Stephany A. Connelly v. The Main Street America Group ( 2023 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Stephany A. Connelly and James M. Connelly, Plaintiffs,
v.
The Main Street America Group, Old Dominion
Insurance Company, Allstate Fire and Casualty Insurance
Company, Debbie Cohn, and Freya Trezona, Defendants,
of which Allstate Fire and Casualty Insurance Company,
The Main Street America Group, and Old Dominion
Insurance Company are the Petitioners,
and Stephany A. Connelly and James M. Connelly are
the Respondents.
Appellate Case No. 2021-000005
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Richland County
Jocelyn Newman, Circuit Court Judge
Opinion No. 28130
Heard April 6, 2022 – Filed January 11, 2023
REVERSED
Thomas Frank Dougall and Michal Kalwajtys, both of
Dougall & Collins, of Elgin, and Eugene Hamilton
Matthews, of Richardson Plowden & Robinson, PA, of
Columbia, all for Petitioners Old Dominion Insurance
Company and The Main Street America Group; and
Alfred Johnston Cox and Kendall Patricia Crawford, both
of Gallivan, White & Boyd, PA, of Columbia, for
Petitioner Allstate Fire and Casualty Insurance Company.
John D. Kassel and Theile Branham McVey, both of
Kassel McVey, of Columbia, for Respondent James M.
Connelly; and Bert Glenn Utsey III, of Clawson Fargnoli
Utsey, LLC, of Charleston, for Respondents Stephany A.
Connelly and James M. Connelly.
John Robert Murphy and Megan Noelle Walker, both of
Murphy & Grantland, P.A., of Columbia, for Amicus
Curiae Progressive Select Insurance Company.
JUSTICE KITTREDGE: This case involves the intersection of the uninsured
motorist (UM) statute1 with the Workers' Compensation Act (the Act). 2
Respondent Stephany Connelly was a passenger in a vehicle driven by her co-
worker Freya Trezona during the course and scope of their employment when
Trezona negligently caused an accident, injuring Connelly. Because workers'
compensation benefits did not fully redress Connelly's injuries, Connelly made a
claim for bodily injury and UM benefits with her own insurance carrier and with
Trezona's carrier. Both companies denied the claim, maintaining Connelly's sole
remedy lay with the Act. After Connelly filed suit seeking a declaratory judgment
that both policies provided coverage, the parties agreed the dispute turned on the
proper interpretation of the phrase "legally entitled to recover" found in the UM
statute. See S.C. Code Ann. § 38-77-150(A) (stating all insurance policies must
contain a UM provision "undertaking to pay the insured all sums which he is
legally entitled to recover as damages from the owner or operator of an uninsured
motor vehicle" (emphasis added)). 3 The trial court ruled in favor of Connelly,
1
S.C. Code Ann. § 38-77-150 (2015).
2
S.C. Code Ann. §§ 42-1-10 to -19-50 (2022).
3
The terms of both insurance policies closely mirror the statutory language, stating
the insurers will pay "those damages that an insured person is legally entitled to
recover from the owner or operator of an uninsured auto."
finding the phrase "legally entitled to recover" ambiguous. The court of appeals
concurred in the finding of ambiguity and affirmed the trial court's determination
that a plaintiff merely needed to show fault on the part of the uninsured driver and
resulting damages, both of which had been satisfied here.
We find the statutory phrase "legally entitled to recover" unambiguous. We
conclude the amount a plaintiff is "legally entitled to recover" under a UM
provision of an insurance policy is the amount for which the plaintiff has secured a
judgment against the at-fault defendant. Because the Act prevents Connelly from
ever becoming "legally entitled to recover" from Trezona under these facts, we
reverse.
I.
The parties jointly stipulated the underlying facts, which are not in dispute.
Connelly was injured in an automobile accident while riding as a passenger in a
vehicle owned and operated by Trezona. The vehicle was covered by an
automobile liability insurance policy issued by Petitioner Old Dominion Insurance
Company (Old Dominion). 4 Additionally, Connelly had purchased UM coverage
through her own automobile insurance policy with Petitioner Allstate Fire and
Casualty Insurance Company (Allstate). At the time of the accident, Connelly and
Trezona were co-workers acting within the course and scope of their employment.
Therefore, Connelly made a successful claim for benefits under the Act.
