Auto-Owners Ins. Co. v. Benjamin, Appellate Case No. 2013–001321.
| Decision Date | 09 December 2015 |
| Docket Number | Appellate Case No. 2013–001321.,No. 5367.,5367. |
| Citation | 415 S.C. 137,781 S.E.2d 137 |
| Parties | AUTO–OWNERS INSURANCE COMPANY, Appellant, v. Elouise Woody BENJAMIN, Melvin Benjamin, Joshua Lee Cail, Naida L. Singleton, and Pee Dee Heating and Cooling Specialists, Defendants, Of whom Elouise Woody Benjamin and Melvin Benjamin are the Respondents. |
| Court | South Carolina Court of Appeals |
415 S.C. 137
781 S.E.2d 137
AUTO–OWNERS INSURANCE COMPANY, Appellant,
v.
Elouise Woody BENJAMIN, Melvin Benjamin, Joshua Lee Cail, Naida L. Singleton, and Pee Dee Heating and Cooling Specialists, Defendants,
Of whom Elouise Woody Benjamin and Melvin Benjamin are the Respondents.
Appellate Case No. 2013–001321.
No. 5367.
Court of Appeals of South Carolina.
Heard Nov. 4, 2014.
Decided Dec. 9, 2015.
Dominic Allen Starr and Alan Grant Jones, both of McAngus, Goudelock, & Courie, of Myrtle Beach, for appellant.
Robert Norris Hill, of the Law Office of Robert Hill, of Lexington, and William P. Hatfield, of Hatfield Temple, LLP, of Florence, for respondents.
McDONALD, J.
In this declaratory judgment action, Auto–Owners Insurance Company (Auto–Owners) appeals the circuit court's grant
of summary judgment in favor of Respondents Elouise and Melvin Benjamin (collectively, the Benjamins). Auto–Owners argues the circuit court erred in determining that a commercial general liability policy (CGL Policy) issued to Pee Dee Heating and Cooling Specialists, Inc. (Pee Dee) provided additional coverage for injuries sustained by Elouise Benjamin in an automobile accident involving a Pee Dee employee. We affirm.
FACTS/PROCEDURAL BACKGROUND
Naida Singleton and Brett Singleton own and operate Pee Dee, which is located in Chesterfield County. On February 14, 2008, Auto–Owners issued Pee Dee an automobile insurance policy (Auto Policy). The Auto Policy provided $300,000 in coverage for combined
liability, uninsured, and underinsured protection on five scheduled drivers and six scheduled vehicles, as well as comprehensive coverage, collision, and "road trouble service."
On February 15, 2008, Auto–Owners issued Pee Dee a CGL Policy providing $2,000,000 in commercial general liability coverage and an endorsement providing $1,000,000 in liability coverage for "hired auto" and "non-owned auto." The policy provisions forming the basis of the inquiry in this case are contained in three portions of the CGL Policy: (1) the commercial general liability Aircraft, Auto or Watercraft Exclusion (the Exclusion); (2) the commercial general liability Other Insurance Condition (the Condition); and (3) the commercial general liability Endorsement (the Endorsement).
Pursuant to the Exclusion, found in Section I—COVERAGES, Coverage A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY, Exclusion g. Aircraft, Auto or Watercraft, no coverage exists for the following:
"Bodily injury" or "property damage" arising out of the ownership, maintenance, use or entrustment to others of any aircraft, "auto" or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and "loading and unloading".
This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the "occurrence" which caused the "bodily injury"
or "property damage" involved the ownership, maintenance, use or entrustment to others of any aircraft, "auto" or watercraft owned or operated by or rented or loaned to any insured.
The Condition, found in Section IV—COMMERCIAL GENERAL LIABILITY CONDITIONS, provides in pertinent part:
4. Other Insurance
If other valid and collectible insurance is available to the insured for a loss we cover under Coverage A or B of this Coverage Part, our obligations are limited as follows:
a. Primary Insurance
This insurance is primary except when b. below applies. If this insurance is primary, our obligations are not affected unless any of the other insurance is also primary. Then, we will share with all that other insurance by the method described in c. below.
b. Excess Insurance
This insurance is excess over:
(1) Any of the other insurance, whether primary, excess, or contingent or on any other basis:
....
