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 а 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 exceеded 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 Automo
Underinsured motorist coverage compensates you, or other persons insured under your automobile insurance policy, including passengers within your motor vehicle, fоr 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 vehiclе 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, аre 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 exсess of the amounts tendered by the other driver. Wife sought reformation of the policy to include UIM coverage in
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,
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 purchаse 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,
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 а 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 insuranсe agent is unable to answer. 1
This form must be used by insurers in offering optional coverages.
See id.
It is important to note “[fjailure 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.,
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
Additionally, USAA’s form was approved by the appropriate entity in January 1990. While approval alone is not dispositive of whether a form meets section 38-77-350(A)’s requirements,
see Progressive Casualty Insurance Co. v. Leachman,
Sectiоn 38-77-350(B) provides a conclusive presumption of informed selection in favor of the insurer if specific criteria are met once the form is found to be in compliance with (A). Wiegand signed the form in 1990. Because of. the presumption against retroactivity of statutes, our analysis will only deal with the section as it existed in 1990.
2
In that version of the statute, the insured must have properly completed and executed the form.
See
S.C.Code Ann. § 38-77-350(B) (1990). The insurer has the burden of establishing that the requirements have been met in order to take advantage of the presumption.
See Floyd v. Nationwide Mut. Ins. Co.,
Contrary to the circuit judge’s finding, USAA presented suffiсient evidence to show that Wiegand both completed and executed the form. The offer form was processed by
Wife argues that USAA cannot meet its burden because no one can testify who checked the “no” boxes on the form signed by Wiegаnd. While this is true, nothing in the statutes, rules, or case law requires direct evidence as to who checked the boxes for the burden to be met. It is enough that Wiegand signed the acknowledgment which included the sentence “I have indicated whether or not I wish to purchase each coverage in the space provided” along with the other evidence mentioned above to find that USAA met its burden. We hold USAA can take advantage of the presumption found in section 38-77-350(B), and that a meaningful offer was made to Wiegand.
Because we find the matter dispositive on the issue of meaningful offer under the statute, we decline to address the remaining issues on appeal.
See Futch v. McAllister Towing of Georgetown, Inc.,
REVERSED.
Notes
. The version of section 38-77-350(A) in effect at the time of USAA's offer to Vincent contained the same language, except that "Chief Insurance Commissioner” was listed instead of "the director of the Department of Insurance or his designee.”
. In 2006, the statute was amended so that the presumption applies if the form was completed by an insurance producer or representative of the insurer and the insured only signed the form. See S.C.Code Ann. § 38-77-350(B) (Supp.2009). At oral argument, Wife conceded that under this version of the statute, USAA would be entitled to the presumption.