Ernest Lamar BRADLEY and Esther K. Bradley, Appellants, v. John DOE and AccuSweep, Inc., Respondents, 374 S.C. 622

ANDERSON, J. Ernest Lamar Bradley (Bradley) appeals the trial court’s decision granting John Doe (Doe)

summary .judgment on Bradley’s claim for recovery under his uninsured motorist coverage. Bradley (1) contends the trial court erred in finding no one independently witnessed Bradley’s accident, and (2) maintains independent witnesses existed to provide circumstantial evidence that an unknown vehicle caused the accident. We affirm. FACTUAL!PROCEDURAL BACKGROUND On December 18, 2002, Bradley left the Waffle House restaurant at approximately 3:00 a.m. and began driving home.

After traveling less than one-quarter mile on College Park Road in Ladson, South Carolina, Bradley swerved to avoid an object in the northbound lane. Bradley lost control of his vehicle, veered off the road, and struck a tree. Bradley telephoned his son, whom he left minutes earlier at the Waffle House, to come and assist him. After summoning his son Bradley walked to the side of the road and began signaling for help with a flashlight. At about 3:15 a.m., United States Air Force Lieutenant Colonel Clifton Douglas, Jr. drove passed Bradley, turned his vehicle around, and headed toward the accident scene.

When Douglas returned in the northbound lane he saw a “large white garbage can bag” in the middle of his lane. Douglas parked his vehicle, approached Bradley, and observed that Bradley was bleeding from a head laceration. While helping Bradley, Douglas heard another passing vehicle strike and drag the garbage bag down the road. Bradley’s son and daughter subsequently arrived and noted the trash bag and trash scattered on the roadway. Bradley’s friend, Thomas Bosley, had been with Bradley at the Waffle House.

As Bosley drove home on College Park Road minutes before Bradley, he saw “a large trash bag in the middle of the [northbound] lane,” less than one-quarter mile from the restaurant. Bosley claimed he narrowly avoided the garbage bag and continued driving about another quarter-mile on College Park Road when he encountered a “white street sweeper’s truck.” Bosley observed this truck “drop another similar trash bag onto the public roadway.” He learned the next morning about Bradley’s accident. Bradley brought this action against his insurer to collect under the uninsured motorist provision of his policy.

The insurer represented Doe as the unknown driver. Doe moved for

summary judgment arguing Bradley failed to satisfy the statutory requirement for recovery under the uninsured policy provision because no one independently witnessed Bradley’s accident. The trial court granted Doe’s

summary judgment motion and denied Bradley’s motion to alter or amend the judgment. STANDARD OF REVIEW In reviewing the grant of a motion for

summary judgment, the appellate court applies the same standard of review as the trial court under Rule 56, SCRCP. Pye v. Estate of Fox, 369 S.C. 555, 563, 633 S.E.2d 505, 509 (2006).

Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), SCRCP (“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”); Madison ex rel. Bryant v. Babcock Center, Inc., 371 S.C. 123, 134, 638 S.E.2d 650, 655 (2006); Houck v. State Farm Fire & Cas. Ins.

Co., 366 S.C. 7, 11, 620 S.E.2d 326, 329 (2005); Pittman v. Grand Strand Entm’t, Inc., 363 S.C. 531, 536, 611 S.E.2d 922, 925 (2005); B & B Liquors, Inc. v. O’Neil, 361 S.C. 267, 270, 603 S.E.2d 629, 631 (Ct.App.2004). In determining whether any triable issues of fact exist, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the non-moving party; Medical Univ. of South Carolina v. Arnaud, 360 S.C. 615, 619, 602 S.E.2d 747, 749 (2004); Rife v. Hitachi Constr. Mach. Co., Ltd., 363 S.C. 209, 213, 609 S.E.2d 565, 567 (Ct.App.2005). The party seeking

summary judgment has the burden of clearly establishing the absence of a genuine issue of material fact. Jones v. State Farm Mut. Auto. Ins. Co., 364 S.C. 222, 228, 612 S.E.2d 719, 722 (Ct.App.2005) (citing McCall v. State Farm Mut. Auto. Ins. Co., 359 S.C. 372, 376, 597 S.E.2d 181, 183 (Ct.App.2004)). Once the party moving for

