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BROOME v. WATTS8/7/1995
77-160 is to avoid the result of a total waiver of the UIM carrier's right to defend. Id.
The right to defend includes the right to a jury trial. "Trial by jury is a substantial right and any waiver thereof must be strictly construed." North Charleston Joint Venture v. Kitchens of Island Fudge Shoppe, Inc., 307 S.C. 533, 535, 416 S.E.2d 637, 638 (1992). North Charleston involved a lease in which the landlord and tenant waived their right to a jury trial. Because the tenant's guarantors were not parties to the lease and were not named in the waiver clause, they were not bound by the tenant's waiver. Id.
We reject the Broomes' argument that a waiver by Watts is tantamount to a waiver by USAA, because it blurs the distinction between the named defendant (Watts) and the actual defendant (USAA) which must pay damages on behalf of the named defendant in the event of liability. Section 38-77-160 does not permit such a result. Instead, it allows the UIM carrier to defend "in the name of the underinsured motorist." Although the UIM carrier "steps into the shoes" of the underinsured motorist, it has rights separate and distinct from those of the underinsured motorist. Watts could not give up a right Therefore, USAA's right to a jury trial was not abrogated by the settlement agreement.
II. Set-off
The Broomes next argue that the set-off of Nationwide's liability payout against the verdict was improperly granted. We disagree. The very definition of UIM insurance mandates a setoff.
The statutory purpose of underinsured motorist coverage is "to provide coverage in the event that damages are sustained in excess of the liability limits carried by an at-fault insured or underinsured motorist. . . ." Section 38-77-160.
In Garris v. Cincinnati Ins. Co, 280 S.C. 149, 154, 311 S.E.2d 723, 726 (1984), we held that
underinsured motorist coverage is optional coverage
provided by an insurance carrier in the event damages
are sustained by the insured in excess of the at fault
driver's liability coverage, recovery therefrom being
additional to any recovery from the at fault motorist,
total recovery not to exceed the damages sustained.
(Emphasis added.)
The jury determined that the Broomes suffered damages of $97,500 (including the additur). Nationwide paid its limits of $50,000. USAA, as the UIM carrier, is liable only for $47,500 — the excess of the damages sustained over the liability limits payout. The set-off was therefore proper.
The Broomes contend that because set-off was not pled as an affirmative defense under Rule 8 (c), SCRCP, it was improperly granted. This argument is without merit. First, Rule 8 (c) does not list set-off as an affirmative defense which must be pled in order to be pursued at trial. Second, the set-off which was granted in this case does not fall within the 8 (c) catchall of "any other matter constituting an avoidance or affirmative defense." Set-off was statutorily mandated, was not a matter properly triable to the jury, and therefore was not a matter constituting an affirmative defense which USAA was under a duty to plead and prove. See Powers v. Temple, 250 S.C. 149, 156 S.E.2d 759 (1967).
Accordingly, the judgment below is
Affirmed.
FINNEY, C.J., TOAL, MOORE and WALLER, JJ., concur.
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