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.
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Meagan Y. Nakatsu, Appellant,
v.
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).
Feb 26, 2012 | Car Accidents, Personal Injury, Uncategorized
This recent SC Court of Appeals case illustrates the complex insurance policy analysis required in many cases to determine if coverage applies to a particular set of facts. Every person who contacts a personal injury attorney has been harmed (damages). That is the easy part. However, to successfully resolve any claim, there must be three elements – liability, damages, and insurance coverage. As for liability, the attorney must evaluate who is responsible for what injury. And finally, there is the all important search for insurance coverage. If there is no available coverage, you can sue for any amount of money, but you will only have a judgment which is most probably uncollectable (see O.J. Simpson multimillion dollar verdict). In many cases, there is simply not enough insurance coverage to properly compensate an injured party. Other times, you have to file a lawsuit against the insurance company itself because they refuse to voluntarily honor and pay pursuant to your contract. Most lawyers simply give up and return files at this point. Better make sure your attorney knows what to do when your insurance company denies your claim and is willing to go to court to win your case.
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Richard Murr, Appellant,
v.
Nationwide Mutual Insurance Company, Respondent.
Opinion No. 4709
Heard April 13, 2010 – Filed July 7, 2010
Appeal From Anderson County
J.C. Buddy Nicholson, Jr., Circuit Court Judge
REVERSED AND REMANDED
Donald Leverette Allen, of Anderson, for Appellant.
Raymond Allen Tate, Jr., of Anderson, for Respondent.
LOCKEMY, J: In this appeal, Richard Murr argues the circuit court erred in granting Nationwide Mutual Insurance Company’s (Carrier) motion for summary judgment. Specifically, Murr maintains he was entitled to liability coverage under the “temporary substitute” provision of his policy with Carrier. We reverse and remand.
FACTS
Carrier denied Murr coverage after he was involved in an accident on May 27, 2006. Thereafter, Murr initiated a declaratory judgment action to determine whether he was covered under his policy with Carrier. The facts of the accident are not in dispute.
Murr suffered injuries when riding as a passenger in his stepson’s Saturn. Murr’s wife, Elaine Murr (Wife) was driving the Saturn and negligently turned left into the path of an oncoming vehicle. Murr’s stepson, Redgel Eugene Lawrence, lived with the Murrs when the accident occurred. At the time of the accident, the Murrs’ vehicle, a 1998 Pontiac Bonneville, was inoperable. Murr sought to extend the liability coverage on his Pontiac to the accident because the Saturn’s liability insurance was tendered in full. Murr’s insurance policy on the Pontiac provided liability coverage for “temporary substitute” vehicles in the event the insured vehicle became inoperable.
Depositions of the Murrs indicated the Pontiac became inoperable four months prior to the accident when the battery died and the motor exhibited problems. As a result, Lawrence furnished the Murrs with the Saturn, and he purchased a Jeep for himself. According to Wife, she and Lawrence made the car payments on the Saturn, and Lawrence added Wife to the Saturn’s insurance policy. After Lawrence purchased the Jeep and before the accident, he drove the Jeep exclusively and Wife drove the Saturn exclusively. At the time of the accident, the Murrs were in the process of moving. When they finished moving, five months later, they left the Pontiac in a fenced area at their former residence. Later that month, when Murr returned to retrieve the Pontiac, to “continue the process of getting it fixed,” Murr discovered the vehicle had been stolen.
After Murr filed his declaratory judgment motion, both Carrier and Murr moved for summary judgment. After a hearing, the circuit court granted Carrier’s motion. Ultimately, the circuit court found the Pontiac’s insurance policy could not act as excess liability coverage because the Saturn was not a “temporary substitute.” This appeal followed.
STANDARD OF REVIEW
Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wilson v. Moseley, 327 S.C. 144, 146, 488 S.E.2d 862, 865 (1997). In ruling on a motion for summary judgment, the evidence and all inferences which can be reasonably drawn therefrom must be viewed in the light most favorable to the non-moving party. Id. Rule 56(c) of the South Carolina Rules of Civil Procedure provides that summary judgment is proper when no issue of any material fact exists and the moving party is entitled to a judgment as a matter of law.
LAW/ANALYSIS
Murr argues the circuit court erred in granting Carrier’s summary judgment motion because he and Wife were using the Saturn as a temporary substitute. We agree.
Murr maintains his policy with Carrier provides coverage when he is using other motor vehicles because of “a) breakdown; b) repair; c) servicing; or d) loss” of his automobile. Murr argues that his policy does not define “temporary,” and the lack of a definition creates an ambiguity in the policy. Thus, the meaning of “temporary substitute” was a genuine issue as to a material fact under the insurance policy. Murr argues the circuit court erred in ruling he had no intention of repairing the Pontiac. Specifically, Murr maintains a genuine issue of material fact exists as to whether Murr had the intention to make the necessary repairs to the Pontiac. We agree with Murr and find a jury issue was created regarding whether the Murrs intended to repair the Pontiac.
