Cohen v. Progressive Northern Insurance
Cohen v. Progressive Northern Insurance
Opinion of the Court
Greg and Stacy Cohen filed this action requesting reformation of a motorcycle insurance policy issued by Progressive Northern Insurance Company to include underinsured motorists (UIM) coverage. The trial court refused to reform the policy, finding Progressive made a meaningful offer of UIM coverage. We affirm.
I. Facts and Procedural History
In 2005, Greg Cohen called Citizens Insurance Agency to purchase a policy for his motorcycle. He remembers speaking with a female employee about the policy but does not recall her name. Meredith Thomason, a Citizens Insurance agent, does not specifically recall speaking with Cohen but testified she wrote the quote sheet generated as a result of that call. She also signed the application form for Cohen’s policy.
Thomason does not remember the transaction with Cohen. Therefore, her account of how Cohen applied for the policy is based on the procedure she typically follows for completing an application. She testified that a transaction begins with a phone call, and she fills out a quote sheet while talking with the client. She then creates an application form using input from the client, and prints it only after she and the client have
Cohen’s recollection of applying for his policy differs from Thomason’s procedure. He testified that when he called Citizens Insurance, he .told the agent, “I want the same coverage that I have on my Expedition, my other vehicle.” He does not recall talking on the phone about UIM coverage. The next day, he went to Citizens Insurance’s office and spent less than five minutes signing paperwork. The employee with whom he met did not explain, what was in the paperwork, and Cohen did not review the documents before signing them. They did not discuss what coverage limits he wanted or what would happen if he did not buy. UIM coverage and was later injured. He testified he did not tell the employee that he did not want UIM coverage.
The application Cohen and Thomason signed includes an explanation of what UIM coverage is and how it works. Additionally, using language nearly identical to that endorsed by the supreme court in Bower v. National General Insurance Co., 351 S.C. 112, 119-20, 569 S.E.2d 313, 317 (2002), the application explains that UIM coverage is optional and that it can be purchased up to the limits of the liability coverage Cohen was purchasing. Another page, entitled “Offer of underinsured motorist coverage,” has a table listing four levels of UIM coverage limits and the increased premium Cohen would have to pay for each level. The highest of the four levels is equal to the limits of the liability and uninsured
In 2007, Cohen was injured while riding his motorcycle. The Cohens filed this declaratory judgment action • against Progressive and Auto-Owners Insurance Company. They asked that Progressive’s policy be reforméd to provide UIM coverage in the amount of the limits of the policy’s liability coverage.
Sitting nonjury, the trial court heard testimony from Cohen and Thomason and reviewed the application form. The court found Progressive made a meaningful offer of UIM coverage and Cohen rejected the offer. The Cohens filed a motion to reconsider, which the court denied.
II. Whether the Trial Court Erred, in Finding Progressive Made a Meaningful Offer of UIM Coverage
Automobile insurers are required to “offer ... underinsured motorist coverage up to the limits of the insured’s liability coverage.” S.C.Code Ann. § 38-77-160 (2002). Our supreme court has interpreted this language to require that' “the insured ... be provided with adequate information ... to allow the insured to make an intelligent decision of whether to accept or reject the coverage.” State Farm Mut. Auto. Ins. Co. v. Wannamaker, 291 S.C. 518, 521, 354 S.E.2d 555, 556
In general, for an insurer to make a meaningful offer of UIM coverage, (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.
Progressive Cas. Ins. Co. v. Leachman, 362 S.C. 344, 349, 608 S.E.2d 569, 571 (2005) (citing Wannamaker, 291 S.C. at 521, 354 S.E.2d at 556).
“If the insurer fails to comply with its statutory duty to make a meaningful offer to the insured, the policy will be reformed, by operation of law, to include UIM coverage up to the limits of liability insurance carried by the insured.” Floyd v. Nationwide Mut. Ins. Co., 367 S.C. 253, 261, 626 S.E.2d 6, 11 (2005) (citation and quotation marks omitted). “The insurer bears the burden of establishing that it made a meaningful offer.” Atkins, 376 S.C. at 630, 658 S.E.2d at 109.
The question of whether an insurer met its burden of proving it made a meaningful offer of UIM coverage is a question of fact. See Floyd, 367 S.C. at 264, 626 S.E.2d at 12 (stating “[s]uch a case presents a factual issue”). The trial court found Progressive met its burden of proving its offer satisfied each prong of the Wannamaker test and, therefore, that it complied with section 38-77-160. On appeal, our role is limited to determining whether evidence in the record reasonably supports the trial court’s findings. See Atkins, 376 S.C. at 630, 658 S.E.2d at 109 (stating in a declaratory judgment action to determine whether an insurer made a meaningful
The trial court based its factual finding that Progressive made a meaningful offer of UIM in compliance with section 38-77-160 on the basis of (1) Thomason’s explanation of the coverage in her conversations with Cohen on the phone and in person, (2) the contents of the application form Progressive used to make the offer, and (3) the fact that Cohen signed the application’s acknowledgment stating he read the explanation of UIM coverage. The court stated “the totality of the transaction with ... Thomason shows that Cohen was given a meaningful offer.”
As to Thomason’s personal explanation of UIM coverage, the court found she “not only orally presented the offer but also provided him with the written offer form,” she “specified the limits of optional coverage up to Cohen’s liability limits,” she “intelligibly advised him of the nature of the optional coverages,” and she “told him that the optional coverages were available for an additional premium.” These findings were based on the trial court’s credibility determination that Tho-mason followed “her general procedure,” which she spelled out in great detail. The court found “Thomason’s testimony shows that the Wannamaker requirements for a meaningful offer were met.”
