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2008-UP-545 - Quick v. Markel Insurance Company

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Amy Carol Quick and Betty Quick, Appellants

v.

Markel Insurance Company and the Chesterfield County School District, Respondents.


Appeal From Chesterfield County
 James E. Lockemy, Circuit Court Judge


Unpublished Opinion No. 2008-UP-545
Heard November 6, 2007 – Filed October 3, 2008   


AFFIRMED


Martin S. Driggers, Sr., of Hartsville; William O. Sweeny, III, and William R. Calhoun, both of Columbia, for Appellants.

Kenneth L. Childs, Allen D. Smith, and Allison Aiken Hanna of Columbia; Michael A. Nunn and Benjamin A. Baroody, both of Florence; for Respondents.

PER CURIAM:  Betty and Amy Quick[1] appeal the trial judge’s grant of summary judgment to Markel Insurance Company (Markel) and the Chesterfield County School District (District).  We affirm.

FACTS

Markel issued to the District a blanket accident and health insurance policy.  Under this policy, students could obtain insurance coverage.  One insurance plan provided coverage for a student during school hours during the school year while another plan covered a student 24 hours a day for an entire year.  The District collected and transmitted the students’ insurance payments to Markel.  At the beginning of the 2000-2001 school year, Ms. Quick purchased the 24-hour insurance for Amy for a one-time premium of $39 while paying for other fees and expenses during the pre-registration process at Cheraw High School, a school located within the District. 

Markel provided the school with brochures that explained the 24-hour policy’s terms and exclusions.  According to Markel and the District, these brochures were made available to people purchasing insurance during the pre-registration process and were given to students during homeroom to take home with them.  The Quicks claim they never received any information on the policy from Markel and were not provided a brochure explaining the coverage.  Ms. Quick did not ask any questions about the 24-hour insurance policy.  At the time she purchased insurance for her daughter, Ms. Quick only knew the Markel policy would cover Amy during the 2000-2001 school year, the policy provided “24-hour” coverage, and the policy was “comprehensive.”[2] 

On November 23, 2000, Amy was in an automobile accident while riding as a passenger in a vehicle driven by her boyfriend.  She suffered significant injuries, including the loss of one eye and a broken femur.  Amy incurred medical bills from the accident amounting to approximately $55,000.  The 24-hour policy provided compensation of $2,500 for medical bills incurred as a result of the automobile accident and $5,000 for the loss of the eye.  Markel paid the policy’s limit of $7,500 to the Quicks. 

The Quicks filed a lawsuit against Markel and the District, as Markel’s agent, for breach of contract, negligent misrepresentation, and waiver and estoppel.  In addition, the Quicks asserted a claim against Markel for insurance bad faith.  They sought $75,000 in damages and attorney’s fees.  All of the parties filed motions for summary judgment.  The trial court granted summary judgment to Markel and the District on the Quicks’ claim for waiver and estoppel and to Markel on the bad faith claim.  It denied summary judgment as to the causes of action for breach of contract and negligent misrepresentation against Markel and the District.  

The Quicks filed their second amended complaint against Markel and the District asserting causes of action for breach of contract, negligent misrepresentation, and negligence.  The parties again filed motions for summary judgment.  The trial court granted summary judgment to Markel and the District on all three causes of action.  It subsequently denied the Quicks’ motion for reconsideration.  This appeal followed.

STANDARD OF REVIEW

The purpose of summary judgment is to expedite the disposition of cases that do not require the services of a fact finder.  Dawkins v. Fields, 354 S.C. 58, 69, 580 S.E.2d 433, 438 (2003).  Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.  Osborne v. Adams, 346 S.C. 4, 7, 550 S.E.2d 319, 321 (2001).  The evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the non-moving party.  Id.  “It is well established that summary judgment should be granted ‘. . . in cases in which plain, palpable and indisputable facts exist on which reasonable minds cannot differ.’”  Anders v. S.C. Farm Bureau Mut. Ins. Co., 307 S.C. 371, 373, 415 S.E.2d 406, 407 (Ct. App. 1992) (quoting Main v. Corley, 281 S.C. 525, 526, 316 S.E.2d 406, 407 (1984)); see Bloom v. Ravoira, 339 S.C. 417, 425, 529 S.E.2d 710, 714 (2000) (finding where a verdict is not reasonably possible under the facts presented, summary judgment is proper). 

