Auto Insurance

One woman died in a car accident caused by a drunk driver Monday night, according to the South Carolina Highway Patrol.

Carolyn Wilson, 52, of Salisbury, S.C., died after 43-year-old Kenneth Lewis crossed the center line of the 900 block of Mooresville Road and crashed head-on into her Toyota Prius. The accident occurred just after 6 p.m.  Lewis was drunk driving.

Wilson’s car was crumpled after the collision, and rescue crews spent nearly 30 minutes trying to free Wilson. She was airlifted to Carolinas Medical Center in Charlotte, but was pronounced dead a short time later, according to news reports.

Lewis was also injured in the drunk driving car accident. He was taken to Rowan Regional Medical Center, and then transferred to Baptist hospital. His condition is unknown.

Officers charged Lewis with driving while impaired. He will likely face additional charges Tuesday, when the District Attorney hears evidence about the fatal car accident.

As a North Charleston car accident attorney,, I am saddened to hear about this fatal drunk driving car accident. This accident could have easily been prevented if Lewis was in a sober state of mind and aware of his surroundings. My sympathies go out to Wilson’s family and friends in this difficult time.

One woman has died after a fiery crash Sunday night near Interstate 77 in Richland County.

Layla Gumati, 20, died after her Lexus struck a utility pole and caught fire on Percival Road near I-77 around 6:45 p.m. Columbia firefighters reported to the accident scene to extinguish a vehicle fire and discovered the woman’s body inside the car after the fire was out.

Richland County Coroner Gary Watts told news reports that Gumati likely died of smoke inhalation from the vehicle fire, but said all test results were not in yet.

As a North Charleston car accident attorney, I’m saddened to hear about the accident, especially because the victim is so young. The South Carolina Highway Patrol is still investigating the incident, but distracted driving may be a cause because it is often a factor in car accidents similar to this one. There are various distractions drivers could face, including texting and talking on cell phones, eating or drinking or even reading while driving. As a personal injury lawyer, I’ve heard of all kinds of things people do while driving when they shouldn’t be. It’s important to stay focused on the road to keep you and others around you safe.

A deer in the city caused an unusual accident downtown Charleston on Tuesday morning.

A car struck the deer around 9:45 as it was traveling north on Meeting Street near the intersection of Isabella Street, near Romney Street, according to news reports.  The buck allegedly ran out from the side of the road and ran into the side of the vehicle. The deer then ran approximately 200 feet up the road before it collapsed and died. The driver was not seriously injured.

Deer are unusual in the city, as drivers usually have to be on the lookout for them near tree-lined roads. As a North Charleston car accident attorney,, I urge drivers be especially aware of deer during the fall and winter seasons. Most deer accidents occur before and after sunrise, so if possible, use high beam headlights to see the dear earlier in the dark.  Blinking your headlights or honking your horn will warn the deer they are in danger and help scare them away.

As a car accident attorney, I see most injuries from deer accidents occur because drivers are not wearing their seat belts. Wearing your seat belt will help protect you from the unprepared impact with a deer.

Driving down the roads lined in color-changing trees blowing in fall’s crisp, cool air can be one of the most serene times, but for teenagers, it’s also one of the most dangerous.

October remains one of the most dangerous months every year for teen driver car accidents, according to data analyzed by State Farm.  For the past seven years, reports of injuries or collisions have spiked in October by about 15 %, compared to other months.

While the report didn’t disclose exact reasons for the increase in teen accidents, factors such as returning to school, attending homecoming events and beginning to manage busy schedules that require driving were cited as reasons safe driving practices could lag behind in teen’s minds.

As a South Carolina car accident attorney I would also like to remind teens to drive safely, not just in October, but year-round.  Limiting distractions in the car like multiple passengers, using cell phones to talk to text and excessively loud music can help bring attention back to the road.

State Farm and The Children’s Hospital of Philadelphia have worked with Congress to designate the third week of October as National Teen Driver Safety Week. As a South Carolina personal injury lawyer I support the week and hope teens and parents will take the time to focus on teen driver safety and increase conversations about solutions for the high rate of car crashes involving teens.

As a personal injury lawyer in South Carolina, I would like to share with you the recent case summary of Nakatsu v. Encompass Indemnity Co. No 4748 (S.C. Ct. App. September 29th, 2010).