Recently, our supreme court addressed a similar “temporary substitute” issue in Zurich American Insurance Company v. Tolbert, 387 S.C. 280, 692 S.E.2d 523 (2010). There, Tolbert was involved in an accident while driving a Honda that he owned. 387 S.C. at _, 692 S.E.2d at 524. However, at the time of the accident, he was leasing a BMW from his employer. 387 S.C. at _, 692 S.E.2d at 523. Tolbert and his wife sought underinsured motorist coverage (UIM) on the BMW under its “temporary substitute” provision. 387 S.C. at _, 692 S.E.2d at 524. In his affidavit, Tolbert reasoned he was driving his Honda instead of the BMW at the time of the accident because the BMW needed servicing and an oil change. Id.
Zurich brought a declaratory judgment action to determine if coverage existed. Id. Both Zurich and Tolbert moved for summary judgment. Id. There, the circuit court granted Zurich’s motion, denying Tolbert UIM coverage. Id. This court reversed and found there was a genuine question of material fact under the “temporary substitute” vehicle endorsement. Id. Our supreme court affirmed the ruling and reasoned Tolbert’s statement from his affidavit “constituted the scintilla of evidence necessary to withstand summary judgment . . . .” 387 S.C. at _, 692 S.E.2d at 524-25.
We find Zurich controlling. As a result, Murr’s statements in his deposition constitute the scintilla of evidence needed to survive a summary judgment motion. There, Murr characterized the Pontiac’s inoperability as temporary. Further, he stated when he discovered the Pontiac was stolen, he was retrieving it to continue the repair process. Therefore, we find Murr’s testimony presents a genuine issue of material fact. The factual question of whether the Murrs’ use of the Saturn was for a temporary period until the Pontiac was repaired or whether the Murrs permanently substituted the Saturn for the inoperable Pontiac should have been submitted to the jury. Therefore, we hold the circuit court erred in granting Carrier’s motion for summary judgment.
CONCLUSION
Accordingly, the circuit court’s grant of summary judgment is
REVERSED AND REMANDED.
SHORT AND WILLIAMS, JJ., concur.
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.
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Government Employees Insurance Company, Respondent,
v.
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).
Feb 26, 2012 | Car Accidents, Personal Injury, Uncategorized
This recent SC Court of Appeals case dealt with the extent of liability against landowners whose farm animals stray off property. Both SC and NC are largely agricultural states with all types of livestock – cows, horses, pigs, goats, sheep, etc. A farmer has an affirmative duty to take steps to keep their livestock secure through fencing and other means to protect their neighbor’s property. If the livestock “get loose” and cause damage, the owner is strictly liable for the harm. This case considered whether that same liability extended to drivers who might strike wandering animals on public roadways. The Court determined that such strict liability did not apply here. Rather, the individual case would have to be reviewed for driver negligence. The typical defenses asserted are that the driver should have been going at a proper speed which would allow him to take evasive action and/or stop before striking animals on the roadway, similar to any other objects or “debris.” Of course, passengers in these vehicle accidents would not be subject to this analysis and would be entitled to damages for any injuries sustained. In addition to farm animals, we see alot of cases where drivers strike wild deer on the road. Sadly, such impacts can cause tremendous damage and even cause the driver to lose control and crash. When driving, especially at night, on rural roads, keep your speed slower so that you can hopefully anticipate and avoid these risks. Be Safe. Get Home.
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Pearl C. Williams, Appellant,
v.
Dean Smalls, Respondent.
Appeal From Marion County
Michael G. Nettles, Circuit Court Judge
Opinion No. 4755
Submitted May 3, 2010 – Filed October 20, 2010
AFFIRMED AS MODIFIED
Michael T. Miller, of Florence, for Appellant
R. Hawthorne Barrett, of Columbia, and R. Heath Atkinson, of Florence, for Respondent.
THOMAS, J.: Pearl C. Williams appeals the trial court’s grant of summary judgment which held section 47-7-130 of the South Carolina Code (1987) did not impose strict liability on the owner of livestock for personal injuries suffered when Williams’s automobile collided with escaped cows. We affirm as modified.
FACTS
In January 2006, Pearl Williams was traveling along U.S. Highway 76 in Marion County, when her automobile collided with cows owned by Dean Smalls, causing Williams personal injury.
Williams sued Smalls alleging both negligence and, pursuant to section 47-7-130, strict liability. Smalls moved for summary judgment, and Williams conceded summary judgment on the negligence claim. The trial court subsequently heard the motion on the strict liability claim and granted summary judgment, finding section 47-7-130 extended only to real property damage and not personal injury. This appeal follows.
