Bower v. National General Insurance

GOOLSBY, Judge

(dissenting):

■ I believe Bower failed to show the trial court committed reversible error in holding the offer of underinsured (UIM) coverage at issue here was legally sufficient.

Under South Carolina Code section 38-77-160, automobile insurers must offer, at the insured’s option, UIM coverage “up to the limits of the insured liability coverage.1 The form to be used in offering such coverage must include, among other things, “a list of available limits and the range of premiums for the limits.”2

Our supreme court has adopted the following criteria for determining whether an insurer has made a meaningful offer of UIM coverage:

*321(1) the insurer’s notification process must be commercially reasonable, whether oral or in writing; (2) the insurer must specify the limits of optional coverage and not merely offer additional coverage in general terms; (3) the insurer must intelligibly advise the insured of the nature of the optional coverage; and (4) the insured must be told optional coverages are available for an additional premium.3

If the insurer fails to make a meaningful offer of UIM coverage, the policy is subject to reformation to include UIM coverage up to the insured’s liability limits.4 In this case, Bower argues National General failed to meet the fourth requirement in that it should have explicitly informed his father that optional coverages other than those shown on the form were available. I disagree.

In Wilkes v. Freeman,5 this court further clarified the criteria for a meaningful offer of UIM coverage and held, “An insurer’s form offering UIM coverage to a new applicant must contain language describing how the insured may request coverage ‘up to’ his liability limits, but different from those amounts listed on the insurer’s form.”6 In so holding, this court further stated, “[Mjerely listing several available options without providing a clear description on how the applicant may request other limits is insufficient to discharge the insurer’s duty under section 38-77-160.”7

Bower submits National General’s form is legally deficient because it does not “offer any selection of the optional coverages in a manner consistent with South Carolina law.” In support of his position, he cites a sample form developed by the South Carolina Department of Insurance that states, “If there are other limits in which you are interested, but which are not shown upon this form, then fill in those limits.”

*322National General’s form, however, did not necessarily have to duplicate the sample form approved by the South Carolina Department of Insurance in order to constitute a meaningful offer of UIM coverage. In a 1989 memorandum to all licensed carriers transacting automobile insurance business in South Carolina, the Chief Insurance Commissioner characterized the sample form as a “suggested” form and expressly stated that “any insurance carrier may draft its own version of this form and submit that form to me for my prior approval.”

Furthermore, in Norwood v. Allstate Insurance Company,8 this court held an insurer had made a valid offer of UIM coverage because the insured was both advised that she could purchase UIM coverage “up to” her liability limits and instructed on how to increase or decrease this coverage. I see no meaningful factual distinctions between Norwood and the present case. The form at issue here advises the insured of “a right to buy underinsured motorist coverage in limits9 up to the limits of liability you will carry under your automobile insurance policy.” In addition, the language in National General’s form instructing the insured on how to increase or decrease UIM coverage is almost identical to that appearing on the form in Norwood.10 Contrary to Bower’s argument, *323then, the absence of an explicit instruction by an insurer that an insured may purchase UIM coverage in limits other than those shown on the form does not give rise to a genuine issue of material fact as to whether the insurer’s offer of such coverage is meaningful.11

I would affirm.

. S.C.Code Ann. § 38-77-160 (Supp.1999).

. S.C.Code Ann. § 38-77-350(A)(2) (Supp.1999).

. State Farm Mut. Auto. Ins. Co. v. Wannamaker, 291 S.C. 518, 521, 354 S.E.2d 555, 556 (1987).

. Dewart v. State Farm Mut. Auto. Ins. Co., 296 S.C. 150, 370 S.E.2d 915 (Ct.App.1988).

. 334 S.C. 206, 512 S.E.2d 530 (Ct.App.1999).

. Id. at 212, 512 S.E.2d at 533.

. Id. at 211-12, 512 S.E.2d. at 533.

. 327 S.C. 503, 489 S.E.2d 661 (Ct.App.1997), cert. denied (Feb. 20, 1998).

. By way of distinction, I note the analogous provision on the form concerning uninsured motorist (UM) coverage provides the insured may increase UM coverage “in various limits” up to the limits of liability coverage.

. A copy of the written offer of UIM coverage appearing in the record in Norwood was made a part of the record in the present case. That offer stated in pertinent part: "In the future, if you wish to ... increase or decrease your limits for underinsured motorist coverage, you then must contact either your insurance agent or your insurance company. You will not be presented with another copy of this Form unless you request it.” The written offer in the present case reads in pertinent part: "In the future, if you wish to increase or to decrease your limits of ... underinsured coverage, you must then contact your insurance company. You will not be presented with another copy of this form by your insurance company upon renewal of your automobile liability insurance policy.” As the master noted, the only material difference between the form in the present case and that in Norwood is that, instead of the check-off blocks that appear in the Norwood form, National General's form had blanks for the insured to write in the *323desired limits. I agree with the master that this difference actually makes National General’s form more "insured friendly” than that in Norwood. See Rabb v. Catawba Ins. Co., 339 S.C. 228, 528 S.E.2d 693 (Ct.App.2000) (holding a form that presented a number of split limit and single limit UIM coverage amounts and their accompanying premium costs and provided blanks for different coverage amounts and premiums constituted a meaningful offer of UIM coverage).

. Bower also argues National General’s form gives the impression the insured cannot choose any coverage limits other than those appearing on the form. Specifically, he notes the following language on the form: "The limits of underinsured motorist coverage, together with the additional premium you will be charged, are shown upon this Form.” Bower also suggests that a letter from National General to the Insurance Commission in which National General admitted it had deleted references to coverage limits available but not shown on the form and had included "all limits available” is evidence that National General deliberately failed to advise his father of the availability of other possible limits of UIM coverage. Although the master referenced these facts in the appealed order, he made no explicit ruling concerning their impact on the overall validity of National General’s offer of UIM coverage. See Noisette v. Ismail, 304 S.C. 56, 403 S.E.2d 122 (1991) (holding that, when the trial, court does not explicitly rule on a question and the appellant fails to move under Rule 59(e), SCRCP, to amend or alter the judgment on that ground, the issue is not properly before the court of appeals and should not be addressed); Yarborough v. Phoenix Mut. Life Ins. Co., 266 S.C. 584, 225 S.E.2d 344 (1976) (stating that, in determining the rights and obligations of the parties to a contract of insurance, the contract must be read and interpreted as a whole).