THE STATE OF SOUTH CAROLINA

In The Supreme Court

Nationwide Affinity Insurance Company of America, 

Appellant,

v.

Andrew Green, Respondent.

Appellate Case No. 2021-000243

Appeal from Florence County

D. Craig Brown, Circuit Court Judge

Opinion No. 28144

Heard October 26, 2022 – Filed March 29, 2023

AFFIRMED

John Robert Murphy and Wesley Brian Sawyer, both of 

Murphy & Grantland, P.A., of Columbia, for Appellant.

Roy T. Willey IV, Matthew Thomas Foss, Alexis 

Wimberly McCumber, Eric Marc Poulin, and Angeline M. 

Larrivee, all of Poulin | Willey | Anastopoulo, LLC, of 

Charleston, for Respondent.

JUSTICE JAMES: In USAA Casualty Insurance Co. v. Rafferty, we held South 

Carolina Code section 38-77-160 (2015) requires automobile insurers to offer 

underinsured motorist (UIM) property damage coverage, and that coverage cannot 

be limited to an insured's "covered auto." Op. No. 28143 (S.C. Sup. Ct. filed Mar.
29, 2023) (Howard Adv. Sh. No. 12 at 18). This appeal is resolved by our holding 

in Rafferty. 

Background

In 2018, Appellant Nationwide Affinity Insurance Company of America 

(Nationwide) issued a personal automobile insurance policy to Shameika Clark, 

Respondent Andrew Green's mother. The policy included $25,000 in UIM property 

damage coverage for Clark and her family members. The general definition section

broadly defined "property damage" as "physical injury to, destruction of[,] or loss of 

use of tangible property." The UIM endorsement, however, more narrowly defined 

"property damage" as "injury to or destruction of 'your covered auto.'" 

On October 19, 2018, Green was hit by a motor vehicle while walking home 

from school. Green alleged the driver, Harold Carraway, negligently and recklessly 

crossed the center line, ran off the road, and struck him. Green claimed he sustained 

bodily injury and property damage as a result of Carraway's conduct. After 

Carraway's insurer tendered its liability limits, Green pursued a claim against

Nationwide for UIM bodily injury and property damage. Nationwide tendered its 

UIM bodily injury limits but refused to pay UIM property damage because the 

accident did not result in damage to a "covered auto." 

Nationwide commenced this declaratory judgment action and requested a 

declaration that Green is not entitled to UIM property damage. Green conceded a 

"covered auto" was not damaged in the accident but claimed the UIM endorsement 

impermissibly limits property damage coverage to "injury to or destruction of 'your 

covered auto.'" Green alleged section 38-77-160 "mandate[s]" the endorsement be 

reformed to include broader property damage coverage. 

Nationwide thereafter moved for judgment on the pleadings. Nationwide 

relied on Green's concession that a "covered auto" was not damaged in the accident. 

Citing Bardsley v. Government Employees Insurance Co., 405 S.C. 68, 747 S.E.2d 

436 (2013), Nationwide argued section 38-77-160 requires insurers to offer bodily 

injury coverage but not property damage coverage. Conversely, Green argued 

section 38-77-160 requires UIM coverage to mirror liability coverage as explained 

in Glasscock, Inc. v. U.S. Fidelity & Guaranty Co., 348 S.C. 76, 557 S.E.2d 689 (Ct. 

App. 2001). 

The circuit court found Glasscock controlling and, therefore, reformed the 

UIM endorsement to cover "damage to or loss of any tangible property." Nationwide 
appealed, and we certified the appeal because the same issue was presented by the 

certified question in Rafferty, Op. No. 28143 (Howard Adv. Sh. No. 12 at 18). 

Discussion

"A suit for declaratory judgment is neither legal nor equitable[] but is 

determined by the nature of the underlying issue." Felts v. Richland Cnty., 303 S.C. 