summary judgment meets the initial burden of showing an absence of evidentiary support for the opponent’s case, the opponent cannot simply rest on mere allegations or denials contained in the pleadings. Id. citing Regions Bank v. Schmauch, 354 S.C. 648, 660, 582 S.E.2d 432, 438 (Ct.App.2003). Rather, the nonmoving party must come forward with specific facts showing there is a genuine issue for trial. Jones, 364 S.C. at 228, 612 S.E.2d at 722 (citation omitted). The purpose of

summary judgment is to expedite disposition of cases which do not require the services of a fact finder. Id. “Summary judgment is a drastic remedy which should be cautiously invoked so that a litigant is not improperly deprived of a trial on disputed factual issues.” BPS, Inc. v. Worthy, 362 S.C. 319, 326, 608 S.E.2d 155, 159 (Ct.App.2005). LAWIANALYSIS Bradley asserts the trial court erred in granting Doe’s

summary judgment motion. Specifically, Bradley urges that he satisfied the independent witness requirement in

section 38-77-170(2) of the South Carolina Code of Laws by providing testimony from independent witnesses regarding circumstantial evidence of an unknown driver’s negligence. We disagree. I. Requirements of S.C.Code Ann. § 38-77-170

Section 38-77-170 establishes the conditions under which an insured may recover uninsured motorist coverage when the owner or operator of the motor vehicle causing injury or damage is unknown: If the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, there is no right of action or recovery under the uninsured motorist provision, unless: (1) the insured or someone in his behalf has reported the accident to some appropriate police authority within a reasonable time, under all the circumstances, after its occurrence; (2) the injury or damage was caused by physical contact with the unknown vehicle, or the accident must have been witnessed by someone other than the owner or operator of the insured vehicle; provided however, the witness must sign an affidavit attesting to the truth of the facts of the accident contained in the affidavit; (3) the insured was not negligent in failing to determine the identity of the other vehicle and the driver of the other vehicle at the time of the accident.

S.C.Code Ann. § 38-77-170 (2002) (emphasis added). Where there is no physical contact with a vehicle driven by an unknown motorist, someone other than the owner or operator of the insured vehicle must have witnessed the accident and attest to the facts of the accident in a signed affidavit. See Wausau Underwriters Insurance Company v. Howser, 309 S.C. 269, 274-75, 422 S.E.2d 106, 110 (1992) (holding “no physical contact with the unknown vehicle is necessary when a witness other than the owner or driver of the insured vehicle is available to attest to the facts of the accident.”). II.

Rules of Statutory Construction The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature. Mid-State Auto Auction of Lexington, Inc. v. Altman, 324 S.C. 65, 69, 476 S.E.2d 690, 692 (1996); Shealy v. Doe, 370 S.C. 194, 199, 634 S.E.2d 45, 48 (Ct.App.2006). The first question of statutory

interpretation is whether the statute’s meaning is clear on its face. Wade v. Berkeley County, 348 S.C. 224, 229, 559 S.E.2d 586, 588 (2002); Eagle Container Co., LLC v. County of Newberry, 366 S.C. 611, 622, 622 S.E.2d 733, 738 (Ct.App. 2005) (cert. granted January 31, 2007). When a statute’s language is plain and unambiguous, and conveys a clear and definite meaning, the rules of statutory

interpretation are not needed, and this Court has no right to impose another meaning. Catawba Indian Tribe of South Carolina v. State, 372 S.C. 519, 524-26, 642 S.E.2d 751, 754 (2007); see Vaughn v. Bernhardt, 345 S.C. 196, 198, 547 S.E.2d 869, 870 (2001). “[T]he words of the statute must be given their plain and ordinary meaning without resorting to subtle or forced construction to limit or expand the statute’s operation.” Mun. Ass’n of S.C. v. AT&T Communications of S. States, Inc., 361 S.C. 576, 580, 606 S.E.2d 468, 470 (2004); see also Miller v.