LAW/ANALYSIS

The Quicks argue the trial court erred in granting summary judgment in favor of Markel and the District on their claim for negligence.  We disagree.

In order to prove negligence, the Quicks must show:  “(1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached the duty by a negligent act or omission; (3) the defendant’s breach was the actual and proximate cause of the plaintiff’s injury; and (4) the plaintiff suffered an injury or damages.”  Doe v. Marion, 373 S.C. 390, 400, 645 S.E.2d 245, 250 (2007). 

The trial court assumed for the purpose of summary judgment that the appellants did not actually receive Markel’s brochure outlining the terms, conditions, and limitations of the blanket accident and health policy issued by it to the District.  Instead, the trial court held Markel and the District did not have a duty to explain all of the risks and coverages to the Quicks.  We agree with this holding. 

It is important to note that this is a blanket accident and health policy, not an individual policy.  Thus, according to statute, the District is the policyholder.  S.C. Code Ann. § 38-71-1020.  Section 38-71-1020 of the South Carolina Code incorporates the provisions for individual accident and health policies found in Article 3 of Chapter 71 into the provisions for blanket policies found in Article 9.  S.C. Code Ann. § 38-71-1020 (2002) (“All blanket accident and health insurance policies are subject to the provision of Articles 1 and 3 of this chapter.”).  Section 38-71-550 of Article 3 requires an outline of coverage for an individual accident and health insurance policy to be “delivered to the applicant at the time application is made and an acknowledgment of receipt or certificate of delivery of the outline is provided the insured with the application.”  S.C. Code Ann. § 38-71-550(a) (2002) (emphasis added).[3]  However, “[a]n individual application is not required from each individual covered under a blanket accident and health policy or contract nor is it necessary for the insurer to furnish each individual a certificate.” S.C. Code Ann. § 1030 (2002).

The proper interpretation of a statute is a question of law for the court. Univ. of  S. Cal. v. Moran, 365 S.C. 270, 274, 617 S.E. 2d 135, 137 (Ct. App. 2005).  “The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature.”  Mid-State Auto Auction of Lexington v. Altman, 324 S.C. 65, 69, 476 S.E.2d 690, 692 (1996).  “[T]he words of the statute must be given their plain and ordinary meaning without resorting to subtle or forced construction to limit or expand the statute’s operation.”  Mun. Ass’n of S.C. v. AT & T Communications of S. States, 361 S.C. 576, 580, 606 S.E.2d 468, 470 (2004).  “Statutes, as a whole, must receive practical, reasonable, and fair interpretation, consonant with the purpose, design, and policy of lawmakers.”  TNS Mills v. S.C. Dep’t of Revenue, 331 S.C. 611, 624, 503 S.E.2d 471, 478 (1998).  Where a statute is ambiguous, the court must construe the terms of the statute and the ambiguity should be resolved in favor of a just, beneficial and equitable operation of the law.  City of Camden v. Brassell, 326 S.C. 556, 561, 486 S.E.2d 492, 495 (Ct. App. 1997).

Clearly, the legislature did not intend the disclosure requirement of Section 38-71-550 to apply to an insured under a blanket policy when the requirement relates to disclosure at the time an application is made for insurance coverage or a policy of insurance is delivered and section 38-71-1030 specifically exempts individuals covered under a blanket policies from the application process or the requirement of delivery to each insured a certificate of insurance. 

As we understand the policy at issue, the District may add insured students to the policy by collecting and paying over to Markel the required premiums and furnishing Markel the names of the students to be covered.  No further acts were necessary to be done by Markel or the district to effect coverage of Amy Quick.  We hold neither Markel nor the district violated any provision of Chapter 71 of Title 38 of the Code by not delivering a brochure to the Quicks at the time the premium was paid or at any other time.[4]

The Quicks assert that under the common law, Markel and the District had a duty to provide them with the terms of the policy.  As this case involves a blanket policy and the District is the policy holder, Markel fulfilled any duty it might have by providing a copy of the blanket policy to the District.  We hold the Quicks failed to prove the District or Markel owed any duty to them to directly provide them the terms of the insurance policy. 

As the Quicks have failed to establish a duty owed to them, their claim for negligence must fail. 

The Quicks assert the trial court erred in granting summary judgment on their negligent misrepresentation claim.  We disagree. 