Connelly then sought additional compensation against her co-worker under the
bodily injury provision of the Old Dominion policy, as well as under the UM
provision of both the Old Dominion and Allstate (collectively, Petitioners')
policies,5 but Petitioners denied Connelly's claims. Petitioners admitted that
Connelly is an insured person, as defined in the policies, and that Trezona's
negligence caused the accident and Connelly's resulting injuries. However
Petitioners claimed, among other things, that (1) because Connelly was injured
during the course and scope of her employment, the Act provides her exclusive
remedy; (2) because the Act affords tort immunity to the employer and co-workers
4
Petitioner Main Street America Group is a holding company that owns Old
Dominion. Its interests are identical to those of Old Dominion.
5
The Old Dominion policy provides liability coverage of $100,000 per person and
$300,000 per accident. The Allstate policy provides liability coverage of $250,000
per person and $500,000 per accident.
of an injured employee, Trezona is immune from suit by Connelly, thereby
rendering Petitioners likewise immune; and thus (3) Connelly is not legally entitled
to recover against Trezona or Petitioners.
Notwithstanding the exclusivity provision of the Act, Connelly filed suit, seeking a
declaratory judgment that the UM provisions of both polices provided coverage for
her injuries. Initially, Connelly named Petitioners and Trezona as co-defendants,
but—perhaps in recognition of the statutory immunity the Act affords Trezona—
Connelly later dismissed Trezona from the suit.6 Petitioners answered, asserting
Connelly was not "legally entitled to recover" from Trezona based on the plain
meaning of that phrase as used in the UM statute (section 38-77-150). Petitioners
and Connelly then filed cross-motions for summary judgment.
The circuit court granted Connelly's motion and denied Petitioners' motions. In
relevant part, the circuit court held Trezona's vehicle was an uninsured vehicle
because—despite the fact that Connelly was admittedly an insured person under
the policies—Petitioners had denied coverage. See S.C. Code Ann.
§ 38-77-30(14)(b) (Supp. 2021) (defining an uninsured motor vehicle as, inter alia,
a vehicle for which "there is nominally [bodily injury liability] insurance, but the
insurer writing the same successfully denies coverage thereunder" (emphasis
added)).
Likewise, the circuit court found the "legally entitled to recover" language of the
UM statute was ambiguous, reasoning that the phrase is not defined in either the
South Carolina Code or Petitioners' insurance policies, and there is a jurisdictional
split on the correct interpretation of the phrase. The circuit court explained that it
was therefore required to interpret the UM statute in a manner consistent with the
legislature's intent, that being "to provide benefits to protect against the peril of
injury or death by an uninsured motorist to an insured motorist." Thus, the circuit
court held that "legally entitled to recover" meant a plaintiff merely needed to
show fault on the part of the uninsured driver and damages, and the Act's provision
of immunity to Trezona did not impact the availability of UM coverage to
Connelly. (Citing Borjas v. State Farm Mut. Auto. Ins. Co., 33 P.3d 1265 (Colo.
App. 2001); Barfield v. Barfield ex rel. Barfield, 742 P.2d 1107 (Okla. 1987);
Torres ex rel. Torres v. Kan. City Fire & Marine Ins. Co., 849 P.2d 407 (Okla.
6
Likewise, Connelly's husband initially asserted a claim for loss of consortium.
As we explain below, the circuit court granted summary judgment on his claim,
and no one challenges the propriety of that decision to this Court. We therefore do
not address it further.
1993)). Expounding on that point, the circuit court explained UM coverage could
coexist with the Act's exclusive remedy in these circumstances because (1) the
Act's exclusivity provision only bars tort actions, but a UM claim sounds in
contract, not tort; (2) Connelly did not sue Trezona or her employer, so her claims
did not run afoul of the exclusivity provision; and (3) Connelly's recovery of UM
benefits did not frustrate the Act's goals, as Trezona, her employer, and the
workers' compensation carrier remained unaffected by allowing Connelly to
receive UM benefits.
Petitioners appealed, and the court of appeals affirmed. Connelly v. Main St. Am.
Grp., 432 S.C. 122, 850 S.E.2d 627 (Ct. App. 2020). In large part, the court of
appeals concurred with the circuit court that the phrase "legally entitled to recover"
is ambiguous, citing the jurisdictional split of authority on the issue. In light of the
finding of ambiguity, the court of appeals concluded Connelly was merely required
to show fault and damages. The court of appeals explained that allowing UM
coverage in this situation effectuated the legislature's intent, noting the UM statute
must be liberally construed in favor of coverage, and the Act only bars tort claims
against employers and co-employees, not contract claims for UM benefits.
