S. Glass & Plastics Co. v. Kemper

• Citation: 732 S.E.2d 205,399 S.C. 483
• Decision Date: 20 September 2012
• Docket Number: No. 5021.,5021.
• Court: Court of Appeals of South Carolina
• Parties: SOUTHERN GLASS & PLASTICS COMPANY, INC., Appellant, v. KEMPER, A Unitrin Business, Respondent.

399 S.C. 483

732 S.E.2d 205

SOUTHERN GLASS & PLASTICS COMPANY, INC., Appellant,

v.KEMPER, A Unitrin Business, Respondent.

No. 5021.

Court of Appeals of South Carolina.

Heard May 24, 2012.

Decided Aug. 15, 2012.

Rehearing Denied Sept. 20, 2012.

Robert L. Jackson, of Columbia, for Appellant.

Ashley Berry Stratton, of Columbia, for Respondent.

KONDUROS, J.

This appeal arises from window replacement services performed for insureds of Kemper, an automobile insurance company, by Southern Glass & Plastics Company, Inc., an automobile glass repair and replacement business. Southern Glass contends the trial court erred in granting summary judgment to Kemper on Southern Glass's action to recover additional payments, determining the parties entered into an enforceable contract. We affirm.

FACTS/PROCEDURAL HISTORY

Southern Glass performed twelve automobile glass replacements for insureds of Kemper. Southern Glass submitted invoices to Kemper, but Kemper only paid part of the amount requested for each automobile. Southern Glass brought an action in magistrate's court against Kemper for breach of contract, alleging it was owed $2,301.98. Southern Glass contended it had submitted invoices to Kemper for replacing the auto glass in twelve vehicles but Kemper had only paid part of the amount submitted for each vehicle. Kemper filed an amended answer and counterclaim, which caused the amount in controversy to exceed $7,500, and the case was transferred to the court of common pleas.

Kemper filed a motion for summary judgment, contending Southern Glass was not entitled to full payment because it had billed for more than the parties agreed to and thus Kemper had not breached the contract. Kemper attached to its memorandum in support of its motion for summary judgment an affidavit from Brad Boardman. Boardman stated, “I oversee the national glass program for automobile coverage for Kemper....” He further stated, “Kemper handles automobile glass claims through a third-party administrator, Safelite Solutions.” He also indicated, “Kemper reviews industry data for glass claims several times each year and determines whether rates are fair and reasonable for given areas.” Boardman explained:

When Kemper revises its rates, it notifies network and non-network glass shops in advance of the fair and reasonable rates it approves for glass claims. Kemper does not dictate what the shops should charge a customer, Kemper merely informs the shops what it is paying based on the insured's automobile policy and law.

Additionally, Boardman's affidavit stated:

Rates are also shared with insured's [sic] and shops when the insured contacts Kemper, via Safelite, to report the glass claim. A customer service representative at Safelite contacts the shop of the claimant's choice during the claim call to inform them of the rates before the shop begins working on the claimant's vehicle.

The affidavit further stated, “After the shop agrees or understands what the rates are being paid by Kemper via Safelite on the phone, the shop receives a referral sheet once again confirming the rates Kemper will pay before [the] shop begins work on the claimant's vehicle.” Boardman provided, “When the glass work has been completed, Kemper pays the claim based on the rate pre-notified and usually agreed upon by the glass shop.”

Kemper also attached a document dated March 25, 2009, from Safelite Solutions addressed to Southern Glass and referencingMatthew Keefe as the customer. The document listed the following prices:

+-------------------------------------------------------+
                ¦W/S LIST:¦–37.0%   ¦LABR:    ¦$41.00 PER HOUR          ¦
                +---------+---------+---------+-------------------------¦
                ¦C/T LIST:¦–37.0%   ¦LABR:    ¦$41.00 PER HOUR          ¦
                +---------+---------+---------+-------------------------¦
                ¦KIT:     ¦$15.00   ¦2KIT:    ¦$30.00                   ¦
                +---------+---------+---------+-------------------------¦
                ¦H/M KIT: ¦$25.00   ¦H/M 2KIT:¦$45.00                   ¦
                +-------------------------------------------------------+
                

Additionally, the document provided, “KEMPER has determined the maximum amount of such work is: $483.82[sic] less any applicable deductible amount.” The document also stated, “Performance of services constitutes acceptance of the communicated price and billing instructions.” Kemper attached an auto insurance policy as well. The policy stated, “Our limit of liability for loss will be the lesser of the: 1. Actual cash value of the stolen or damaged property; or 2. Amount necessary to repair or replace the property with other property of like kind and quality.” The policy also stated, “We will pay ... for loss to safety glass on ‘your covered auto’ without applying a deductible.”

