Auto-Owners Ins. Co. v. Horne, No. 3674.

• Court: Court of Appeals of South Carolina
• Writing for the Court: CONNOR, J.
• Citation: 586 S.E.2d 865,356 S.C. 52
• Parties: AUTO-OWNERS INSURANCE COMPANY, Respondent, v. Shirley Maxine HORNE, Crystal Horne, and Michael Home, Appellants.
• Decision Date: 15 September 2003
• Docket Number: No. 3674.

356 S.C. 52
586 S.E.2d 865

AUTO-OWNERS INSURANCE COMPANY, Respondent,
v.
Shirley Maxine HORNE, Crystal Horne, and Michael Home, Appellants

No. 3674.

Court of Appeals of South Carolina.

Heard June 11, 2003.

Decided September 15, 2003.

Rehearing Denied October 16, 2003.

356 S.C. 53

Jon E. Newlon and John R. McCravy, III, both of Greenwood, for appellants

James P. Walsh, of Greenville, for respondent.

356 S.C. 54

CONNOR, J

In this declaratory judgment action, the special referee found Crystal Horne was not a Class I insured entitling her to stack underinsured motorist benefits under Shirley Maxine Horne's automobile insurance policy. Crystal, Shirley Maxine, and Michael Home appeal, arguing the referee erred in finding: (1) Crystal was not a resident relative of Shirley Maxine Home and Michael Home's household, and (2) Crystal was not herself a named insured on the policy. We affirm.

FACTS/PROCEDURAL HISTORY

Crystal Home's parents divorced on July 22, 1988. The final divorce decree, entered in Saluda County, ordered that Crystal's mother, Dianne Williams (Williams), "be granted the permanent care, custody and control of the parties' minor children" and that Michael Home (Mr. Home) "be granted the right to reasonable periods of visitation with the parties' minor children." After the divorce, Crystal's mother remarried and remained living in Saluda until moving to Conway in 1992. Crystal, however, stayed with her father in the Greenwood/Saluda area for approximately three months before moving to Horry County to live with her mother and younger sister. Before she moved to Horry County, Crystal had lived with Williams in Saluda and had stayed with her father during the summer months and every other weekend during the school year.

On March 9, 1997, Crystal sustained personal injuries from an automobile wreck in Horry County while operating a 1987 Chevrolet Camaro. The Camaro was insured under an automobile policy issued by Auto-Owners Insurance Company (Auto-Owners) to Shirley Maxine Home (Mrs. Home) as the named insured. Mrs. Home is Michael Home's wife and Crystal's stepmother. Mr. Home owned the Camaro. At the time of the accident, Crystal was seventeen years old and her driver's license listed an address in Conway. Crystal stated the address on the driver's license is where she was living with her mother at the time of the accident.¹

356 S.C. 55

From 1992 until the date of the accident, Crystal continued to live with Williams in the Conway area and visited her father in Saluda during the summers, holidays, and occasional weekends during the school year. Crystal would usually spend the whole summer with her father in Saluda. However, the summer prior to the accident Crystal stayed in Saluda for only a few days during the summer. During Crystal's trips to Saluda, she would also visit and stay with her grandmothers and aunts, who lived in the area

Following the accident, Crystal recovered the limits against the liability insurance carrier for the at-fault driver and then made a claim to Auto-Owners for underinsured motorist (UIM) benefits. Auto-Owners paid Crystal the primary UIM coverage on the vehicle involved in the wreck.² Crystal then submitted a claim to Auto-Owners seeking to recover additional UIM benefits by stacking coverages of other vehicles insured under Mrs. Home's policy.

Auto-Owners filed this declaratory judgment action seeking to determine Crystal's eligibility for stacking UIM benefits under the policy. Pursuant to Rule 53(b), SCRCP, the parties consented to have the matter heard by a special referee, with appeal from the referee's final judgment to be made directly to this Court. The referee found Crystal was not entitled to stack UIM benefits because she was not a named insured on the Auto-Owners policy and did not reside in the named insured's household at the time of the accident. The Homes appeal.³

356 S.C. 56

STANDARD OF REVIEW

"A suit for declaratory judgment is neither legal nor equitable, but is determined by the nature of the underlying issue." Felts v. Richland County, 303 S.C. 354, 356, 400 S.E.2d 781, 782 (1991). "An issue essentially one at law will not be transformed into one in equity simply because declaratory relief is sought." Id.

The issue here involves whether Crystal can stack underinsured motorist coverage available under an insurance policy. "An action to determine coverage under an insurance policy is an action at law." South Carolina Farm Bureau Mut. Ins. Co. v. Wilson, 344 S.C. 525, 528-29, 544 S.E.2d 848, 849 (Ct.App.2001); see Richardson v. South Carolina Farm Bureau Mut. Ins. Co., 336 S.C. 233, 519 S.E.2d 120 (Ct.App. 1999) (stating an action seeking a declaration of whether coverage under uninsured motorist policies could be stacked is an action at law); see also State Auto Prop. & Cas. Ins. Co. v. Gibbs, 314 S.C. 345, 444 S.E.2d 504 (1994) (stating an action to declare excess insurance coverage is an action at law).

