As a Personal Injury Law Firm, one of the most common questions we are asked is - How much is my case worth? As eager as we are to answer that question, it is rarely simple. There are two key factors to consider. The first is damages, including medical expenses, lost wages, pain and suffering, loss of enjoyment of life, and future losses. The second key factor in determining how much your case is worth is how much automobile insurance coverage is available. The second factor, available coverage, is the focus of this article.
There are three ways to find auto insurance coverage in South Carolina: Liability Insurance, Involved Vehicle's UIM, and Uninvolved UIM/ UM coverage. There may also be additional coverage available from a PIP/ Med Pay policy, or other types of insurance, including excess property damage coverage for punitive damages. we will discuss each potential layer of coverage in turn below.
1. THE AT-FAULT VEHICLE'S LIABILITY COVERAGE OR YOUR INVOLVED VEHICLE'S UNINSURED MOTORIST COVERAGE (UM)
If you are in a car wreck that was not your fault, then the first source of insurance coverage is the liability policy on the at-fault driver's vehicle. Liability insurance is insurance that pays out money when an insured is legally liable. Because you can’t be liable to yourself for self-inflicted injuries, you never collect your own liability insurance. The at-fault driver is limited to the liability policy that covers the car he was driving at the time of the accident.
In South Carolina, all drivers must maintain at least $25,000.00 per person ($50,000.00 per accident) in bodily injury liability coverage. S..C. Code §38-77-140. If the driver of the vehicle you were in was at fault for the accident you would be able to pursue compensation against their liability insurance. There are even instances in which a spouse must sue another spouse under their own liability policy to recover compensation for injuries they sustained while riding as a passenger in their own vehicle driven by their spouse.
In South Carolina, all drivers are required to maintain at least $25,000 per person ($50,000 per accident) in UM coverage. S.C. Code §38-77-160. This is important considering that nearly 10% of South Carolina drivers are uninsured. If the at-fault driver was uninsured or if your were the victim of a hit-and-run accident, then your own Uninsured Motorist Coverage (UM) will be the first source of recovery. This is also the case if you are the victim of an accident caused by an out-of-state driver whose insurance coverage is less than the minimum required by statute in South Carolina ($25,000/ $50,000). In an important decision, the South Carolina Supreme Court held that UM coverage must be provided to an injured party even when she was a passenger on her husband’s uninsured motorcycle. Nationwide Mut. Ins. Co. v. Erwood, 373 S.C. 88, 644 S.E. 2d 62 (2007).
Regardless of whether your first source of coverage is from the at-fault driver's liability policy or your own UM policy, South Carolina only requires a minimum of $25,000 of bodily injury per person. While $25,000.00 is certainly not chump change, it doesn't go far when you are seriously injured and the medical bills begin to pile up.
2. THE INVOLVED-VEHICLE'S UNDERINSURED MOTORIST COVERAGE (UIM)
The second possible source of insurance coverage is the UIM policy on the car you were in (either as the driver or a passenger) that was involved in the wreck. Underinsured Motorist Coverage (UIM) pays for your and your passenger's injuries if the at-fault driver's liability coverage is not sufficient to cover your medical bills and future medical bills, lost wages and reduced earning capacity, mental anguish, pain and suffering, and other damages.
In South Carolina, auto insurers are required to offer you underinsured motorist coverage but you are not required to purchase it. Because many drivers in South Carolina carry only minimum liability coverage, it is important to carry (UIM) on your own vehicle insurance. After a wreck, if you find out that you don't have UIM, you should review your policy with an experienced personal injury attorney. This is because, under certain circumstances, it may be possible to compel your insurance company to reform your policy to provide UIM after-the-fact .
3. UNINVOLVED VEHICLE'S UIM OR UM
(1) Stacking: Stacking is a tool that can help victims of car accidents more fully recover financially from an accident. It is a pro-consumer, pro-victim law that’s only available in a few states, and we happen to be lucky that South Carolina is one of them. In South Carolina, if the vehicle involved in the wreck was owned by you or a relative who lives in the same household ("Resident Relative"), then you can stack policies. Simply put, being able to stack policies means that you can file claims against underinsured or uninsured motorist policies that you or another family member in the same household have, even if the policies cover vehicles that were not involved in the accident. Contl Ins. Co. v. Shives, 328 S.C. 470, 473, 492 S.E.2d 808, 810 (Ct. App. 1997).
You can stack as many policies as are needed to fully compensate you for your damages. In other words, our great state lets you potentially use all of the policies that you and your resident relatives have, not just one. However, the coverage available on each vehicle can not exceed the coverage on the involved vehicle. In other words, you can only squeeze the un-involved vehicle policies for what you got from the involved-policy that opened the door to stacking. This keeps people from having a fleet of cars, but maintaining UIM on just one of them.
*Example: While stopped at a red light, you are rear-ended. The force of the impact caused you to sustain a concussion. You are treated by a neurologist pursuant to a concussion protocol and receive physical therapy for your neck and back pain. Your medical bills, lost wages, and other damages total more than $100,000.00. The at-fault driver carried only minimum liability insurance coverage of $25,000.00. However, you have $25,000.00 UIM coverage on the vehicle you were driving. Your spouse also owns a vehicle with $25,000.00 UIM coverage, and your teenage daughter that lives with you has a vehicle with $25,000.00 UIM coverage. You can stack the UIM policies on all three vehicles (yours, your spouse's, and your daughter's), for a total of $75,000.00 in UIM coverage.
