Allstate Ins. Co. v. Wilson, 19539

• Decision Date: 13 December 1972
• Docket Number: No. 19539,19539
• Court: South Carolina Supreme Court
• Parties: ALLSTATE INSURANCE COMPANY, Respondent, v. Grace C. WILSON et al., Appellants.

Page 527

193 S.E.2d 527

259 S.C. 586

ALLSTATE INSURANCE COMPANY, Respondent, v. Grace C. WILSON et al., Appellants.

No. 19539.

Supreme Court of South Carolina.

Dec. 13, 1972.

Joseph R. Young, of Young, Clement & Rivers, Charleston, for appellant.

Robert A. Patterson, of Barnwell, Whaley, Stevenson & Patterson, Charleston, for respondent.

MOSS, Chief Justice:

This action is one under the 'Uniform Declaratory Judgments Act', Section 10--2001 et seq., Code of Laws of 1962. Allstate Insurance Company, the respondent herein, brought this action to determine the extent of its liability, if any, under an automobile liability insurance policy issued to Johnny Adam Evans on August 9, 1962. The policy was in force on June 28, 1963, when the automobile of the policyholder, being driven by his son, was in collision with an automobile owned by Walter R. Wilson and being operated by his wife, Grace C. Wilson.

Allstate, by its policy, agreed to pay on behalf of its insured all sums which the insured shall become legally obligated to pay as damages because of injuries sustained by any person arising out of the maintenance, ownership or use of the automobile described in said policy. The policy limited coverage to Johnny Adam Evans, his spouse, and any person driving with their permission. The policy further provided that Allstate would defend any suit alleging bodily injury and seeking damages therefor which were payable under the terms of the policy.

Employers-Commercial Union Companies, the appellant herein, at its request, was joined as a party to the action for the reason that it had issued an automobile liability insurance policy to Walter R. Wilson which contained an uninsured motorist endorsement wherein it contracted to pay to Walter R. Wilson and Grace C. Wilson, within limits, all sums which they should legally be entitled to recover as damages from the owner or operator of any uninsured motor vehicle.

The fact of the collision between the Evans' automobile and the Wilson's automobile was reported to the respondent shortly after it occurred and to the appellant during the week it occurred. Allstate investigated the collision, taking statements from Johnny Adam Evans and son, Johnny Lee Evans, wherein they stated that at the time of the collision Johnny Lee Evans did not have permission to drive the automobile. Upon obtaining the foregoing statements, a letter of reservation of rights was sent by Allstate to its insured.

In September, 1965, Walter R. Wilson and Grace C. Wilson each brought an action against Johnny Adam Evans, the insured, and his son Johnny Lee Evans, alleging their damages and injuries as a result of the collision above described. In each of the complaints it was alleged that Johnny Lee Evans was operating the insured motor vehicle with the permission and consent of his father Johnny Adam Evans, the insured. The answer of the Evanses denied that Johnny Lee Evans was operating the motor vehicle owned by his father with his permission and consent.

The Grace C. Wilson case came on for trial at the 1966 October Term of the Court of Common Pleas for Colleton County, before The Honorable T. B. Greneker, and a jury. At the end of plaintiff's testimony the trial judge granted a nonsuit to the father of the defendant on the ground that Johnny Lee Evans was driving the automobile at the time and place in question without permission. Allstate continued to defend the son under a reservation of rights and a verdict was returned against him in favor of the plaintiff. After the verdict, the attorneys for Allstate made a motion for a new trial as to Johnny Lee Evans which was thereafter granted with the consent of counsel for the Wilsons.

At the conclusion of the trial, counsel for the defendants notified the counsel for the Wilsons that there was some serious doubt about coverage. Thereafter, on November 4, 1966, the attorneys for the Wilsons were notified by counsel for Allstate that Allstate would pay no part of the verdict rendered against Johnny Lee Evans because he was not a named insured in the policy and was driving the automobile at the time and place without permission. Thereafter, on April 29, 1969, counsel for the Wilsons served the summons and complaint on the appellant, who had the uninsured motorist's coverage.

This declaratory judgment action came on for trial before The Honorable Robert W. Hayes, Presiding Judge, and a jury, at the 1971 October Term of the Court of Common Pleas for Colleton County. Prior to the trial of this case it was agreed that the claim of the Wilsons would be settled for $9,000 to be paid by whichever party was found to have coverage.

At the close of all of the testimony, the respondent's motion for a directed verdict was granted. The trial judge found: (1) that the automobile liability insurance policy issued by Allstate to Johnny Adam Evans afforded no coverage to Johnny Lee Evans unless he was operating the automobile with the permission of the named insured; (2) that Johnny Lee Evans, at the time of the collision in question, was operating said motor vehicle without the permission and consent of the named insured; (3) that there was no liability insurance coverage afforded to Johnny Lee Evans under the policy of insurance issued by Allstate and he was an uninsured motorist; (4) that the appellant was properly notified of the claims of Grace C. and Walter R. Wilson and was given adequate and proper notice of the pending tort actions in which they w...