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 5, 2012 | Brain Injury/Head Trauma, Car Accidents, DUI & DWI, Personal Injury, Uncategorized, Wrongful Death
The following pending case below is a sad example of what can happen if you drink and drive. Serious injury can happen in an instant. In this case, she is left paralyzed from the waist down. This case is rather unique as it is the impaired driver herself who is suing. Certainly, there are several key defenses which will most probably end her case before it ever reaches a jury. Nevertheless, the facts highlight the need for bar owners and homeowners who serve alcolhol to be certain any customers or guests are of legal age and that they are safe to drive before leaving to get on the road. If these basis safety steps are not followed, then perhaps they should be held accountable. Tonight while enjoying the Super Bowl, please be aware of what can happen. 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 lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the criminal, insurance defense, and medical aspects of complex cases. We welcome an opportunity to sit down and personally review your case. Call us today for a private consultation. www.rjrlaw.com
A South Carolina woman is suing the bar that served her alcohol as a minor the night she had a car accident that left her paralyzed.
Hess was 20 years old on Aug. 8, 2009 when she went to Jock’s Sports Grill in Beaumont, S.C. for a game of billiards, according to her lawsuit.
She alleged that she ordered an alcoholic drink at the bar and was served without being asked for identification. The legal drinking age in South Carolina is 21.
Hess accused the bar of several forms of negligence, including failure to “request and examine proof of identification,” serving alcohol to minors, and “failing to ascertain whether Plaintiff was impaired by the consumption of alcoholic beverages at the time Plaintiff purchased the alcoholic beverage.”
At about 1:05 a.m., Hess left the bar driving her own car and had a serious accident.
“The wheels of the motor vehicle Plaintiff was operating suddenly dropped off into a large unmaintained area on the shoulder of Alljoy Road, which caused Plaintiff to loose [sic] control of her vehicle and causing her to roll the vehicle over off the side of the road,” the lawsuit said.
As a result, Hess “suffered serious, permanently debilitating injuries causing the plaintiff to be paraplegic.” She blames the accident on the bar.
“The accident that resulted in Plaintiff being a paraplegic was due to and proximately caused by the negligence, recklessness, and willfulness and gross negligence of Defendant Jock’s Sports Grill,” the lawsuit said.
Attorneys representing the defendants deny “each and every allegation,” they each said in responses to the Hess’ lawsuit.
Their response lists eight possible ways Hess may have been negligent including driving while intoxicated, failing to keep her car under proper control, driving too fast for the conditions, and “failing to act in a reasonable and prudent manner.”
Jan 28, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Wrongful Death
This recent SC Supreme Court opinion demonstrates the legal complexities of serious wreck cases. Fortunately, automobile accidents involving trains, as in the case below, are rare. However, this case also illustrates how experience really does count in serious injury cases. Each case is unique, and every aspect must be considered. A seemingly insignificant fact may later prove to be critical. Early investigation and real trial experience is often key to the outcome of cases. Better be sure your attorney is aggressive and experienced in handling complex injury and wrongful death cases.
At Reeves, Aiken, Hightower & Burns, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the criminal, insurance defense, and medical aspects of complex cases. We welcome an opportunity to sit down and personally review your case. Call us today for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Beaulah Platt, as guardian for Asia Platt, a minor under the age of fourteen years, as Personal Representative of the Estate of Valerie Marie Platt, deceased, and as Personal Representative of the Estate of William Leroy Platt, deceased, Petitioner,
v.
CSX Transportation, Inc., and South Carolina Department of Transportation, Defendants,
of whom South Carolina Department of Transportation is Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Berkeley County
Roger M. Young, Circuit Court Judge
Opinion No. 26849
Heard April 6, 2010 – Filed August 9, 2010
AFFIRMED IN PART, VACATED IN PART
David L. Savage, of Savage & Savage, of Charleston; John E. Parker, Ronnie L. Crosby and Matthew V. Creech, all of Peters, Murdaugh, Parker, Eltzroth & Detrick, of Hampton, for Petitioner.
Jonathan J. Anderson, Lisa A. Reynolds and Eric M. Johnsen, all of Anderson and Reynolds, of Charleston, for Respondent.