*Example: In the same scenario above, the driver who hit you was uninsured. You will be able to stack the UM policies on all three vehicles (yours, your spouse's, and your daughter's), for a total of $75,000.00 in UM coverage.
One limitation on stacking is that the amount you can claim from each policy cannot exceed the amount of coverage on the vehicle involved in the accident. For example, in the scenario above, if your daughter maintained $50,000.00 UIM (or UM) on her vehicle, you would still only be able to stack $25,000.00 from her vehicle. Importantly, in order to stack UIM, you must have UIM coverage on the vehicle involved in the accident. In the scenario above, if you did not have UIM on the vehicle you were driving in the accidnet, then you would not be able to access the UIM on any Resident Relative's vehicle.
(2) Reaching-Back (a/k/a Porting): If the vehicle involved in the wreck was not owned by you or a resident relative, then you can not stack policies. S.C. Code §38-77-160, Concrete Servs., Inc. v. United States Fid. & Guar. Co., 331 S.C. 506, 512, 498 S.E.2d 865, 868 (1998). However, you can reach-back to your coverage on an uninvolved vehicle. This is the case if you were driving a non-resident relative's vehicle at the time of the wreck or if you were a passenger in a non-resident relative's vehicle. Garris v. Cincinnati Ins. Co., 280 S.C. 149, 311 S.E.2d 723 (1984). Unlike stacking, you can only reach-back to the UIM coverage on one uninvolved vehicle. S.C. Code §38-77-160. Pick the one with the highest limits! (Whether or not you can reach-back to more than one UM policy is talked about below as a common issue.)
*Example: Using the same scenario as above, except you were driving your co-worker's vehicle at the time of the wreck. You will still be able to collect the at-fault driver's liability coverage. You will also be able to collect UIM (or UM) from one of the vehicles at home (either yours, your spouse's, or your daughter's), but you can not stack them, so you will only recover $25,000.00. Unless, however, your daughter has $50,000 UIM (or UM) coverage, then you will want to reach-back to her policy to collect $50,000.00, instead of just $25,000.00 from your own.
POTENTIAL ADDITIONAL COVERAGE:
PIP/ Med Pay: PIP stands for Personal Injury Protection. Med Pay stands for medical payments coverage. They are both forms of no-fault insurance coverage and mean almost the same thing. Both will cover medical expenses and funeral costs resulting from an auto accident; however, PIP also covers lost wages and other expenses. In South Carolina, only Med Pay is available, even though the term PIP is commonly (and erroneously) used. At Palmetto State Injury Lawyers, we strongly recommend purchasing Med Pay coverage. The many advantages to having Med Pay include the following:
It can usually be recovered more quickly and easier than any other form of insurance coverage.
It covers you regardless of who was at-fault for the wreck, even if you were the at-fault driver.
The at-fault driver’s insurance does not get a discount based on your Med Pay.
It is not subject to subrogation by health insurance.
Attorneys are generally not allowed to charge fees for helping a client collect their Med Pay coverage.
Excess Property Damage Coverage for Punitive Damages: In Government Employees Insurance Company v. Poole, 2018 WL 3300235, (S.C., 2018), the South Carolina Supreme Court held that it is not necessary to apportion punitive damage pro rata between those sustained for bodily injury and those sustained for property damage. The Court reasoned that the rationale behind punitive damages is not to compensate an aggrieved party for injuries to body and property, but to punish the defendant, deter similar conduct, vindicate the private rights of the plaintiff, and provide compensation for the intentional violation of those rights that is separate and distinct from the usual measure of compensatory damage.
*For example, this means that if an at-fault driver has $25,000.00 in property damage coverage, but pays only $5,000.00 for repairs to the victim's vehicle, then the remaining $20,000.00 is available to cover punitive damages.
COMMON ISSUES:
Who was at fault? If liability is contested, both driver's insurance policies will most likely deny liability and try to blame the other driver. It is wise for a passenger whose caught in the middle of a liability dispute to pursue claims against both vehicles in order to assure that they will be fully compensated after liability is determined.
Who is a Resident Relative? Under South Carolina law, Resident Relative is not clearly defined. The analysis is fact-specific and there is no bright line test. Buddin v. Nationwide Mut. Ins. Co., 250 S.C. 332, 157 S.E.2d 633 (1967). The following issues are just the tip of this iceburg:
Is a child a resident relative of a noncustodial parent?
Is a college student who lives in the dorms still a resident relative of her parent's home?
Is a foster child a resident relative?
Can you reach-back to more than one UM policy? There has never been a case in South Carolina involving an effort to stack more than one UM policy. Reaching-back to UM coverage does not rely on S.C. Code §38-77-160 and its “any one” language, so you might be able to stack as many UM policies as you need.
We Want to Help!
The rules may seem complicated, but an experienced car accident attorney can help you figure out what policies are available. It is always better to receive a free consultation from a car accident lawyer than to rely on an insurance company that increases its profits by paying you less. It is our job to figure out how to get you the maximum amount of compensation, while you work on healing and getting your life back.
Attorney Dana Adkins has more than a decade of experience handling complex car accident cases. If you have been in an car accident and have questions about what insurance coverage is available to you, it would be our pleasure to talk to you about your situation. We happily meet with clients virtually or in-person at our office or even at your home. We proudly serve the entire state of South Carolina. Call us today!
*Please understand these are simple, straightforward examples and you should always consult a lawyer for your own car accident injury claim. While in the examples above the application of insurance coverage is seemingly straightforward, there are many facts and circumstances to consider. (and real life scenarios are much more complex). It is important to talk with a lawyer about your car accident situation to help navigate your available insurance coverage.
