SC PROPERTY & CAS. GUAR. v. Yensen

• Decision Date: 14 June 2001
• Docket Number: No. 3299.,3299.
• Court: South Carolina Court of Appeals
• Parties: SOUTH CAROLINA PROPERTY AND CASUALTY GUARANTY ASSOCIATION and Jackie Cooper Ford, Inc., Plaintiffs, v. Richard Scott YENSEN, Michael Price Barnhill, State Farm Mutual Automobile Insurance Company, Nationwide Insurance Company, Jefferson-Pilot Fire & Casualty Company, Jackie B. Cooper, J. Daniel Cooper, Mark Cooper, Guy Moross, Theodore Huttner, Midland Risk Insurance Company, and The Insurance Reserve Fund of South Carolina, Defendants, of whom Richard Scott Yensen and Michael Price Barnhill are, Appellants and South Carolina Property and Casualty Guaranty Association, State Farm Automobile Insurance Company, and Jefferson-Pilot Fire & Casualty Company, are, Respondents.

345 S.C. 512

548 S.E.2d 880

SOUTH CAROLINA PROPERTY AND CASUALTY GUARANTY ASSOCIATION and Jackie Cooper Ford, Inc., Plaintiffs, v. Richard Scott YENSEN, Michael Price Barnhill, State Farm Mutual Automobile Insurance Company, Nationwide Insurance Company, Jefferson-Pilot Fire & Casualty Company, Jackie B. Cooper, J. Daniel Cooper, Mark Cooper, Guy Moross, Theodore Huttner, Midland Risk Insurance Company, and The Insurance Reserve Fund of South Carolina, Defendants, of whom Richard Scott Yensen and Michael Price Barnhill are, Appellants and South Carolina Property and Casualty Guaranty Association, State Farm Automobile Insurance Company, and Jefferson-Pilot Fire & Casualty Company, are, Respondents.

No. 3299.

Court of Appeals of South Carolina.

Reheard January 9, 2001.

Decided June 14, 2001.

Thomas R. Goldstein, of Belk, Cobb, Infinger & Goldstein; and Jerry N. Theos, of Uricchio, Howe, Krell, Jacobson, Toporek & Theos, both of Charleston, for appellant.

G. Mark Phillips, of Nelson, Mullins, Riley & Scarborough; and Henry E. Grimball, of Buist, Moore, Smythe & McGee, both of Charleston; Hoover C. Blanton and Ruskin C. Foster, both of McCutchen, Blanton, Rhodes & Johnson, of Columbia, for respondent.

ORDER DENYING PETITION FOR REHEARING

PER CURIAM:

The Court withdraws its original opinion and substitutes the attached opinion. After a careful consideration of the Petition for Rehearing En Banc, the Court is unable to discover that any material fact or principle of law has been either overlooked or disregarded and hence, there is no basis for granting a rehearing.

It is, therefore, ordered that the Petition for Rehearing En Banc be denied.

HEARN, Chief Judge:

This is a declaratory judgment action involving issues of automobile insurance coverage among three insurers. The trial court granted summary judgment to Jefferson Pilot Fire and Casualty Company (Jefferson Pilot) and a directed verdict to South Carolina Property and Casualty Guaranty Association (Guaranty Association) and State Farm Insurance Company (State Farm). Richard Scott Yensen and Michael Price Barnhill appeal. We affirm with respect to Jefferson Pilot and State Farm, and reverse and remand with respect to Guaranty Association.

FACTS AND PROCEDURAL BACKGROUND

On June 15, 1991, Yensen's Camaro became disabled on Interstate 26 in Charleston County. The Camaro was on the shoulder of the highway. Yensen walked to a pay phone and called the highway patrol. Yensen was picked up by Officer Barnhill.

Yensen and Barnhill returned to Yensen's car. Barnhill parked his patrol car behind the Camaro and summoned a tow truck. A flatbed wrecker belonging to Specialty Towing arrived, and the driver of the wrecker parked in front of the Camaro to hook it up for towing. Yensen and Barnhill exited the patrol car and stood beside the driver's side of the Camaro while the tow truck driver hooked chains to it. Theodore Huttner was driving a Chevrolet Beretta on Interstate 26 traveling toward Charleston. Huttner struck Yensen, Barnhill, and the tow truck driver, injuring them. Huttner did not stop, but was apprehended nearby after he ran off the road. The Beretta was owned by Huttner's employer, Jackie Cooper Ford Inc. (Jackie Cooper). Yensen and Barnhill subsequently filed negligence actions against Huttner. Yensen received a $900,000 verdict and Barnhill received an $85,000 verdict.

At the time of the accident, Specialty Towing was insured by Jefferson Pilot. Huttner owned a motorcycle and a van which were insured by State Farm. Jackie Cooper was insured by First Southern Insurance Company.¹ The trial judge granted summary judgment to Jefferson Pilot and directed verdicts in favor of State Farm and Guaranty Association.

DISCUSSION

I. Jefferson Pilot

Depending upon whether or not Huttner was a permissive driver of the Beretta, Yensen and Barnhill assert they are entitled to either uninsured or underinsured motorist coverage as insureds under the Jefferson Pilot policy. The policy provided both uninsured or underinsured motorist coverage of $300,000 to Specialty Towing. The policy defined "insured" as "anyone else `occupying' a covered auto." According to the policy, "occupying" was defined as "in, upon, getting in, on, out or off."