Underinsured motorist coverage (UIM) is coverage that you buy for yourself and your loved ones, in case someone else negligently hits you with their car and your injuries exceed the amount of liability coverage the at-fault driver carries. For example, you would probably recover from your underinsured motorist coverage if your injuries were bad enough to cause you to spend several nights in the hospital, but the at-fault driver carried only minimum limits insurance coverage. If your injuries from the car accident are severe enough, in some situations you may even be able to recover from multiple UIM policies, even from cars that had nothing to do with the collision. When you recover from multiple UIM policies, this is called “stacking”.

The general rule in South Carolina, prescribed by the statute S.C. Code Ann. section 38-77-160, says that  when you meet the other requirements for stacking, you can “stack” up to the limits of the vehicle involved in the collision. For example, if you carried $25,000 in UIM coverage on the vehicle you were driving in the collision, and your spouse had $50,000 on their vehicle (that was not involved in the collision), you could recover up to $25,000 from your own UIM coverage and only up to $25,000 from your spouse’s UIM coverage. Remember that these coverages apply only after the at-fault driver’s liability insurance coverage has been exhausted.

In a recent case, the South Carolina Court of Appeals held that an insurance company could not limit this system of stacking as provided in the above statute. Nakatsu v. Encompass Indemnity Co., No. 4748 (S.C. Ct. App. Sept. 29, 2010). An insurance policy is essentially a contract between the insurance company and the insured, and many argue that two parties entering into a contract should be able to choose whatever terms of the contract they wish. However, in certain situations, the court system will not allow parties to enter into a contract that destroys a statutory scheme carefully laid out by the state legislature. The court in this case did exactly that: they declared a provision in the insurance policy invalid because the provision attempted to limit stacking of UIM coverage that is allowed by statute.

South Carolina is one of only two states in the country that doesn’t require drivers to carry auto insurance, the other state being Virginia.  Instead, drivers have the option of foregoing insurance by paying a $550 fee to the Department of Safety.  Of that fee, $100 goes towards reducing recoupment and enforcing anti-discrimination laws.  The rest is for reducing uninsured motorist coverage for other drivers in the state.

As a personal injury lawyer in North Charleston, I think it’s important for people to realize that the average cost for liability auto insurance in South Carolina is $475, much less than the fee people choose to pay. It goes without saying that this amount is way less than a driver would pay if they were involved in a car accident as well.  Residents in South Carolina should definitely consider purchasing uninsured motorist insurance, considering other drivers aren’t required to carry insurance themselves.

At this point, about one in every 10 drivers in South Carolina doesn’t carry insurance.  Though that number has come down significantly over the last decade.  In 2000, the state had a 28 percent uninsured motorist rate, which dropped to 9 percent by 2007, according to this press release.  I regularly see the life-changing effects of a serious car accident.  Without insurance to protect you, your whole livelihood could be at risk, even if you weren’t to blame for the accident.

In the event that you’re in a car accident and your car needs repair, it’s up to you to remain diligent that your vehicle is stitched back together in a way that makes it safer than before.  This article from Consumer Reports warns drivers that often times, insurance companies will try to cut their pay-out costs by having mechanics repair your car with less expensive, after-market products.

As a Columbia personal injury lawyer, I would hope that most of us know by now that most insurance companies don’t usually have the best interest of their clients in mind.  They are a business afterall, just looking to maximize their profits.  However, when they skimp on your car repair, this can compromise the safety of your vehicle, and potentially put you and your family at risk.  Make sure you check the repair ticket to see make sure OEM parts were used.  If they were not, demand that they be replaced.

According to a chief research officer for the Insurance Institute for Highway Safety, “There’s a lot of engineering that goes into making a crash-protection system.  You can’t willy-nilly change those parts because the system may not work the way it was designed.”  When after-market parts are used, they can compromise the ability of your car to keep you safe in an accident.  They may not even meet federal safety standards.

So do your homework and make sure your car repair is done with quality products that won’t compromise the safety and integrity of your vehicle.

As is often the case in serious personal injury cases, claims are made upon multiple parties and multiple layers of insurance coverage.  It is common, for a variety of reasons, to reach a settlement with some parties or layers of insurance coverage with the intent of partially releasing certain parties or insurance policies while leaving open the ability to go forward with trial in order to collect from remaining parties or insurance policies.

