of Appeals discussed the Kreuser and Utica tests and declined to adopt a bright-line test. Instead, the court held that “the determination of whether the policy definition of ‘occupying’ is satisfied should be left to a case-by-case analysis, depending on the circumstances of the accident, the use of the vehicle, the relevant terms of the coverage at issue, and any underlying public policy considerations.” Id. Therefore, the court found a man who was struck by another car while fixing the tire on a car was “occupying” the vehicle.[10] Id. Similarly, in United Farm Bureau Mutual Insurance Co. v. Pierce, 283 N.E.2d 788, 791 (Ind. Ct. App. 1972), the Indiana Court of Appeals determined that Pierce was “upon” his vehicle when he cut his hand on the fender of his car because he was pushing on the front fender in an attempt to push it out of the snow.[11] The court noted “[t]he majority of ‘in or upon’ cases appear to rely primarily upon physical support.” Id. at 790. Almost ten years later, in Michigan Mutual Insurance Co. v. Combs, 446 N.E.2d 1001, 1007 (Ind. Ct. App. 1983), the court of appeals held the claimant, who was working on the insured vehicle’s engine and resting his knees on the bumper, was “upon” the insured vehicle when he was hit by another vehicle.[12] The court noted the application of the “physical contact” rule relied upon in Pierce could unduly restrict coverage in some factual settings and serve to expand coverage beyond the contemplation of the contracting parties in other settings. Id. at 1005. The court also noted that in Robson v. Lightning Rod Mutual Insurance Co., 393 N.E.2d 1053, 1055 (Ohio Ct. App. 1978), the Ohio Court of Appeals held in cases in which a gray area existed concerning whether a person was “in or upon, entering into or alighting from” an insured vehicle, the determination of whether the vehicle was “occupied” should be based on an analysis of the relationship between the vehicle and the claimant within a reasonable geographic perimeter. The Robson court also rejected the physical contact rule. Id. However, inCombs, the court found that both the physical contact rule and the Robson claimant-vehicle relationship analysis supported coverage for the claimant because he was in physical contact with the car and his actions evidenced a relationship with the vehicle and its operation. Combs, 446 N.E.2d at 1007. Other courts have declined to find coverage when, as in this case, the injured person was not touching the insured vehicle at the time of the accident. In Rednour v. Hastings Mutual Insurance Co., 661 N.W.2d 562, 567 (Mich. 2003), Rednour argued he was “upon” a car when he was pinned against it after being struck by another car. Rednour admitted he was not touching his friend’s car and was approximately six inches from the car when the other vehicle struck him. Id. at 563. The Michigan court noted that “physical contact by itself does not, however, establish that a person is ‘upon’ a vehicle such that the person is ‘occupying’ the vehicle.” Id. at 567. The court held that under the policy’s definition of “occupying,” Rednour was not occupying the insured automobile when he was injured.[13] Id. at 568. In State Farm Mutual Automobile Insurance Co. v. Farmers Insurance Co., 569 S.W.2d 384, 384-85 (Mo. Ct. App. 1978), the insured was beside his friend’s car, walking towards the car door when another car rear-ended the car. At the time of the impact, the insured was completely outside the car and was not touching any part of the car; however, the force of the impact moved the car and caused it to collide with the insured. Id. The court stated it found no cases in which the claimant’s reason for being outside the automobile was unrelated to the operation of the vehicle itself that held the “upon” requirement was met when the claimant was not in contact with the vehicle immediately prior to the accident. Id. at 385-86. Therefore, the court determined the insured was not “occupying” the vehicle at the time of the accident and was not covered by the insurance policy. Id. In Kelleher v. American Mutual Insurance Co. of Boston, 590 N.E.2d 1178, 1180 (Mass. App. Ct. 1992), Kelleher argued he was “occupying” the insured vehicle when he was struck by another car because he was “upon” the vehicle he had just exited. The court noted: [I]n determining whether a claimant is “upon” an insured vehicle, courts have invariably required some physical contact with the vehicle, or at a minimum, the performance of an act directly related to the vehicle, such as the changing of a tire. Such a requirement is consistent with the commonly understood definition of “upon”, that of “on.” Id. The court then determined: [N]o facts indicate[d] that Kelleher was either “in,” “upon,” “entering into” or “alighting from” the insured motor vehicle at the time he was struck; instead, the uncontroverted facts demonstrate that the operation of the Larson vehicle had come to an end, Kelleher had completed the act of leaving the vehicle, and he was approximately four feet away from it when the accident occurred. Id. at 1181. Therefore, the court found “Kelleher had completely severed his relationship with the vehicle” and did not qualify as an insured under the policy. Id. at 1180-81. In Miller v. Mabe, 947 S.W.2d 151, 154 (Tenn. Ct. App. 1997), the Tennessee court found that, at the time of the accident, Miller was neither getting into the van nor getting out of it, and although he was utilizing the lights from the van, he was not using the van itself at the time of the accident. Therefore, the court determined there was no “causal relation” between Miller’s use of the van and his being struck by Mabe’s vehicle. Id. Miller was standing in the middle of the road three or four feet from his van, closer than the decedent in another case, but far enough away that he could not be considered “upon” the vehicle. Id. Miller’s attention was focused on using the limb to work the cable wire through the tree branches and was not focused on his van; therefore, the activity was not “essential” to the use of the van. Id. Consequently, under the criteria established in Utica, Miller was not “occupying” his work van at the time of his accident, and therefore, was not covered under the uninsured motorist provision of his employer’s policy. Id. In reaching our decision in this case, we need not adopt a bright-line test, as adopted by some foreign jurisdictions, because we can rely on the South Carolina cases of Yensen and McAbee. Therefore, based on Yensen and McAbee, we conclude the trial court in this case erred in finding Kennedy was “upon” the manure truck when he was hit by the pickup truck and momentarily pinned to the manure truck because he was not “in, upon, getting in, on, out or off” the manure truck at the time of the accident. He had departed the truck, gone inside the restaurant, and returned to the parking lot to talk to his half-brother near the vehicle when he was hit by the pickup truck. As a result, there was no causal connection between Kennedy’s use of the manure truck and his being struck by Counts’ pickup truck. Hence, Kennedy was not occupying his employer’s truck at the time of the accident, and is not entitled to UIM coverage from his employer’s policy.