In a non-jury action at law, the judge's findings of fact will not be disturbed on appeal unless they are without evidentiary support. Rickborn v. Liberty Life Ins. Co., 321 S.C. 291, 468 S.E.2d 292 (1996). The trial court's findings of fact have the same force and effect as a jury verdict unless it committed some error of law leading to an erroneous conclusion or unless the evidence is reasonably susceptible of the opposite conclusion only. Noisette v. Ismail, 299 S.C. 243, 384 S.E.2d 310 (Ct.App.1989), rev'd on other grounds, 304 S.C. 56, 403 S.E.2d 122 (1991). We must affirm the trial court if there is any evidence that reasonably supports its decision. Id. In reviewing the findings, we must view the evidence and all its reasonable inferences in the light least favorable to the losing party below. Id.

Hiott v. Guar. Nat'l Ins. Co., 329 S.C. 522, 528-29, 496 S.E.2d 417, 421 (Ct.App.1997).

DISCUSSION

The Homes argue the evidence established that Crystal resided with her father for part of the year and the special

356 S.C. 57

referee thus erred in finding as a matter of law that Crystal was not a resident relative of her father's household for stacking purposes.

"Stacking is the insured's recovery of damages under more than one policy until the insured satisfies all of his damages or exhausts the limits of all available policies." Cont'l Ins. Co. v. Shives, 328 S.C. 470, 473, 492 S.E.2d 808, 810 (Ct.App.1997). "In determining whether an insured can stack, insureds are divided into two classes: Class I and Class II. Only Class I insureds can stack." State Farm Mut. Auto. Ins. Co. v. James, 337 S.C. 86, 94, 522 S.E.2d 345, 349 (Ct.App. 1999). Previous cases have stated section 38-77-160 of the South Carolina Code of Laws⁴ is the statute controlling the right to stack and that under this section "a Class I insured is an insured or named insured who `has' a vehicle involved in the accident." Concrete Servs., Inc. v. United States Fid. & Guar. Co., 331 S.C. 506, 512, 498 S.E.2d 865, 868 (1998). In order "to `have' a vehicle involved in the accident as a prerequisite to stacking mean[s] only that a person must be a Class I insured with respect to a vehicle involved in the accident." Id. at 513, 498 S.E.2d at 868. A Class I insured has been repeatedly defined as the named insured, his spouse and relatives residing in his household. Id.; see also Davidson v. E. Fire & Cas. Ins. Co., 245 S.C. 472, 477, 141 S.E.2d 135, 138 (1965) (defining a Class I insured as the "named insured, his spouse and his or her relatives resident in the same household") (emphasis added).⁵ A Class II insured includes any person using, with the consent of the named insured, the

356 S.C. 58

motor vehicle to which the policy applies and a guest in the motor vehicle. Garris v. Cincinnati Ins. Co., 280 S.C. 149, 311 S.E.2d 723 (1984).

356 S.C. 59

The pertinent inquiry here is whether Crystal is a Class I insured. Specifically, the issue is whether Crystal was a resident relative of the named insured's household entitling her to stack UIM benefits under the policy.

Our Supreme Court first analyzed whether a person was a resident relative of the same household as the named insured in Buddin v. Nationwide Mut. Ins. Co., 250 S.C. 332, 157 S.E.2d 633 (1967). In finding a nephew was a "relative resident of the same household" as his uncle, as that term was used in the uncle's insurance policy to extend coverage to additional insureds, the Court stated "`a resident of the same household is one, other than a temporary or transient visitor, who lives together with others in the same house for a period of some duration, although he may not intend to remain there permanently.'" Id. at 339, 157 S.E.2d at 636 (quoting Hardware Mut. Cas. Co. v. Home Indem. Co., 241 Cal.App.2d 303, 50 Cal.Rptr. 508, 514 (1966)); see also Farmers Ins. of Columbus, Inc. v. Taylor, 39 Ohio App.3d 68, 528 N.E.2d 968, 969 (1987) (stating "the word `resident' as used in the phrase `resident of your household,' [unless otherwise defined in a policy,] refers to one who lives in the home of the named insured for a period of some duration or regularity, although not necessarily there permanently, but excludes a temporary or transient visitor."). The Court also noted several factors for possible consideration but stated that none of the factors were determinative of the issue. Buddin, 250 S.C. at 338-39, 157 S.E.2d at 636. The factors included: (1) the payment of rent or board; (2) the presence or absence of control over the relative; and (3) whether there was lack of a permanent living arrangement. Id.

This Court has more recently considered whether an individual was a resident relative in Auto Owners Ins. Co. v. Langford, 330 S.C. 578, 500 S.E.2d 496 (Ct.App.1998), and Richardson v. South Carolina Farm Bureau Mut. Ins. Co., 336 S.C. 233, 519 S.E.2d 120 (Ct.App.1999). In Langford, we recognized the notion of the individual's intent and noted "a person may be a resident relative for insurance...