ANDERS v. S.C. FARM BUREAU
2/24/1992
Heard Jan. 20, 1992.
Decided Feb. 24, 1992.
Plaintiffs-Respondents, James Anders and Barbara Anders, bring this declaratory judgment action against Defendant-Appellant, South Carolina Farm Bureau Mutual Insurance Company, asking the court to hold that the insurance company failed in its duty, as required by § 38-77-160 of the South Carolina Code, to offer underinsured-motorist coverage incident to the issuance of a motor vehicle liability insurance policy. The circuit court granted Plaintiffs summary judgment. We reverse.
James Anders (father of Barbara Anders) purchased a policy
of insurance from the Defendant through its agent Mary
Eager. Herein we refer to James Anders as the Plaintiff.
While the policy was in effect, the daughter was injured by an
at fault driver. The at fault driver's insurance company has offered
the limits of coverage, but in an amount alleged to be
less than the damages sustained. The Plaintiff alleges that he
was not offered underinsurance at the time the policy was issued
as required by statute. The statute, § 38-77-160 of the
South Carolina Code, in relative part reads as follows:
. . Such carriers shall also offer, at the option of the insured,
underinsured motorist coverage up to the limits of
the insured liability coverage 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.
Several cases have been decided by the Supreme Court of
South Carolina interpreting this provision. In State Farm
Mutual Automobile Insurance Company v. Wannamaker,
291 S.C. 518, 354 S.E.2d 555 (1987), our court adopted the
Minnesota Rule designating the requirements for compliance
with this statutory provision as follows:
. . (1) he insurer's notification process must be commercially
reasonable, whether oral or in writing; (2) the
Based on affidavits and depositions, the trial judge granted summary judgment in keeping with Rule 56 of the South Carolina Rules of Civil Procedure, holding that there was no genuine issue of fact to be determined by a jury. It is well established that summary judgment should be granted ". . . in cases in which plain, palpable and indisputable facts exist on which reasonable minds cannot differ." Main v. Corley, 281 S.C. 525, 316 S.E.2d 406 (1984). The rule is simple but not always easy to apply. Relief granted under Rule 56 is drastic because it terminates the cause of action on the merits. Relief granted by way of summary judgment is a first cousin to a directed verdict. Rule 56 speaks in terms of "no genuine issue of fact." A directed verdict speaks in terms of "only one reasonable inference." In each instance the party granted relief prevails as a matter of law and the litigation is ended.
By granting a summary judgment or a directed verdict, the judge in effect holds as a matter of law: "The evidence is all on one side; the facts are not debatable; a jury must believe the movants interpretation of the facts and the inferences to be drawn therefrom." The showing before the court falls short of such requirement.
Plaintiff contends that underinsured motorist coverage should be available to him notwithstanding the fact that he never contracted to purchase the coverage from the defendant because it was never offered to him. The Defendant asserts its policy with the Plaintiff does not include underinsured coverage because it effectively offered the coverage which was declined.
FACTS
Most of the facts as developed by the affidavits, exhibits and depositions are not greatly in dispute. Ot
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