STANDARD OF REVIEW
A trial court may grant a motion for summary judgment when no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. Rule 56(c), SCRCP. However, “[d]etermining the proper interpretation of a statute is a question of law, and this [c]ourt reviews questions of law de novo.” Town of Summerville v. City of N. Charleston, 378 S.C. 107, 110, 662 S.E.2d 40, 41 (2008); see also Catawba Indian Tribe of S.C. v. State, 372 S.C. 519, 524, 642 S.E.2d 751, 753 (2007).
LAW/ANALYSIS
The trial court held there was no support for the position that the damages recoverable under section 47-7-130 extended to personal injury. Accordingly, the trial court held that recovery for personal injury resulting under these facts required a showing of negligence and therefore granted summary judgment. We agree, in part.
This case involves two novel questions of law: first, whether section 47-7-130 imposes a strict liability standard on the owners of livestock for personal injury, and second, if such a standard is imposed, whether it extends to personal injury occasioned when livestock is found at large upon a public roadway.
Section 47-7-130 of the South Carolina Code provides:
Whenever any domestic animals shall be found upon the lands of any other person than the owner or manager of such animals, the owner of such trespassing stock shall be liable for all damages sustained and for the expenses of seizure and maintenance. Such damages and expenses shall be recovered, when necessary, by action in any court of competent jurisdiction. And the trespassing stock shall be held liable for such damages and expenses, in preference to all other liens, claims or encumbrances upon it.
When this court is confronted with construing a statute:
[If] the statute’s language is plain and unambiguous, and conveys a definite meaning, the rules of statutory construction are not needed and the court has no right to impose another meaning. What a legislature says in the text of a statute is considered the best evidence of legislative intent or will. Therefore, the courts are bound to give effect to the expressed intent of the legislature.
Hardee v. McDowell, 381 S.C. 445, 453, 673 S.E.2d 813, 817 (2009) (internal quotations and citations omitted).
Initially, the plain language of section 47-7-130 imposes strict liability for “all damages.” S.C. Code Ann. § 47-7-130 (emphasis added). We find the plain meaning of the language “all damages” contemplates not only injury to real property, but also personal property. See Kirby v. Mathis, 89 S.C. 252, 71 S.E. 862 (1911) (imposing strict liability on the owner of trespassing stock for damage done to plaintiff’s wheat crop); Restatement (Third) Torts: Liab. Physical Harm § 21 (2005) (recognizing the tendency of wandering animals to not only injure real property, but also to damage structures and other personal property unaffixed to the land, such as: harvested crops, livestock, and feed supplies); Vangilder v. Faulk, 426 S.W.2d 821 (Ark. 1968) (recognizing the owner of a trespassing bull to be liable for damage caused when the bull attacked the plaintiff’s livestock); Hart v. Meredith, 553 N.E.2d 782 (Ill. App. Ct. 1990) (recognizing liability on the owner of a trespassing bull for impregnating plaintiff’s cow); W. Page Keeton et al., Prosser & Keeton on the Law of Torts 560 (5th ed. 1984) (discussing the liability of the owner of trespassing stock for infecting plaintiff’s animals with disease). Additionally, this plain reading contemplates strict liability for personal injury. See Robinson v. Kerr, 355 P.2d 117 (Colo. 1960) (finding strict liability for personal injury caused by livestock while plaintiff was attempting to expel the trespassing stock); Nixion v. Harris, 238 N.E.2d 785 (Ohio 1968) (imposing strict liability for personal injury caused by trespassing livestock); Williams v. River Lakes Ranch Development Corp., 116 Cal.Rptr. 200 (Ct. App. 1974) (imposing strict liability on the owner of a bull when the bull trespassed on neighboring property and gored the owner).
However, just as the plain language of section 47-7-130 imposes strict liability for “all damages,” the title of the statute directly and specifically addresses the “liability of owners of trespassing stock.” See S.C. Code Ann. § 47-7-130 (emphasis added). In the general sense, a trespass is an intentional tort in which a trespasser invades a plaintiff’s interest in the exclusive possession of his real property. See, e.g., Cedar Cove Homeowner’s Ass’n, Inc. v. DiPietro, 368 S.C. 254, 264, 628 S.E.2d 284, 289 (Ct. App. 2006) (Anderson, J., dissenting). Accordingly, the language of section 47-7-130 is not as explicit in regards to when strict liability is appropriate as it is about what damages an owner shall be strictly liable for. Consequently, we must look beyond the language of the statute to determine if strict liability applies only when the damage is a result of a trespass.