CHIEF JUSTICE TOAL: Petitioner brought wrongful death and survival actions against CSX Transportation, Inc. (CSX) and the South Carolina Department of Transportation (SCDOT) stemming from a collision between an automobile and a freight train. Petitioner settled the claims against CSX, and the trial court granted summary judgment in favor of SCDOT. The court of appeals affirmed, and we granted Petitioner’s request for a writ of certiorari to review the court of appeals’ decision.
FACTS/PROCEDURAL BACKGROUND
On June 19, 1999, an automobile (the Vehicle) carrying four passengers (one adult male, one adult female, one boy child, and one girl child) was struck by a freight train at the intersection of US 52 and Red Bank Road in Berkeley County. The girl child, the only survivor, was thrown from the Vehicle upon impact and suffered severe physical injuries.
US 52 intersects Red Bank Road at approximately a 45 degree angle, with the railroad track running parallel to US 52. Red Bank Road runs generally east-to-west, and US 52 runs generally north-to-south. An automobile travelling west on Red Bank Road approaching US 52 would first encounter the railroad tracks, cross the tracks, and then, within several car lengths, come to the intersection with US 52, which is equipped with a traffic light. The Vehicle was travelling west on Red Bank Road; thus, it came upon the railroad tracks before reaching the traffic light at the US 52/Red Bank Road intersection.
Safety devices and warning signals at the intersection of the railroad track with Red Bank Road include cantilevered gate arms, flashing lights, warning bells, and “Do Not Stop on Tracks” signage. The traffic lights are designed to work in concert with the warning signals to prevent collisions. Specifically, as a train approaches the intersection, a signal is sent to SCDOT’s traffic light system and the preemption cycle is initiated, overriding the normal system operation. The preemption cycle is pre-programmed to run through the light phases (green, yellow, and red) to clear any traffic off the tracks before the train arrives at the intersection. There are several different preemption cycles that may run, depending upon what phase the traffic lights are in when the preemption signal is received. The ultimate goal, regardless of which preemption cycle is run, is for a red light to be showing at Red Bank Road when the train arrives.
At trial, Petitioner alleged SCDOT was negligent in: (1) failing to coordinate the active warning devices with the traffic signals; (2) failing to properly sequence the lights during the preemption cycle; (3) sequencing the lights so as to create a trap for motorists; and (4) failing to warn motorists of the dangers of being trapped between the gate arms.
The trial court granted SCDOT’s motion for summary judgment, finding: (1) SCDOT only had a duty to warn CSX of defects in the warning system, and it fulfilled that duty, and (2) the gate arms were the proximate cause of the accident and there was no evidence establishing otherwise. The trial court mentions but did not rule on the issue of SCDOT’s potential immunity under the South Carolina Tort Claims Act (SCTCA) and federal preemption under the Railroad Safety Act of 1970 because it found SCDOT’s traffic signals were not a proximate cause of the accident.
The court of appeals affirmed the trial court’s grant of summary judgment, holding: (1) the public duty rule bars Petitioner’s claim; (2) Petitioner’s state law claims are preempted by federal regulations; and (3) the gate arms were the proximate cause of the accident, not the traffic lights. Platt v. CSX Transp., Inc., 379 S.C. 249, 665 S.E.2d 631 (2008).
ISSUES
Petitioner presents the following issues for review:
(1) Did the court of appeals err in holding the public duty rule barred Petitioner’s claim on SCDOT’s negligence regarding the traffic lights?
(2) Did the court of appeals err in holding Petitioner’s claims were preempted by federal law?
(3) Did the court of appeals err in holding the record lacked evidence to establish the traffic signals as a proximate cause of the acciden
STANDARD OF REVIEW
Summary judgment is appropriate where there is no genuine issue of material fact and it is clear that the moving party is entitled to a judgment as a matter of law. Rule 56(c), SCRCP. In determining whether any triable issues of fact exist, the evidence and all inferences that can be reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Koester v. Carolina Rental Ctr., 313 S.C. 490, 493, 443 S.E.2d 392, 394 (1994). When reviewing a grant of summary judgment, the appellate court applies the same standard applied by the trial court. Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002).
