Childs v. Allstate Ins. Co., No. 17729

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtSTUKES
Citation117 S.E.2d 867,237 S.C. 455
Docket NumberNo. 17729
Decision Date03 January 1961
PartiesWilliam L. CHILDS, Respondent, v. ALLSTATE INSURANCE COMPANY, Appellant.

Page 867

117 S.E.2d 867
237 S.C. 455
William L. CHILDS, Respondent,
v.
ALLSTATE INSURANCE COMPANY, Appellant.
No. 17729.
Supreme Court of South Carolina.
Jan. 3, 1961.

Page 868

[237 S.C. 456] Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, for appellant.

J. Perrin Anderson, Greenwood, for respondent.

STUKES, Chief Justice.

This is an appeal from a judgment obtained by reason of appellant's liability under its policy of automobile insurance, issued to respondent, Sec. II of which is entitled, 'Protection against bodily injury by uninsured automobiles.'

The specific provisions here involved follow:

'Allstate will pay all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such automobile.

* * *

* * *

[237 S.C. 457] 'Exclusions--What This Section Does Not Cover

'This Section of the Policy does not apply:

* * *

* * *

'2. to bodily injury of an insured with respect to which such insured or his representative shall, without the written consent of Allstate, make any settlement with, or prosecute to judgment any action against, any person or organization who may be legally liable therefor; or

* * *

* * *

'Notice of Legal Action

'If, before Allstate makes payment of loss hereunder, the insured or his representative shall institute any legal action for bodily injury against any other person operating an automobile involved in the accident, a copy of the Summons and Complaint or other process served in connection with such legal action shall be forwarded immediately to Allstate.

* * *

* * *

'Determination of Legal Liability and Amount of Damages.

'The determination as to whether the insured shall be legally entitled to recover damages, and if so entitled the amount thereof, shall be made by agreement between the insured and Allstate.

'In the event of disagreement and upon written demand of either, the matter or matters upon which the insured and Allstate do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the Arbitrator(s) may be entered in any Court having jurisdiction thereof. The insured and Allstate each agree to consider itself bound and to be bound by any award made by the Arbitrator(s) pursuant to this section II. * * *'

Respondent was in collision with one Cunningham. Upon report of the accident appellant investigated it and determined that it resulted from the fault of its insured, the respondent, and it settled with Cunningham his claim against [237 S.C. 458] the insured for damage to his automobile by paying him the amount thereof, apparently without prior notice to respondent.

Upon appellant's refusal of respondent's claim for damages for personal injuries which he received in the collision, respondent brought action against Cunningham and recovered judgment by default in the sum of $1,500. It is for that amount and costs that the instant action was brought.

Page 869

Meanwhile there had been correspondence between respondent's attorney and the Claims Manager or appellant. Under date of June 2, 1959, the latter wrote respondent's attorney in part as follows: 'With respect to the questions raised in the second paragraph of your letter of May 28, we have been advised by the Cunninghams that there is no liability insurance on their car. On the other hand, our investigation of the accident indicated that Mr. Childs was responsible for this accident, and hence, could not have any claim under the uninsured motorist coverage. As a result of our investigation of the accident, and our determination of the liability as resting on our insured, we have settled the property damage claim of the Cunninghams.' On September 21 following, the attorney wrote the Claims Manager that action had been instituted in behalf of respondent (against Cunningham) for damages for personal injuries and enclosed copies of the suit papers, which he advised was in accordance with the terms of the policy. The Claims Manager replied under date of October 9 as follows: 'This is to advise you that this suit was instituted without the written consent of Allstate Insurance Company as provided under Paragraph 3 on Page seven of the Allstate Crusader Policy, said paragraph being listed under the Section entitled 'Exclusions--What this section does not cover (2). To bodily injury on insured with respect to which such insured or his representative shall, without the written consent of Allstate, make any settlement with or prosecute to judgment any action against, any person or organization who may be legally liable therefor;' * * * I call attention to the fact that [237 S.C. 459] a prosecution to judgment in this action against Mr. Cunningham would relieve Allstate of any obligations under the bodily injury benefit insurance protection of Mr. Childs' policy.'

Afterward, on December 14, the Claims Manager made written refusal of respondent's claim, as follows: 'Since you have prosecuted Mr. Child's action to judgment against Mr. Cunningham, there is no liability on the part of Allstate Insurance Company under Mr. Child's...

