Ray v. Austin

698 S.E.2d 208, 388 S.C. 605, 2010 S.C. LEXIS 290
CourtSupreme Court of South Carolina
DecidedAugust 16, 2010
Docket26858
StatusPublished
Cited by9 cases

This text of 698 S.E.2d 208 (Ray v. Austin) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ray v. Austin, 698 S.E.2d 208, 388 S.C. 605, 2010 S.C. LEXIS 290 (S.C. 2010).

Opinions

[608]*608Justice HEARN.

In this case, we decide whether Lumbermens Mutual Casualty Company, doing business as Kemper Insurance Company (“Lumbermens”), made a meaningful offer of underinsured motorist coverage (“UIM”) to Cintas Corporation (“Cintas”). We find a meaningful offer was made and affirm the circuit court’s order granting summary judgment in favor of Lumbermens.

FACTUAL/PROCEDURAL BACKGROUND

Cintas began purchasing automobile insurance from Lumbermens through the insurance brokerage firm of Aon Risk Services Incorporated (“Aon”) in 1989. In 1991, Cintas designated Kevin Ryan as its agent to purchase automobile insurance on its behalf. From that point forward, Ryan met and consulted with Tom Purtell, Senior Vice President of Aon, on an annual basis to discuss the insurance options available to Cintas and to renew Cintas’s policy. That same year, Cintas adopted the risk management strategy of declining uninsured motorist coverage (UM) and UIM in states where such coverage was not required. For states mandating coverage, Cintas purchased the minimum amount required by law. According to Ryan, Cintas implemented this strategy because it obtained other insurance, namely workers’ compensation, to cover injuries sustained by employees while driving vehicles owned by Cintas.

On June 25, 2002, Ryan and Purtell met to renew Cintas’s insurance policy with Lumbermens for the upcoming year. At the meeting, Purtell presented Ryan with the insurance policy provided by Lumbermens along with state specific forms offering UM and UIM coverage. Purtell explained to Ryan that Cintas had the option to purchase UM and UIM coverage in states where coverage was not required. Purtell also gave Ryan the opportunity to review the state specific forms offering UM and UIM coverage and answered Ryan’s questions. Thereafter, Ryan signed the insurance policy and accompanying state forms on behalf of Cintas. Consistent with Cintas’s risk management strategy, Ryan rejected UM and UIM coverage in states where coverage was not required and purchased the minimum amount required by law in states man[609]*609dating coverage. Additionally, Cintas’s risk management strategy was inserted into the language of the policy as an endorsement. The endorsement read: “For all states, where permitted to do so, the Insured has elected to reject Uninsured and/or Underinsured Motorists coverage. In those states, where the rejection of coverage is not permitted, the lowest permissible coverage limit applies.”

The state specific form provided by Lumbermens for South Carolina was entitled “Offer of Optional Additional Uninsured Motorist and Optional Underinsured Motorist Coverage” (“the form”). The form, itself, was four pages long. On pages one and two of the form, it explained the nature of UM and UIM coverage. With regard to UIM coverage, the form stated:

[Y]ou have the right to buy UIM coverage in limits up to the limits of liability coverage which you will carry under your automobile insurance policy. Some of the more commonly sold limits of underinsured motorist coverage, together with the additional premiums which you will be charged have been printed by your insurance company upon this Form. If there are other limits in which you are interested, but which are not shown upon this Form, then fill in those limits in the blanks provided. If your insurance company is allowed to market those limits within this State, then your insurance agent will fill in the amounts of the increased premium.

On page three, the form contained blank lines for the insurance company to fill in commonly sold limits of UIM coverage along with increases in premium for the selection of such coverage. In the form issued to Ryan, Lumbermens failed to fill in the blanks. Also, on page three, the form asked, “[d]o you wish to purchase underinsured motorist coverage?” During Ryan’s deposition, he offered conflicting testimony as to whether he personally checked the “no” box next to this question. Ryan also failed to sign under the “no” box as required by the form. However, Ryan signed the very last page of the form. By signing, Ryan acknowledged he had read the offers of UM and UIM coverage and indicated whether he wished to receive such coverage in the space provided.

[610]*610Shortly after the policy became effective, Richard Ray, a Cintas employee, was severely injured in an automobile accident when Jonathan Austin failed to stop at a red light and collided with the vehicle driven by Ray. At the time of the accident, Ray was driving a vehicle owned by Cintas.1 Following the accident, Ray filed a negligence action against Austin. Austin, through his insurance carrier, Safe Auto Insurance Company, agreed to tender the limits of his automobile policy in exchange for Ray entering into a Covenant Not to Execute.2 Ray then filed a declaratory judgment action against Lumbermens, contending Lumbermens failed to make a meaningful offer of UIM coverage to Cintas.3 Accordingly, Ray asked the circuit court to reform the policy to provide UIM coverage in an amount equal to the five million dollar liability limits of the policy issued by Lumbermens.

Thereafter, Ray and Lumbermens filed cross-motions for summary judgment. The circuit court denied Ray’s motion for summary judgment and granted Lumbermens’ motion for summary judgment, finding Lumbermens made a meaningful offer of UIM coverage to Cintas. Specifically, the circuit court found the form complied with the requirements of section 38-77-350(A)-(B) of the South Carolina Code (Supp. 2009), entitling Lumbermens to the statutory presumption that a meaningful offer was made. In the alternative, the circuit court found Lumbermens made a meaningful offer of UIM coverage under State Farm Mut. Auto. Ins. Co. v. Wannamaker, 291 S.C. 518, 354 S.E.2d 555 (1987). This appeal followed.

STANDARD OF REVIEW

When reviewing the trial court’s decision to grant summary judgment, an appellate court applies the same standard applied by the trial court. Lanham v. Blue Cross & [611]*611Blue Shield of S.C., Inc., 349 S.C. 356, 361, 563 S.E.2d 331, 333 (2002). Summary judgment is appropriate when there is no genuine issue of material fact such that the moving party is entitled to prevail as a matter of law. Rule 56(c), SCRCP; Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002). “In determining whether any triable issues of fact exist, the court must view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the nonmoving party.” David v. McLeod Reg’l Med. Ctr., 367 S.C. 242, 247, 626 S.E.2d 1, 3 (2006).

LAW/ANALYSIS

Initially, we must determine whether the form complied with the requirements set forth in section 38-77-350(A), entitling Lumbermens to the statutory presumption that a meaningful offer was made. We hold it did not.

Automobile insurance carriers are required to offer UIM coverage up to the limits of the insured’s liability coverage. S.C.Code Ann. § 38-77-160 (2002).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Traynum v. Scavens
786 S.E.2d 115 (Supreme Court of South Carolina, 2016)
Liberty Mutual Fire Insurance v. McKnight
125 F. Supp. 3d 602 (D. South Carolina, 2015)
Cohen v. Progressive Northern Insurance
737 S.E.2d 869 (Court of Appeals of South Carolina, 2013)
McWhite v. ACE American Insurance Company
412 F. App'x 584 (Fourth Circuit, 2011)
Grinnell Corp. v. Wood
698 S.E.2d 796 (Supreme Court of South Carolina, 2010)
Ray v. Austin
698 S.E.2d 208 (Supreme Court of South Carolina, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
698 S.E.2d 208, 388 S.C. 605, 2010 S.C. LEXIS 290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ray-v-austin-sc-2010.