We granted Petitioners a writ of certiorari to review the decision of the court of
appeals.
II.
A declaratory judgment action to determine coverage under an insurance policy is
an action at law. City of Hartsville v. S.C. Mun. Ins. & Risk Fin. Fund, 382 S.C.
535, 543, 677 S.E.2d 574, 578 (2009). In an appeal from an action at law, the
Court's jurisdiction is limited to correcting errors of law. Pope v. Gordon, 369 S.C.
469, 474, 633 S.E.2d 148, 151 (2006). "The trial judge's findings of fact will not
be disturbed on appeal unless the findings are wholly unsupported by the evidence
or controlled by an erroneous conception of the application of the law." Id.In reviewing the grant of a motion for summary judgment, appellate courts apply
the same standard as the trial court under Rule 56(c), SCRCP. Dawkins v. Fields,
354 S.C. 58, 69, 580 S.E.2d 433, 438–39 (2003). "[S]ummary judgment is proper
when there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law." Montgomery v. CSX Transp., Inc., 376
S.C. 37, 47, 656 S.E.2d 20, 25 (2008).
III.
Petitioners contend Connelly's recovery of workers' compensation benefits under
the Act renders Trezona immune from lawsuits stemming from the accident. As a
result, Petitioners argue Connelly is precluded from recovering under the UM
provisions of the Old Dominion and Allstate policies because Connelly will never
be "legally entitled to recover" against Trezona, and therefore, UM coverage under
the policies will never be triggered. For purposes of this discussion, we will
assume, without deciding, that Trezona's vehicle was uninsured and focus our
analysis on whether Connelly is "legally entitled to recover" damages from
Trezona.
South Carolina's UM statute provides, in relevant part,
(A) No automobile insurance policy or contract may be issued or
delivered unless it contains a provision by endorsement or
otherwise, herein referred to as the uninsured motorist provision,
undertaking to pay the insured all sums which he is legally entitled
to recover as damages from the owner or operator of an uninsured
motor vehicle . . . .
(B) No action may be brought under the uninsured motorist provision
unless copies of the pleadings in the action establishing liability
are served in the manner provided by law upon the insurer writing
the uninsured motorist provision. The insurer has the right to
appear and defend in the name of the uninsured motorist in any
action which may affect its liability and has thirty days after
service of process on it in which to appear.
S.C. Code Ann. § 38-77-150(A)–(B) (emphasis added).
The cardinal rule of statutory construction is to ascertain and effectuate the intent
of the legislature. Sloan v. Hardee, 371 S.C. 495, 498, 640 S.E.2d 457, 459
(2007). When the statute's language is clear and unambiguous, the rules of
statutory interpretation are unnecessary, as a court has no choice but to apply the
statute as written. Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000).
This is because the language used in the statute is generally considered to be the
best evidence of the legislature's intent. Cain v. Nationwide Prop. & Cas. Ins. Co.,
378 S.C. 25, 30, 661 S.E.2d 349, 352 (2008). As a result, "words must be given
their plain and ordinary meaning without resort to subtle or forced construction to
limit or expand the statute's operation." State v. Blackmon, 304 S.C. 270, 273, 403
S.E.2d 660, 662 (1991).
While the precise question presented in this case is a novel one in South Carolina,
we have occasionally addressed the interplay between the Act and the UM statute.
Generally, the Act "provides the exclusive remedy against an employer for an
employee's work-related accident or injury." Posey v. Proper Mold & Eng'g, Inc.,
378 S.C. 210, 224, 661 S.E.2d 395, 403 (Ct. App. 2008). "Under the scheme [set
forth in the Act], the employee receives the right to swift and sure compensation;
the employer receives immunity from tort actions by the employee." Wright v.
Smallwood, 308 S.C. 471, 475, 419 S.E.2d 219, 221 (1992) (cleaned up); see also
Nolan v. Daley, 222 S.C. 407, 416, 73 S.E.2d 449, 453 (1952) (explaining the Act
confers tort immunity not only on the employer but also on any negligent co-
employees).
