Shealy v. Doe

• Decision Date: 26 June 2006
• Docket Number: No. 4128.,4128.
• Citation: 634 S.E.2d 45
• Parties: Jason SHEALY, Appellant, v. John DOE, Respondent.
• Court: South Carolina Court of Appeals

634 S.E.2d 45

Jason SHEALY, Appellant, v. John DOE, Respondent.

No. 4128.

Court of Appeals of South Carolina.

Heard June 15, 2006.

Decided June 26, 2006.

Rehearing Denied August 25, 2006.

Ralph Shealy Kennedy, Jr., and Robert M. Cook, II, both of Batesburg-Leesville, for Appellant.

David Cooper Cleveland, Thomas J. Keaveny, II, and Bob J. Conley, all of Charleston, for Respondent.

ANDERSON, J.

Jason Shealy appeals the trial court's order dismissing his claim for uninsured motorist (UM) coverage, arguing the trial court erred in (1) finding Shealy failed to comply with the witness affidavit requirement of South Carolina Code Annotated section 38-77-170 (2002); and (2) refusing to treat a letter from Safeco Insurance Company as an admission against interest. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

On June 7, 2003, Eddie Bolin was driving a pickup truck owned by Dale Leaphart. Shealy and Ronald Cromer sat in the bed of the truck. Bolin swerved abruptly, throwing Shealy and Cromer from the truck. Shealy sustained serious injuries, including a fractured skull. Bolin later explained to Shealy and the police that he swerved to avoid hitting an unknown vehicle.

Shealy filed a complaint against the unknown driver, John Doe, to recover against Safeco, Leaphart's UM carrier. Shealy submitted an affidavit, which he attached and incorporated into the complaint. The affidavit states:

Personally appeared before me, Jason Shealy, who being duly sworn deposes and says as follows:

That he is Jason Shealy and that on or about June 7, 2003, he was a passenger in a pickup truck being driven by Eddie Bolin and, upon information and belief, owned by Dale Leaphart. That the pickup truck was being driven on Highway 391 near Batesburg-Leesville, South Carolina. That Eddie Bolin sharply, unexpectedly and suddenly swerved the truck near the entrance to Leaphart Acres, throwing the affiant and another passenger from the bed of the truck onto the roadway. That the day following the incident the affiant was told by Eddie Bolin that an unknown vehicle and driver had come onto the roadway in the path of the truck causing Eddie Bolin to sharply and unexpectedly maneuver the truck he was driving to avoid a collision.

A FALSE STATEMENT CONCERNING THE FACTS CONTAINED IN THIS AFFIDAVIT MAY SUBJECT THE PERSON MAKING THE FALSE STATEMENT TO CRIMINAL PENALTIES AS PROVIDED BY LAW.

(Emphasis added.)

Doe moved to dismiss Shealy's action or, alternatively, to change venue. At the motions hearing, Shealy submitted the affidavit of Ronald Cromer, which contains identical language to Shealy's affidavit. In addition, Shealy submitted a letter from Safeco to his attorney. The letter explained:

[Safeco has] remained consistent in the lack of negligence and lack of liability of Mr. Eddie Bolin, the driver of the automobile in which your client was occupying [sic]. Mr. Bolin's lack of negligence is due to the phantom vehicle which pulled out in front of him and caused the accident. . . .

Shealy argued the letter was an admission against interest.

The trial court granted Doe's motion to dismiss, recognizing its consideration of Cromer's affidavit and Safeco's letter converted Doe's motion to dismiss into one for summary judgment. The court held Shealy failed to comply with the witness affidavit requirement of section 38-77-170(2). Shealy filed a motion to reconsider, which the trial court denied.

STANDARD OF REVIEW

Pursuant to Rule 12(b)(6), SCRCP, a defendant may make a motion to dismiss a complaint for "failure to state facts sufficient to constitute a cause of action." Rule 12(b) additionally provides:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state facts sufficient to constitute a cause of action, matters outside the pleading are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56[.]

In this case, the trial court considered Cromer's affidavit and the letter from Safeco before granting Doe's motion to dismiss. Accordingly, we review the trial court's order as if it were an appeal from a grant of summary judgment.