Southern Glass filed a memorandum in opposition to Kemper's motion for summary judgment and submitted an affidavit by its president, Alan S. Epley, stating, “Each time Safelite calls to inform us of the rates, we tell the employee of Safelite that Southern Glass does not accept the quoted rates.” He further stated, “I have informed Safelite on more than one occasion that no contract is created when my company does the work.” Epley also provided, “I have also notified Kemper and other insurance companies, directly or through Safelite, that our only contract is with our customer, the insured[,] and the customer has assigned to Southern Glass its right to receive payment pursuant to the terms of the policy.”

At the hearing on the motion, Kemper stated it had recordings of all the telephone conversations from when Southern Glass and the insured called Safelite and had brought copies to the hearing. Kemper stated it had not attached the transcripts to its memorandum as an exhibit because it did not come up until Southern Glass's response memorandum, filed two days before the hearing. The trial court took a break to give Southern Glass the opportunity to review the transcripts. After Southern Glass had reviewed the transcripts, Kemper began to address the transcripts, and Southern Glass stated, “I would object to the introduction—” The court responded, “I note your objection. I'm going to accept it anyway.” Southern Glass asked, “You want to hear the grounds?” and the court responded, “Go ahead and put them on the record.” However, Kemper then began describing the content of the transcripts and the objection was not discussed any further.

Kemper submitted a transcript from a recorded telephone call between an employee of Southern Glass and Safelite, as well as customer Luther McDaniel. In that conversation, Safelite stated, “I just need to know if you accept the job at the following pricing.... NAGS list minus thirty[-]seven percent, labor is $41.00 hourly and $15.00 per kit.” The employee of Southern Glass stated, “We accept the job.” Safelite stated, “Thank you. Your acceptance of the job also indicates that you have accepted these rates and these prices do not include tax or the cost of molding.”

The trial court granted the motion for summary judgment, finding “[t]he existence of a binding enforceable contract is evidenced by transcripts of telephone conversations between [Southern Glass's] representative (a shop employee), [Southern Glass's] customer ( [Kemper's] insureds), and [Kemper's] third[-]party administrator (Safelite Solutions) wherein the glass claim was reported and express offer was made by Safelite on behalf of [Kemper].” The court determined “the telephone transcript evidences not only an express offer on behalf of [Kemper], but also an express acceptance on behalf of [Southern Glass].” The trial court found “[t]he offer was further confirmed in a fax sent by [Kemper's] third[-] party administrator to [Southern Glass] prior to the work being performed on the customer's vehicle,” which “also stated: ‘Performance of services constitutes acceptance of the above price and billing instructions.’ ” The court noted:

After [Southern Glass] verbally agreed to [Kemper's] rates over the telephone and received the work order confirming the rates, it performed the glass work without objection or further communication with [Kemper's] third[-]party administrator. Thereafter, [Southern Glass] further confirmed its acceptance of [Kemper's] rates when it accepted and negotiated checks in the amount specified by the work order.

Southern Glass filed a motion to alter or amend pursuant to Rules 52(b) and 59(e), SCRCP. In regards to the telephone transcript, Southern Glass stated in a footnote in the motion, “[Southern Glass] objected to introduction of the transcript into evidence on the grounds that it had not been presented to counsel prior to the hearing. It was a surprise to counsel and prejudiced [Southern Glass's] case.” The trial court denied the motion. 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 judgmentis 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). “Once the moving party carries its initial burden, the opposing party must come forward with specific facts that show there is a genuine issue of fact remaining for trial.” Sides v. Greenville Hosp. Sys., 362 S.C. 250, 255, 607 S.E.2d 362, 364 (Ct.App.2004). “[A]ssertions as to liability must be more than mere bald allegations made by the non-moving party in order to create a genuine issue of...