McCall v. State Farm Mut. Auto. Ins. Co., No. 3803.

CourtCourt of Appeals of South Carolina
Writing for the CourtANDERSON, J.
PartiesJill H. McCALL, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Kimberly J. Sullivan and Marcia Hardy, Respondents.
Decision Date24 May 2004
Docket NumberNo. 3803.

359 S.C. 372
597 S.E.2d 181

Jill H. McCALL, Appellant,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Kimberly J. Sullivan and Marcia Hardy, Respondents

No. 3803.

Court of Appeals of South Carolina.

Submitted May 12, 2004.

Decided May 24, 2004.


359 S.C. 374
Richard L. Whitt, of Columbia, for Appellant

Michael T. Cole and Charles R. Norris, of Charleston, for Respondents.

ANDERSON, J.

This suit arises as a result of an insurance dispute. Appellant contends her late husband's automobile insurance policy either contained an automobile death indemnity provision or would have if not for Respondents' negligence. The circuit court granted Respondents' motion for summary judgment as to the South Carolina parties and applied the South Carolina door closing statute to dismiss the case. We affirm as modified.1

FACTUAL/PROCEDURAL BACKGROUND

Brian and Jill McCall lived in North Carolina and had a State Farm automobile insurance policy, which contained an automobile death indemnity provision. This North Carolina automobile insurance policy was obtained through Tom Sawyer Agency. In February 2000, Brian and Jill McCall separated and Brian McCall moved to South Carolina. In South Carolina, Brian McCall contacted Sullivan Insurance Agency and acquired State Farm automobile insurance for his vehicle. Brian McCall purchased a State Farm policy containing comprehensive and collision coverage, but not an automobile death indemnity provision. Brian McCall signed a policy application that explicitly omitted the automobile death indemnity provision.

359 S.C. 375
Jill McCall informed Tom Sawyer Agency that she and Brian McCall had separated. As a result, Tom Sawyer Agency removed the automobile death indemnity coverage from the policy. Tragically, in March 2000, Brian McCall died in an automobile accident. Appellant, Jill McCall, seeks an automobile death indemnity from State Farm; however, the insurer denies one existed at the time of the accident. Appellant brought causes of action for bad faith refusal to pay, negligent supervision, breach of contract, respondeat superior, unfair trade practices, and negligence against State Farm and the South Carolina agents that sold Brian McCall his policy

It is undisputed that the North Carolina policy originally contained an automobile death indemnity provision. Appellant asserts the South Carolina agents erred by omitting the death indemnity provision contained in the North Carolina policy when they wrote the South Carolina policy.

In February 2002, the circuit court heard Respondents' motion for summary judgment and dismissed the two South Carolina insurance agents, Marcia Hardy and Kimberly Sullivan, as well as any claims arising from the South Carolina policy. However, the court did grant Appellant thirty days to amend her complaint to allege a cause of action arising under the North Carolina policy. No appeal was taken from this Order. Appellant filed an amended complaint restating her claims as arising under the North Carolina policy.

In the amended complaint, Appellant maintained the South Carolina agents caused the North Carolina automobile death indemnity provision to be cancelled and they failed to notify Brian McCall of the cancellation or provide him a refund of the unearned premium. Respondents deny the South Carolina agents had any involvement with the cancellation of the North Carolina automobile death indemnity provision.

In October 2002, the circuit court heard Respondents' motion for summary judgment as to the claims in the amended complaint. Again, the South Carolina insurance agents were dismissed from the case. In addition, the court applied the door closing statute, section 15-5-150 of the South Carolina Code, to dismiss the suit because neither Jill McCall nor State Farm is a resident of South Carolina. Appellant argues the

359 S.C. 376
circuit court erred in granting summary judgment and in applying section 15-5-150 to the North Carolina claims

STANDARD OF REVIEW

"Summary judgment is appropriate only when `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Trivelas v. South Carolina Dep't of Transp., 348 S.C. 125, 130, 558 S.E.2d 271, 273 (Ct.App.2001) (quoting Rule 56(c), SCRCP); see also Tupper v. Dorchester County, 326 S.C. 318, 325, 487 S.E.2d 187, 191 (1997) ("Summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.").

