Wiegand v. United States Auto. Ass'n

• Decision Date: 31 January 2011
• Docket Number: No. 26919.,26919.
• Citation: 705 S.E.2d 432,391 S.C. 159
• Court: South Carolina Supreme Court
• Parties: Deborah J. WIEGAND, individually, and as Personal Representative of the Estate of Vincent Carroll Wiegand, Respondent,v.UNITED STATES AUTOMOBILE ASSOCIATION, Appellant.

391 S.C. 159

705 S.E.2d 432

Deborah J. WIEGAND, individually, and as Personal Representative of the Estate of Vincent Carroll Wiegand, Respondent,

v.UNITED STATES AUTOMOBILE ASSOCIATION, Appellant.

No. 26919.

Supreme Court of South Carolina.

Heard Nov. 18, 2010.Decided Jan. 31, 2011.

William O. Sweeny, III, Esquire & William R. Calhoun, Jr., both of Sweeny Wingate & Barrow, PA, of Columbia, for Appellant.Samuel Darryl Harms, of Harms Law Firm, PA, of Greenville, for Respondent.Justice HEARN.

We are asked to determine whether United States Automobile Association (USAA) made a meaningful offer of underinsured motorist coverage (UIM coverage) to Vincent Wiegand (Wiegand), who was killed in a car accident after multiple years of insurance coverage from USAA. Because we believe that USAA met its burden with regards to Section 38–77–350 of the South Carolina Code (1997), we reverse.

FACTUAL BACKGROUND

Wiegand was driving home from work when he was hit head-on and killed by a drunk driver. The drunk driver was at-fault and only had $50,000.00 in available liability insurance. While those policy limits were paid to Wiegand, his damages greatly exceeded the limits of the drunk driver's policy. Beginning in 1980, Wiegand's cars had been insured with USAA.

After the first ten years of receiving automobile insurance coverage from USAA, Wiegand received a form entitled “Offer of Optional Additional Uninsured and Underinsured Automobile Insurance Coverages.” It is undisputed that Wiegand signed the form, but the parties disagree over who actually completed the form: Wiegand or another person. Regardless of who completed the form, next to the question “do you wish to purchase underinsured motorist coverage,” the box marked “no” was checked. The form contained the following pertinent language:

Underinsured motorist coverage compensates you, or other persons insured under your automobile insurance policy, including passengers within your motor vehicle, for amounts that you, or your passengers, may be legally entitled to collect as damages from an owner or operator of an at-fault underinsured motor vehicle. An underinsured motor vehicle is a motor vehicle that is covered by some form of liability insurance, but that liability insurance coverage is not sufficient to fully compensate you for your damages. His policy pays the limits first, then yours pays the lessor of (1) the remaining loss, or (2) your UIM limits.

Your automobile insurance policy does not provide any underinsured motorist coverage. You have, however, a right to buy underinsured motorist coverage in limits up to the limits of liability coverage you carry under your automobile insurance policy. Limits of underinsured motorist coverage, together with the additional premiums you will be charged, are shown upon this form.

....

In the future, if you wish to increase or to decrease your limits of additional uninsured or underinsured coverage, you must then contact us.

From 1990 to 2004, Wiegand had continuous USAA coverage. Wiegand's policy with USAA at the time of the accident had liability limits of $25,000.00 per person and $50,000.00 per accident. USAA paid Wiegand's estate $26,000.00 for personal injury protection benefits, and seatbelt and airbag benefits.

Deborah J. Wiegand (Wife), individually and as personal representative of Wiegand's estate, commenced this action against USAA to recover UIM benefits for the damages in excess of the amounts tendered by the other driver. Wife sought reformation of the policy to include UIM coverage in the same limits as the liability coverage. Both parties filed motions for summary judgment.

The circuit court granted Respondent's motion for summary judgment, finding USAA had not made a meaningful offer of UIM coverage to Wiegand. This appeal followed.

ISSUES

USAA raises three issues on appeal:

1. Did the circuit court err in failing to give USAA the benefit of the conclusive presumption that the UIM offer was meaningful based on section 38–77–350?

2. Did the circuit court err in holding that a meaningful offer of UIM coverage was not made to Wiegand as required by State Farm Mutual Automobile Insurance v. Wannamaker, 291 S.C. 518, 354 S.E.2d 555 (1987)?

3. Did the circuit court err in declining to hold that Wiegand waived his right to claim UIM benefits by specifically declining the limit of coverage to which the circuit court reformed the policy and by refusing to purchase UIM coverage?

LAW AND ANALYSIS

Where cross motions for summary judgment are filed, the parties concede the issue before us should be decided as a matter of law. Whether a form complies with the requirements of section 38–77–350(A) is a question of law for this Court. See Grinnell Corp. v. Wood, 389 S.C. 350, 357 n. 3, 698 S.E.2d 796, 799 n. 3 (2010). “Questions of law may be decided with no particular deference to the trial court.” S.C. Dep't of Transp. v. M & T Enters. of Mt. Pleasant, LLC, 379 S.C. 645, 654, 667 S.E.2d 7, 12 (Ct.App.2008); see also Moriarty v. Garden Sanctuary Church of God, 341 S.C. 320, 327, 534 S.E.2d 672, 675 (2000). USAA contends that under either section 38–77–350(A) or Wannamaker, a meaningful offer of UIM coverage was made to Wiegand. Wife contends that USAA cannot meet its burden under either the statute or Wannamaker to prove that a meaningful offer was made, and in addition, cannot take advantage of the presumption found in section 38–77–350(B). We agree with USAA that a meaningful offer was made and reverse the circuit court's grant of summary judgment.

The General Assembly, in response to Wannamaker, passed an act, codified as section 38–77–350, establishing requirements for forms offering UIM coverage. See Automobile Insurance Reform Act of 1989, § 22. Section 38–77–350(A) mandates the director of the Department of Insurance or his designee to approve a form, which at a minimum, must provide:

(1) A brief and concise explanation of the coverage;

(2) A list of all available limits and the range of premiums for the limits;

(3) A space for the insured to mark whether the insured chooses to accept or reject the coverage and a space for the insured to select the limits of coverage he desires;

(4) A space for the insured to sign the form which acknowledges that he has been offered the optional coverages; and

(5) The mailing address and telephone number of the Insurance Department which the applicant may contact if the applicant has any questions that the insurance agent is unable to answer.¹

This form must be used by insurers in offering optional coverages. See id. It is important to note “[f]ailure to comply with section 38–77–350(A) does not automatically require judicial reformation of a policy. Rather, even where an insurer is not entitled to the presumption [in section 37–77–350(B) ] that it made a meaningful offer, it may prove the sufficiency of its offer by showing that it complied with Wannamaker.” See Grinnell Corp., 389 S.C. at 357, 698 S.E.2d at 799–800 (citing Croft v. Old Republic Ins. Co., 365 S.C. 402, 420, 618 S.E.2d 909, 918 (2005)).

USAA's form contains a brief and concise explanation of UIM coverage on the first page, detailing in one paragraph what UIM coverage pays for, who gets compensated, and what “underinsured motor vehicle” means. The form contains every UIM limit which USAA was approved to sell by the Department of Insurance, along with specific language on how to decrease or increase UIM coverage. There was a space for Wiegand to mark whether he chose to accept or reject coverage, select the limits of coverage he desired, and sign the form...