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22 practice notes
  • Indiana Ins. Co. v. Noble, No. 569A84
    • United States
    • Indiana Court of Appeals of Indiana
    • December 30, 1970
    ...607 (1967); (The result in Levy was later changed by the enactment of a new arbitration statute in Illinois); Childs v. Allstate Ins. Co., 237 S.C. 455, 117 S.E.2d 867 (1961); Heisner v. Jones, 184 Neb. 602, 169 N.W.2d 606 (1969); Ellison v. Safeguard Mut. Ins. Co., 209 Pa.Super. 492, 229 A......
  • Nationwide Mut. Ins. Co. v. Webb, No. 11
    • United States
    • Court of Appeals of Maryland
    • November 6, 1981
    ...Insurance Company, 553 P.2d 153 (Okl.1976); Boughton v. Farmers Insurance Exchange, 354 P.2d 1085 (Okl.1960); Childs v. Allstate Ins. Co., 237 S.C. 455, 463, 117 S.E.2d 867 (1961); Glover v. Tennessee Farmers Mut. Ins. Co., 225 Tenn. 306, 468 S.W.2d 727, 730 (1971); Finney v. Farmers Ins. C......
  • VISION ONE LLC. v. PHILADELPHIA Indem. Ins. Co., No. 38411-6-II
    • United States
    • Court of Appeals of Washington
    • October 19, 2010
    ...1135, 1138 (Okla.1991); Roberts v. Fireman's Ins. Co. of Newark, 376 Pa. 99, 101 A.2d 747, 749-50 (1954); Childs v. Allstate Ins. Co., 237 S.C. 455, 117 S.E.2d 867, 871 (1961); see generally 16 Lee R. Russ, Couch on Insurance § 224:148 (3d. ed.2005). As the Fifth Circuit explained in Stephe......
  • Ford v. State Farm Mut. Auto. Ins. Co., No. B-6135
    • United States
    • Supreme Court of Texas
    • March 2, 1977
    ...314 A.2d 644 (1974); Vanguard Ins. Co. v. Polchlopek, 18 N.Y.2d 376, 275 N.Y.S.2d 515, 222 N.E.2d 383 (1966); Childs v. Allstate Ins. Co., 237 S.C. 455, 117 S.E.2d 867 (1961); and Stephens v. State Farm Mutual Automobile Ins. Co., 508 F.2d 1363 (5th Cir. 1975). See Annot. 25 A.L.R.3d 1275, ......
  • Request a trial to view additional results
22 cases
  • Indiana Ins. Co. v. Noble, No. 569A84
    • United States
    • Indiana Court of Appeals of Indiana
    • December 30, 1970
    ...607 (1967); (The result in Levy was later changed by the enactment of a new arbitration statute in Illinois); Childs v. Allstate Ins. Co., 237 S.C. 455, 117 S.E.2d 867 (1961); Heisner v. Jones, 184 Neb. 602, 169 N.W.2d 606 (1969); Ellison v. Safeguard Mut. Ins. Co., 209 Pa.Super. 492, 229 A......
  • Nationwide Mut. Ins. Co. v. Webb, No. 11
    • United States
    • Court of Appeals of Maryland
    • November 6, 1981
    ...Insurance Company, 553 P.2d 153 (Okl.1976); Boughton v. Farmers Insurance Exchange, 354 P.2d 1085 (Okl.1960); Childs v. Allstate Ins. Co., 237 S.C. 455, 463, 117 S.E.2d 867 (1961); Glover v. Tennessee Farmers Mut. Ins. Co., 225 Tenn. 306, 468 S.W.2d 727, 730 (1971); Finney v. Farmers Ins. C......
  • VISION ONE LLC. v. PHILADELPHIA Indem. Ins. Co., No. 38411-6-II
    • United States
    • Court of Appeals of Washington
    • October 19, 2010
    ...1135, 1138 (Okla.1991); Roberts v. Fireman's Ins. Co. of Newark, 376 Pa. 99, 101 A.2d 747, 749-50 (1954); Childs v. Allstate Ins. Co., 237 S.C. 455, 117 S.E.2d 867, 871 (1961); see generally 16 Lee R. Russ, Couch on Insurance § 224:148 (3d. ed.2005). As the Fifth Circuit explained in Stephe......
  • Ford v. State Farm Mut. Auto. Ins. Co., No. B-6135
    • United States
    • Supreme Court of Texas
    • March 2, 1977
    ...314 A.2d 644 (1974); Vanguard Ins. Co. v. Polchlopek, 18 N.Y.2d 376, 275 N.Y.S.2d 515, 222 N.E.2d 383 (1966); Childs v. Allstate Ins. Co., 237 S.C. 455, 117 S.E.2d 867 (1961); and Stephens v. State Farm Mutual Automobile Ins. Co., 508 F.2d 1363 (5th Cir. 1975). See Annot. 25 A.L.R.3d 1275, ......
  • Request a trial to view additional results

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