This enables injured victims to collect partial recovery of their damages without delay from those policies ready to settle, while continuing the case in pursuit of additional coverage. In the July 19, 2010 S.C. Supreme Court decision Fowler v. Hunter, the Court reviewed the lower courts’ decision regarding a settlement between a couple who were seriously injured when their motorcycle was struck by a doctor’s wife in a car owned by the doctor’s medical practice.

In the settlement agreement, the plaintiffs agreed to release the doctor’s wife and business from exposure to the execution of any judgment obtained at trial in exchange for the policy limits of the automobile liability policy (one million dollars), the policy limits of the doctor and wife’s personal umbrella policy (two million dollars) and a tender of one and a half million dollars from a commercial umbrella policy on the doctor’s medical practice.

Additionally, the Fowlers received as consideration in the settlement an assignment of claims the doctor and doctor’s insurance company had against the commercial umbrella policy agent for failure to properly fill out the commercial umbrella policy application.  This alleged professional negligence on the part of the agent deprived the doctor coverage of up to four million dollars.

As a result of this settlement agreement, the plaintiffs were able to receive 4.5 million dollars in exchange for the rights to pursue a jury trial judgment and professional negligence claim that could potentially recover the remaining 2.5 million dollars in coverage under the commercial umbrella policy.  The doctor’s wife, doctor and insurance companies would all be free from further exposure, and the only remaining exposed party would be the insurance agent.

The agent moved for summary judgment arguing that because the settlement technically removed the risk of exposure from the doctor’s medical practice or to the insurance company, it could not be proven that his mistake damaged the doctor or his insurance company.  In other words, that the settlement removed a necessary element of the negligence claim—damages.  The trial court agreed and granted summary judgment, but the Court of Appeals reversed.

The Supreme Court agreed with the Court of Appeals that the case should be allowed to go forward against the agent.  Because South Carolina courts favor settlement, as long as there is no collusion involved, such settlement agreements will be honored.  The remaining parties will not be allowed to defeat the assigned claims by technicality.

As a personal injury lawyer in South Carolina, I believe this case is a victory for injured persons who desire to resolve claims with some parties or layers of coverage while leaving open the right to pursue remaining parties or coverage.  Agreements negotiated fairly, without collusion, will be enforced by our courts.

Two recent South Carolina Supreme Court decisions discuss the issue of accessing automobile insurance coverage on your car’s policy if you are injured in a car accident while driving or riding in a car that is a substitute for the car with the sought-after coverage.

In Murr v. Nationwide, an Anderson County man was seriously injured while riding as a passenger in a Saturn that was owned by his stepson and driven by his wife, whose Pontiac was broken down. According to the Murrs, the Saturn was lent to them by the son while the Pontiac was broken, until they could repair it. After Murr’s stepson’s liability coverage on the Saturn tendered its policy limits, Murr sought excess liability coverage under his wife’s liability policy on their Pontiac.

Nationwide’s policy on the Pontiac covered the wife while she drove a “temporary substitute.” Because the facts of the substitution raised a question over whether the Murr’s intended to use the son’s car as a temporary substitute or as something more permanent, Nationwide denied coverage.

In Zurich v. Tolbert, an employee of the Greer BMW plant, who was provided a leased BMW to drive, was seriously injured while driving a Honda that he owned. After collecting the liability policy limits from the person who caused the accident’s insurance, Tolbert sought underinsured motorist coverage from automobile policies in his household. The Honda he was in at the time of the crash had no UIM coverage.

However, the BMW provided by his employer under the lease had $1 million in UIM coverage with Zurich. Zurich denied coverage arguing, among other things, that the Honda was not being used as a substitute for the covered BMW.

Most auto insurance policies are designed to cover the persons and vehicles named in the policy and no others. Most policies recognize that you might need to use a vehicle not listed in the policy as a temporary substitute. Insurance companies seek to limit coverage. One way is to challenge claims on the definitions of the words “temporary” and “substitute.” Is the use of the car really temporary? Is the car really being used as a substitute?

This is one of many issues that the insurance company adjusters will be looking for as they ask you what happened after an accident. Insurance adjusters look to limit payouts, including denying coverage altogether. This is why it is so important to hire an attorney before you speak to any insurance adjuster, including your own insurance company’s adjuster, about your case or the facts and circumstances of your coverage at the time of an accident. Having legal representation by an experienced injury law firm will allow you to avoid ambiguous statements that can lead to litigation over details such as those presented in the Murr v. Nationwide and Zurich v. Tolbert cases. If these issues are raised, an experienced injury attorney will be able to help you present the facts necessary to establish coverage.

