Jamal Markel Bronner v. GEICO ( 2022 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Jamar Markel Bronner, Appellant,
v.
GEICO Indemnity Company, Respondent.
Appellate Case No. 2019-001096
Appeal from Beaufort County
Marvin H. Dukes, III, Acting Circuit Court Judge
Unpublished Opinion No. 2022-UP-348
Heard May 24, 2022 – Filed August 31, 2022
AFFIRMED
J. Olin McDougall, II, of McDougall Law Firm, LLC of
Beaufort, and Bert Glenn Utsey, III, of Clawson Fargnoli
Utsey, LLC, of Charleston, for Appellant.
Thomas H. Milligan, of Milligan & Herns PC, of Mt.
Pleasant, for Respondent.
PER CURIAM: In this declaratory judgment action, Appellant Jamar Markel
Bronner (Bronner) appeals a grant of summary judgment to GEICO Indemnity
Company (GEICO) on his efforts to have his policy reformed to include
underinsured motorist (UIM) coverage. We affirm.
After being injured in a motorcycle accident and exhausting the coverage of
an at-fault driver, Bronner attempted to claim underinsured coverage through his
own policy with GEICO. The company denied coverage, arguing Bronner had
rejected an offer of UIM coverage when he first obtained motorcycle insurance.1
On April 9, 2015, Bronner purchased a GEICO policy providing insurance on
a 2009 Harley Street Glide. At the time, he spoke with GEICO agent Steven Stewart
(Stewart) over the telephone.
Bronner and Stewart both have difficulty remembering the April 9, 2015
phone call, and disagree on what they do remember. Bronner explained at a
deposition that he "d[id]n't recall much." However, he suggested that he did not
believe he was given an adequate description of UIM coverage: "I don't believe it
wasn't mandatory or rejection. Probably just told me the policies. I don't remember
nobody saying nothing about is this mandatory or you can reject this." Bronner also
stated at times that UIM was never explained to him and that he "would rather have
it." Bronner indicated he would have paid as much as $780 in premiums for UIM
"[i]f I'd known about it what I know now, if it was properly explained to me."
During his deposition, Stewart said he did not recall the conversation.
However, referring to the company's records of the phone transaction, Stewart said
he would have discussed UIM coverage with Bronner. Stewart maintained: "I knew
that he wanted to reject the coverages, and we had that conversation around what it
would cost with and without."
A packet of information about the policy, including a form allowing Bronner
to memorialize his rejection of UIM coverage, was mailed to Bronner. By May 1,
GEICO had not received Bronner's form. The company sent another copy of the
form and called Bronner. Apparently after calling GEICO back, Bronner returned
the form indicating his rejection of the coverage.2 The form included a short
summary explaining the nature of underinsured motorist coverage, the insured
individual's opportunity to decline the coverage, and what the insured may collect if
1
The preceding paragraphs are taken from the complaint, interrogatories, and the
circuit court's decision. The claim and its rejection are not included in the record.
2
The contents of the second call are not revealed in the record. However, based on
testimony submitted in this case, it is at best questionable that Bronner received any
additional information about UIM coverage at that time.
the policy is triggered. Additionally, the form listed potential UIM coverages,
including offering $25,000/$50,000/$25,000 coverage for between $23.00 and
$780.00. 3
In 2016, Bronner purchased a newer motorcycle. He appears to have been
confused about whether the policy on his old motorcycle was being canceled, to be
replaced with a new policy on his newer bike. However, the policy numbers are the
same. 4
On June 24, 2016, another driver's vehicle collided with Bronner while he
riding on his motorcycle. Bronner's medical bills amounted to more than $100,000.
In February 2017, Bronner filed a complaint in Beaufort County, noting that he had
recovered only $25,000 from the other driver's insurance policy and arguing that
"GEICO failed to make a meaningful offer of UIM coverage under the Policy." The
complaint asked for the policy to be reformed to provide for $25,000 in coverage.5
GEICO answered in the U.S. District Court in an effort to remove the matter from
state court. Following a stipulation by Bronner "that the amount in controversy is
less than $75,000," the matter was returned to state court.
The two parties made cross-motions for summary judgment. The circuit court
held a hearing on October 31, 2018. In January, the circuit court found for GEICO.
The court held: "There is no genuine issue as to any material fact that . . . Bronner
rejected UIM coverage after receiving a meaningful offer in compliance with S.C.
Code Ann. § 38-77-350(A) and Wannamaker."6 Bronner filed a Rule 59(e) motion,
arguing that the court erred in its interpretation of the meaningful offer standard and
that there remained "genuine issues of material fact as to whether GEICO complied
with the requirements of" Wannamaker. The circuit court denied the motion in a
Form 4 order. This appeal follows.
