Benson v. Nationwide Mut. Ins. Co., 20537

• Decision Date: 03 November 1977
• Docket Number: No. 20537,20537
• Citation: 238 S.E.2d 683,269 S.C. 563
• Court: South Carolina Supreme Court
• Parties: Reva BENSON, Respondent, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant.

Page 683

238 S.E.2d 683

269 S.C. 563

Reva BENSON, Respondent, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant.

No. 20537.

Supreme Court of South Carolina.

Nov. 3, 1977.

Joseph E. Major, Leatherwood, Walker, Todd & Mann, Greenville, for appellant.

Kenneth C. Porter and James H. Lengel, Greenville, for respondent.

NESS, Justice.

This is an appeal from a declaratory judgment determining the rights of the parties pursuant to an automobile insurance policy.

Nationwide Mutual Insurance Company, appellant, issued a policy of automobile liability insurance to the operator of the automobile in which the respondent, Reva Benson, was riding. The respondent was injured when this automobile was struck by an unknown motorist.

The sole issue is whether or not an uninsured motorist endorsement in a policy may require a plaintiff to submit to a physical examination as a prerequisite to recovery. The lower court answered this question in the negative, concluding that the provision was inconsistent with Section 56-9-880 of the 1976 Code of Laws. We agree and affirm.

Respondent refused to submit to a physical examination as required by a provision in the Nationwide insurance policy, claiming that the provision was contrary to public policy and/or certain sections of the Motor Vehicle Responsibility Act. Appellant contends that the requirement was a reasonable and valid condition precedent to recovery.

Section 56-9-880 of the 1976 Code of Laws provides:

"(T)he uninsured motorist provision shall not require arbitration of any claim arising thereunder, nor may anything not otherwise herein provided for or as may be provided in the form prescribed by the Chief Insurance Commissioner be required of the insured except the establishment of legal liability of the uninsured motorist, nor shall the insured be restricted or prevented in any manner from employing legal counsel or instituting legal proceedings." (Emphasis added).

The above language specifically states that nothing additional may be required of the insured outside the statutory scheme and the form provided by the Chief Insurance Commissioner. Clearly, it was the legislative intent that in an action involving an uninsured motorist, no additional requirements should be imposed on a plaintiff. This interpretation is consistent with the purpose behind the Uninsured Motorist Act as stated by this Court in Ferguson v. State Farm Mutual Automobile Insurance Company, 261 S.C. 96, 198 S.E.2d 522 (1973):

"(I)t was not the purpose of the uninsured motorist endorsement to provide coverage for the uninsured vehicle, its owner or operator, but was to provide benefits and protection against the peril of injury or death by an uninsured motorist to an insured motorist, his family, and the permissive users of his vehicle." 261 S.C. at page 100, 198 S.E.2d at page 524.

Appellant relies upon Hatchett v. Nationwide Mutual Insurance Company, 244 S.C. 425, 137 S.E.2d 608 (1964) to support its position that Section 56-9-880 of the 1976 Code of Laws does not restrict the proof of claim procedure to be followed but only prohibits provisions which would defeat coverage. In Hatchett the insured neither filed a proof of claim nor notified the insurer of the accident until the uninsured motorist was already in default. At the time of the incident, the Uninsured Motorist Act did not contain a provision...