Traditionally, the common law did not, and in the absence of a statute to the contrary does not, impose a strict duty to keep one’s stock from entering public highways or roadways unless the animal has reasonably known dangerous propensities. See Gibbs. v. Jackson, 990 S.W.2d 745, 747 (Tex. 1999) (indicating that at the common law, although the owner of stock had a duty to prevent the animal from trespassing upon another person’s land, he had no duty to prevent the animal from straying onto a public roadway unless the owner had prior knowledge that the particular animal had dangerous propensities) (citing Cox v. Burbidge, 13 C.B. (N.S.) 430, 438-39 (Eng. C.P. 1863); Heath’s Garage, Ltd. v. Hodges, [1916] 2 K.B. 370, 375-84 (Eng. C.A.); Salmond, Salmond on Torts § 127, at 494, 500 (W.T.S. Stallybrass, ed. 7th ed. 1928)). In the absence of this strict duty, the preferred standard is negligence. See Restatement (Third) Torts: Liab. Physical Harm § 21 (noting that traditionally when stock strays onto highways, liability should rest only on a negligence standard and distinguishing between stock trespassing on private land, where the stock is the sole active entry and incidents on highways which must involve at least two actors).
The very essence of trespass, as a cause of action, is to ensure protection of an individual’s rights and interests in real property, not the least of which is the right of exclusion. In the simplest sense, these rights which support the imposition of strict liability are not implicated in situations in which stock enter upon public highways or roadways, and consequently, it seems universally accepted that liability in these circumstances shall be found only upon a showing of negligence. See Toole v. DuPuis, 735 So.2d 582 (Fla. Dist. Ct. App. 1999) (specifically considering and rejecting the application of strict liability to the owner of stock straying onto highways); Hand v. Starr, 550 N.W.2d 646 (Neb. 1996) (indicating a standard of strict liability for trespassing stock and negligence for stock entering public highways); Byram v. Main, 523 A.2d 1387 (Me. 1987) (finding an owner’s liability for stock straying onto highways shall be based upon negligence, not strict liability); Davert v. Larson, 209 Cal.Rptr. 445 (Ct. App. 1985) (indicating that the appropriate standard for trespassing stock is strict liability, but the standard for stock entering public highways is a negligence standard); Vaclavicek v. Olejarz, 297 A.2d 3 (N.J. 1972) (declining to apply strict liability to owners of stock entering public highways); Scanlan v. Smith, 404 P.2d 776 (Wash. 1965) (ruling negligence is the applicable standard for stock straying upon highways).
In this case, because Smalls’s cows strayed onto a public highway and not Williams’s private land, no property right of Williams’s was impinged solely by the cows’ presence upon the highway. Similarly, Williams enjoys neither the right of exclusive possession nor the right to expel other persons or property from the highway. Consequently, the historic justifications for the imposition of strict liability upon the owner of stock are not at stake here. Williams is entitled to no expectation that the roadways will be free and clear of all hazards, simply those hazards interposed by the unreasonable conduct of others. Likewise, a collision would require conduct on the part of Williams beyond merely the intrusion by the stock, which is not a risk common to trespassing stock. Therefore, we must find strict liability is not to be imposed when stock strays onto a highway or roadway. Rather, liability shall be found only upon negligence.
This holding aligns with the jurisprudence of this State which has recognized the imposition of a duty upon stock owners not to willfully or negligently permit animals to run at large. See S.C. Code Ann. § 47-7-110 (1987) (stating it shall be unlawful to willfully or negligently allow stock to run at large). Similarly, the courts of this State have suggested that liability for collisions with stock wandering into a highway rests on a negligence theory. Swindler v. Peay, 227 S.C. 157, 161, 87 S.E.2d 296, 299 (1955) (finding in a case in which a driver collided with livestock it was not error to suggest the predecessor of section 47-7-110 stated a duty on the part of the owner of the escaped stock); see also Reed v. Clark, 277 S.C. 310, 314, 286 S.E.2d 384, 387 (1982); McCullough v. Gatch, 251 S.C. 171, 175, 161 S.E.2d 182, 183-84 (1968) (both applying a negligence standard under the predecessor of section 47-7-130 in cases where a car collided with stock in the highway).
Recognizing the applicable standard of liability in this case is negligence, we find no error on the part of the trial court. Significantly, because Williams conceded any issues of negligence in this case we are not occasioned to consider what conduct will sufficiently support such a claim. It suffices that because our supreme court has held the duty imposed by section 47-7-110 to not willfully or negligently allow stock to run at large will not support negligence per se, a plaintiff must provide evidence of negligence in order to overcome summary judgment. See McCullough, 251 S.C. 171, 161 S.E.2d 182 (finding a plaintiff who collided with stock must present evidence of negligence on the part of the defendant).
CONCLUSION
We find section 47-7-130 imposes strict liability for personal injury caused by trespassing stock; however, we also find that negligence, not strict liability, is the appropriate standard for instances in which livestock wander into a highway. Accordingly, because we can affirm for any reason appearing in the record,[1] the trial court’s grant of summary judgment for failure to provide evidence of negligence is
AFFIRMED AS MODIFIED
FEW, C.J. and PIEPER, J., concur.
