United States District Court, D. South Carolina, Florence Division
BRYAN HARWELL UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant's motion to
dismiss filed pursuant to Fed.R.Civ.P. 12(b)(6). See
ECF No. 16. The Court grants in part and denies in part
Defendant's motion for the reasons herein.
February 10, 2014, Plaintiff Annie Skinner was
“severely injured and suffered extensive property
damage” when she was involved in an automobile accident
with Andrew Poston and another driver. Amended Complaint [ECF
No. 1-1] at ¶ 11; Am. Compl. Exh. A [ECF No. 1-1 at p.
21]. At the time, Defendant Horace Mann Insurance Company
insured Poston through an automobile insurance policy
providing bodily injury liability limits of $50, 000 per
person/$100, 000 per accident and a property damage liability
limit of $50, 000 per accident. Am. Compl. at ¶ 10;
see ECF No. 16-2 at p. 1.
April 2014, Defendant issued Plaintiff two checks totaling
$7, 547, and in May 2014, both checks cleared the bank.
See Am. Compl. Exh. E [ECF No. 1-1 at p. 40].
February 12, 2015, Plaintiff's counsel sent Defendant a
demand letter offering to settle all claims against Poston in
exchange for the full amount of Poston's liability
insurance policy limits-$100, 000 (i.e., both the
$50, 000 bodily injury liability limit and the $50,
000 property damage liability limit). See Am. Compl.
Exh. A; ECF Nos. 16-5 & 16-6. The nine-page letter (laden
with lengthy footnotes) set a two-week deadline, imposed
various requirements and conditions, and had over 200 pages
of attachments primarily consisting of Plaintiff's
medical records. See Id. The letter described
Plaintiff's physical injuries and further noted her
clothes and cell phone were destroyed in the accident.
See Am. Compl. Exh. A. Besides the clothes and cell
phone loss, no other property damage was identified in the
letter or the attachments thereto.
February 20, 2015, Defendant sent Plaintiff's counsel a
check for the $50, 000 bodily injury liability limit and a
proposed settlement agreement (and a covenant not to enforce
judgment). See Am. Compl. at ¶ 16; Am. Compl.
Exh. B [ECF No. 1-1 at pp. 30-34]; Am. Compl. Exh. C [ECF No.
1-1 at pp. 36-37]. However, on March 5, 2015, Plaintiff's
counsel returned the $50, 000 check in a letter asserting
Defendant “failed to comply with the terms of”
the February 12, 2015 offer because
the Offer of Compromise called for payment under all
applicable policies, which necessarily includes any
applicable BI or PD policies, as well as umbrella coverage,
if any. It is our understanding that the policy in question
provides, at a minimum, for $50, 000 in per person bodily
injury coverage and $50, 000 in per occurrence property
damage coverage. However, the check sent by Horace Mann was
only for $50, 000, an amount less than the applicable policy
limits. . . . Therefore, we have been forced to return the
check to you and file suit against your insured.
Am. Compl. Exh. C; see Am. Compl. at ¶ 17.
March 13, 2015, Defendant's attorney sent a letter to
Plaintiff's counsel stating, “I do not understand
why you returned the check.” Am. Compl. Exh. D [ECF No.
1-1 at pp. 38-39]; see Am.
at ¶ 18. The letter further stated:
In your March 5, 2015 letter, you claim there is Fifty
Thousand Dollars ($50, 000.00) of liability coverage for
bodily injury claims and Fifty Thousand Dollars ($50, 000.00)
in coverage for property damage coverage. It is my
understanding that this representation is correct. However,
you did not make an additional property damage claim in your
February 12, 2015 demand letter, and the property damage
claim previously presented has been settled. Therefore, there
is no property damage claim for the coverage to apply. Was
there something that was missed?
The purpose of this letter is to re-offer the Fifty Thousand
Dollars ($50, 000.00) of bodily injury coverage on a Covenant
Not to Enforce Judgment basis. Secondly, to ask you if you
have some property damage for which you want to make a claim?
Finally, please clarify your position because I'm not
clear why you are rejecting the tender of the applicable
limits. If you have some other basis for rejecting Horace
Mann's offer and Covenant Not to Enforce Judgment[, ]
please let me know because there ...