CONCLUSION

Accordingly, the trial court’s order is REVERSED. WILLIAMS and LOCKEMY, JJ., concur. [1] Most of the facts of this case were stipulated in an agreement entered into by the parties in May 2005. [2] In his order, Judge Saunders stated, “There was irrefutable testimony by eyewitnesses, [Kennedy], and medical documentation that indicated [Kennedy] was momentarily pinned between the rear of the manure truck and the rear of [Counts’] truck. [Farm Bureau] presented no evidence to dispute the fact that [Kennedy] was pinned against the manure truck and therefore did not meet the scintilla of the evidence burden to make this a genuine issue of material fact.” [3] S.C. Farm Bureau Mut. Ins. Co. v. Kennedy, Op. No. 2006-UP-423 (S.C. Ct. App. filed Dec. 19, 2006). [4] During the trial, Kennedy’s counsel stated, “We have never alleged that there was any collision from the Counts truck with the manure truck. . . . [T]here was a collision in the Counts truck to [Kennedy’s] leg and momentarily pinned him against the manure truck.” [5] Judge Hayes made the following findings of fact in his order: (1) “The engine to the insured vehicle [Kennedy] was driving was running and a dog was inside”; (2) “[Kennedy], prior to the collision, rested his hand on the insured vehicle”; and (3) “The vehicle driven by George Counts pushed and momentarily pinned [Kennedy] against the insured vehicle causing injury.” Kennedy testified the keys were still in the ignition and his dog was in the truck. Kennedy also testified that he was leaning on the truck when he saw the pickup truck coming at him. Then, he said he took his hand off the truck and ran from the pickup truck before he was pinned to the manure truck by the pickup truck. Robinson stated in his deposition that he and Kennedy “took out running” when they saw Counts’ truck headed in their direction. Robinson said he was hit first by Counts’ truck, so he did not see Kennedy get hit, but he did hear Kennedy hollering in pain and saw him lying next to him on the ground. Ronald Long, who witnessed the accident, testified that for a second it appeared Kennedy was pinned between the pickup truck and the manure truck. [6] The Nationwide policy insured against injury “while in or upon, entering or alighting from” the motor vehicle. McAbee, 249 S.C. at 98, 152 S.E.2d at 732. [7] The policy in Whitmire defined “occupying” as “in or upon or entering into or alighting from” the insured vehicle. Whitmire, 254 S.C. at 188, 174 S.E.2d at 393. [8] The Utica policy provided, “‘occupying’ means in or upon or entering into or alighting from.” Utica, 473 A.2d at 1008. [9] The policy in Moherek defined “occupying” as “in or upon, entering into or alighting from” the insured vehicle. Moherek, 230 N.W.2d at 149. [10] The Equity policy defined “occupying” as “in, on, getting in or on, or getting off or out of” the insured vehicle. Wickham, 889 P.2d at 1260. [11] The policy defined “occupying” as being “in or upon, entering into or alighting from” the vehicle. Pierce, 283 N.E.2d at 789. [12] According to the policy, “occupying” means “in or upon or entering into or alighting from” the insured vehicle. Combs, 446 N.E.2d at 1007. [13] The policy defined “occupying” as “in, upon, getting in, on, out or off.” Rednour, 661 N.W.2d at 564.

SC Automobile Accident – Stacking UIM Policies

Feb 26, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Wrongful Death

This recent SC Court of Appeals case demonstrates the lengths required to fight your own insurance company to honor a contract and properly pay a submitted claim. In serious accident cases, the injuries sustained can easily exhaust a negligent driver’s liability insurance coverage. In these situations, the personal injury attorney must then look to his client’s own underinsured motorist protection policy (UIM) in order to secure as much insurance coverage as possible to fully compensate the damages sustained. As this case shows, you may very well have to sue your own carrier to force them to do the right thing. Next time you see a commercial claimaing “you’re in good hands,” you should remember this case. Better make sure your attorney knows what to do when your own carrier is denying you benefits and will to go to Court to win your case.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Meagan Y. Nakatsu, Appellant,

Encompass Indemnity Company, Respondent.

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

Opinion No. 4748
Heard May 19, 2010 – Filed September 29, 2010

REVERSED

John Robert Peace, of Greenville, for Appellant.

Robert D. Moseley, Jr. and C. Fredric Marcinak, of Greenville, for Respondent.

KONDUROS, J.: Meagan Nakatsu had an automobile accident while she resided with her sister, Kellie Buckner. Nakatsu brought a declaratory judgment action against Encompass Indemnity Company seeking to stack underinsured (UIM) coverage from her sister’s Encompass insurance policy with her own UIM coverage from a different insurer. The trial court granted summary judgment to Encompass finding the policy excluded UIM coverage for resident relatives not operating covered vehicles. Nakatsu appeals. We reverse.

FACTS/PROCEDURAL HISTORY

On December 16, 2007, Zunita Mattison ran a stop sign while driving and struck Nakatsu’s vehicle. Mattison fled the scene in another vehicle and was apprehended at the emergency room. As a result of the collision, Nakatsu’s car was totaled, and she required surgery to repair a broken wrist and ankle.

