Coker v. Nationwide Ins. Co.

Decision Date01 May 1968
Docket NumberNo. 18786,18786
Citation161 S.E.2d 175,251 S.C. 175
CourtSouth Carolina Supreme Court
PartiesFranklin C. COKER, Administrator of the Estate of Dolly Brown Coker, Respondent, v. NATIONWIDE INSURANCE COMPANY, Appellant.

F. B. Grier, Jr., of Nelson, Mullins, Grier & Scarborough, Columbia, for appellant.

Monteith, Monteith & Lydon, Columbia, for respondent.

LEWIS, Justice:

The South Carolina Motor Vehicle Safety Responsibility Act requires that each automobile liability insurance policy issued in the State provide uninsured motorist coverage. Such insured motorist coverage includes damages caused by a vehicle whose owner or operator is unknown, if there was 'physical contact with the unknown vehicle.' Sections 46--750.31 and 46--750.34, 1967 Supplement to 1962 Code of Laws. The question in this case is whether a collision between an insured's vehicle and a vehicle with which an unknown motorist was racing constitutes such 'physical contact' with the unknown vehicle as to permit recovery under a policy of insurance issued in conformity with the foregoing statute.

We are concerned here with Section 46--750.34, the pertinent portion of which is as follows:

'If the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured be unknown, there shall be no right of action or recovery under the uninsured motorist provision, unless

(1) * * *

(2) The injury or damage was caused by physical contact with the unknown vehicle,

(3) * * *.'

The parties are in agreement as to the facts. The defendant Nationwide Insurance Company issued to Robert Larry Coker an automobile liability insurance policy which, in conformity with the statute, denied recovery for damages caused by a motorist whose identity is unknown unless the injury or damage was caused by physical contact with the unknown vehicle. The insured was injured and his wife was killed in an accident which occurred on December 4, 1964 on Highway 378, in Lexington County, South Carolina, when the automobile driven in a prudent manner by the insured, in an easterly direction, with his wife a passenger, was involved in a head-on collision with an automobile driven by one James Arthur Shealy. At the time, two vehicles, one driven by Shealy and the other by a driver whose identity cannot be ascertained, were racing and proceeding in a westerly direction, meeting the insured. The Shealy vehicle ran head on into the insured's automobile, but there was no contact between the vehicle of the unknown driver and that of the insured or with any other vehicle. The unknown driver left the scene and his identity cannot be determined nor can the vehicle driven by him be located.

Although the unknown vehicle did not strike the insured's automobile, it is conceded that, since it was racing with Shealy at the time, both the unknown driver and Shealy were jointly and concurrently liable for the damages resulting from the injuries to the insured and his wife. Skipper v. Hartley, 242 S.C. 221, 130 S.E.2d 486, 13 A.L.R.3d 426.

The plaintiff, Robert Larry Coker, and Shealy were both insured under policies issued to them by defendant Nationwide. Defendant's liability under the Shealy policy has been settled. The present appeal involves actions for declaratory judgment brought by plaintiffs, Robert Larry Coker and the administrator of his wife's estate, to have determined the validity of claims asserted by them under the uninsured motorist provisions of the policy of the plaintiff Coker for the injury and damage caused by the unknown motorist. The defendant denied liability for the claims on the ground, among others, that there was no coverage afforded under the uninsured motorist provisions of the policy because there was no 'physical contact' between the insured's vehicle and that of the unknown driver within the meaning of Section 46--750.34, supra, and the conforming policy provisions. The defendant interpreted the 'physical contact' provision of the statute to require actual contact of the unknown vehicle with that of the insured or some other vehicle or thing involved in the accident.

The plaintiffs on the other hand took the position, sustained by the lower court, that the statute did not require Actual contact with the unknown vehicle, and that the admitted presence and participation by the unknown driver in the race which caused the collision met the 'physical contact' provision of the statute and policy. The lower court, in reaching this conclusion, reasoned (1) that the acts of each participant in the automobile race were in legal contemplation the acts of both, and when the Shealy car struck the insured's vehicle, it was the same as if it had been struck by the unknown vehicle; (2) that the participation by the unknown driver in the race Caused the Shealy car to strike the insured; and (3) the admitted presence of the unknown vehicle eliminated any possibility of a fraudulent claim. We think the lower court was in error.

Prior to the adoption in 1963 of Section 46--750.34, as an amendment to the Motor Vehicle Safety Responsibility Act, there was no statutory provision requiring physical contact with an unknown vehicle in order to establish liability under...

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    • United States
    • U.S. District Court — District of South Carolina
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    ...gambling laws and gaming machine laws, rather, we leave to the legislature the resolution of this matter"); Coker v. Nationwide Ins. Co., 251 S.C. 175, 161 S.E.2d 175, 178 (1968) ("We have no right to legislate the provision from the statute or to modify its application under the guise of j......
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    ...under the guise of judicial interpretation." 285 S.C. 538, 541, 331 S.E.2d 352, 354 (1985), quoting Coker v. Nationwide Insurance Company, 251 S.C. 175, 182, 161 S.E.2d 175, 178 (1968). After Davis the South Carolina General Assembly modified the statute. Amendments to section 38-77-170 whi......
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  • V. Coverage for Hit-and-run Accidents
    • United States
    • The Law of Automobile Insurance in SC (SCBar) Chapter 3 Uninsured Motorist Coverage
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