When reviewing a grant of summary judgment, the appellate court applies the same standard which 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. Houck v. State Farm Fire & Cas. Ins. Co., 366 S.C. 7, 11, 620 S.E.2d 326, 329 (2005); Pittman v. Grand Strand Entm't, Inc., 363 S.C. 531, 611 S.E.2d 922 (2005); B & B Liquors, Inc. v. O'Neil, 361 S.C. 267, 603 S.E.2d 629 (Ct.App.2004); see Rule 56(c), SCRCP ("The judgment sought shall be rendered forthwith if 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."). In determining whether any triable issues of fact exist, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the non-moving party. Helms Realty, Inc. v. Gibson-Wall Co., 363 S.C. 334, 611 S.E.2d 485 (2005); Medical Univ. of South Carolina v. Arnaud, 360 S.C. 615, 602 S.E.2d 747 (2004); Rife v. Hitachi Constr. Mach. Co., Ltd., 363 S.C. 209, 609 S.E.2d 565 (Ct.App.2005).

LAW/ANALYSIS

I. Witness Affidavit Requirement

Shealy argues the trial court erred in holding the affidavits he submitted were insufficient to satisfy section 38-77-170(2) of the South Carolina Code Annotated (2002). We disagree.

Section 38-77-170 provides:

If the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, there is no right of action or recovery under the uninsured motorist provision, unless:

(1) the insured or someone in his behalf has reported the accident to some appropriate police authority within a reasonable time, under all the circumstances, after its occurrence;

(2) the injury or damage was caused by physical contact with the unknown vehicle, or the accident must have been witnessed by someone other than the owner or operator of the insured vehicle; provided however, the witness must sign an affidavit attesting to the truth of the facts of the accident contained in the affidavit;

(3) the insured was not negligent in failing to determine the identity of the other vehicle and the driver of the other vehicle at the time of the accident.

The following statement must be prominently displayed on the face of the affidavit provided in subitem (2) above: A FALSE STATEMENT CONCERNING THE FACTS CONTAINED IN THIS AFFIDAVIT MAY SUBJECT THE PERSON MAKING THE FALSE STATEMENT TO CRIMINAL PENALTIES AS PROVIDED BY LAW.

S.C.Code Ann. § 38-77-170 (2002) (emphasis added). "An insured cannot recover uninsured motorist coverage unless the three conditions under § 38-77-170 are met." Miller v. Doe, 312 S.C. 444, 446, 441 S.E.2d 319, 320 (1994).

The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature. Mid-State Auto Auction of Lexington, Inc. v. Altman, 324 S.C. 65, 69, 476 S.E.2d 690, 692 (1996). The first question of statutory interpretation is whether the statute's meaning is clear on its face. Wade v. Berkeley County, 348 S.C. 224, 229, 559 S.E.2d 586, 588 (2002); Eagle Container Co., LLC v. County of Newberry, 366 S.C. 611, 622, 622 S.E.2d 733, 738 (Ct.App.2005).

When a statute's language is plain and unambiguous, and conveys a clear and definite meaning, the rules of statutory interpretation are not needed, and this Court has no right to impose another meaning. See Vaughn v. Bernhardt, 345 S.C. 196, 198, 547 S.E.2d 869, 870 (2001). "[T]he words of the statute must be given their plain and ordinary meaning without resorting to subtle or forced construction to limit or expand the statute's operation." Mun. Ass'n of S.C. v. AT & T Communications of S. States, Inc., 361 S.C. 576, 580, 606 S.E.2d 468, 470 (2004); see also Miller, 312 S.C. at 447, 441 S.E.2d at 321 ("In determining the meaning of a statute, the terms used therein must be taken in their ordinary and popular meaning, nothing to the contrary appearing.").

Section 38-77-170(2) is clear on its face. It expressly requires that someone other than the owner or operator of the insured vehicle witness the accident. As stated in Wausau Underwriters Insurance Company v. Howser, 309 S.C. 269, 275, 422 S.E.2d 106, 110 (1992), "no physical contact with the unknown vehicle is necessary when a witness other than the owner or driver of the insured vehicle is able to attest to the facts of the accident." (Emphasis added.) See also Collins v. Doe, 352 S.C. 462, 470, 574 S.E.2d 739, 744 (2002) ("The plain language of § 38-77-170 requires that where the accident involves no physical contact between the insured's vehicle and the unidentified vehicle, the accident `must have been witnessed by someone other than the owner or operator of the insured vehicle' and the `witness must sign an affidavit attesting to the truth of the facts of the accident contained therein.'"). Shealy asserts section 38-77-170(2) does not require the witness affidavit to be based on personal knowledge. This argument directly contravenes the language of the statute. Shealy submitted affidavits of two people who apparently did not witness the accident; their affidavits do not attest to facts they perceived, but merely restate the perceptions of the vehicle's operator. Thus, Shealy produced no evidence that someone other than Bolin, the operator of the insured vehicle, witnessed the accident. Shealy's and Cromer's affidavits do not comply with this express directive.

Shealy's interpretation of section 38-77-170(2) would totally eviscerate the statute's efficacy as it would allow an owner or operator to inform...