Doe, 312 S.C. 444, 447, 441 S.E.2d 319, 321 (1994) (“In determining the meaning of a statute, the terms used therein must be taken in their ordinary and popular meaning, nothing to the contrary appearing.”). The legislature’s intent should be ascertained primarily from the plain language of the statute. Jones v. State Farm Mut. Auto. Ins. Co., 364 S.C. 222, 230, 612 S.E.2d 719, 723 (Ct.App.2005) (citing State v. Landis, 362 S.C. 97, 102, 606 S.E.2d 503, 506 (Ct.App.2004); Stephen v. Avins Const. Co., 324 S.C. 334, 339, 478 S.E.2d 74, 77 (Ct.App.1996)).

What a legislature says in the text of a statute is considered the best evidence of the legislative intent or will. Jones, 364 S.C. at 230, 612 S.E.2d at 723 (citing Bayle v. South Carolina Dept. of Transp., 344 S.C. 115, 122, 542 S.E.2d 736, 740 (Ct.App.2001)). The language must be read in a sense which harmonizes with its subject matter and accords with its general purpose. Jones, 364 S.C. at 230, 612 S.E.2d at 723 (citing Hitachi Data Sys. v. Leatherman, 309 S.C. 174, 178, 420 S.E.2d 843, 846 (1992)). The court’s primary function in interpreting a statute is to ascertain the intent of the General Assembly.

Smith v. South Carolina Ins. Co., 350 S.C. 82, 87, 564 S.E.2d 358, 361 (Ct.App.2002). “Once the legislature has made [a] choice, there is no room for the courts to impose a different judgment based upon their own notions of public policy.” South Carolina Farm Bureau Mut. Ins. Co. v. Mumford, 299 S.C. 14, 19, 382 S.E.2d 11, 14 (Ct.App.1989). If the language of

an act gives rise to doubt or uncertainty as to legislative intent, the construing court may search for that intent beyond the borders of the act itself. State v. Morgan, 352 S.C. 359, 367, 574 S.E.2d 203, 207 (Ct.App.2002). “Statutes, as a whole, must receive practical, reasonable, and fair

interpretation, consonant with the purpose, design, and policy of lawmakers.” Collins Music Co., Inc. v. IGT, 365 S.C. 544, 550, 619 S.E.2d 1, 3 (Ct.App.2005) (quoting TNS Mills, Inc. v. South Carolina Dep’t of Revenue, 331 S.C. 611, 624, 503 S.E.2d 471, 478 (1998)). Courts will reject a statutory

interpretation which would lead to a result so plainly absurd that it could not have been intended by the legislature or would defeat the plain legislative intention. Jones, 364 S.C. at 230, 612 S.E.2d at 723 (citing Unisun Ins. Co. v. Schmidt, 339 S.C. 362, 368, 529 S.E.2d 280, 283 (2000); Kiriakides v. United Artists Communications, Inc., 312 S.C. 271, 275, 440 S.E.2d 364, 366 (1994)). A court should not consider a particular clause in a statute as being construed in isolation, but should read it in conjunction with the purpose of the whole statute and the policy of the law. See Hinton v.

South Carolina Dept. of Prob., Parole and Pardon Servs., 357 S.C. 327, 333, 592 S.E.2d 335, 338 (Ct.App.2004); Doe v. Roe, 353 S.C. 576, 580, 578 S.E.2d 733, 735-36 (Ct.App.2003). III.

Interpretation of S.C.Code Ann § 38-77-170 “The issue of

interpretation of a statute is a question of law for the court.” Catawba Indian Tribe, 372 S.C. at 519, 642 S.E.2d at 754 (citing Charleston County Parks & Recreation Comm’n v. Somers, 319 S.C. 65, 67, 459 S.E.2d 841, 843 (1995) (“The determination of legislative intent is a matter of law.”)).

Section 38-77-170(2) is clear on its face. It expressly requires that someone other than the owner or operator of the insured vehicle witness the accident. “The plain language of § 38-77-170(2) requires that where the accident involves no physical contact between the insured’s vehicle and the unidentified vehicle, the accident ‘must have been witnessed by someone other than the owner or operator of the insured vehicle’ and the ‘witness must sign an affidavit attesting to the truth of the facts of the accident contained therein.’ ” Collins v. Doe, 352 S.C. 462, 470, 574 S.E.2d 739, 744 (2002).