However, "UM coverage does not sound in tort, but in contract." Wright, 308 S.C.
at 475, 419 S.E.2d at 221. Thus, an employee injured within the course and scope
of his employment may, in appropriate circumstances, recover both workers'
compensation benefits and UM benefits, as the exclusivity provision of the Act
does not automatically bar all contractual claims for UM benefits. Id. 7
A.
Here, the lower courts found the phrase "legally entitled to recover" is ambiguous
in part because there is a jurisdictional split on how best to interpret the phrase.
However, in finding the jurisdictional split legally significant, neither the circuit
7
It is nonetheless worth noting that the Act does not contain a provision expressly
authorizing the receipt of UM benefits in the event workers' compensation benefits
do not fully redress the employee's injuries—a perhaps notable omission that
stands in contrast to a provision in the Tort Claims Act. See S.C. Code Ann.
§ 15-78-190 (2005) ("If the amount of the verdict or judgment is not satisfied by
reason of the monetary limitations of this chapter upon recovery from the State or
political subdivision thereof, the plaintiff's insurance company, subject to the . . .
uninsured defendant provisions of the plaintiff's insurance policy, if any, shall
compensate the plaintiff for the difference between the amount of the verdict or
judgment and the payment by the political subdivision. If a cause of action is
barred [entirely] under § 15-78-60 of the 1976 Code, the plaintiff's insurance
company must compensate him for his losses subject to the aforementioned
provisions of his insurance policy.").
court nor the court of appeals analyzed the specific statutory language used by the
various jurisdictions to determine whether their UM statutes or workers'
compensation acts were worded differently from our own. A jurisdictional split—
standing alone—does not render ambiguous a South Carolina statute dealing with
the same subject matter. Relying on other states' interpretations of foreign law is
of little use in determining and effectuating the legislative intent underlying our
own UM statute.8
Compounding the error, in resolving the supposed ambiguity in the UM statute, the
court of appeals relied heavily on a case decided by the Supreme Court of Appeals
of West Virginia, Jenkins v. City of Elkins, 738 S.E.2d 1 (W. Va. 2012). Jenkins
dealt with a situation in which an employee was injured in a motor vehicle accident
with a third party. Id. at 4, 12. The West Virginia Supreme Court itself
acknowledged that this is an entirely distinct factual scenario from one in which an
employee is injured by a negligent co-employee. See id. at 12 (quoting Henry v.
Benyo, 506 S.E.2d 615, 619 (W. Va. 1998)). 9 In fact, most state courts have
interpreted differently the legislative intent behind and requirements of their
individual UM statutes when the tortfeasor is a co-employee rather than a third
party. Our court of appeals, quoting Jenkins, found a "slight majority" of
8
For example, the Supreme Court of Colorado found even if the court were to
assume (without deciding) that "legally entitled to recover" meant merely fault and
resulting damages, the particular language of Colorado's workers' compensation act
nonetheless barred an injured employee's claim for UM benefits. See Ryser v.
Shelter Mut. Ins. Co., 480 P.3d 1286, 1290–91 (Colo. 2021) (en banc). We find
this recent interpretation of Colorado law particularly significant given that the
lower courts here relied in part on the Borjas case decided by the Colorado Court
of Appeals in 2001.
9
Specifically, the Jenkins court distinguished another of its prior decisions in
which—as is the case in the instant appeal—an employee-plaintiff was injured in a
motor vehicle accident caused by his negligent co-employee and attempted to
recover UM benefits in addition to workers' compensation benefits. See Wisman v.
Rhodes, 447 S.E.2d 5, 8–9 (W. Va. 1994) (disallowing the recovery of UM
benefits in that circumstance due to the exclusivity provision in West Virginia's
workers' compensation act). The Jenkins court explained that "the scope of the
Wisman decision is limited to those motor vehicle accidents involving two
employees. Wisman does not discuss the situation here at hand regarding motor
vehicle accidents between an employee and a third-party nonemployee." 738
S.E.2d at 12 (quoting Henry, 506 S.E.2d at 619).
jurisdictions held a plaintiff was required only to establish the tortfeasor's fault and
the amount of the plaintiff's damages. However, as we explain more fully below,
that "slight majority" deals with the distinct factual situation presented in Jenkins,
in which there was a third-party tortfeasor. In contrast, when looking only at cases
dealing with motor vehicle accidents caused by a negligent co-employee, the
jurisdictional split is decidedly different from the one examined in Jenkins.10 Due
to the factual and legal distinctions present when the tortfeasor is a co-employee,
the court of appeals' reliance on Jenkins was misplaced.