(d) If the loss arises out of the maintenance or use of aircraft, "autos" or watercraft to the extent not subject to Exclusion g. of Section I —Coverage A —Bodily Injury and Property Damage Liability.
....
We will share the remaining loss, if any, with any other insurance that is not described in the Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part.
Finally, the Endorsement modifies the insurance provided by the CGL "COVERAGE PART. " Pursuant to the second section of the Endorsement, titled "HIRED AUTO AND NON–OWNED AUTO LIABILITY, " the CGL Policy states the following:
Coverage for "bodily injury" and "property damage" liability under SECTION I—COVERAGES, COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY, is extended as follows under this item, but only if you do not have any other insurance available to you which affords the same or similar coverage.
Coverage
We will pay those sums the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" arising out of the maintenance or use of an "auto":
a. You do not own;
b. Which is not registered in your name; or
c. Which is not leased or rented to you for more than ninety consecutive days and which is used in your business.
Exclusions
With respect only to HIRED AUTO AND NON–OWNED AUTO LIABILITY, the exclusions which apply to SECTION I—COVERAGES, COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY, other than the Nuclear Energy Liability Exclusion Endorsement, do not apply ...
Although the CGL Policy generally excluded automobile accidents under the Exclusion, Pee Dee purchased the Endorsement, which, in limited circumstances, provided liability coverage under the CGL Policy for "bodily injury" and "property damage" arising out of an automobile accident. However, the CGL Policy contained a clause stating the Endorsement only applied "if you do not have any other insurance available to you which affords the same or similar coverage." April 1, 2008 was the effective date for both the CGL Policy and its Endorsement as well as the Auto Policy.
On April 7, 2008, a Pee Dee employee, Joshua Lee Cail, was involved in an automobile accident with Elouise Benjamin. At the time of the accident, Cail was driving a 2004 Toyota Tacoma pickup truck owned by Naida Singleton, used by Pee Dee for business purposes, and insured by the Auto–Owners Auto Policy. Elouise Benjamin's medical expenses exceed $500,000.
On May 15, 2008, the Benjamins filed suit against Naida Singleton, Cail, and Pee Dee for injuries and damages resulting from the automobile accident. Auto–Owners filed a declaratory judgment action on December 19, 2008, seeking a declaration that the Auto Policy did not provide coverage for Cail because, at the time of the accident, he was not a permissive driver as required by the Auto Policy. The circuit court disagreed, determining that Cail was a permissive driver under the Auto Policy at the time of the accident.1
On June 14, 2011, Auto–Owners and the Benjamins entered into a settlement agreement providing that Auto–Owners would pay the Benjamins the Auto Policy limits of $300,000. In turn, the Benjamins released Cail and Auto–Owners under the Auto Policy and signed a covenant not to execute against Singleton and Pee Dee. The settlement agreement further provided that Auto–Owners reserved the right to seek a declaratory judgment to determine whether the CGL Policy provided coverage for the automobile accident. The Benjamins agreed that if the circuit court determined the CGL Policy provided coverage for their claims, the total recovery available would be the aggregate amount of $300,000 from the Auto Policy and the applicable limits of the CGL Policy.
Auto–Owners filed the current declaratory judgment action on July 8, 2011. Both Auto–Owners and the Benjamins filed cross motions for summary judgment as to whether the CGL Policy provided coverage for the Benjamins' claims. Following a January 28, 2013 hearing, the circuit court granted the Benjamins' motion for summary judgment and denied Auto–Owners' cross-motion by order filed March 22, 2013. On June 3, 2013, the circuit court denied Auto–Owners' motion to alter or amend.
ISSUE ON APPEAL
Did the circuit court err in finding Pee Dee's CGL Policy provided coverage in addition to that provided by the Auto Policy?
STANDARD OF REVIEW
"An appellate court reviews the granting of summary judgment under the same standard applied by the trial court under
Rule 56(c), SCRCP." Bovain v. Canal Ins., 383 S.C. 100, 105, 678 S.E.2d 422, 424 (2009). The circuit court may grant a motion for...
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