The Legislature first enacted a “John Doe” statute in 1963, recognizing an insured’s right to receive uninsured motorist coverage for injuries caused by unknown drivers. Since the statute’s enactment, the Legislature placed safeguards within the statute to prevent citizens from bringing fraudulent “John Doe” actions. The initial safeguard was a requirement that the unknown vehicle make “physical contact” with the plaintiffs car. Act No. 312,1963 S.C. Acts 535.

Then in 1987, the Legislature amended the statute once again to allow insureds to bring a “John Doe” action regardless of physical contact as long as an independent person witnessed the accident. Act. No. 166, 1987 S.C. Acts 1122. Shealy v. Doe, 370 S.C. 194, 202, 634 S.E.2d 45, 49 (Ct.App.2006) cert. pending (citing Gilliland v. Doe, 357 S.C. 197, 199-200, 592 S.E.2d 626, 627-28 (2004)). The legislature again amended the statute in 1989, and added the sworn affidavit requirement. The statute at large effecting this most recent amendment provides that the act is “to amend

section 38-77-170 relating to the requirements to recover under the uninsured motorist provisions when the at-fault party is unknown, so as to require a witness to the accident to sign an affidavit attesting to the truth of the facts about the accident and to provide a warning statement to be displayed on the affidavit.” Act No. 148, 1989 S.C. Acts 439. Collins, 352 S.C. at 466, 574 S.E.2d at 741.

In Collins, our supreme court concluded that “[t]he legislature unambiguously required that a plaintiff seeking to recover against her uninsured motorist coverage for the negligence of an unknown John Doe driver strictly comply with the plain language of the statute.” 352 S.C. at 466, 574 S.E.2d at 741. In order to avoid colliding with vehicle driven by an unknown driver, Collins swerved and collided with another vehicle. Id. at 464-65, 574 S.E.2d at 740. She sustained injuries and sought recovery under her uninsured policy provision. Id.

Although Collins did not produce a witness-signed affidavit at trial, she produced a witness at trial who testified the unknown driver caused Collins’ collision. Id. Collins argued the witness’ testimony satisfied the statutory requirements under

section 38-77-170(2). Id. Citing Criterion Ins. Co. v. Hoffmann, 258 S.C. 282, 188 S.E.2d 459, (1972), the Collins court reiterated the historical reasoning underlying the strict compliance requirement: The right to sue and collect from one’s own liability insurance carrier in case of a loss caused by a hit-and-run driver or other driver of an uninsured automobile is a creature of the legislature. Except for the statute, and endorsements required, no right exists to recover from one’s own insurance carrier.

One must look to the terms of the uninsured motorist statute and policy endorsements and comply therewith to get the benefit of law.... It is the province of the lawmakers to create a right of action, to provide for process and to declare the procedure for collecting from one’s own insurance carrier.... The terms of the statute ... are clear and not ambiguous. This being true, there is no room for construction and we are required to apply the statute according to its literal meaning.

Most courts take a liberal view when dealing with the question of coverage; however, the procedural obligations that the insured must discharge in order to recover, since they are prescribed by statute, are viewed by the courts as mandatory, and strict compliance with them is a prerequisite to recover. Collins, 352 S.C. at 467-68, 574 S.E.2d at 741-42 (quoting Criterion, 258 S.C. at 290-92, 188 S.E.2d at 462-63). The court held strict compliance was mandatory and reversed the court of appeals’ ruling that testimony at trial was the “functional equivalent” of a signed affidavit.