B.
Looking solely at the language used by our General Assembly in the UM statute,
we find the phrase "legally entitled to recover" is wholly unambiguous: it means a
plaintiff has secured a judgment against an at-fault defendant after overcoming any
defenses the defendant may have presented. After all, it is only then that the
plaintiff becomes legally entitled to recover against that defendant. We reject the
lower courts' interpretation of the UM statute as requiring a plaintiff to show only
fault and resulting damages. Such a reading automatically negates any defenses
the at-fault driver could present, such as the statute of limitations, comparative
negligence, or statutory immunity. We see nothing in the language of the UM
statute to suggest the legislature intended that result.
While not necessary to interpret our own state statute, we briefly note our reading
of the legislative intent underlying section 38-77-150, as applied to motor vehicle
accidents caused by negligent co-employees, dovetails with the near-unanimous
national approach to this factual scenario. We say this while acknowledging our
decision not to parse the language of each individual state's statutes related to UM
coverage or workers' compensation, for regardless of the language used by each
individual legislature, there appears to be a "nationwide" legislative intent (as
interpreted by each state's courts). Specifically, it appears legislatures collectively
intended that their state's workers' compensation act serve as the exclusive remedy
for an employee who seeks recompense for injuries caused by a negligent co-
employee in an automobile-related accident that occurs during the course and
10
Tellingly, in Jenkins's tallying of various jurisdictions' approaches to the proper
interpretation of the phrase "legally entitled to recover," the overwhelming
majority of jurisdictions in its purported "slight majority" dealt with third-party
accidents, whereas the overwhelming majority of jurisdictions in the "minority
approach" dealt with co-employee accidents. See 738 S.E.2d at 12–14 (collecting
cases).
scope of his employment. It necessarily follows that the workers' compensation
acts' immunity provisions ensure the injured worker will never be "legally entitled
to recover" against his co-employee. See 10 Larson's Workers' Compensation Law
§ 110.05[10] (2021) ("Ordinarily, for the uninsured motorist clause to operate in
the first place, the uninsured third person must be legally subject to liability. Thus,
if the third person is specifically made immune to tort suit by the compensation
act's exclusive remedy clause, the uninsured motorist provision does not come into
play. In the familiar example of co-employee immunity, the issue thus becomes
whether the accident was in the course of employment; if it was, the uninsured
motorist carrier has no liability." (internal footnotes omitted) (collecting cases));
John P. Ludington, Annotation, Automobile uninsured motorist coverage: "legally
entitled to recover" clause as barring claim compensable under workers'
compensation statute, 82 A.L.R.4th 1096 § 2 (1990) ("Does the tort immunity of
an employer or co[-]employee mean that an injured employee is not 'legally
entitled to recover' from the employer or co[-]employee, and therefore cannot
receive uninsured motorist benefits for vehicular injuries received in an accident
arising out of, and in the course of, employment? The answer is yes, with [limited]
dissent and some qualifications. Insofar as the uninsured motorist coverage has
been bought and paid for by someone other than the injured employee, the results
have been uniform. The injured employee cannot recover uninsured motorist
benefits under the uninsured motorist coverage in policies obtained by his or her
employer, partner, or the negligent co[-]employee. The more common situation is
where the injured employee attempts to secure uninsured motorist benefits under
his or her own automobile insurance policy. Does it matter that the employee
himself or herself obtained and paid for this uninsured motorist coverage? Most
courts which have considered the question have held no, since the workers'
compensation statute grants tort immunity to a negligent employer or
co[-]employee, and therefore the injured employee is not 'legally entitled to
recover' from either of them." (emphasis added) (internal citations omitted)); see
also Ex parte Carlton, 867 So. 2d 332 (Ala. 2003) (following the majority
approach in holding the workers' compensation act is the employee's exclusive
remedy); Perkins v. Emps. Mut. Cas. Co., 507 F. Supp. 3d 1172 (D. Ariz. 2020)
(same, applying Arizona law); Ryser v. Shelter Mut. Ins. Co., 486 P.3d 344 (Colo.
App. 2019) (same), aff'd on other grounds, 480 P.3d 1286; Allstate Ins. Co. v.