In these two cases, the insurance companies filed lawsuits called declaratory judgment actions, meaning that they were seeking a legal ruling from the judge rather than an award of damages from a jury. In each of these “DJ” lawsuits, the trial court decided to rule on the issues before the actual presentation of evidence at a trial.

Therefore, these decisions by the Supreme Court do not carry the weight of decisions based upon the full evidence of the case. Both Nationwide and Zurich asked the trial judge to rule in their favor without the need for a trial (summary judgement), citing that the evidence is so clearly in favor of the insurance company, there was no need to have a trial. In order to grant summary judgment, the trial judge must determine that the evidence presented at the summary judgment hearing, usually by deposition transcript or affidavit, is so strong in favor of one side, even viewing the evidence in the light most favorable to the party not seeking the motion, that the trial judge decides there is “no material question of fact” which might require a full-blown trial on the merits of the case. So, in Murr, the trial judge ruled that the evidence was so clear that the Saturn was not a temporary substitute for the Murr’s Pontiac that coverage was denied as a matter of law.

The Supreme Court reversed holding that the evidence presented indicated that the factfinder, after hearing all of the evidence at trial, could have determined that the Saturn was actually being used as a temporary substitute and the repairs to the Pontiac were going to happen, even though they were taking months to get it repaired. If the trial resulted in a finding that the Saturn was only being used temporarily, coverage could apply. In Tolbert, the trial judge ruled, prior to a trial, that there was no way for Tobert to prove that his use of his Honda at the time of the crash was as a substitute for the BMW.

The Supreme Court ruled that his affidavit stating that he was driving the Honda because the BMW was in need or an oil change and service created enough of a factual question that the case should have gone to trial. If the trial had resulted in a finding that the Honda was actually being used as a substitute for the BMW at the time of the crash, coverage might apply.

These two recent decisions show us why it is so important to hire an experienced South Carolina personal injury attorney immediately after a car accident and before you give any interviews or statements to any insurance adjusters. Making sure the facts of your case are fully documented and developed in the evidentiary record can help your claim survive summary judgment, so that you have a right to your fair day in court and to pursue all the insurance coverage to which you are legally entitled.

The South Carolina appellate courts recently addressed the limits of when a person may recover underinsured motorist coverage benefits even though no coverage existed on the date of accident. Under South Carolina law, a car insurance company is required to make a “meaningful offer” to sell a new policyholder underinsured motorist coverage.

Unlike liability coverage and uninsured motorist coverage, which you are required by law to buy, underinsured motorist coverage is completely optional in South Carolina. However, if an insurance company fails to make “meaningful offer” of underinsured motorist coverage to a new customer, the person who needs that coverage may later be able to get a court to effectively re-write the policy to include that coverage.

In Grinnell Corp. v. Wood, the Supreme Court held that in a situation where a corporation sent an employee well-trained in insurance and risk management to buy insurance coverage, and that person admits to knowingly declining optional underinsured and uninsured motorist coverage, a “meaningful offer” was made. Thus, the insurance contract could not be reformed after the accident to provide for additional coverage benefits.

In Ray v. Austin, the Supreme Court held that in a similar situation where a corporation sent an agent to buy insurance coverage, and that agent declined optional underinsured and uninsured motorist coverage in keeping with the corporation’s stated risk management strategy, and incorporated that strategy into the policy, a “meaningful offer” was made.Thus, the insurance contract could not be reformed after the accident to provide for additional coverage benefits.

In GEICO v. Draine, the Court of Appeals held that in a situation where the insurance company properly offered optional underinsured motorist coverage and the insured properly rejected it when he first bought the policy, the insurance company did not have to make another “meaningful offer” when it offered him another chance to buy the coverage when it sent materials to renew his existing policy.

This “meaningful offer” rule was created to encourage insurance companies to offer these coverages to their customers.

If the insurance company does not offer the coverage, and the customer later is involved in a car accident and needs the coverage, the customer can get a court to say that the insurance must provide benefits as if the customer had bought and paid for the coverage.

As a South Carolina personal injury lawyer I feel this can be a great help to injured motorists when they need it. However, when the person who purchased the coverage clearly knew that they were declining not to purchase this optional coverage, South Carolina courts will probably not allow them to take advantage of this convoluted “meaningful offer” rule.