ANALYSIS
SCDOT alleges and the court of appeals held that the public duty rule bars Petitioner’s negligence claims based on statutory obligations. We agree.
An essential element in a cause of action based upon negligence is the existence of a legal duty of care owed by the defendant to the plaintiff. Doe v. Greenville County Sch. Dist., 375 S.C. 63, 72, 651 S.E.2d 305, 309 (2007). Without a duty, there is no actionable negligence. Id. A plaintiff alleging negligence on the part of a governmental actor or entity may rely either upon a duty created by statute or one founded on the common law. Arthurs ex rel. Estate of Munn v. Aiken County, 346 S.C. 97, 104, 551 S.E.2d 579, 582 (2001). When the duty is created by statute, we refer to this as a “special duty,” whereas when the duty is founded on the common law, we refer to this as a legal duty arising from “special circumstances.” See id. at 109-10, 551 S.E.2d at 585 (explaining that this Court restricts the term special duty to those arising from statutes, whereas a legal duty arising from a “special circumstance” is created under the common law).
Under the public duty rule, public officials are not liable to individuals of the public for negligence in discharging their statutory obligations. Tanner v. Florence County Treasurer, 336 S.C. 552, 561, 521 S.E.2d 152, 158 (1999). A public official may be liable if he owed a special duty of care to the individual, as determined by a six-factor test, assessing whether: (1) an essential purpose of the statute is to protect against a particular kind of harm; (2) the statute imposes on a specific public officer a duty to guard against or not cause that harm; (3) the class of persons the statute intends to protect is identifiable before the fact; (4) the plaintiff is a person within that class; (5) the public officers know or should know of the likelihood of harm to the class if he fails in his duty; and (6) the officer is given sufficient authority to act in the circumstances or he undertakes to act in the exercise of his office. Jensen v. Anderson County Dep’t of Soc. Servs., 304 S.C.195, 200, 403 S.E.2d 615, 617 (1991).
Petitioner does not contend that the six-factor test is met in this case. Rather, she argues the public duty rule is not dispositive because SCDOT has a common law duty to properly repair and maintain the state highway system, which she contends the court of appeals erroneously failed to consider when it affirmed the trial court’s grant of summary judgment. We find Petitioner’s common law argument is not preserved for appellate review.
While Petitioner pleaded common law negligence in her complaint, the trial court did not rule on that issue, and Petitioner did not file a motion to alter or amend the judgment. See I’on L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 526 S.E.2d 716 (2000) (stating if the trial court fails to rule upon an issue raised to it, the losing party must file a motion to alter or amend the judgment to preserve that issue for appellate review). In fact, Petitioner did not fully assert a common law basis for SCDOT’s duty until her reply brief to the court of appeals. For these reasons, we hold Petitioner did not properly preserve the issue of a common law duty for appellate review. See Lucas v. Rawl Family Ltd. P’ship, 359 S.C. 505, 511, 598 S.E2d 712, 715 (2004) (stating issue may not be raised for the first time on appeal).
Because Petitioner’s common law argument is unpreserved and the court of appeals correctly affirmed the grant of summary judgment regarding SCDOT’s statutory obligations, Petitioner is unable to establish SCDOT owed a legal duty to Petitioner. See Doe, 375 S.C. at 72, 651 S.E.2d at 309. Without this essential element, Petitioner cannot prevail on her negligence claim. See id.
Having found Petitioner is unable to establish a legal duty, we need not address Petitioner’s remaining issues. See Futch v. McAllister Towing of Greenville, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (recognizing that appellate court need not address remaining issues when determination of one issue is dispositive). Accordingly, we affirm the court of appeals as to the public duty rule, and vacate the remainder of that opinion.
CONCLUSION
The trial court properly granted summary judgment on SCDOT’s statutory duty, and the court of appeals correctly affirmed on that ground. Petitioner failed to preserve her common law duty argument; thus, she cannot establish SCDOT owed her a legal duty. Therefore, the court of appeals is affirmed in part and vacated in part.
PLEICONES, BEATTY, JJ., and Acting Justices James E. Moore and John H. Waller, Jr., concur.