Boynton, 486 So. 2d 552 (Fla. 1986) (same); Williams v. Thomas, 370 S.E.2d 773(Ga. Ct. App. 1988) (same); Atl. Mut. Ins. Co. v. Payton, 682 N.E.2d 1144 (Ill.
App. Ct. 1997) (same); O'Dell ex rel. O'Dell v. State Farm Mut. Auto. Ins. Co., 362
N.E.2d 862 (Ind. Ct. App. 1977) (same); Otterberg v. Farm Bureau Mut. Ins. Co.,
696 N.W.2d 24 (Iowa 2005) (same); Chance v. Farm Bureau Mut. Ins. Co., 756 F.
Supp. 1440 (D. Kan. 1991) (same, applying Kansas law); State Farm Mut. Auto.
Ins. Co. v. Slusher ex rel. Slusher, 325 S.W.3d 318 (Ky. 2010) (same); Hebert v.
Clarendon Am. Ins. Co., 984 So. 2d 952 (La. Ct. App. 2008) (same); Hopkins v.
Auto-Owners Ins. Co., 200 N.W.2d 784 (Mich. Ct. App. 1972) (per curiam)
(same); Peterson v. Kludt ex rel. Lyczewski, 317 N.W.2d 43 (Minn. 1982) (same);
Medders v. U.S. Fid. & Guar. Co., 623 So. 2d 979 (Miss. 1993) (same); Kesterson
v. Wallut, 157 S.W.3d 675 (Mo. Ct. App. 2004) (same); Okuly ex rel. Okuly v.
USF & G Ins. Co., 78 P.3d 877 (Mont. 2003) (same); Matarese v. N.H. Mun. Ass'n
Prop.-Liab. Ins. Tr., Inc., 791 A.2d 175 (N.H. 2002) (same); Kough v. N.J. Auto.
Full Ins. Underwriting Ass'n, 568 A.2d 127 (N.J. Super. Ct. App. Div. 1990)
(same); Vasquez v. Am. Cas. Co. of Reading, 389 P.3d 282 (N.M. 2016) (same);
Hauber-Malota v. Phila. Ins. Cos., 991 N.Y.S.2d 190 (App. Div. 2014) (same);
Stuhlmiller v. Nodak Mut. Ins. Co., 475 N.W.2d 136 (N.D. 1991) (same); Sims v.
Marren, 36 N.E.3d 780 (Ohio Ct. App. 2015) (same); Cope v. W. Am. Ins. Co. of
the Ohio Cas. Grp., 785 P.2d 1050 (Or. 1990) (en banc) (same); Petrochko v.
Nationwide Mut. Ins. Co., 15 Pa. D. & C.5th 312 (C.P. 2010) (same), aff'd, 38 A.3d
917 (Pa. Super. Ct. 2011); Soledad v. Tex. Farm Bureau Mut. Ins. Co., 506 S.W.3d
600 (Tex. App. 2016) (same); Welch ex rel. Welch v. Miller & Long Co. of Md.,
521 S.E.2d 767 (Va. 1999) (same); Romanick v. Aetna Cas. & Sur. Co., 795 P.2d
728 (Wash. Ct. App. 1990) (same); Wisman, 447 S.E.2d 5 (same); cf. State Farm
Mut. Auto. Ins. Co. v. Royston, 817 P.2d 118 (Haw. 1991) (holding, in part based
on the co-employee related cases, that an injured government employee could not
recover under his own UM policy because he had received workers' compensation
benefits and therefore would not be "legally entitled to recover" against his
employer, as the owner of the uninsured vehicle); Lieber v. ITT Hartford Ins. Ctr.,
Inc., 15 P.3d 1030 (Utah 2000) (involving a claim for UM benefits brought by an
employee injured in an accident with a third-party, but nonetheless analyzing the
state's UM and workers' compensation statutes and concluding that the exclusive
remedy of the workers' compensation act only prevented the employee from
becoming "legally entitled to recover" against an employer or co-employee, not a
third party).
We too believe our legislature, like the legislatures of the overwhelming majority
of jurisdictions around the country, intended the Act to be the exclusive remedy
since the injured employee will never be "legally entitled to recover" against his
co-employee.
C.