Mattison’s insurance company paid Nakatsu $25,000, the limit on Mattison’s policy. Nakatsu also collected $25,000 in UIM coverage from the insurance policy she maintained on her vehicle, which she was driving during the accident. At the time of the accident, Nakatsu resided with Kellie and Kellie’s husband, Adam Buckner (collectively the Buckners). The Buckners insured three vehicles under a policy with Encompass; each vehicle had UIM limits of $50,000 per person and $100,000 per accident. Their policy provided:

In consideration of an additional premium, if the Coverage Summary shows an amount of “Underinsured Motorists” coverage, we will provide the coverage described by the provisions of this endorsement.

DEFINITIONS

The following words and phrases are defined for this “UNDERINSURED MOTORISTS COVERAGE” endorsement. Only in regard to the coverage provided by this endorsement, the following definitions replace any corresponding definitions in the “MOTOR VEHICLE” Segment.

1. Covered Person means:

a. You for the ownership, maintenance or use of any vehicle, except while occupying, or when struck by, a vehicle owned by you which is not insured for by this coverage under this policy;

b. Any family member:

(1) Who does not own an automobile, for the maintenance or use of any vehicle;

(2) Who owns an automobile, but only for the use of an insured motor vehicle;
Except while occupying, or when struck by, a vehicle owned by you or that person which is not insured for this coverage under this policy;

c. Any other person occupying an insured motor vehicle with your consent, except when struck by a vehicle owned by you or that person which is not insured for this coverage under this policy;

2. Insured Motor Vehicle means:

a. An automobile, motorcycle or motorhome shown in the Coverage Summary if the Coverage Summary indicates “Underinsured Motorists” coverage for that vehicle. This includes an automobile, motorcycle or motorhome that replaces one shown in the Coverage Summary, if you ask us to insure the automobile,motorcycle or motorhome, and we agree.

b. Additional automobiles, motorcycles or motorhomes for 30 days after you become the owner, provided all the other automobiles, motorcycles and motorhomes owned by you are either covered by us or excluded by endorsement.

For coverage beyond the 30 days, you must ask us to insure the automobile, motorcycle or motorhome, and we must agree.

c. An automobile, motorcycle, motorhome or trailer not owned by you or a family member if being temporarily used while an automobile, motorcycle or motorhome shown in the Coverage Summary is out of its normal use because of its breakdown, repair, servicing, loss or destruction. It must not be available or furnished for the regular use of you or any family member.

d. An automobile, motorcycle, motorhome or trailer not owned by you or any family member if being operated by you. This vehicle must not be furnished for the regular use of you or any family member.

Nakatsu brought a declaratory judgment action against Encompass seeking to stack up to $74,999.99 in UIM coverage from the Buckners’ policy, $25,000 for each of their three cars, to the $25,000 in UIM coverage from her own policy.[1] Nakatsu stipulated the policy does not allow her UIM coverage because she was operating a vehicle not insured under the policy but argued that provision was invalid. Encompass moved for summary judgment, asserting the policy did not allow UIM coverage for resident relatives not driving covered vehicles and South Carolina case law allowed such a provision. Nakatsu also moved for summary judgment, arguing because she is a Class I insured, she was entitled to stack UIM coverage and the policy’s language to the contrary violates South Carolina statutory law. The trial court granted Encompass’s motion, relying on Burgess v. Nationwide Mutual Insurance Co., 373 S.C. 37, 644 S.E.2d 40 (2007). This appeal followed.

STANDARD OF REVIEW

The purpose of summary judgment is to expedite the disposition of cases not requiring the services of a fact finder. George v. Fabri, 345 S.C. 440, 452, 548 S.E.2d 868, 874 (2001). When reviewing the grant of a summary judgment motion, this court applies the same standard that governs the trial court under Rule 56(c), SCRCP; 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. Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002). In determining whether a genuine issue of fact exists, the evidence and all reasonable inferences drawn from it must be viewed in the light most favorable to the nonmoving party. Sauner v. Pub. Serv. Auth. of S.C., 354 S.C. 397, 404, 581 S.E.2d 161, 165 (2003).

LAW/ANALYSIS

Nakatsu argues the trial court erred in granting Encompass summary judgment because the policy excluded stacking of UIM coverage for resident relatives not driving covered vehicles. She contends that exclusion is invalid because it is inconsistent with statutory provisions and Burgess v. Nationwide Mutual Insurance Co., 373 S.C. 37, 644 S.E.2d 40 (2007), is inapplicable to this case. We agree.

“Stacking refers to an insured’s recovery of damages under more than one insurance policy in succession until all of his damages are satisfied or until the total limits of all policies have been exhausted.” State Farm Mut. Auto. Ins. Co. v. Moorer, 330 S.C. 46, 60, 496 S.E.2d 875, 883 (Ct. App. 1998). “The critical question in determining whether an insured has the right to stack is whether he is a Class I or Class II insured.” Ohio Cas. Ins. Co. v. Hill, 323 S.C. 208, 211, 473 S.E.2d 843, 845 (Ct. App. 1996). “The two classes of insureds are: (1) the named insured, his spouse and relatives residing in his household; and (2) any person using, with the consent of the named insured, the motor vehicle to which the policy applies and a guest in the motor vehicle.” Concrete Servs., Inc. v. U.S. Fid. & Guar. Co., 331 S.C. 506, 509, 498 S.E.2d 865, 866 (1998); see also Hill, 323 S.C. at 211, 473 S.E.2d at 845 (citation omitted) (“A Class I insured is an insured or named insured who has a vehicle involved in the accident. An insured is a Class II insured if none of his vehicles are involved in the accident.”). Only a Class I insured may stack. Hill, 323 S.C. at 211, 473 S.E.2d at 845.

