Waites v. South Carolina Windstorm and Hail Underwriting Ass'n, 21985

• Decision Date: 12 September 1983
• Docket Number: No. 21985,21985
• Citation: 279 S.C. 362,307 S.E.2d 223
• Court: South Carolina Supreme Court
• Parties: Vicki Lee WAITES and Belva Waites, Respondents-Appellants, v. SOUTH CAROLINA WINDSTORM AND HAIL UNDERWRITING ASSOCIATION, Appellant-Respondent.

Page 223

307 S.E.2d 223

279 S.C. 362

Vicki Lee WAITES and Belva Waites, Respondents-Appellants, v. SOUTH CAROLINA WINDSTORM AND HAIL UNDERWRITING ASSOCIATION,

Appellant-Respondent.

No. 21985.

Supreme Court of South Carolina.

Sept. 12, 1983.

Thornwell F. Sowell, III, of Nelson, Mullins, Grier & Scarborough, Columbia, for appellant-respondent.

James P. Stevens, Jr., George M. Hearn, Jr., and Kaye Gorenflo Hearn, Loris, for respondents-appellants.

LITTLEJOHN, Justice:

This action was brought by the Respondents-Appellants, Vicki Lee Waites and Belva Waites (Insureds), for windstorm and rain damages to their beach house. They claim under a policy of insurance issued by the Appellant-Respondent, South Carolina Windstorm and Hail Underwriting Association (Association). In addition to property damages, the Insureds sought, but were denied, attorney fees and prejudgment interest. A jury returned a verdict in favor of the Insureds. Both the Association and the Insureds have appealed. The Association submits that the trial judge should have directed a verdict or granted judgment notwithstanding the verdict or granted a new trial based largely on admissibility of evidence. It also alleges that the Insureds failed to exhaust administrative remedies. The Insureds submit that the trial court erred in failing to award attorney fees and in failing to award prejudgment interest. We affirm.

Inasmuch as rain and windstorm insurance is difficult to procure, the General Assembly, through Chapter 39 of Title 38, created the South Carolina Windstorm and Hail Underwriting Association. The Association consists of all private insurers authorized to write and engage in writing property insurance. It is a legal entity and the equivalent of an insurance company writing windstorm and rain damage coverage for beach property. It creates a facility through which windstorm and hail insurance may be obtained to cover coastal area properties in South Carolina. Claims may be pursued with the Association as with any ordinary insurance company. Administrative remedies are provided and the use of these remedies brings forth one of the issues on appeal.

The Association alleged in its answer that the Insureds failed to exhaust administrative remedies set forth in S.C.Code Ann. 38-39-110 (1976). The trial court later struck that defense on the ground that the language of Code § 38-39-110 is not mandatory.

Code § 38-39-110 provides in part:

Any person insured pursuant to this chapter, or his representative, or any affected insurer, who may be aggrieved by an act, ruling, or decision of the Association, may, within thirty days after such ruling, appeal to the Commission. Any hearings held by the Commission pursuant to such an appeal shall be in accordance with the procedure set forth in the insurance laws of South Carolina. Provided, however, the Commission is authorized to appoint a member of its staff for the purpose of hearing such appeal and a ruling based upon such hearing shall have the same effect as if heard by the Commission. (Emphasis added.)

The Association urges this Court to interpret the word "may" to mean "shall". To support its contention, the Association cites the overall scheme of Chapter 39 to create a special entity to be carefully supervised by a specialized administrative body.

We find nothing in the statute to indicate an intent on the part of the legislature to force the Insureds to pursue an administrative remedy. We agree with the trial court's ruling that the legislature used the word "may" in the statute as permissive and not mandatory. Certainly, there was no intent to deny insured persons the right to a jury trial. The exception is without merit.

The Association next argues that the evidence submitted by the insureds was insufficient to create a jury issue. We disagree. We cannot say that there is no evidence for a jury to consider. This Court is concerned not with the weight of the evidence, but with whether there is any evidence from which a jury is warranted in making a finding. The exception is without merit.

Lastly, the Association argues that the trial judge erred in refusing to grant a new trial. It submits that the judge erred: (1) in allowing in evidence a letter; (2) in allowing Mrs. Waites to give her opinion; and, (3) in failing to charge a requested instruction to the jury.

As indicated hereinabove, the Association alleges as one of its defenses a failure to exhaust administrative remedies. This defense created an issue as to whether the Insureds had appealed to the Insurance Commission within the thirty day time limit referred to in Code § 38-39-110, quoted...