Opinion
20323
December 7, 1976.
Messrs. Keith A. Gatlin and John C. Hayes, of Hayes, Brunson and Gatlin, Rock Hill, for Appellant. cite: As to an advance payment made by a liability insurance company on behalf of its insured to a claimant against the insured being creditable, in whole or in part, against the verdict and judgment which the claimant subsequently secured against the insured: 238 F. Supp. 643, 48 Ala. App. 268, 264 So.2d 191; 224 Tenn. 46, 450 S.W.2d 11; 177 Conn. 103, 167A.87; 8 Ohio St.2d 6, 37 Ohio Ops.2d 298; 221 N.E.2d 708, 25 A.L.R. 3d 1087; 262 S.C. 263, 203 S.E.2d 691; 326 F. Supp. 931; 202 Pa. S. 77, 195 A. 181; 1967 American Bar Association, Section of Insurance, Negligence and Compensation Proceedings; 22 Am. Jur.2d Damages, Section 206; 11 A.L.R. 3d 1115; 25 A.L.R. 3d 1091; 25 C.J.S. Damages, Section 99 (1) and 99 (2); 61 Cola. Law Rev. 1; DesChamps, C.A., 7 For the Defense (October 1966, No. 8); Graham, Advance Payment and Personal Injury Claims, III The Forum (April 1968); Keeton and O'Connell, Basic Protection for the Traffic Victim, Little, Brown and Company (1965); Univ. of Michigan Law School, Automobile Accident Costs and Payments, Univ. of Mich. Press (1964); 110 Univ. of Penna. Law Rev. 913. The Financial Impact of Automobile Accidents. Robert R. Carpenter, Esq., of Roddey, Sumwalt Carpenter, Rock Hill, for Respondent, cites: As to a "walkaway draft", issued by an insurance carrier to a claimant without the execution of a release, without condition and without prior discussion, not being creditable against the punitive damage portion of the verdict and judgment subsequently obtained by the claimant against the insured: 262 S.C. 263, 203 S.E.2d 691; Advance Payments-Problems in Practice and Procedure, July, 1968, Insurance Counsel Journal, Robinson and Due, P. 444; The Legal Aspects of Partial Payments Made on Liability Claims in Advance of Final Settlement, 1967 Proceedings of the Section of Insurance, Negligence and Compensation Law, American Bar Association, p. 409; Gallagher, Advance Payments; A Defense Attorney's Viewpoint, 1967-A.B.A., p. 519.
December 7, 1976.
As a result of a personal injury, appellant's insurer issued a "walkaway draft" to the respondent. The trial judge refused to allow an offset and credit for these funds on the verdict obtained at trial.
Respondent was injured at appellant's place of business when a pallet of bricks collapsed on him. Settlement negotiations between respondent and the Insurance Company of North America (INA), appellant's insurer, were not fruitful. INA thereafter sent respondent a check for $5,500.00 along with the following letter:
"We regret we have been unable to mutually agree upon a settlement figure of your claim. We have again reviewed the settlement value of your claim and we want you to have now what we believe to be the full value of your claim.
"We enclose our draft in the amount of $5,500.00 in settlement of your claim. It is understood that you have not signed a release and that our payment is not an admission of liability. The law of this State provides that if you are to institute a suit for personal injuries it must be within six years of the date of accident.
"It is our hope that this payment will bring this matter to an amicable conclusion."
Suit was subsequently instituted and the jury returned a verdict for respondent in the amount of $2,000.00 actual damages and $5,000.00 punitive damages. Appellant made a post trial motion for an offset and credit in the amount of $5,500.00 previously paid to respondent. The trial judge summarily denied the motion concluding that the appellant was not entitled to any offset or credit. We disagree.
The issues presented by this appeal are novel to South Carolina. Appellant cites three opinions from other jurisdictions as tangential precedent. These cases all involved "advance payments" which as the term suggests is the laudable practice of expediting payment to injured parties prior to and in anticipation of future settlement or judgment. The instant case involved a "walkaway draft" which appears to be more analogous to a settlement procedure. Furthermore, in the "advance payment" cases, receipts were signed which stipulated that the payment would be credited against any final settlement or judgment. No such receipt was executed attendant to the "walkaway draft."
Edwards v. Passarelli Brothers Automotive Service, Inc., 8 Ohio St.2d 6, 221 N.E.2d 708, 25 A.L.R. 3d 1087 (1966); Byrd v. Stuart, 224 Tenn. 46, 450 S.W.2d 11 (1969); Boles v. Steel, 288 Ala. 732, 264 So.2d 194 (1972).
However, there is a common thread running through all the cases which needs no precedential support and is particularly persuasive. Why should the respondent be allowed to collect $12,500.00 on a judgment that the jury has assessed at $7,000.00? The disjointedness of the question perhaps suggests why it has not been necessary heretofore to litigate it. The nonexistence of a receipt delineating the obvious desire to credit the payment against any future liability secured on the same claim is without legal significance. See Harrington v. Edwards, 262 S.C. 263, 203 S.E.2d 691 (1974).
While Harrington was limited to the facts presented in that opinion, the judicial logic is apropos to the circumstances in the instant case.
Respondent asserts alternatively that any offset and credit should be apportioned against actual damages only and not punitive damages. We find the distinction untenable. It is uncontested that appellant was legally obligated to pay both actual and punitive damages.
The Order of the trial judge is therefore reversed and it is ORDERED that appellant be allowed to offset and credit $5,500.00 from the $7,000.00 judgment.
Reversed and Remanded.
LEWIS, C.J., LITTLEJOHN and RHODES, JJ., concur.
GREGORY, J., not participating.