Antley v. Nobel Insurance

STILWELL, Judge

(dissenting):

I respectfully dissent. While I agree with the reasoning and result of issue I, I disagree with the analysis and conclusion of issue II.

The stipulation of facts entered into by the parties and by which they and this court are bound clearly indicates that this was a renewal of an existing policy. Section 38-77-350(A) mandates the form required to “be used by insurers for all new applicants.” This is the form which Nobel is faulted for not using. However, the named insured of this policy was not a new applicant. Subsection (A) therefore does not apply, and subsection (C) is invoked. My disagreement with the majority centers on the meaning and application of S.C.Code Ann. Section 38-77-350(C).7

To avoid the consequences of the application of the plain language of this subsection, the majority takes two tacks. First, the majority contends that even though Nobel does not have to make a new offer, it did so, thereby rendering the application of section 38-77-350(C) moot. However, that reasoning is faulty because the majority had already determined that since Nobel failed to make a meaningful offer, it had the legal effect of no offer at all. Second, the majority contends that subsection (C) may be invoked only if Nobel proves that a meaningful offer was made at some time in the past. This is a novel issue in this state.

The majority cites the case of McDonald v. S.C. Farm Bureau Ins. Co., 336 S.C. 120, 518 S.E.2d 624 (Ct.App.1999), for the proposition that when an insured is not required to *637make a “new offer”, it clearly envisions a circumstance where the insured has already made an “old” offer. However, the facts involved and the issue raised in that case differ substantially from the circumstances here. In McDonald, a new named insured replaced the original insured and no offer of optional coverage was ever made to the new insured. The McDonald court ruled that under those circumstances a new policy was created with a new named insured who had never had the opportunity to accept or reject the optional coverage. Here, we have the same named insured in a renewal policy. Had the legislature intended the result reached by the majority, the statute easily could have been worded to accomplish that objective by prefacing the section with “where a complying offer was originally made.” The statute, however, contains no such condition when an insurance policy is being renewed.

To hold in this case and on these facts that the policy must be reformed to provide $1,000,000 uninsured motorist coverage renders section 38-77-350(0 meaningless. While I agree Antley is entitled to uninsured motorist coverage, he is limited to the minimum required by law, that is $15,000.

. An ... insurer is not required to make a new offer of coverage on any automobile insurance policy which renews, extends, changes, supersedes, or replaces an existing policy. S.C.Code Ann. § 38-77-350(C) (Supp.2001).