“Statutory provisions relating to an insurance contract are part of the contract as a matter of law. To the extent a policy provision conflicts with an applicable statutory provision, the statute prevails.” State Farm Mut. Auto. Ins. Co. v. Calcutt, 340 S.C. 231, 234, 530 S.E.2d 896, 897 (Ct. App. 2000) (citation omitted). “Generally, stacking of additional coverage for which the insured has contracted is permitted unless limited by statute or a valid policy provision.” Ruppe v. Auto-Owners Ins. Co., 329 S.C. 402, 404, 496 S.E.2d 631, 631-32 (1998). “[S]tacking may be prohibited by contract if such a prohibition is consistent with statutory insurance requirements.” Id. at 406, 496 S.E.2d at 633. “[UIM] coverage is controlled by and subject to our [UIM] act, and any insurance policy provisions inconsistent therewith are void, and the relevant statutory provisions prevail as if embodied in the policy.” Kay v. State Farm Mut. Auto. Ins. Co., 349 S.C. 446, 450, 562 S.E.2d 676, 678 (Ct. App. 2002).

“Statutorily required coverage is that which is required to be offered or provided.” Ruppe, 329 S.C. at 404-05, 496 S.E.2d at 632. “[A]n insurer must offer UIM coverage pursuant to [section] 38-77-160 when the insurer extends statutorily required liability coverage.” Howell v. U.S. Fid. & Guar. Ins. Co., 370 S.C. 505, 510, 636 S.E.2d 626, 629 (2006). Stacking of UIM coverage, which is a statutorily required coverage, is governed specifically by statute. Ruppe, 329 S.C. at 405, 496 S.E.2d at 632 (citing S.C. Code Ann. § 38-77-160 (2002)). “Construing specific statutory language [found in section 38-77-160], we have held an insured is entitled to stack [UIM] . . . coverage in an amount no greater than the amount of coverage on the vehicle involved in the accident.” Id.(footnote omitted). “To this extent, stacking cannot be contractually prohibited.” Id.

“South Carolina courts have interpreted [section 38-77-160] to allow Class I insureds to stack UIM coverage from multiple automobile insurance policies.” Kay, 349 S.C. at 449, 562 S.E.2d at 678. Section 38-77-160 (emphasis added) provides:

Automobile insurance carriers . . . shall . . . offer, at the option of the insured, [UIM] coverage up to the limits of the insured liability coverage to provide coverage in the event that damages are sustained in excess of the liability limits carried by an at-fault insured or underinsured motorist or in excess of any damages cap or limitation imposed by statute. If, however, an insured or named insured is protected by . . . [UIM] coverage in excess of the basic limits, the policy shall provide that the insured or named insured is protected only to the extent of the coverage he has on the vehicle involved in the accident. If none of the insured’s or named insured’s vehicles is involved in the accident, coverage is available only to the extent of coverage on any one of the vehicles with the excess or underinsured coverage.

In Kay, 349 S.C. at 449-50, 562 S.E.2d at 678, this court determined a provision in a policy that only allowed stacking equal to the amount of the minimum limits, regardless of the amount of UIM coverage on the vehicle in the accident, violated section 38-77-160. The court found a “provision limiting stacking of UIM coverage to the minimum limits is invalid because it purports to limit the amount of coverage to an amount less than that available on the involved vehicle’s policy.” Kay, 349 S.C. at 449, 562 S.E.2d at 678.

In Jackson v. State Farm Mutual Automobile Insurance Co., 288 S.C. 335, 337, 342 S.E.2d 603, 604 (1986), the court held, “A policy provision which purports to limit stacking of statutorily-required coverage is invalid.” But see Ruppe, 329 S.C. at 405, 496 S.E.2d at 632 (finding the rule that stacking of statutorily required coverage cannot be contractually prohibited is an oversimplification of our stacking law and declining to apply it to the stacking of liability coverage).

Both the trial court and Encompass relied on Burgess in support of finding the policy does not violate statutory law. In Burgess, 373 S.C. at 39, 644 S.E.2d at 41, the insured did not have UIM coverage on the vehicle in the accident but had it on another vehicle he owned. The insurance policy for the vehicle in the accident did not allow UIM coverage when the insurance was driving another vehicle he owned but that did not have UIM coverage. Id. The Burgess court noted the “‘[i]f, however’ sentence in [section] 38-77-160, relied upon by Nationwide here, does not literally apply to these facts since Burgess is not attempting to stack excess UIM coverage from his Nationwide policy.” Burgess, 373 S.C. at 41, 644 S.E.2d at 42. The court further observed because “Burgess seeks recovery under only one policy, technically he is not seeking to stack coverage.” Id. at 41 n.1, 64 S.E.2d at 42 n.1. The supreme court posited:

[T]his statutory language does provide support for Nationwide’s contention that its policy provision does not violate public policy. The “[i]f, however” sentence in [section] 38-77-160 evinces the legislature’s intent, in a stacking situation, to bind the insured to the amount of UIM coverage he chose to purchase in the policy covering the vehicle involved in the accident. Thus, the statute itself contains a limit on the “portability” of UIM coverage.

Burgess, 373 S.C. at 41, 64 S.E.2d at 42-43. The court held public policy is not offended by an automobile insurance policy provision that limits the portability of basic UIM coverage when the insured has a vehicle involved in the accident. Id. at 42, 644 S.E.2d at 43.

