George Mims v. USAA Casualty Insurance Company ( 2023 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1654
GEORGE MIMS; CECILIA MIMS,
Plaintiffs - Appellants,
v.
USAA CASUALTY INSURANCE COMPANY,
Defendant - Appellee.
Appeal from the United States District Court for the District of South Carolina, at Florence.
Joseph Dawson, III, District Judge. (4:19-cv-00765-JD)
Submitted: March 16, 2023 Decided: March 21, 2023
Before NIEMEYER, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Thomas J. Rode, THURMOND KIRCHNER & TIMBES, P.A., Charleston,
South Carolina, for Appellants. John Robert Murphy, MURPHY & GRANTLAND, PA,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
George and Cecilia Mims appeal the district court’s orders granting USAA Casualty
Insurance Company’s motion for summary judgment and denying the Mimses’ subsequent
motion to alter or amend the judgment or for certification of questions to the South Carolina
Supreme Court on the Mimses’ declaratory judgment action related to the stacking of
underinsured motorist coverage under their insurance policy with USAA. For the
following reasons, we affirm. *
We review a district court’s summary judgment ruling de novo, “applying the same
legal standards as the district court and viewing all facts and reasonable inferences in the
light most favorable to the nonmoving party.” Ballengee v. CBS Broad., Inc., 968 F.3d
344, 349 (4th Cir. 2020). “Summary judgment is warranted ‘if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). “A genuine question of material fact
exists where, after reviewing the record as a whole, a court finds that a reasonable jury
could return a verdict for the nonmoving party.” J.D. ex rel. Doherty v. Colonial
Williamsburg Found., 925 F.3d 663, 669 (4th Cir. 2019) (internal quotation marks
omitted). In conducting this inquiry, courts may not “weigh conflicting evidence or make
credibility determinations.” Id. But “the nonmoving party must rely on more than
conclusory allegations, mere speculation, the building of one inference upon another, or
*
We previously denied the Mimses’ motion for certification to the Supreme Court
of South Carolina.
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the mere existence of a scintilla of evidence.” Humphreys & Partners Architects, L.P. v.
Lessard Design, Inc., 790 F.3d 532, 540 (4th Cir. 2015) (internal quotation marks omitted).
Under South Carolina law, stacking allows an insured motorist to recover damages
under more than one policy until he satisfies all of his damages or exhausts the limits of
his available policies. Giles v. Whitaker, 376 S.E.2d 278, 279 (S.C. 1989). An insured
may stack unless limited by statute or a valid provision in his insurance policy. Jackson v.
State Farm Mut. Auto. Ins. Co., 342 S.E.2d 603, 604 (S.C. 1986). South Carolina law
limits stacking of underinsured motorist coverage if “none of the insured’s or named
insured’s vehicles is involved in the accident.” S.C. Code Ann. § 38-77-160. Instead,
“coverage is available only to the extent of coverage on any one of the vehicles with the
excess or underinsured coverage.” Id.In Merck v. Nationwide Mut. Ins. Co., the Supreme Court of South Carolina adopted
a definition of “involved,” as used in § 38-77-160, meaning “to relate to or have an effect
on . . . to draw in as a participant . . . [to] implicate, include, affect.” 455 S.E.2d 697, 698
(S.C. 1995). Applying Merck, the district court found that the Mimses’ vehicle was not
“involved in” the accident because the accident did not have “an effect on” their vehicle,
therefore only seeming to consider one of the disjunctive elements of the definition outlined
in Merck. Thus, because the district court did not appear to consider whether the accident
also “related to,” “implicated,” “included,” or “drew in as a participant,” the Mimses’
vehicle, the court may have improperly limited its definition of “involved in” when
applying it to the facts of this case.
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However, even considering the other elements of this definition, including whether
the accident “related to,” “implicated,” “included,” or “drew in as a participant,” the
Mimses’ vehicle, we conclude that the Mimses failed to demonstrate that their vehicle was
“involved in” the relevant accident. Among other factors, the record fails to demonstrate
that Mims had any contact with his vehicle, either before or after the accident, and there
was no causal connection between his vehicle and the injuries he suffered. Mims was
walking to his vehicle at the time he was struck but, by his own testimony, he had not yet
reached his vehicle or physically engaged with it besides unlocking it remotely from across
the parking lot.
The Mimses are also not entitled to relief under the occupancy provision in their
insurance policy, which defines “occupying” as “in, on, getting into or out of.” As a
threshold matter, the parties dispute whether the occupancy provision is valid. The Mimses
argue that the provision is void because it limits the circumstances in which stacking is
allowed in violation of South Carolina’s mandate that insurers may not limit coverage in
individual policies in a way that contravenes § 38-77-160, while USAA argues that the
provision actually expands the circumstances in which stacking is allowed, and is therefore
valid. However, regardless of whether this policy provision broadens or narrows the
circumstances in which stacking is allowed, the circumstances here are not encompassed
by the provision, as Mims was not “in, on, getting into or out of” his vehicle at the time of
the accident. See Cramer v. Nat’l Cas. Co., 690 F. App’x 135, 138-39 (4th Cir. 2017)
(argued but unpublished) (holding that, under South Carolina law, act of “‘getting to’ or
‘approaching’ [a] vehicle” is beyond terms of insurance policy with occupancy provision).
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Accordingly, we affirm both orders. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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