354, 356, 400 S.E.2d 781, 782 (1991). "Whether a particular provision in an 

insurance policy violates the public policy of the state is a question of law that is 

reviewed de novo by an appellate court." Williams v. Gov't Emps. Ins. Co. (GEICO), 

409 S.C. 586, 599, 762 S.E.2d 705, 712 (2014). 

Nationwide argues that because the definition of "underinsured motor 

vehicle" in subsection 38-77-30(15) (2015 & Supp. 2022) refers only to bodily injury 

coverage, insurers need not offer UIM property damage coverage. Nationwide 

mistakenly claims we "addressed this very statutory question in Bardsley." 

Nationwide goes on to incorrectly state what it claims is the holding in Bardsley—

that section 38-77-160 does not require an offer of property damage coverage. 

Following this premise, Nationwide claims it can limit "purely voluntary" coverage 

to the insured's "covered auto." We rejected this argument in Rafferty, Op. No. 

28143 (Howard Adv. Sh. No. 12 at 18).

Nationwide next argues the circuit court improperly relied on Glasscock. In 

Glasscock, the court of appeals ruled the portion of section 38-77-160 stating that an 

insurer must offer UIM coverage "up to the limits of the insured['s] liability 

coverage" requires the insurer to provide the same type of UIM coverage as liability 

coverage. See 348 S.C. at 83-84, 557 S.E.2d at 692-93. Nationwide argues the court 

of appeals in Glasscock "relied on an interpretation of [section] 38-77-160 that 

included UIM property damage as part of the statutory language." Nationwide 

asserts this Court in Bardsley, however, "interpreted the language of [section] 38-

77-160 to only be applicable to UIM bodily injury coverage . . . ." Therefore, 

Nationwide argues Bardsley "effectively overruled" Glasscock. We disagree. 

Just as USAA did in Rafferty, Op. No. 28143 (Howard Adv. Sh. No. 12 at 14-15 

n.2), Nationwide extends Bardsley beyond its scope and conflates the terms 

"statutorily mandated" and "statutorily required." Nationwide also misconstrues the 

facts and holding in Glasscock. There, the court of appeals acknowledged that by 

covering loss of use damages, the liability provision of the policy at issue "provide[d] 

greater coverage than the minimum required by statute." 348 S.C. at 83, 557 S.E.2d 
at 692. The court of appeals therefore had to determine whether UIM coverage "up 

to the limits of the insured['s] liability coverage" includes coverage for loss of use. 

As such, Glasscock dealt exclusively with an insurer's obligations once UIM 

coverage is purchased; it did not speak to whether section 38-77-160 "requires" or 

"mandates" property damage coverage in the first instance. 

Moving to the merits of this case, we affirm the circuit court in accordance 

with our decision in Rafferty, Op. No. 28143 (Howard Adv. Sh. No. 12 at 18). See

Williams, 409 S.C. at 598, 762 S.E.2d at 712 ("Statutes governing an insurance 

contract are part of the contract as a matter of law, and to the extent a policy provision 

conflicts with an applicable statute, the provision is invalid."); Glasscock, 348 S.C. 

at 84, 557 S.E.2d at 693 (indicating reformation is proper when a policy provision 

conflicts with section 38-77-160); State Farm Mut. Auto. Ins. Co. v. Bookert, 330 

S.C. 221, 228-29, 499 S.E.2d 480, 483-84 (Ct. App. 1997) (same), rev'd on other 

grounds, 337 S.C. 291, 523 S.E.2d 181 (1999). 

Conclusion

Section 38-77-160 requires insurers to offer UIM property damage coverage, 

and insurers may not limit that coverage to vehicles defined in a policy as "covered 

autos." Rafferty, Op. No. 28143 (Howard Adv. Sh. No. 12 at 18). The circuit court's 

order reforming Nationwide's UIM endorsement is therefore affirmed.

AFFIRMED.

BEATTY, C.J., KITTREDGE, FEW, JJ., and Acting Justice John D. 

Geathers, concur.