"The party seeking summary judgment has the burden of clearly establishing the absence of a genuine issue of material fact." McNair v. Rainsford, 330 S.C. 332, 342, 499 S.E.2d 488, 493 (Ct.App.1998) (citing Baughman v. American Tel. & Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991); Standard Fire Ins. Co. v. Marine Contracting & Towing Co., 301 S.C. 418, 392 S.E.2d 460 (1990)). "In determining whether any triable issues of fact exist, the evidence and all inferences which can be reasonably drawn therefrom must be viewed in the light most favorable to the nonmoving party." Lanham v. Blue Cross & Blue Shield of South Carolina, Inc., 349 S.C. 356, 361-62, 563 S.E.2d 331, 333 (2002) (citing Summer v. Carpenter, 328 S.C. 36, 492 S.E.2d 55 (1997)). "Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law." Id. at 362, 563 S.E.2d at 333 (citing Brockbank v. Best Capital Corp., 341 S.C. 372, 534 S.E.2d 688 (2000)).

"All ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the moving party." Hall v. Fedor, 349 S.C. 169, 173, 561 S.E.2d 654, 656 (Ct.App.2002) (citing Young v. South Carolina Dep't of Corrections, 333 S.C. 714, 511 S.E.2d 413 (Ct.App.1999)). "Even when there is no dispute as to evidentiary facts, but only as to the conclusions or inferences to be drawn from them, summary judgment should be denied." Id. at 173-74,

359 S.C. 377
561 S.E.2d at 656. "Because it is a drastic remedy, summary judgment should be cautiously invoked so no person will be improperly deprived of a trial of the disputed factual issues." Murray v. Holnam, Inc., 344 S.C. 129, 138, 542 S.E.2d 743, 747 (Ct.App.2001) (citing Carolina Alliance for Fair Employment v. South Carolina Dep't of Labor, Licensing & Regulation, 337 S.C. 476, 523 S.E.2d 795 (1999)).

"An appellate court reviews the granting of summary judgment under the same standard applied by the trial court pursuant to Rule 56, SCRCP." Murray, 344 S.C. at 138, 542 S.E.2d at 747 (citing Brockbank, 341 S.C. 372, 534 S.E.2d 688; Wells v. City of Lynchburg, 331 S.C. 296, 501 S.E.2d 746 (Ct.App.1998)).

LAW/ANALYSIS

1. MOTION FOR SUMMARY JUDGMENT

Appellant contends the circuit court erred in granting Respondents' motion for summary judgment. Appellant argues there existed both genuine issues of material fact and a disputed matter of law. Specifically, Appellant points to alleged inconsistencies in the various affidavits presented to the court by Respondents and to an admission that Appellant's husband was provided a quote for a South Carolina policy containing an automobile death indemnity provision.

However, these allegations of factual inconsistencies and admission disregard the procedural and factual predicate of the suit. Appellant neglects the fact that the unappealed February 2002 Order is the law of the case. While affidavits were submitted stating the South Carolina agents, Marcia Hardy and Kimberly Sullivan, did not have any involvement in the cancellation of the automobile death indemnity from the North Carolina policy, there is a complete dearth of any evidence that they were involved in the cancellation.

A. The Law of the Case

An unappealed order becomes the law of the case. Toler's Cove Homeowners Ass'n v. Trident Const. Co., Inc., 355 S.C. 605, 610, 586 S.E.2d 581, 584 (2003); Charleston Lumber Co. v. Miller Housing Corp., 338 S.C. 171, 174-75, 525

359 S.C. 378
S.E.2d 869, 871 (2000); Priester v. Brabham, 230 S.C. 201, 203, 95 S.E.2d 167, 168 (1956); Wooten v. Wooten, 354 S.C. 242, 250, 580 S.E.2d 765, 769 (Ct.App.2003); Larimore v. Carolina Power & Light, 340 S.C. 438, 445, 531 S.E.2d 535, 538-39 (Ct.App.2000). "A portion of a judgment that is not appealed presents no issue for determination by the reviewing court and constitutes, rightly or wrongly, the law of the case." Austin v. Specialty Transp. Servs., 358...