The trial court granted summary judgment to Jefferson Pilot. The court concluded neither Yensen nor Barnhill was an insured under the policy because neither was "occupying" the tow truck as defined by the policy. Yensen and Barnhill argue the trial court erred as a matter of law in granting summary judgment to Jefferson Pilot because they were involved with the tow truck at the scene and were injured as a result of its "use." Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), SCRCP. In determining whether any triable issue of fact exists, as will preclude summary judgment, the evidence and all inferences which can be reasonably drawn therefrom must be viewed in the light most favorable to the nonmoving party. Quality Towing, Inc. v. City of Myrtle Beach, 340 S.C. 29, 530 S.E.2d 369 (2000). Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law. At the summary judgment stage of litigation, the court does not weigh conflicting evidence with respect to a disputed material fact. ML-Lee Acquisition Fund, L.P. v. Deloitte & Touche, 320 S.C. 143, 463 S.E.2d 618 (Ct.App.1995),rev'd in part on other grounds, 327 S.C. 238, 489 S.E.2d 470 (1997)

. An appellate court reviews the granting of summary judgment under the same standard applied by the trial court. Moriarty v. Garden Sanctuary Church of God, 341 S.C. 320, 534 S.E.2d 672 (2000).

Viewing the evidence in the light most favorable to them, Officer Barnhill and Yensen were sitting in Barnhill's patrol car preparing an accident report for Yensen's Camaro when the tow truck arrived. The tow truck driver began hooking chains to Yensen's Camaro. Barnhill advised Yensen to retrieve his personal items from the car before it was lifted onto the tow truck. Both Barnhill and Yensen exited the patrol car and went to the driver's side of the Camaro. They were standing on the driver's side near the rear view mirror when Huttner struck them. In his deposition, Yensen testified he had called a friend to come pick him up. However, he also testified that he was planning to leave the scene with the tow truck driver. It is this testimony which Yensen asserts constitutes a genuine issue of material fact sufficient to survive summary judgment. Barnhill's position is that because he was acting in his official capacity of supervising the attachment of the Camaro to the tow truck, he was "occupying" the tow truck. We disagree with both assertions.

The trial judge correctly determined that Yensen and Barnhill were not insureds under the Jefferson Pilot policy. They were not occupying the tow truck as the policy defines that term.² Under the plain meaning of the words, neither Yensen nor Barnhill was "in, upon, getting in, on, out or off' the tow truck. While there was some testimony that Yensen intended to leave the scene in the tow truck, at the time of the accident, he was not in or on the tow truck, nor was he in the process of getting into it.

Further, under Whitmire, 254 S.C. at 187-92, 174 S.E.2d at 393-95, we do not find Yensen to have been alighting from the tow truck. Whitmire held that where a passenger was struck while within two or three feet of the car he had immediately "alighted from," that passenger may collect uninsured motorist coverage from the insurer of the car he had been riding in. Id. at 191-92, 174 S.E.2d at 394-95. Appellants argue that Whitmire is controlling in this case because Yensen intended to occupy the tow truck and should therefore be able to collect insurance from the tow truck's insurance provider. Whitmire is distinguishable because there, the plaintiff had unquestionably been occupying the car, whereas this case involves, at most, Yensen's intent to occupy the tow truck, expressed after the accident and during litigation. We are reluctant to extend Whitmire to these facts because Yensen was not "still engaged in the completion of those acts reasonably to be expected from one getting out of an automobile under similar conditions." Id. at 191, 174 S.E.2d at 394.

Appellants' reliance upon Merck v. Nationwide Mut. Ins. Co., 318 S.C. 22, 455 S.E.2d 697 (1995) is unavailing. That case dealt with the issue of stacking of underinsured motorist coverage. In Merck, the insured's disabled vehicle was on a tow truck in the emergency lane. Id. at 23-24, 455 S.E.2d at 698. The insured was standing beside the tow truck with the tow truck driver when an intoxicated driver ran off the road, striking the insured, the tow truck driver, and the tow truck. Id. The supreme court affirmed this court's conclusion that the insured's vehicle was "involved in the accident" because it was present at the scene, and the accident had an effect on it when the car was thrown from the wrecker. Id. at 24, 455 S.E.2d at 698. In Merck, uninsured coverage on the tow truck was not an issue as it is in this case. Rather, Merck dealt with whether the victim's own vehicle was "involved in the accident," an issue not disputed here where all parties agree that Yensen's vehicle was involved in the accident. Moreover, in Merck the policy and S.C.Code Ann. section 38-77-160 (1989), provided coverage to vehicles "involved in the accident," while here, coverage is afforded to individuals "occupying the vehicle."

Appellants also argue they should collect under the Jefferson Pilot policy because they were "involved" with the tow truck at the time of their injuries, citing State Farm Mutual Automobile Insurance Company v. Bookert, 330 S.C. 221, 499 S.E.2d 480 (Ct.App.1998). This reliance is misplaced. In Bookert, a...