[1] See I’On v. Town of Mt. Pleasant, 338 S.C. 406, 420, 526 S.E.2d 716, 723 (2000) (noting that an appellate court can affirm the trial court for any reason appearing in the record).
Feb 25, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized
This recent SC Supreme Court case discusses whether a city or municipality can basically exempt itself from a State law. In this matter, the issue is helmet laws for motorcyclists. Regardless of the outcome of this decision, it raises the controversial topic of whether motorcycle riders should be allowed to decide for themselves whether to wear protective helmets. We all know the safety issues and injury concerns. However, most motorcycle riders are fiercely independent thinkers and want to experience the freedom that only riding a motorcycle on an open road provides. It is an even more intimate experience with the road than riding in a convertible. We support a rider’s choice. While we know the potential consequences and represent injured parties in motorcycle accident cases, we still believe in the individual and our right to be free.
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they collectively understand the potential criminal, insurance, and medical aspects of complex injury cases. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
George Jensen Aakjer, III,
Leight Andersen, Bobby
Wayne Archer, Donald Lee
Ard, Gary Philip Balcom,
Thurman Odell Barnes, Ralph
Hillary Bell, Jr., Marvin Simon
Beverly, Steven M. Brinsfield,
Laurie Ann Dzerwieniec,
Jeffery Jay Galbrath, Ronald
Dewayne Gause, Gwendolyn
Marie Harvey, Jessica Jane
Hayes, Anthony Odell Hyman,
Molly Infield, Mark Dale
Infield, Bonnie Roberts
Johnson, Emmett Earl Jones,
Dawn Michell Kelly, Richard
Allen Lester, Rodney Alan
Louhoff, Gary Edward Matson,
Carla Williams Mercer,
Richard O’Neil Mercer, Edward
Dee Mitchum, Kathy Mitchum,
Carol Justice North, Carol
O’Day, William O’Day, III,
Paul David Pinette, Steve
Pinnell, Robert George Pinto,
Debra A. Purcell, Rhonda
Delette Robinson, Scott Allen
Robinson, Rebecca Ann
Rowan, Scott Rowan, Joseph
Fred Ruddock, Jr., David
Francis Speck, Anita Lynn
Teachey, Robert Larry
Thompson, Waddell H.
Thompson, Michael James
Timm, Debbie Timm, Rebel
JM Tyler, Janice Waites, Susan
Wall, and Edward Lucas Williams, Petitioners,
v.
City of Myrtle Beach, City of Myrtle Beach Municipal Court, Respondents.
ORIGINAL JURISDICTION
Opinion No. 26825
Heard February 3, 2010 – Filed June 8, 2010
JUDGMENT FOR PETITIONERS
Desa Ballard, of West Columbia, and James Thomas McGrath, of Richmond, Virginia, for Petitioners.
Michael W. Battle, of Battle, Vaught & Howe, of Conway, for Respondents.
JUSTICE PLEICONES: In response to various concerns stemming from motorcycle rallies, the City of Myrtle Beach enacted a number of ordinances and amendments to ordinances (the Motorcycle Ordinances). Among the ordinances was Ordinance 2008-64, which required that any person riding a motorcycle wear a protective helmet and eyewear (the Helmet Ordinance). Petitioners were each cited for violating the Helmet Ordinance by failing to wear the requisite helmet and eyewear. They brought this action in this Court’s original jurisdiction challenging the Helmet Ordinance on three points: (1) the Helmet Ordinance is preempted by State law; (2) the ordinance establishing the system for adjudicating infractions of the Helmet Ordinance, which has since been repealed, was so intertwined with certain Motorcycle Ordinances that its repeal caused the ordinances to fail[1]; and, (3) the current system for adjudicating alleged violations of the Helmet Ordinance in municipal court is improper as the municipal court lacks subject matter jurisdiction over the charges.
Petitioners seek a declaratory judgment finding the Helmet Ordinance and Motorcycle Ordinances invalid and a writ of prohibition barring the municipal court from exercising jurisdiction over the alleged violations of the Helmet Ordinance. We find: (1) that the Helmet Ordinance is preempted under the doctrine of implied field preemption; (2) that the Motorcycle Ordinances were impliedly repealed by the ordinance repealing the administrative hearing system; and, (3) since we invalidate the Helmet Ordinance, we do not reach Petitioners’ argument seeking a writ of prohibition.
FACTS
For years, large motorcycle rallies were held in Myrtle Beach. A number of objections were had to the rallies based on, among other things, loud noise and rowdy behavior. Additionally, there was evidence the rallies placed a heavy burden on the local medical community, police, and other emergency responders.