Subsection (B) of the UM statute provides further support for our conclusion that
the General Assembly intended the "legally entitled to recover" language in
subsection (A) to mean the injured motorist must prove he has a viable claim that
is able to be reduced to judgment in a court of law, rather than merely fault and
resulting damages. Specifically, subsection (B) states that an action for UM
benefits may not be brought "unless copies of the pleadings in the action
establishing liability" are served on the insurer, and the insurer "has the right to
appear and defend in the name of the uninsured motorist in any action which may
affect its liability." S.C. Code Ann. § 38-77-150(B). From this language, it is
manifest the General Assembly has imposed several hurdles as conditions
precedent to recovering UM benefits: (1) an injured motorist must file a tort suit
against the at-fault driver prior to seeking contractual UM benefits from an insurer,
and (2) a copy of the pleadings from that tort suit must be served on the insurer so
as to allow it to limit its possible exposure in the event of an adverse judgment.
As we have explained previously,
The right to sue and collect from one's own liability insurance carrier
in case of a loss caused by [an uninsured motorist] is a creature of the
legislature. Except for the statute, and endorsements required, no
right exists to recover from one's own insurance carrier. One must
look to the terms of the [UM] statute and policy endorsements and
comply therewith to get the benefit of law.
Criterion Ins. Co. v. Hoffmann, 258 S.C. 282, 290, 188 S.E.2d 459, 462 (1972)
(emphasis added) (interpreting the prior version of the UM statute, which included
language identical to the current subsection (B)).
To that effect, we have repeatedly emphasized the importance of an injured
motorist filing a tort suit and establishing the liability of the uninsured motorist
prior to filing suit for UM benefits against an insurer. See Laird ex rel. Laird v.
Nationwide Ins. Co., 243 S.C. 388, 394, 134 S.E.2d 206, 209 (1964) ("Recovery
under the uninsured endorsement is subject to the condition that the insured
establish legal liability on the part of the uninsured motorist. Such an action is one
ex delicto and the only issues to be determined therein are the liability and the
amount of damage. After judgment is entered against the uninsured motorist, a
direct action ex contractu can be brought to recover from the insurance company
on its endorsement . . . ." (emphasis added)); see also Lawson v. Porter, 256 S.C.
65, 68–69, 180 S.E.2d 643, 644 (1971) (collecting cases outlining the same
requirement); cf. Williams v. Selective Ins. Co. of Se., 315 S.C. 532, 534, 446
S.E.2d 402, 404 (1994) (making a similar observation about the requirements of
the underinsured motorist (UIM) statute, S.C. Code Ann. § 38-77-160 (2015)).
We have further explained the UM insurance carrier has a right to demand strict
compliance with subsection (B) of the UM statute. See Criterion Ins. Co., 258
S.C. at 294, 188 S.E.2d at 465. In doing so, we noted the language used in
subsection (B) is clear and unambiguous, and therefore, there was no room to
apply the rules of statutory construction. See id. at 292, 188 S.E.2d at 463 ("Most
courts take a liberal view when dealing with the question of coverage; however, the
procedural obligations that the insured must discharge in order to recover, since
they are prescribed by statute, are viewed by the courts as mandatory, and strict
compliance with them is a prerequisite to recover." (emphasis added)).
Thus, an insurer must be served with copies of the pleadings in the underlying tort
suit against the uninsured motorist, and those pleadings must include "the formal
allegations by the parties of their respective claims and defenses." Id. at 290, 292,
188 S.E.2d at 462, 464 (emphasis added) (citation omitted) ("For reasons
satisfactory to the legislature, service of the pleadings is required in the usual
uninsured motorist suit." (internal quotation marks omitted)). In this manner, the
insurer is afforded the opportunity to investigate and "take such steps as it deems
necessary to protect its interest"—a matter of no small importance to the insurer
given that it will be required to pay (within policy limits) any judgment entered
against the uninsured motorist. Squires ex rel. Squires v. Nat'l Grange Mut. Ins.
Co., 247 S.C. 58, 69, 145 S.E.2d 673, 678–79 (1965); see also Criterion Ins. Co.,
258 S.C. at 290, 188 S.E.2d at 462 ("It is the province of the lawmakers to create a
right of action, to provide for process and to declare the procedure for collecting
from one's own insurance carrier. They did just that."); Park v. Safeco Ins. Co. of
Am., 251 S.C. 410, 413–15, 162 S.E.2d 709, 710–11 (1968) (rejecting an injured
motorist's attempt to proceed against the UM carrier in the first instance without
filing the initial tort suit against the at-fault, uninsured driver).