The trial court also based its factual findings on the contents of the form Progressive used to make the offer. The court specifically found “the offer form fully satisfied the five requirements of § 38-77-350(A)” and “it also satisfied the four-element Wannamaker test.” We agree with the trial court that the form, which was prescribed by the South Carolina Department of Insurance and includes language nearly identical to that endorsed by the supreme court in Bower, contained all of the information required under subsection 38-77-350(A) and Wannamaker. Based on Thomason’s personal explanation and on the content of the form, the court found “the notification process [was] commercially reasonable.”
We find the evidence described above reasonably supports the trial court’s finding that' Progressive proved it met the Wannamaker test and therefore made a meaningful offer in compliance with section 38-77-160.
III. The Significance of the Form Not Being “Properly Completed” under Subsection 38-77-350(B)
Subsection 38-77-350(B) of the South Carolina Code (2002) provides that if the application form required by subsection 38-77-350(A) is “properly completed and executed by the named insured it is conclusively presumed that [the offer complied with section 38-77-160].” Progressive concedes the form was not “properly completed” because Cohen did not personally make all the required marks on it and, therefore, Progressive does not get the presumption. See Floyd, 367 S.C. at 262, 626 S.E.2d at 11 (“An insurer enjoys a presumption it made a meaningful offer when a form is executed in compliance with [section 38-77-350]. The insurer may not benefit from the [presumption] when the form does not comply with the statute.” (citations omitted)). Thus, there is no reason to further consider the terms or requirements of subsection 38-77-350(B).
The Cohens argue, however, that because the form was not “properly completed” in compliance with subsection 38-77-350(B), it is not a meaningful offer under section 38-77-160 and Wannamaker. The argument is based on a misunderstanding of a statement the supreme court made in Hanover Insurance Co. v. Horace Mann Insurance Co., 301 S.C. 55, 57, 389 S.E.2d 657, 659 (1990), and repeated in other cases including Floyd, 367 S.C. at 261, 626 S.E.2d at 11 — “a noncom
In Hanover, the insurer’s compliance with section 38-77-350 was not an issue.
It is important to note “[failure to comply with section 38-77-350(A) does not automatically require judicial reformation of a policy. Rather, even where an insurer is not*76 entitled to the presumption [in section 37-77-350(B) ] that it made a meaningful offer, it may prove the sufficiency of its offer by showing that it complied with Wannamaker.”
Wiegand v. U.S. Auto. Ass’n, 391 S.C. 159, 164, 705 S.E.2d 432, 435 (2011) (quoting Grinnell Corp. v. Wood, 389 S.C. 350, 357, 698 S.E.2d 796, 799-800 (2010)).
We now expressly recognize it,
Our holding is consistent with, if not mandated by, Floyd. In that case, the supreme court answered “no” to this specific question: “Is an offer form in which the blanks were filled in by an insurance agent ..., and the form was then signed by the named insured, properly completed and executed pursuant to [subsection] 38-77-350(B) ...?” 367 S.C. at 258-59, 263, 626 S.E.2d at 9-10, 12. The court held, therefore, the insurer was “denied the benefit of the conclusive statutory presumption a meaningful offer was made.” 367 S.C. at 264, 626 S.E.2d at 12. The court then stated, “Such a case presents a factual issue[,] ... whether a meaningful offer was made to the insured pursuant to the Wannamaker analysis.” Id. The result of Floyd is that after a determination that the insurer was not entitled to the conclusive presumption under subsec
We do not address the parties’ remaining arguments. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not address remaining issues when resolution of another issue disposes of the appeal).
IV. Conclusion
The judgment of the trial court is AFFIRMED.
. Auto-Owners issued a policy for the Expedition. The parties stipulated that if the court reformed Progressive’s policy to provide UIM coverage, then Auto-Owners’ policy would also provide UIM coverage.
. In fact, subsection 38-77-350(B) did not apply in Hanover because’ the effective date of the subsection occurred after the events that gave rise to the lawsuit. Compare 1989 S.C. Acts 513 (stating section 38-77-350 "takes effect July 1, 1989”) and 1989 S.C. Acts 461 (stating the "form must be used by insurers for all new applicants after December 1, 1989”) with Hanover, 301 S.C. at 55, 389 S.E.2d at 657 (stating the appeal was heard January 9, 1990).
. The supreme court did discuss subsection 38-77-350(B) later in Floyd, but it was a separate discussion about the insurer’s entitlement to the presumption available in that section, not about compliance with the Wannamaker test or section 38-77-160.
. See Ray v. Austin, 388 S.C. 605, 611, 698 S.E.2d 208, 212 (2010); Croft v. Old Republic Ins. Co., 365 S.C. 402, 418, 618 S.E.2d 909, 917 (2005); Progressive Cas. Ins. Co., 362 S.C. at 348-49, 608 S.E.2d at 571; Bower, 351 S.C. at 116, 569 S.E.2d at 315; Butler v. Unisun Ins. Co., 323 S.C. 402, 405, 475 S.E.2d 758, 759 (1996).
. We say Wiegand “implicitly” recognized what we now hold because the issue there was different, and thus the case is distinguishable. In Wiegand, the court dealt with the sufficiency of the form, and not exclusively with the manner of its completion by the insured, see 391 S.C. at 164'65, 705 S.E.2d at 435, and the court's holding was that the insurer did get the conclusive presumption. Further, the quoted comment specifically mentions "failure to comply with [sub] section 38'77'350(A),” 391 S.C. at 164, 705 S.E.2d at 435, while the issue in this case is the significance of noncompliance with subsection 38'77'350(B).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.