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33 practice notes
  • Miller v. Blumenthal Mills, Inc., No. 4013.
    • United States
    • United States State Supreme Court of South Carolina
    • July 5, 2005
    ...judgment has the burden of clearly establishing the absence of a genuine issue of material fact. McCall v. State Farm Mut. Auto. Ins. Co., 359 S.C. 372, 597 S.E.2d 181 (Ct.App.2004). Once the party moving for summary judgment meets the initial burden of showing an absence of evidentiary sup......
  • Bennett v. Investors Title Ins. Co., No. 4152.
    • United States
    • Court of Appeals of South Carolina
    • September 25, 2006
    ...argument and the appellant does not make a Rule 59(e) motion to alter or amend the judgment."); McCall v. State Farm Mut. Auto. Ins. Co., 359 S.C. 372, 381, 597 S.E.2d 181, 186 (Ct.App.2004) (holding an issue must be raised to and ruled upon by the trial court to be preserved for appellate ......
  • Moore v. Weinberg, No. 4209.
    • United States
    • Court of Appeals of South Carolina
    • February 20, 2007
    ...judgment has the burden of clearly establishing the absence of a genuine issue of material fact. McCall v. State Farm Mut. Auto. Ins. Co., 359 S.C. 372, 597 S.E.2d 181 (Ct.App.2004). Once the party moving for summary judgment meets the initial burden of showing an absence of evidentiary sup......
  • Singleton v. Sherer, No. 4346.
    • United States
    • Court of Appeals of South Carolina
    • February 25, 2008
    ...of a genuine issue of material fact. Bradley v. Doe, 374 S.C. 622, 649 S.E.2d 153 (Ct.App.2007); McCall v. State Farm Mut. Auto. Ins. Co., 359 S.C. 372, 597 659 S.E.2d 203 S.E.2d 181 (Ct.App.2004). Once the party moving for summary judgment meets the initial burden of showing an absence of ......
  • Request a trial to view additional results
33 cases
  • Miller v. Blumenthal Mills, Inc., No. 4013.
    • United States
    • United States State Supreme Court of South Carolina
    • July 5, 2005
    ...judgment has the burden of clearly establishing the absence of a genuine issue of material fact. McCall v. State Farm Mut. Auto. Ins. Co., 359 S.C. 372, 597 S.E.2d 181 (Ct.App.2004). Once the party moving for summary judgment meets the initial burden of showing an absence of evidentiary sup......
  • Bennett v. Investors Title Ins. Co., No. 4152.
    • United States
    • Court of Appeals of South Carolina
    • September 25, 2006
    ...argument and the appellant does not make a Rule 59(e) motion to alter or amend the judgment."); McCall v. State Farm Mut. Auto. Ins. Co., 359 S.C. 372, 381, 597 S.E.2d 181, 186 (Ct.App.2004) (holding an issue must be raised to and ruled upon by the trial court to be preserved for appellate ......
  • Moore v. Weinberg, No. 4209.
    • United States
    • Court of Appeals of South Carolina
    • February 20, 2007
    ...judgment has the burden of clearly establishing the absence of a genuine issue of material fact. McCall v. State Farm Mut. Auto. Ins. Co., 359 S.C. 372, 597 S.E.2d 181 (Ct.App.2004). Once the party moving for summary judgment meets the initial burden of showing an absence of evidentiary sup......
  • Singleton v. Sherer, No. 4346.
    • United States
    • Court of Appeals of South Carolina
    • February 25, 2008
    ...of a genuine issue of material fact. Bradley v. Doe, 374 S.C. 622, 649 S.E.2d 153 (Ct.App.2007); McCall v. State Farm Mut. Auto. Ins. Co., 359 S.C. 372, 597 659 S.E.2d 203 S.E.2d 181 (Ct.App.2004). Once the party moving for summary judgment meets the initial burden of showing an absence of ......
  • Request a trial to view additional results

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