Because Nakatsu was living with her sister at the time of the accident, she is a resident relative. Therefore, Nakatsu is a Class I insured under her sister’s policy. The issue in this case is whether Nakatsu can stack the Buckners’ UIM coverage. Burgess, as the opinion notes, did not involve stacking; it involved portability. These are two distinct concepts. Stacking is only allowed if the insured has the specific type of coverage on the vehicle involved in the accident. On the other hand, portability refers to a person’s ability to use his coverage on a vehicle not involved in an accident as a basis for recovery of damages sustained in the accident.

The Burgess court found disallowing Burgess UIM coverage did not offend public policy because he had declined UIM coverage. That is not the case here. Nakatsu has UIM coverage on the car in the accident through a policy she obtained on that car. She is simply seeking to stack coverage from the Buckners’ policy, under which she is a Class I insured. The policy provision conflicts with section 38-77-160 because it does not allow a Class I insured to stack UIM coverage up to the limits of the vehicle in the accident in certain situations, such as the one here. Accordingly, that provision of the policy is void, and the trial court erred in granting Encompass summary judgment.[2] Therefore, the trial court’s grant of summary judgment to Encompass is

REVERSED.

GEATHERS and LOCKEMY, JJ., concur.

[1] Although the Buckners’ UIM limits were $50,000 per car, Nakatsu acknowledged she would only be permitted to stack $25,000 per car because that is the amount she carried on her vehicle. See S.C. Farm Bureau Mut. Ins. Co. v. Mooneyham, 304 S.C. 442, 446, 405 S.E.2d 396, 398 (1991) (“[T]he amount of coverage which may be stacked from policies on vehicles not involved in an accident is limited to an amount no greater than the coverage on the vehicle involved in the accident.”).

[2] Nakatsu argues Encompass should be estopped from denying she is an insured under the policy because Encompass cited her driving record including this accident as a reason for non-renewal. Because our determination of the prior issue is dispositive, we need not address this issue. Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not review remaining issues when its determination of a prior issue is dispositive of the appeal).

SC Automobile Accident – Underinsured Motorist Protection Coverage UIM – Better Make Sure You Have Enough Insurance

Feb 26, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Wrongful Death

Underinsured motorist insurance coverage is often crucial in serious injury cases. It applies when the insurance policy of the at-fault driver is insufficient to cover the damages suffered in a serious accident. Minimum limits policies rarely offer enough money unless the accident is truly minor. And ironically, insurance agents do not fully explain the importance of having enough UIM coverage. However, in cases where UIM has not been properly presented or rejected, Courts have gone back and “reformed” policies to include UIM benefits. This recent SC Court of Appeals cases demonstrates the circumstances and procedure to effectively add underinsured coverage retroactively. In serious accident cases, we routinely encounter damages (medical bills, lost wages, future medical expenses, permanent injury) that greatly exceed the available at-fault limits. It may be necessary to file a lawsuit to seek to go back and reform the injured party’s own insurance in order to get coverage that will compensate the harm caused. Better make sure your attorney understands this area of the law and knows what to do to fully protect you and your family. We do.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Government Employees Insurance Company, Respondent,

Eugene John Draine, Appellant.

Appeal from Charleston County
Thomas L. Hughston, Jr., Circuit Court Judge

Opinion No. 4726
Heard May 19, 2010 – Filed August 11, 2010

AFFIRMED

Robert B. Ransom, of Columbia, for Appellant.

Bonum S. Wilson, III, of Charleston, for Respondent.

GEATHERS, J.: In this appeal, Eugene Draine argues that the circuit court erred by refusing to reform his automobile insurance policy with the Government Employees Insurance Company (GEICO) to provide for underinsured motorist (UIM) coverage in an amount equal to his liability coverage. Specifically, Draine contends that section 38-77-350(E) of the South Carolina Code (2002) required GEICO to add UIM coverage to his policy when, in renewing his policy, he failed to return an executed UIM offer form within thirty days after receiving it from GEICO. We affirm.

FACTS/PROCEDURAL HISTORY

The facts in this case are undisputed. Sometime in early 2003, Draine decided to switch his automobile insurance coverage from Farm Bureau Insurance to GEICO. In March 2003, GEICO sent Draine the documentation necessary to add him as a policyholder. Included therein was a form offering UIM coverage. On March 20, 2003, Draine completed the UIM offer form, rejecting all UIM coverage. The parties have stipulated that this March 2003 offer and rejection of UIM coverage complied with all aspects of South Carolina law.

Upon receipt of the completed UIM offer form and the required premium, GEICO issued an automobile insurance policy to Draine that did not include UIM coverage. In 2004, Draine’s policy was renewed and, as before, it did not include UIM coverage.[1]

On January 26, 2005, GEICO sent Draine materials so that his policy could again be renewed. Included in the documents that GEICO provided to Draine was a UIM offer form. Like the 2003 offer form, the 2005 offer form contained the following two provisions:

IF YOU ARE A NEW APPLICANT AND DO NOT SIGN AND RETURN THIS FORM, we will include Uninsured Motorist and Underinsured Motorist limits equal to your Bodily Injury and Property Damage Liability limits. This may result in a change to your premium.

IF YOU ARE A CURRENT SOUTH CAROLINA POLICYHOLDER, you must complete, sign and return this form only if you want to make changes to your policy.

Draine did not complete the offer form or return it to GEICO. Instead, Draine delivered to GEICO a check for the premium necessary to renew his existing policy, which included $25,000 in liability coverage but no UIM coverage.

GEICO subsequently renewed Draine’s policy. The dates of coverage provided by the renewed policy were March 11, 2005 through September 11, 2005.

On March 13, 2005, Draine was involved in an automobile accident caused by another driver. As a result of the accident, Draine incurred damages in excess of the other driver’s liability insurance coverage. After settling his claim against the driver, in exchange for a covenant not to execute, Draine submitted a claim to GEICO for UIM benefits. GEICO declined to pay the claim on the ground that Draine’s policy did not include UIM coverage.