Collins, 352 S.C. at 471, 574 S.E.2d at 743. “The statute makes no provision for the functional equivalent of an affidavit.” Id. Consequently, the court declined to create an exception in the statute where none previously existed. Id. In Gilliland v. Doe, our supreme court considered “to what extent an independent witness must testify about the causal connection between the unknown vehicle and the accident ...” in order to comply with

section 38-77-170(2). 357 S.C. at 200, 592 S.E.2d at 628. Gilliland crashed into a tree after being run off the road by an unknown vehicle. Id. at 198, 592 S.E.2d at 627. A witness waiting to enter the same roadway saw Gilliland crash, but did not see the unknown vehicle. Id. However, before the accident the witness did observe two sets of oncoming headlights. Id. After Gilliland’s crash the witness noticed the second set of headlights “arcing through a field,” as if making a u-turn and leaving the accident scene. Id. Addressing the requirement that an independent witness must attest to “the truth of the facts of the accident,” the Gilliland court agreed with the court of appeals’

interpretation that the witness must “be able to attest to the circumstances surrounding the accident, i.e., what actions of the unknown driver contributed to the accident.” Id. at 200, 592 S.E.2d at 628. The court concluded the witness’s attestation provided circumstantial evidence supporting Gilliland’s testimony “that an unknown driver contributed to her accident.” Id. at 202, 592 S.E.2d at 629. Specifically, the court determined the witness, in addition to observing the accident, “saw the lights of an unknown car that was turning around and fleeing the scene of the accident.” Id. (citing Marks v. Indus.

Life & Health Ins. Co., 212 S.C. 502, 505, 48 S.E.2d 445, 446 (1948) (“The attending circumstances along with direct testimony may be taken into account by the jury in arriving at its decision as any fact in issue may be established by circumstantial evidence, if the circumstances, which must themselves be proven lead to the conclusion with reasonable certainty.”)). In contrast to the holding in Collins, the Gilliland court reasoned the “fact requirement in

section 38-77-170(2) was ‘arguably ambiguous’ and ‘therefore, a strict

interpretation ... would undermine the statute’s purpose.’ ” Gilliland, 357 S.C. at 201, 592 S.E.2d at 628. The plaintiff in Shealy v. Doe, 370 S.C. 194, 200, 634 S.E.2d 45, 48 (2006), attempted to broaden Gilliland by urging that evidence other than the personal observations of an independent eye witness might satisfy

section 38-77-170(2). In Shealy, two men riding in a truck bed were thrown from the vehicle and injured when the driver swerved suddenly to allegedly avoid hitting an unknown vehicle. Id. at 196, 634 S.E.2d at 46. Shealy submitted an affidavit stating the driver of the truck told him he swerved to avoid colliding with an unknown vehicle. Id. at 197, 634 S.E.2d at 46. We held Shealy’s affidavit did not satisfy the independent witness requirement under

section 38-77-170(2). Id. at 198, 634 S.E.2d at 47. Shealy asserted

section 38-77-170(2) did not require the witness’s affidavit to be based on personal knowledge. This court concluded that argument directly contravene[d] the language of the statute: Shealy submitted affidavits of two people who apparently did not witness the accident; their affidavits do not attest to facts they perceived, but merely restate the perceptions of the vehicle’s operator. Thus Shealy produced no evidence that someone other than [ ], the operator of the insured vehicle, witnessed the accident. [The] affidavits do not comply with th[e] express directive [in

section 38-77-170(2) ]. Id. at 200, 634 S.E.2d at 48. We reasoned that Shealy’s

interpretation of

section 38-77-170(2) would totally eviscerate the statute’s efficacy as it would allow an owner or operator to inform any third-party of the facts of the accident and have that third-party swear out an affidavit as to the owner or operator’s version of the events. In Collins, our supreme court elucidated that the “obvious purpose” of the affidavit requirement of

section 38-77-170(2) is “fraud prevention.” Shealy’s reading of the statute would circumvent the fraud-preventing function of subsection (2), rendering that

section meaningless. Id. at 200-201, 634 S.E.2d at 48-49 (internal citation omitted). Relying on Gilliland, Shealy maintained the affiants provided circumstantial evidence of the accident sufficient to comply with

section 38-77-170(2). Id. at 201, 634 S.E.2d at 49. We distinguished Gilliland, explaining the affidavits Shealy submitted, unlike those in Gilliland, did not contain circumstantial evidence based on independent personal knowledge that supported the driver’s version of the accident. Id. at 205, 634 S.E.2d at 51. At best, Shealy’s affidavits merely repeated the driver’s account of what happened and did not independently corroborate the driver’s version of the accident. Id. The purpose of

