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Pruitt v. South Carolina Medical Malpractice Liability Joint Underwriting Association3/15/1999
ed their payments pursuant to the opt-out documents. This suit was filed seeking a ruling that JUA remained responsible for monthly payments. The trial court ruled that JUA remained obligated to Respondents. After a calculation purporting to determine the present value of the annuities, the trial court credited JUA with the lump sums already received by the Respondents.
STANDARD OF REVIEW
"A suit for declaratory judgment is neither legal nor equitable, but is determined by the nature of the underlying issue. An issue essentially one at law will not be transformed into one in equity simply because declaratory relief is sought." Felts v. Richland County, 303 S.C. 354, 356, 400 S.E.2d 781, 782 (1991) (citation omitted). To make this determination, the appellate court must look to the essential character of the cause of action. See, e.g., Dean v. Kilgore, 313 S.C. 257, 259, 437 S.E.2d 154, 155 (Ct. App. 1993). It is clear this suit would not result in an enforceable money judgment, but would obligate JUA to perform under the 1984 settlement at some point in the future. Indeed, the Respondents state in their brief their cause of action is akin to an anticipatory breach of contract. The essence of this suit, however, is one for specific performance, an equitable remedy. Being an equity case, we review the record and make findings based on our own view of the preponderance of the evidence. Townes Assocs, Ltd. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976).
DISCUSSION
JUA contends the trial court erred by finding it is obligated under the terms of the 1984 settlement to ensure that all monthly annuity payments are made, arguing waiver, estoppel, novation, and accord and satisfaction. We agree that Respondents waived their rights to continue to receive annuity payments by electing to opt out of the annuity plan.
"Waiver is the voluntary and intentional relinquishment of a known right. It may be implied from circumstances indicating an intent to waive. Acts that are inconsistent with the continued assertion of a right may also give rise to a waiver." Provident Life & Accident Ins. Co. v. Driver, 317 S.C. 471, 478-9, 451 S.E.2d 924, 929 (Ct. App. 1994) (citations omitted).
Although Aurora explained it would issue annuities to replace the Executive Life annuities, the Respondents chose to receive lump sum payments. Had the Respondents done nothing, they would have continued to receive the monthly payments as they had since the inception of the structured settlement. Instead, they elected to "cash out" and executed the opt-out documents. Within days of sending the opt-out forms to JUA, the Respondents acknowledged they had made "a wrong decision by electing to opt out of our annuities." Even though Respondents' counsel's letter to Sam McEwen purported to impose some continuing obligation on JUA, Respondents' actions in executing the opt-out forms clearly waived their right to monthly payments. Thus, the trial court erred by finding a continuing obligation by JUA to the Respondents.
REVERSED.
HUFF and STILWELL, JJ., concur.
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