The fact that the "pleadings" that must be served on the insurers include possible
defenses necessarily lends support to our conclusion that the UM statute requires a
factfinder to consider the presence and viability of any defenses to liability in a
separate tort action. Were we to read "legally entitled to recover" as only requiring
fault and resulting damages, as urged by Connelly and held by the lower courts
here, an injured motorist would never need to acknowledge the existence or merit
of any possible defenses to liability, thereby contravening the purpose of the notice
provision in section 38-77-150(B).
Here, Connelly did not file a separate tort suit against Trezona, much less secure a
judgment against her, so she is not "legally entitled to recover" against Trezona.
While it is understandable why Connelly did not sue Trezona in tort—the Act
indisputably provides Trezona with an ironclad defense to any possible liability—
Connelly's failure to follow the substantive requirements of the UM statute are
fatal to any possible claim against Petitioners for UM benefits.
IV.
While our holding today is on firm legal footing, we note our disquiet at the result:
Connelly—who paid for UM and UIM coverage—will not receive the benefit of
her contractual bargain with Allstate, through no fault of her own. We can think of
no other step Connelly could have taken to protect herself from this type of
circumstance: she was not driving, she did not cause or contribute to the accident,
she had automobile insurance, and she paid additional amounts for UM and UIM
coverage. As a result, Connelly's argument—that our reading of the UM statute
runs counter to the underlying legislative intent—has equitable appeal. See Laird,
243 S.C. at 392, 134 S.E.2d at 208 (explaining the purpose of UM coverage "was
to provide financial recompense to innocent persons who receive bodily
injuries . . . through the wrongful conduct of uninsured motorists").
However, ruling in favor of Connelly would require us to contort the plain
meaning of "legally entitled to recover" and materially rewrite the notice provision
in subsection (B) to provide an exception in the case of accidents caused by
negligent co-employees who, by function of the Act, are immune from tort suits.
There is nothing in the language of the UM statute or the Act that leads us to
believe the legislature intended us to take such liberties—particularly when
contrasted with an explicit provision of the Tort Claims Act addressing a similar
possibility. See S.C. Code Ann. § 15-78-190 (stating that if an award under the
Tort Claims Act is insufficient to redress the plaintiff's injuries in full, and UM
coverage would otherwise be available to cover the plaintiff's damages, the UM
carrier shall compensate the plaintiff within the limits of the policy). Given that
the Tort Claims Act expressly contemplates and allows UM coverage in the event
of an injured plaintiff's incomplete recovery, it is clear the legislature knows how
to provide a statutory exemption to tort immunity or damage limitations on an
insured's rights against a tortfeasor. We find the fact that the legislature chose not
to include a similar exemption in the UM statute or the Act significant. See 82
C.J.S. Statutes § 460 (2009) ("[W]here a statute contains a given provision, the
omission of such a provision from a similar statute concerning a related subject is
significant to show that a different intention has existed.").
We decline the invitation to rewrite the statute or construe it in a manner
manifestly at odds with its plain meaning. Connelly's remedy in this instance is not
with the courts, but with the legislature. See Criterion Ins. Co., 258 S.C. at 294,
188 S.E.2d at 464 ("The statute made service of a copy of the [pleadings] upon [the
insurer] a condition precedent to [the plaintiff's] recovery. If it is advisable that the
statute be changed, it is within the province of the legislature to do so. For the
courts to set about to [change the requirements of the UM statute themselves]
would inevitably lead to the establishment of a mischievous precedent, and to great
uncertainty and confusion in the determination of future cases of a similar nature.
It is needless to describe the effects of such a condition of things in order to
appreciate the necessity of avoiding it." (citation omitted) (internal quotation marks
omitted)).
V.
This case presents a straightforward question of the correct interpretation of the
UM statute, particularly the "legally entitled to recover" language of subsection (A)
and the notice provision of subsection (B). See S.C. Code Ann. § 38-77-150. Any
unease with today's result lies in the outcome of that interpretation, for our holding
today arguably does not comport with equity and one's sense of fairness. We state
the obvious: we are a court, not a legislative body. We are thus constrained by our
judicial role to interpret the law as written and not to create exceptions to plainly-
worded statutes. That is the province of the legislature alone, and a boundary we
do not cross, even in sympathetic situations such as this.
The decision of the court of appeals is
REVERSED.
BEATTY, C.J., HEARN, FEW and JAMES, JJ., concur.