section 38-77-120(2) is to prevent fraud. Concomitantly, the affidavit of the independent witness must contain some independent evidence that an unknown vehicle was involved in the accident. Shealy failed to satisfy the statute’s mandate; thus, the court properly granted

summary judgment. Id. IY. The Factual Record The sole issue for consideration in the case sub judice is whether the circumstantial evidence provided by Bradley’s affiants complies with the statutory mandate in

section 38-77-170(2). We hold it does not. Bradley relies on Gilliland in maintaining that circumstantial evidence provided by independent witnesses is sufficient to survive

summary judgment. However, Bradley overlooks that the affiant in Gilliland contemporaneously witnessed both the collision and the headlights of an unknown vehicle turning and leaving the scene. The witness’s testimony, based on her personal observations, independently corroborated Gilliland’s account of how that accident occurred. Here, Bradley was the only witness to the accident. None of the affiants actually saw Bradley swerve to avoid a trash bag in the road and collide with the tree.

By Bradley’s own testimony, he initially thought it was an injured dog lying in the road that caused him to veer off and lose control. The fact that three people saw the bag of trash in the same roadway does not implicate involvement of another vehicle. Testimony that a sweeper truck a quarter-mile down the roadway dropped a similar trash bag likewise fails to establish a sufficient causal link between the sweeper truck and Bradley’s collision. Our courts have historically required strict compliance with

section 38-77-170(2). Collins v. Doe, 352 S.C. 462, 470, 574 S.E.2d 739, 743

(2002) Where the accident involves no physical contact between the insured’s vehicle and the unknown vehicle, the accident “must have been witnessed by someone other than the owner of operator of the insured vehicle” and the witness must sign an affidavit attesting to the truth of the facts of the accident contained therein. Id. “Under the rules of statutory

interpretation, use of words such as ‘shall’ or ‘must’ indicates the legislature’s intent to enact a mandatory requirement.” Id. A plaintiffs strict compliance with the affidavit requirement is mandatory. In Collins, the court held trial testimony was not the functional equivalent of an affidavit and did not satisfy the affidavit requirement. In Shealy, witnesses’ affidavits based on third-party communication rather than on personal knowledge of how the accident occurred failed to meet the affidavit requirement.

Contrastively, in Gilliland, the independent witness’s personal observations of the accident corroborated Gilliland’s own account of the facts surrounding her accident and complied with the affidavit requirement. “For circumstantial evidence to be sufficient to warrant the finding of a fact, the circumstances must lead to the conclusion with reasonable certainty and must have sufficient probative value to constitute the basis for a legal inference, not for mere speculation.” Shealy v. Doe, 370 S.C. 194, 205, 634 S.E.2d 45, 51 (Ct.App.2006).

Bradley’s affiants had no personal knowledge of the facts of the accident. Their observations before and after the accident did not establish with reasonable certainty a causal connection between Bradley’s injury and an unknown vehicle. The affidavits of independent witnesses must contain some independent evidence of an unknown vehicle’s involvement in the accident. Bradley failed to comply with the statute’s mandate. CONCLUSION We rule the affidavits submitted by Bradley did not raise a genuine issue of material fact as to whether Bradley’s collision resulted from involvement with an unknown vehicle.

The trial court properly granted Doe’s

summary judgment motion. Accordingly, the trial court’s decision is AFFIRMED. KITTREDGE, J., concurs. SHORT, J. dissents in a separate opinion. . Ernest Bradley is joined by his wife Ester as "Appellants,” and John Doe is joined by Accusweep, Inc. as "Respondents.” However, for purposes of this appeal, we refer only to Ernest Bradley and John Doe. . We decide this case without oral argument pursuant to Rule 215, SCACR. . Bradley does not argue that hitting the trash bag constituted physical contact with the unknown vehicle. However, even if the trash bag did, in fact, fall from the-sweeper truck, Bradley's collision with it would not meet

section 38-77-170's physical contact requirement. Our supreme court has held the physical contact requirement is not met when a plaintiff's vehicle collides with an unattached portion of an unknown vehicle. See Wynn v. Doe, 255 S.C. 509, 180 S.E.2d 95 (1971); Davis v. Doe, 285 S.C. 538, 331 S.E.2d 352 (1985).