Thereafter, GEICO filed a declaratory judgment action seeking a judicial determination that Draine was not entitled to UIM benefits. Draine answered and counterclaimed, arguing that his policy should be reformed to include $25,000 in UIM coverage. Draine contended that such relief was appropriate under section 38-77-350(E) of the South Carolina Code (2002) because GEICO’s 2005 renewal materials included a UIM offer form, which he had not returned.

The case proceeded to a non-jury trial before the circuit court, where it was tried on stipulated facts, exhibits, and the arguments of counsel. In an order filed July 2, 2008, the circuit court granted judgment in favor of GEICO, concluding that reformation of Draine’s policy was not warranted. Specifically, the circuit court found that “a common sense reading” of section 38-77-350 demonstrated that the legislature intended to restrict subsection (E) of that statute to “new applicants.” Additionally, the circuit court found that reformation of Draine’s policy was not warranted under contract law because (1) Draine never intended to change his policy to add UIM coverage and (2) Draine was sophisticated with regard to such matters and thus could not have been confused by the 2005 UIM offer form. This appeal followed.

ISSUE ON APPEAL

Did the circuit court err by holding that section 38-77-350(E) of the South Carolina Code (2002) did not mandate the reformation of Draine’s automobile insurance policy to include $25,000 in UIM coverage?

STANDARD OF REVIEW

“When an appeal involves stipulated or undisputed facts, an appellate court is free to review whether the trial court properly applied the law to those facts.” J.K. Constr., Inc. v. W. Carolina Reg’l Sewer Auth., 336 S.C. 162, 166, 519 S.E.2d 561, 563 (1999). “In such cases, the appellate court owes no particular deference to the trial court’s legal conclusions.” Id.

LAW/ANALYSIS

Automobile insurance carriers like GEICO are required to offer “at the option of the insured” UIM coverage up to the limits of the insured’s liability coverage. S.C. Code Ann. § 38-77-160 (2002). Section 38-77-350 of the South Carolina Code (2002 & Supp. 2009) sets forth specific requirements regarding the offering of optional coverages, such as UIM coverage.

In the present case, Draine contends that, under section 38-77-350(E), GEICO was required to add UIM coverage to his policy when he failed to return the UIM offer form that he received as part of GEICO’s 2005 renewal materials. We disagree.

“The cardinal rule of statutory construction is to ascertain and effectuate the intent of the legislature.” Blackburn v. Daufuskie Island Fire Dist., 382 S.C. 626, 629, 677 S.E.2d 606, 607 (2009). In ascertaining legislative intent, “a court should not focus on any single section or provision but should consider the language of the statute as a whole.” Mid-State Auto Auction of Lexington, Inc. v. Altman, 324 S.C. 65, 69, 476 S.E.2d 690, 692 (1996). “A statute as a whole must receive a practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of the lawmakers.” State v. Sweat, 386 S.C. 339, 350, 688 S.E.2d 569, 575 (2010) (quoting Browning v. Hartvigsen, 307 S.C. 122, 125, 414 S.E.2d 115, 117 (1992)).

The statute in question here, section 38-77-350, reads as follows:

(A) The director or his designee shall approve a form that automobile insurers shall use in offering optional coverages required to be offered pursuant to law to applicants for automobile insurance policies. This form must be used by insurers for all new applicants. The form, at a minimum, must provide for each optional coverage required to be offered: [the required contents of the form are omitted for brevity].

(B) If this form is signed by the named insured, after it has been completed by an insurance producer or a representative of the insurer, it is conclusively presumed that there was an informed, knowing selection of coverage and neither the insurance company nor an insurance agent is liable to the named insured or another insured under the policy for the insured’s failure to purchase optional coverage or higher limits.

(C) An automobile insurer is not required to make a new offer of coverage on any automobile insurance policy which renews, extends, changes, supersedes, or replaces an existing policy.

(D) Compliance with this section satisfies the insurer and agent’s duty to explain and offer optional coverages and higher limits and no person, including, but not limited to, an insurer and insurance agent is liable in an action for damages on account of the selection or rejection made by the named insured.

(E) If the insured fails or refuses to return an executed offer form within thirty days to the insurer, the insurer shall add on uninsured motorist and underinsured motorist coverages with the same policy limits as the insured’s liability limits.

S.C. Code Ann. § 38-77-350 (2002 & Supp. 2009) (emphases added).

Under section 38-77-350(E), an insurer is required to add UIM coverage to an insured’s policy when “the insured fails or refuses to return an executed offer form within thirty days to the insurer.” S.C. Code Ann. § 38-77-350(E) (2002). Here, it is undisputed that Draine timely returned an executed offer form rejecting UIM coverage when he initially became insured with GEICO in 2003. Although Draine did not return the 2005 UIM offer form he received when renewing his policy, section 38-77-350(E) does not expressly require an insured to return an executed offer form every time one is provided in order to avoid the addition of UIM coverage. Rather, it merely provides that “an executed offer form” must be returned “within thirty days.”[2]

Draine nonetheless contends that if an insurer provides an existing insured with a UIM offer form when the insured renews his coverage, the insurer must add optional UIM coverage if the insured does not timely return the form, even if the insured had previously rejected UIM coverage. We disagree. In our view, reading section 38-77-350 as a whole leads to the conclusion that GEICO was not required to add UIM coverage to Draine’s policy when Draine failed to return the UIM offer form he received when he renewed his policy in 2005. Moreover, we find that such an interpretation is consistent with the purpose and design of section 38-77-350.

