Order of available coverages
1. PIP/MedPay, PHD, no-fault
2. Liability coverage from at-fault vehicle, including excess, umbrellas, and CGLs without a use exclusion
3. Liability from the at-fault driver, if in a non-owned vehicle, including excess, umbrellas, and CGL without a use exclusion
4. UM and AUM or UIM from the damaged car occupied by the injured person in the accident
5. Stacking for Class 1s
6. Portability for Class 2s and injured persons not occupying a vehicle
7. Personal liability from an at-fault
8. Other sources through family purpose doctrine, negligent entrustment, and/or crashworthiness
Clark v. Cantrell Facts
- anderson was driving a car belonging to clark
- james was a passenger in anderson's car
- anderson turned left across a four lane road to go into a gas station
- cantrell was driving in the opposite direction and hit the rear passenger side of the car
- james was thrown from the car and died at the scene
- cantrell was speeding with reckless disregard for the safety of others
SC minimum limits
25/50/25 (25 per person per accident, 50 total per accident, 25 property)
75 CSL
To find out how much insurance someone has
SC RCP 33 interrogatories, FRCP 33 interrogatories, SC statute that requires insurance company to provide you with limits without you having to file suit
Survivalship Action
damages to the deceased between the accident and when they died
Wrongful death
damages to the family and people who lost something by him dying
Standards of Duty
reasonable person - most common
negligence per se - set by statute, law, ordinance, important in SC because this allows you to argue for punitive damages
Elements of proximate cause
legal cause - has to be foreseeable that damages will occur if you breach the duty (judge has to decide as a matter of law that it is foreseeable, jury must find it foreseeable)
but for cause - but for your act, the person would not have been damaged
3 types of damages
actual
nominal
punitive
actual damages
special damages - damages you can prove by showing a bill you had to pay
general damages - things like pain and suffering
nominal damages
nominal technical - you have a good cause of action but haven't actually been damaged/hurt
nominal compensatory - you got a bunch of damages but can't liquidate them/prove what they are
Uninsured motorist coverage
required to have minimum limits in SC
instances where you can recover UM
legally uninsured
illegally uninsured
phantom driver
insolvent insurer
non-permissive driver
less than SC's minimum limits and out of state policy provisions
how to serve your insurance company
serve your complaint on the department of insurance, 2 copies with $10 each
Wannamaker Test
1. insurer's notification process must be commercially reasonable, whether oral or in writing - has to be made at the same time as liability coverage offer, in basically the same manner
2. insurer must specify the limits of optional coverage and not merely offer additional coverage in general terms - can't just tell you that you have the right to buy up to x amount of coverage, have to tell you what all of the limits are for UIM between $0 and your limits
3. the insurer must intelligibly advise the insured fo the nature of the optional coverage - have to advise in a clear, open fashion, have to explain what AUM and UIM are
4. the insured must be told that the optional coverages are available for an additional premium - have to tell you how much they cost, including the cost for coverage at each of the limits required to be offered
limits to damages test
if you have the coverage then you can recover what your damages exceed of the at fault policy up to the limits of your UIM policy, allowed in SC because the statute says "damages" and nothing about limits
Aytes test
1. must be a causal connection between the vehicle and the injury, meaning that (the vehicle is an active accessory, plays an essential and integral part of the journey; can be something less than proximate cause but must be more than the mere site of the injury; injury is foreseeably identifiable with normal use of the vehicle)
2. there is no act of independent significance that broke the causal connection, and
3. the vehicle was being used for transportation at the time of the incident
Umbrella policy requirement of UMAUMUIM
not required
action to determine if someone is covered
action at law, burden on party alleging coverage
Class 1
named insured, resident spouse, resident relative
Class 2
permissive driver - strict construction rule
guest
elements of CLM
a mutual assent, considering circumstantial factors of cohabitation, mutual understanding, intent to be husband and wife; regardless of whether or not the parties knew the intricacies of CLM; must show by clear and convincing evidence
intra-family immunity
SC courts are barred from applying it because it goes against public policy, despite lex loci dilicti
coverages that can be stacked
UM and AUM.UM can be stacked on a per coverage basis, not only a per policy basis
UM/AUM can be stacked onto UM/AUM
UIM can be stacked onto UIM
UIM can't be stacked onto UM/AUM
liability could be stacked but most insurers include a provision blocking this
who can stack
omnibus clause 1 insureds (note: corporations don't have class 1 insureds)
how much you can stack
all limits of UM and UIM, both basic and excess
class 1 can stack only in amount equal to the coverage of the car involved in the accident
up to the policy limits of any at-home vehicles with the coverage, on which the injured party is also an omnibus class 1 insured
Occupying the vehicle claimant-vehicle analysis
case by case analysis based on the facts
to determine coverage as a matter of law decided by the trial judge
who must construe coverages liberally, for the benefit of the insured
under the any-evidence standard
SC test for occupying the vehicle
each accident has a temporal continuum, a sequence of events, including the events immediately surrounding the initial impact, the impact, and the point in time that the injury was inflicted
insurers anticipate this sequence of events, since auto insurance policies define occupying broadly
once an insured alights from the covered vehicle they no longer have physical contact with the vehicle, but under definition of occupying they may still be occupying the vehicle, so they are in virtual physical contact with the vehicle
if the insured breaks physical contact with the vehicle to avoid being hit it is considered virtual physical contact and merely alighting from the vehicle
portability rules
can port if occupying a vehicle or not occupying a vehicle but is damaged by an at fault driver
To trigger family purpose doctrine, plaintiff must prove that
defendant is head of the family
defendant owns, furnishes, and maintains the vehicle
vehicle is for general use, pleasure, and convenience of the family
the family member has the general authority to operate the vehicle for those purposes, and
family member was negligent in the use of the vehicle