"An appellate court reviews the granting of summary judgment under the
same standard applied by the trial court . . . ." Traynum v. Scavens, 416 S.C. 197,
201, 786 S.E.2d 115, 117 (2016) (alteration in original) (quoting Quail Hill, L.L.C.
3
The Bodily Injury Liability coverage on Bronner's policy was $25,000/$50,000.
4
See S.C. Code Ann. § 38-77-350(C) (2015) ("An automobile 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.").
5
The UIM limits of the reformed policy would have been $25,000/$50,000; as a
result, Bronner would have received $25,000.
6
State Farm Mut. Auto. Ins. Co. v. Wannamaker, 291 SC. 518, 354 S.E.2d 555(1987).
v. Cnty. of Richland, 387 S.C. 223, 235, 692 S.E.2d 499, 505 (2010)). Summary
judgment "shall be rendered . . . if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." Rule 56(c), SCRCP. "When the purpose of the
underlying dispute [in a declaratory judgment action] is to determine whether
coverage exists under an insurance policy, the action is one at law." S.C. Farm
Bureau Mut. Ins. Co. v. Kennedy, 398 S.C. 604, 610, 730 S.E.2d 862, 864 (2012)
(quoting Crossmann Cmtys. Of N.C., Inc., v. Harleysville Mut. Ins. Co., 395 S.C. 40,
46, 717 S.E.2d 589, 592 (2011)).
Uninsured and underinsured motorist coverage is governed by both statutory
and common law in South Carolina. First, statutory law dictates that all automobile
insurers "offer, at the option of the insured, underinsured motorist coverage up to the
limits of the insured liability coverage to provide coverage in the event that damages
are sustained in excess of the liability limits carried by an at-fault insured or
underinsured motorist or in excess of any damages cap or limitation imposed by
statute." S.C. Code Ann. § 38-77-160 (2015). Under section 38-77-350 of the South
Carolina Code (2015), an insurer that commits the offer to a form approved by the
state benefits from a statutory presumption that the insured's selection or rejection
of coverage was informed "[i]f this form is signed by the named insured[] after it
has been completed by an insurance producer or a representative of the insurer."
S.C. Code Ann. § 38-77-350(B).
In 1987, our supreme court considered the predecessor to the current version
of the statute in State Farm Mut. Auto. Ins. Co. v. Wannamaker, 291 S.C. 518, 354
S.E.2d 555 (1987). There, the court held that section 38-77-160 "mandates the
insured to be provided with adequate information, and in such a manner, as to allow
the insured to make an intelligent decision of whether to accept or reject the
coverage." Id. at 521, 354 S.E.2d at 556. To ensure this, the court laid out what is
now known as the Wannamaker test:
(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 that
optional coverages are available for an additional
premium.
Id. Bronner argues that GEICO's offer was not a meaningful offer under South
Carolina law. We disagree.7
Bronner relies on a synthesis of Wannamaker and the statutory presumption
language—including section 38-77-350(B)—to argue that GEICO's offer was not
meaningful. This approach lacks support in our state's law. The standards for the
presumption are not folded into an overarching analysis of the meaningful offer; they
are intended to provide an alternative to fully litigating the case. See Traynum, 416
S.C. at 203, 786 S.E.2d at 118 ("Our precedents thus recognize that an insurer can
establish it made a meaningful offer of UIM coverage by proving either it is entitled
to the conclusive presumption of section 38-77-350(B) or it satisfied the
requirements of Wannamaker."); Cohen v. Progressive Northern Ins. Co., 402 S.C.
66, 76, 737 S.E.2d 869, 874 (Ct. App. 2013) ("[A]n insurer's noncompliance with
subsection 38-77-350(B) does not render the use of the subsection 38-77-350(A)
form a 'noncomplying offer.'").
Nonetheless, Bronner attempts to reconcile his approach and our precedents
by relying on Grinnell Corp. v. Wood to argue that "an insurer cannot satisfy its
burden of proof by relying solely upon an offer form that fails to satisfy [s]ection
38-77-350." See Grinnell Corp. v. Wood, 389 S.C. 350, 358, 698 S.E.2d 796, 800
(2010) ("If the only evidence presented in this record were the statutorily deficient
and incorrectly executed offer form, the court of appeals opinion would have to be
affirmed."). In this case, Bronner argues, the only additional evidence of a
conversation between GEICO and Bronner is the disputed phone call between the
two men; because the contents of the phone call are not agreed upon, summary
judgment is inappropriate.