To establish a claim for negligent misrepresentation, the Quicks must be able to prove the following elements:

(1) the defendant made a false representation to the plaintiff; (2) the defendant had a pecuniary interest in making the statement; (3) the defendant owed a duty of care to see that he communicated truthful information to the plaintiff; (4) the defendant breached that duty by failing to exercise due care; (5) the plaintiff justifiably relied on the representation; and (6) the plaintiff suffered a pecuniary loss as the proximate result of his reliance upon the representation.

AMA Mgmt. Corp. v. Strasburger, 309 S.C. 213, 222, 420 S.E.2d 868, 874 (Ct. App. 1992). 

The Quicks claim Markel and the District made false representations in the letter from the District describing the policy as providing “comprehensive accident insurance at a nominal cost” and stating that it “ensured coverage for . . . normal day-to-day activities.”  The Quicks also take issue with the term “24-hour insurance” asserting the term has a connotation of completeness.  Based on these statements, the Quicks assert there should be no limits on the coverage available under the policy. 

However, none of these statements make any representations as to the amount of coverage available under the policy.  They do not support the Quicks’ assertion that they are entitled to limitless coverage.  In fact, when asked what her understanding was of the level of coverage, Ms. Quick responded:  “Actually, I didn’t.  I didn’t know basically what it was going to cover or wasn’t going to cover.  I just – I know the word assume, but I assumed that was a good policy because the school was promoting it, so I didn’t –and I had always taken out the 24-hour.”  Even if the Districts’ statements could be construed as representing that this was a “good policy,” the representations would not be actionable.  “A mere statement of opinion, commendation of goods or services, or expression of confidence that a bargain will be satisfactory does not give rise to liability in tort.”  AMA Mgmt. Corp., 309 S.C. at 222, 420 S.E.2d at 874; see Winburn v. Ins. Co. of N. America, 287 S.C. 435, 440, 339 S.E.2d 142, 146 (Ct. App. 1985) (holding statement that a person was a “good mechanic” did not support a claim for fraud). 

There is no evidence in the record of any misrepresentation as to the amount of coverage available in the policy.  We therefore find no error in the trial court granting summary judgment in favor of Markel and the District on the Quicks’ claim for negligent misrepresentation. 

The Quicks argue the trial court erred in granting summary judgment on their claim for breach of contract.  We disagree. 

To recover for a claim for breach of contract, the Quicks must establish the contract, its breach, and the damages caused by such breach.  Fuller v. E. Fire & Cas. Ins. Co., 240 S.C. 75, 89, 124 S.E.2d 602, 610 (1962).  “Insurance policies are subject to the general rules of contract construction.” Century Indem. Co. v. Golden Hills Builders, 348 S.C. 559, 565, 561 S.E.2d 355, 358 (2002).  We must give the policy language its plain, ordinary, and popular meaning.  Id.  It is undisputed that under the terms of the policy, Amy was entitled to $7500.00 for her accident.  It is also undisputed Markel paid Amy $7500.00, the full amount to which she was entitled under the terms of the policy. 

The Quicks, however, assert the contract was in fact based on the only material she received, the letter stating the insurance provided “comprehensive” and “24-hour” coverage.  Thus, they claim since their contract contained no limitation of coverage, there are no limits.  The issue of reformation of the contract was never raised nor ruled on by the trial court.  See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (“It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review.”).  The court viewed the insurance policy as written and found no breach of contract.  We find no error in this ruling. 

CONCLUSION

The order of the trial court granting summary judgment to Markel and the District is

AFFIRMED.

HUFF and PIEPER, JJ., and CURETON, A.J., concur. 


[1] Amy, whose date of birth is April 26, 1983, was no longer a minor at the of the filing of this action.

[2]  A letter from the school district briefly explaining the insurance plans available for students mentioned the coverage was “comprehensive.” 

[3] The outline of coverage must include “a description of the principal benefits and coverage provided in the policy or contract” as well as “a statement of the exceptions, reductions, and limitations contained in the policy or contract.” S.C. Code Ann. § 38-71-550(b) (2) & (3) (2002).

[4] Although the trial court did not address these statutes, we find a discussion of the statutes emphasizes the difference between a blanket policy and an individual policy and supports our conclusion no duty existed to provide the Quicks with the policy.  I’On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 420, 526 S.E.2d 716, 723 (2000) (stating the appellate court may rely on any reason appearing in the record to affirm the lower court’s judgment).