In response, the City passed a number of ordinances and amendments dealing with rallies and motorcycles. Included among them was the Helmet Ordinance, an ordinance requiring all persons riding on motorcycles to wear approved helmets and eyewear. Under the language of the Helmet Ordinance, a violation was deemed an “administrative infraction.” The City passed an ordinance establishing an administrative hearing system to conduct hearings on citations charging violations of certain municipal ordinances, including certain Motorcycle Ordinances. The administrative hearing ordinance was subsequently repealed.
Petitioners were each cited for failing to wear the requisite helmet and eyewear in the City. After the administrative hearing system was repealed, the City issued a Uniform Ordinance Summons for each person charged, requiring them to appear before a municipal court judge. This Court accepted Petitioners’ petition for certiorari in its original jurisdiction before any charges were adjudicated.
ISSUES
| I. |
Is the Myrtle Beach Helmet Ordinance preempted by State law? |
| II. |
Are the Motorcycle Ordinances impliedly repealed? |
DISCUSSION
I. Preemption
A municipal ordinance is a legislative enactment and is presumed to be constitutional. Southern Bell Telephone and Telegraph Co. v. City of Spartanburg, 285 S.C. 495, 497, 331 S.E.2d 333, 334 (1985). The burden of proving the invalidity of a municipal ordinance is on the party attacking it. Id. This State’s constitution provides that the powers of local governments should be liberally construed. See S.C. Const. art. VIII, § 17.
To determine the validity of a local ordinance, this Court’s inquiry is twofold: (1) did the local government have the power to enact the local ordinance, and if so (2) is the ordinance consistent with the constitution and general law of this State. See Beachfront Entertainment, Inc., v. Town of Sullivan’s Island, 379 S.C. 602, 605, 666 S.E.2d 912, 913 (2008). Petitioners advance a number of grounds for preemption of the Helmet Ordinance. We hold that the Helmet Ordinance fails under the doctrine of implied field preemption.
An ordinance is preempted under implied field preemption when the state statutory scheme so thoroughly and pervasively covers the subject as to occupy the field or when the subject mandates statewide uniformity. See South Carolina State Ports Authority v. Jasper County, 368 S.C. 388, 397, 629 S.E.2d 624, 628 (2006). The General Assembly addressed motorcycle helmet and eyewear requirements in S.C. Code Ann. §§ 56-5-3660 and 56-5-3670 (2009), respectively. The statutes generally require all riders under age twenty-one to wear a protective helmet and utilize protective goggles or a face shield. The Helmet Ordinance, in contrast, requires all riders, regardless of age, to wear a helmet and eyewear.
In S.C. Code Ann. § 56-5-30 (2009) the General Assembly authorized local authorities to act in the field of traffic regulation if the ordinance does not conflict with the provisions of the Uniform Traffic Act. Even assuming, as the City contends, that the Helmet Ordinance does not conflict with the Uniform Traffic Act, we find that the ordinance may not stand as the need for uniformity is plainly evident in the regulation of motorcycle helmets and eyewear. Were local authorities allowed to enforce individual helmet ordinances, riders would need to familiarize themselves with the various ordinances in advance of a trip, so as to ensure compliance. Riders opting not to wear helmets or eyewear in other areas of the state would be obliged to carry the equipment with them if they intended to pass through a city with a helmet ordinance. Moreover, local authorities might enact ordinances imposing additional and even conflicting equipment requirements. Such burdens would unduly limit a citizen’s freedom of movement throughout the State. Consequently, the Helmet Ordinance must fail under the doctrine of implied preemption.[2]
II. Implied Repeal
As noted above, the City initially sought to enforce the Motorcycle Ordinances, including the Helmet Ordinance, in an administrative hearing tribunal, but later repealed the ordinance establishing the system. Petitioners contend the City’s enactment of the ordinance repealing the administrative hearing system caused the entire Motorcycle Ordinance scheme to fail.[3] We agree.
In general, repeal by implication is disfavored, and is found only when two statutes are incapable of any reasonable reconcilement. See Capco of Summerville, Inc. v. J.H. Gayle Const. Co., Inc., 368 S.C. 137, 141, 628 S.E.2d 38, 41 (2006). “The repugnancy must be plain, and if the two provisions can be construed so that both can stand, a court shall so construe them.” Spectre, LLC v. South Carolina Dep’t of Health and Envtl. Control, 386 S.C. 357, 372, 688 S.E.2d 844, 852 (2010). When two statutes “are incapable of reasonable reconcilement, the last statute passed will prevail, so as to impliedly repeal the earlier statute to the extent of the repugnancy.” See Chris J. Yahnis Coastal, Inc. v. Stroh Brewery Co., 295 S.C. 243, 247, 368 S.E.2d 64, 66 (1988).