A. Subsections (A) and (C) of Section 38-77-350

The underlying premise of Draine’s argument in this case is that the term “form” in subsection (E) of section 38-77-350 includes UIM offer forms that are provided to insureds who are renewing their existing policies. However, when that subsection is read in conjunction with subsections (A) and (C) of section 38-77-350, it becomes apparent that Draine’s premise is flawed.

Section 38-77-350(A), which sets forth the basic requirements for the UIM offer form, provides guidance as to what the legislature meant when it used the word “form” in section 38-77-350(E). See IBP, Inc. v. Alvarez, 546 U.S. 21, 34 (2005) (“[I]dentical words used in different parts of the same statute are generally presumed to have the same meaning.”); Busby v. State Farm Mut. Auto. Ins. Co., 280 S.C. 330, 333, 312 S.E.2d 716, 718 (Ct. App. 1984) (“Where the same word is used more than once in a statute it is presumed to have the same meaning throughout unless a different meaning is necessary to avoid an absurd result.”). Importantly, section 38-77-350(A) states that the offer form must be used for “new applicants.” S.C. Code Ann. § 38-77-350(A) (Supp. 2009). Additionally, it provides that the form must be used “in offering optional coverages required to be offered pursuant to law.” Id.(emphasis added).

In the present case, Draine was not a “new applicant” when GEICO sent him a UIM offer form in 2005. In the context of UIM cases, this court has construed the term “new applicant” as meaning “those who . . . never had an opportunity to reject UIM coverage.” See McDonald v. S.C. Farm Bureau Ins. Co., 336 S.C. 120, 124, 518 S.E.2d 624, 626 (Ct. App. 1999). Here, at the time that Draine initially became a GEICO policyholder in 2003, he was properly offered UIM coverage, which he rejected. Therefore, when Draine sought to renew his existing policy in 2005, he did not constitute a “new applicant” as contemplated by section 38-77-350(A).

Moreover, as Draine concedes, UIM coverage was not “required to be offered pursuant to law” when he renewed his policy in 2005. Section 38-77-350(C) expressly provides that “[a]n automobile insurer is not required to make a new offer of coverage on any automobile insurance policy which renews, extends, changes, supersedes, or replaces an existing policy.” S.C. Code Ann. § 38-77-350(C) (2002) (emphases added). Although this court has held that section 38-77-350(C) is inapplicable when the insurer has not made a previous effective offer of optional coverage,[3] in this case, it is undisputed that GEICO’s 2003 offer of UIM coverage was effective. Accordingly, GEICO was not required to offer UIM coverage to Draine when he renewed his policy in 2005. SeeBurnet R. Maybank, III et al., The Law of Automobile Insurance in South Carolina IV-37 (4th ed. 2000) (“The insurer is not required to make another offer of optional coverages pursuant to [section 38-77-350] at renewal time provided a properly completed and executed form has been previously obtained from the insured being renewed.”).

Because section 38-77-350(A) does not require an insurer to provide a UIM offer form to an insured who is renewing an existing policy, it is questionable whether the legislature intended for section 38-77-350(E) to apply in such a situation. Cf. Howell v. U.S. Fid. & Guar. Ins. Co., 370 S.C. 505, 509-10, 636 S.E.2d 626, 628-29 (2006) (concluding that because liability coverage for hired and non-owned vehicles is not statutorily required, an insurer providing only that type of voluntary coverage need not comply with section 38-77-160’s requirement to offer UIM coverage). While section 38-77-350(E) uses the general term “form,” a basic rule of statutory construction is that “general words—and it makes no difference how general—will be confined to the subject treated of.” Henderson v. McMaster, 104 S.C. 268, 272, 88 S.E. 645, 646 (1916); see also Beattie v. Aiken County Dep’t of Soc. Servs., 319 S.C. 449, 452, 462 S.E.2d 276, 278 (1995) (“An entire code section should be read as a whole so that phraseology of an isolated section is not controlling.”). Absent legislative intent to the contrary, a statutory term should not be given a more expansive construction in one subsection of the statute than in another subsection. See Gustafson v. Alloyd Co., 513 U.S. 561, 572-73 (1995) (rejecting the argument that the word “prospectus” had a broader meaning in one section of the Securities Act of 1933 than in another section). Thus, because section 38-77-350(A)’s use of the term “form” does not encompass non-required UIM offer forms given during the renewal process, it is unlikely that section 38-77-350(E)’s use of that term should include such forms.

B. Subsections (B) and (D) of Section 38-77-350

Section 38-77-350(B) provides further support for the conclusion that Draine’s policy should not be reformed to add UIM coverage. Pursuant to section 38-77-350(B), if an insured executes a properly completed offer form that complies with section 38-77-350(A), the insurer cannot be held liable under the policy for the insured’s failure to purchase UIM coverage. S.C. Code Ann. § 38-77-350(B) (Supp. 2009).

Here, the parties have stipulated that, in 2003, Draine properly rejected UIM coverage by executing an offer form that complied with all aspects of South Carolina law. While Draine did not execute the UIM offer form that he received when he renewed his coverage in 2005, section 38-77-350(B) expressly references the “form” described in section 38-77-350(A).[4] As noted above, section 38-77-350(A)’s use of the term “form” does not include non-required UIM offer forms given during the renewal process. Therefore, because GEICO properly offered, and Draine properly rejected, UIM coverage in 2003 when Draine was a “new applicant,” section 38-77-350(B) appears to preclude us from holding GEICO liable under Draine’s policy for Draine’s failure to purchase UIM coverage.