This is misguided. As demonstrated in Bronner's own brief, this court noted
in its own consideration of Grinnell Corp. that "[i]t is axiomatic that a form which
fails under the requirements of section 38-77-350(A) would not meet the
7
Bronner also urges this court to reverse the circuit court on the grounds that GEICO
is not entitled to the presumption, found in section 38-77-350, that an offer was
knowingly accepted or declined. Because the offer provided by GEICO satisfies the
Wannamaker test, GEICO need not rely on the presumption provided by section 38-
77-350. Therefore, we decline to rule on this issue. See Futch v. McAllister Towing
of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (stating that the
"appellate court need not address remaining issues when disposition of prior issue is
dispositive" (citing Whiteside v. Cherokee Cnty. Sch. Dist. No. One, 311 S.C. 335,
340, 428 S.E.2d 886, 889 (1993))).
requirements of Wannamaker without evidence outside of the offer form." Grinnell
Corp. v. Wood, 378 S.C. 458, 472–73, 663 S.E.2d 61, 68 (Ct. App. 2008) (emphasis
added).
Bronner's argument on the statutory presumption, though, is largely confined
to whether the requirements of subsection 38-77-350(B) were followed by GEICO.
Those requirements guide courts' consideration of the presumption, not the
meaningfulness of the offer itself. 8 See Cohen, 402 S.C. at 76, 737 S.E.2d at 874
("[A]n insurer's noncompliance with subsection 38-77-350(B) does not render the
use of the subsection 38-77-350(A) form a 'noncomplying offer.'").
To the extent Bronner does attempt to argue that GEICO's offer was not
meaningful under subsection 38-77-350(A) and Wannamaker, those efforts are
unavailing. As to the second and third prongs of Wannamaker, the form advised
Bronner of the nature of UIM insurance and the limitations on that coverage.
On the first prong—the commercial reasonableness of the offer—Bronner
relies largely on this court's reference in Dewart v. State Farm Mut. Auto. Ins. Co.
to the potential for a disclosure about coverage to be mistaken for "junk mail." 296
S.C. 150, 154–55, 370 S.E.2d 915, 917–18 (Ct. App. 1988). However, this court's
ruling was not as sweeping as Bronner suggests. Instead, this court said
In order for [the insurer's] insert not to be ignored as such
'junk mail,' it was incumbent upon the company . . . to
include something on the renewal notice alerting the
insured to read the insert. Placing critical information in
two documents, without directing the insured to read both,
was not a method reasonably calculated to draw the
insured's attention to the nature of the offer.
Id. at 155, 370 S.E.2d at 917–18.
As our supreme court has noted, the Dewart court "held that when critical
information is contained in separate documents enclosed in the same mailing, one
must alert attention to the other. Otherwise, the insurer would fail to inform the
8
This court did note in its decision in Grinnell Corp. that "the form required
signatures next to the boxes where the insured elects not to choose optional coverage,
but no one signed those blanks." Id. at 474, 663 S.E.2d at 69. However, the court
appeared to rely largely on other problems with the form in that case. See id. at 473–
74, 663 S.E.2d at 69.
insured of the importance of additional inserts, which could be dismissed as 'junk
mail.'" Lopez v. Nat'l Gen. Ins. Co., 308 S.C. 342, 346, 417 S.E.2d 864, 867 (1992).
See also Jackson v. State Farm Mut. Auto. Ins. Co., 303 S.C. 321, 324–25, 400
S.E.2d 492, 493 (1991) ("The Dewart court reasoned that placing critical
information in two documents, without including anything on the premium renewal
notice alerting the insured to read the insert, was not a method reasonably calculated
to draw the insured's attention to the nature of the offer."); id. at 325, 400 S.E.2d at
494 ("[T]he premium notices here are distinguishable from the notice sent in Dewart,
as they each contained a statement instructing the insured to refer to the insert for a
further explanation of underinsured and uninsured motor vehicle coverage."). In the
present case, all of the information was on the same form, and so these cases are
inapposite.
As to the final prong, dealing with premiums, Bronner argues that the broad
range of premiums on the form were not a reasonable warning of the potential size
of an increase if Bronner wanted to go through with UIM coverage. However, the
statute requires just "a list of available limits and the range of premiums for the
limits[.]" S.C. Code Ann. § 38-77-350(A)(2) (2015). We do not read the statute to
require a precise dollar amount.
Based on the foregoing, we find that GEICO made a meaningful offer of
uninsured coverage to Bronner.
AFFIRMED.
GEATHERS and HILL, JJ., and LOCKEMY, A.J., concur.