As noted, the City of Myrtle Beach enacted a number of ordinances and amendments to ordinances in response to the motorcycle rallies. Among the ordinances were ordinances 2008-61 through 67, which the City passed with the designation that any violation constituted an “administrative infraction.” The City also enacted Ordinance 2008-71, establishing an administrative hearing system which, as the City explained on its website, established a process “to handle infractions as specified in Ordinances 2008-61, 2008-62, 2008-63, 2008-64, 2008-65, 2008-66, and 2008-67.” Ordinance 2008-71 set forth in detail the rules, powers, and procedures of the administrative hearing system.
We find that the above-cited ordinances were enacted with the specific condition that they be enforced in the specially-crafted administrative hearing system. The ordinances therefore cannot be reconciled with a later ordinance abolishing the system. Consequently, the Motorcycle Ordinances continuing to reference “administrative infractions” were impliedly repealed.
We note, however, that in the same ordinance which repealed the administrative hearing system, the City amended Ordinances 2008-61 (accommodations restrictions) and 2008-65 (parking of trailers on public streets or unlicensed private lots) to designate those violations as “misdemeanors” rather than “administrative infractions.” Consequently, these ordinances are not impliedly repealed and remain in effect.
CONCLUSION
We find that the City Helmet Ordinance fails under implied field preemption due to the need for statewide uniformity and therefore issue a declaratory judgment invalidating the ordinance. Moreover, we hold that certain Motorcycle Ordinances were impliedly repealed by the ordinance repealing the administrative hearing system.
JUDGMENT FOR PETITIONERS.
TOAL, C.J., BEATTY, KITTREDGE and HEARN, JJ., concur.
[1] Petitioners contend the following ordinances were invalidated by repeal of the ordinance establishing the administrative hearing system: 2008-61 (accommodations restrictions); 2008-62 (consumption and open possession of alcohol in parking areas); 2008-63 (use of parking lots for non-parking activities); 2008-64 (helmet and eyewear requirements for cycles and mopeds); 2008-65 (parking of trailers on public streets or unlicensed private lots); 2008-66 (convenience store and premises security); and 2008-67 (minor or juvenile curfew).
[2]Because we find that the Helmet Ordinance fails under implied field preemption, we need not reach Petitioners’ remaining preemption issues. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (appellate court need not discuss remaining issues when disposition of prior issue is dispositive). Additionally, we need not address Petitioners’ request for a writ of prohibition barring the municipal court from exercising jurisdiction over the alleged ordinance violations. See Sangamo Weston, Inc. v. National Surety Corp., 307 S.C. 143, 148, 414 S.E.2d 127, 130 (1992) (“This court will not issue advisory opinions . . . .”).
[3] Though Petitioners phrase their argument as whether the administrative hearing ordinance is “severable” from the Motorcycle Ordinances, Petitioners actually argue implied repeal.
Feb 25, 2012 | Criminal Defense, Drug Crimes and Controlled Substances Defense, Uncategorized
The following article details the end of the federal government’s tolerance for growing medical marijuana in California. Of course, this new crackdown will presumably be enforced throughout the country. After decades of fighting a “war on drugs,” we do not seem any closer to winning. In fact, we are clearly losing same. Not all drugs can be legalized, but the arguments for continued marijuana laws are diminishing. Possession in most states results in a monetary fine. Think of the tax revenue that could be generated. Imagine taking the criminal element out of the process. Think of the research that has already been done to show legitimate medical uses for treatment of disease and resulting pain relief.
The attorneys at Reeves, Aiken & Hightower, LLP, do not encourage or endorse any illegal drug use. However, we support the legalization of marijuana for the above reasons and aggressively defend those charged with drug related crimes, including possession, distribution, and/or manufacturing. Our experienced trial attorneys include a former SC prosecutor, a former NC District Attorney intern, and a former SC public defender. Attorney Art Aiken has tried criminal cases of all types in both state and federal courts. If you have been arrested for a drug crime, we would welcome an opportunity to sit down and review your particular case. Compare our attorneys’ credentials to any other law firm. Then call us for a private consultation. www.rjrlaw.com
Federal Warning Ends County Truce With Pot-Growers
By LISA LEFF Associated Press
SAN FRANCISCO February 25, 2012 (AP)
Residents of Mendocino County, the redwood and marijuana-rich territory in California’s fabled Emerald Triangle, thought they had reached détente in the decades-old clash between pot growers and local law enforcement two years ago when the sheriff agreed to stop raiding medical cannabis producers who paid to have their crops inspected.
For a $1,500 fee and adherence to rules over water usage, odor control and distance from neighbors, marijuana farmers working for groups of patients could grow up to 99 plants on five acres of land. Numbered red zip ties had be affixed to each plant, confirming the county’s seal of approval and giving a visiting deputy proof the pot was legally grown.