Like section 38-77-350(B), section 38-77-350(D) also provides support for the conclusion that the legislature did not intend for an insurer to be held liable in a case like the one presented here. Under section 38-77-350(D), an insurer satisfies his duty to offer UIM coverage by complying with the relevant provisions of section 38-77-350, and the insurer cannot subsequently be held liable in an action for damages on account of the insured’s rejection of UIM coverage. See S.C. Code Ann. § 38-77-350(D) (2002). Here, it is undisputed that GEICO properly complied with section 38-77-350 when it initially offered UIM coverage to Draine in 2003 and that he expressly rejected UIM coverage at that time. Although it is true that GEICO offered Draine optional coverage again when he renewed his policy in 2005, Draine made no indication that he wanted to purchase UIM coverage. Accordingly, based upon sections 38-77-350(B) and (D), we conclude that GEICO should not be held liable in any way for Draine’s failure to purchase UIM coverage.

C. Purpose and Design of Section 38-77-350

We believe that our interpretation of section 38-77-350 is consistent with the purpose and design of the statute. The South Carolina Supreme Court has explained that “[t]he purpose of requiring automobile insurers to make a meaningful offer of additional UM or UIM coverage ‘is for insureds to know their options and to make an informed decision as to which amount of coverage will best suit their needs.'” Floyd v. Nationwide Mut. Ins. Co., 367 S.C. 253, 262-263, 626 S.E.2d 6, 12 (2005) (quoting Progressive Cas. Ins. Co. v. Leachman, 362 S.C. 344, 352, 608 S.E.2d 569, 573 (2005)) (emphasis added). When an insured does not return a UIM offer form, the insurer cannot be certain that the insured actually made a decision regarding UIM coverage. Accordingly, the legislature has chosen to create a statutory presumption that the insured desires coverage in such cases. Here, however, Draine unquestionably made an informed decision rejecting UIM coverage in 2003. See § 38-77-350(B) (providing that if UIM coverage is offered and rejected in accordance with section 38-77-350, then it is “conclusively presumed” that an “informed” choice was made). In view of that fact, it does not make sense to presume that Draine desired UIM coverage in 2005 merely because he failed to return the UIM offer form he received when he renewed his policy that year.

A somewhat similar conclusion was reached by this court in United Services Automobile Ass’n v. Litchfield, 356 S.C. 582, 590 S.E.2d 47 (Ct. App. 2003). In that case, the court addressed whether it was appropriate to reform an insured’s automobile insurance policy to include UIM coverage when the insured previously informed her insurer that she wanted to drop her UIM coverage. The insured contended the policy should be reformed because the insurer did not make a valid offer of UIM coverage when she purchased her policy. Id. at 584, 590 S.E.2d at 48. On appeal, this court, without addressing the validity of the insurer’s offer, concluded the policy should not be reformed to include UIM coverage. The court explained that finding in favor of the insured “would make no sense” given that the insured had previously contacted the insurer “for the specific purpose of dropping [UIM] coverage.” Id. at 584, 590 S.E.2d at 49.

Here, like in Litchfield, it would not make sense to hold that Draine’s failure to return the 2005 UIM offer form dictated the addition of UIM coverage to Draine’s policy given that (1) Draine had expressly rejected GEICO’s legally compliant offer of UIM coverage just two years earlier and (2) the 2005 UIM offer form specifically advised current South Carolina policyholders like Draine that they were required to return the form “only if you want to make changes to your policy.” (emphasis added). Taken together, these two facts lead to the inescapable conclusion that Draine made an informed decision to reject UIM coverage. Therefore, finding that Draine is not entitled to reformation of his policy does not offend section 38-77-350’s purpose of protecting insureds from uninformed decisions regarding optional coverages.

CONCLUSION

For the foregoing reasons, we hold that section 38-77-350(E) did not require GEICO to add UIM coverage to Draine’s policy when Draine failed to return the UIM offer form he received as part of GEICO’s 2005 renewal materials.[5] Accordingly, the circuit court’s decision is

AFFIRMED.

KONDUROS and LOCKEMY, JJ., concur.

[1] The record is unclear as to whether Draine was offered UIM coverage when he renewed his policy in 2004.

[2] While section 38-77-350(E) does not specify the event that triggers the commencement of the thirty-day time period, it is reasonable to presume that the legislature intended for the triggering event to be an event mentioned in the statute. See S. Mut. Church Ins. Co. v. S.C. Windstorm & Hail Underwriting Ass’n, 306 S.C. 339, 342, 412 S.E.2d 377, 379 (1991) (“[W]ords in a statute must be construed in context.”). For reasons discussed herein, we conclude that section 38-77-350(E)’s thirty-day time period is triggered by the provision of offer forms to “new applicants” as set forth in section 38-77-350(A), rather than by the provision of offer forms to existing policyholders—an event not contemplated by the statute.

[3] See Antley v. Noble Ins. Co., 350 S.C. 621, 635-36, 567 S.E.2d 872, 879-80 (Ct. App. 2002) (holding an insurer could not rely upon section 38-77-350(C) to avoid the reformation of its insured’s policy to include uninsured motorist coverage when the insurer failed to present any evidence that it previously made a meaningful offer of such coverage to the insured).

[4] Section 38-77-350(B) begins by referring to “this form.” See § 38-77-350(B) (emphasis added). By doing so, section 38-77-350(B) specifically references the use of the word “form” in section 38-77-350(A). Cf. Alvarez, 546 U.S. at 34 (explaining that the phrase “said principal activity or activities” in one subsection of a statute was an explicit reference to the use of the term “principal activity or activities” in the immediately preceding subsection of the statute).

[5] Because Draine’s remaining arguments are all premised upon a contrary construction of section 38-77-350(E), we decline to discuss those arguments. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (stating that an appellate court need not review remaining issues when its determination of a prior issue is dispositive of the appeal).

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