The one-of-a-kind program generated $663,230 for the sheriff’s department — and prompted inquiries from other jurisdictions interested in creating their own.
But this month, the permitting system became the most striking casualty of the crackdown on medical marijuana cultivation and distribution by California’s federal prosecutors. The board of supervisors ended the experiment after the U.S. attorney for Northern California threatened take the county to court for helping produce an illegal drug.
“We thought we had something that was working and was making our life easier so we could turn our attention to other pressing matters,” Supervisor John McCowen said. “We were creating an above-ground regulatory framework that protected public safety and protected the environment. It was truly a landmark program.”
After four-and-a-half months, the federal government’s highly publicized offensive has reverberated unevenly throughout California. It has resulted in a near-total shutdown of storefront pot dispensaries in some cities that welcomed federal intervention. It has upset officials in pot-friendly places, who thought they had found the right formula for facilitating legal use. And it has created uncertainty in localities still struggling to curtail their pot outlets.
Medical pot is legal to varying degrees in 16 states and the District of Columbia. And officials in more than half of them have been told government workers implementing medical marijuana laws could face criminal charges.
But California, which in 1996 became the first state to legalize marijuana for medical use, has come under special scrutiny. Its laws remain the nation’s most liberal, allowing doctors to issue pot recommendations for almost any ailment and giving local authorities broad discretion, but little guidance, in how to implement them.
The state’s laws stand in conflict with federal law, which holds marijuana is illegal substance with no recognized health benefits. And the current offensive is designed to make dispensaries and local government officials comply with it.
The primary tool the U.S. attorneys have used is threatening to seize the properties of landlords who knowingly leased farms or retail spaces to the commercial medical marijuana trade. But they also have filed criminal and civil charges against owners of nonprofit dispensaries they say were pocketing tons of money and furnishing pot to people who had no medical need for it. And in some cases, such as Mendocino’s, they have warned government officials.
“These licensing schemes are inconsistent with federal law,” Melinda Haag, Northern California’s U.S. attorney, said in October. “We are simply reminding local officials the ordinances are illegal.”
As part of the statewide crackdown, about 90 dispensaries in 19 Southern California cities were sent letters telling them to close or face possible criminal charges and fines. More than a dozen building owners where marijuana clinics were once located have been subjected to federal forfeiture lawsuits.
In Orange County, the city of Lake Forest had a dozen dispensaries operating a year ago. After officials sought help from federal prosecutors, only one pot shop remains.
In San Diego, the vast majority of the 180 or so pot shops whose landlords were sent warning letters have closed. And in unincorporated parts of Sacramento County, where the Board of Supervisors cited the federal crackdown when outlawing dispensaries, all 97 pot shops are gone.
“What the feds bring to the party is they can do things under their federal law that cities and counties and even the state of California cannot do,” said Jeffrey Dunn, an attorney who has helped Lake Forest and other Southern California cities shutter dispensaries. “There are no disputes about medicinal use because it doesn’t matter. If you are distributing marijuana, end of discussion.”
Federal authorities have not yet weighed into Los Angeles, where city officials tried to limit the number of pot shops two years ago and are now considering a total ban.
City officials believe there still may be hundreds of shops doing business right now. “As of today, we don’t know how many exist,” said special assistant city attorney Jane Usher. “The last thing they are inclined to do is to tell us they are open.”
Until Mendocino County officials bowed to pressure, the federal offensive was not very visible in pot-tolerant places either. In San Francisco, only five of the city’s 26 dispensaries have closed, with federal prosecutors saying they were targeted because of their proximity to places such as schools and playgrounds. Only one of neighboring Marin County’s six clinics closed, and Fairfax town officials appealed to keep it and its tax revenue.
Advocates and experts say Justice Department directives have sent mixed signals since the election of President Barack Obama —first saying that prosecutors would no longer pursue dispensaries following state law, then stating that cultivating, selling and distributing marijuana was still against the law.
The pressure by California’s federal prosecutors came in response to the second directive and the unsuccessful efforts by local governments to keep dispensaries in check, said McGregor Scott, a former U.S. attorney in Sacramento.
“The perception by proponents of medical marijuana was that, if they… were complying with state law, the feds were going to leave them alone,” Scott said. “I think what happened is, the administration realized they had made a mistake by taking the lid off.”
Supporters of medical marijuana have questioned why the federal government is derailing attempts to create legal frameworks for getting pot to people authorized to use it.
“They claim they don’t have any problem with individual medical marijuana patients accessing their medicine, but then go out of their way to prevent the creation of any kind of responsible system from being developed,” said Stephen Gutwillig, the Drug Policy Alliance’s director in California. “It’s basically a form of sabre rattling.”
Associated Press writer Greg Risling contributed to this article from Los Angeles.
