Government Emp. Ins. Co. v. Mackey
| Citation | 260 S.C. 306,195 S.E.2d 830 |
| Decision Date | 21 March 1973 |
| Docket Number | No. 19593,19593 |
| Court | South Carolina Supreme Court |
| Parties | GOVERNMENT EMPLOYEES INSURANCE COMPANY, Respondent, v. Elizabeth MACKEY et al., Defendants, of whom Calvin Jefferson Paul, a minor over the age of fourteen years, et al., are, Appellants. |
Haynsworth, Perry, Bryant, Marion & Johnstone, and William H. McPherson, Greenville, Paul E. Bowie, III, Easley, for appellants.
Love, Thornton, Arnold & Thomason, Greenville, for respondent.
This action is one under 'The Uniform Declaratory Judgments Act', Section 10--2001 et seq., 1962 Code of Laws. Government Employees Insurance Company, the respondent herein, brought this action to determine the extent of its liability, if any, under an automobile liability policy issued on August 26, 1970, to Elizabeth Mackey, pursuant to the South Carolina Assigned Risk Plan and covering her 1967 Chevrolet automobile.
On April 11, 1971, Calvin Jefferson Paul, a minor, while driving the 1967 Chevrolet owned by Elizabeth Mackey was involved in a head-on collision with a 1966 Pontiac automobile being owned and driven by his father, Jefferson Paul, Jr. At the time of the accident, there were passengers in each of the aforesaid vehicles, two of whom lost their lives and the others sustained personal injuries. Donnie Rhodes, one of the injured passengers in the Mackey automobile, has instituted an action against Calvin Jefferson Paul, Elizabeth Mackey, and Jefferson Paul, Jr., to recover damages therefor.
The respondent in its complaint alleges three separate causes of action: (1) that it cancelled (prior to the accident in question) the policy issued to Elizabeth Mackey for nonpayment of the premium thereon, (2) that Elizabeth Mackey fraudulently misrepresented certain material facts in an attempt to obtain the liability insurance at a reduced premium rate; and (3) that at the time of the accident in question, the automobile of Elizabeth Mackey was being driven by Calvin Jefferson Paul without either the express or implied permission of the named insured. All the injured persons were made parties to this action. Peninsular Fire Insurance Company was also made a party because it had uninsured motorist coverage on the Pontiac automobile of Jefferson Paul, Jr.
The appellants, by their answers, set up a general denial and the defense of waiver and estoppel.
This case came on for trial before the Honorable William L. Rhodes, Jr., Presiding Judge, and a jury, at the 1972 term of the Court of Common Pleas for Greenville County. By agreement of counsel for the parties a general issue was submitted to the jury to return a verdict either in favor of the respondent or in favor of the appellants. The jury returned a verdict in favor of the respondent. The appellants made timely motions for a directed verdict and, after the verdict, for judgment Non obstante veredicto or in the alternative for a new trial. The trial judge overruled all of the foregoing motions and this appeal followed.
One of the exceptions of the appellants raises the question as to whether the policy of liability insurance issued by the respondent to Elizabeth Mackey was properly cancelled.
It appears from the record that on August 20, 1970, Elizabeth Mackey went to the insurance agency of Carl E. Watkins in Easley, South Carolina, and executed an application for liability insurance under the Assigned Risk Plan. It was represented in the application that Elizabeth Mackey and Robert Mackey, her son, would be the operators of the insured motor vehicle. The application stated that Elizabeth Mackey had not previously applied for liability insurance under the Assigned Risk Plan and that there were no violations against either of the operators of the insured vehicle. The anticipated liability policy premium was $152.00, and a collision policy premium of $128.00, such collision policy to be written by Northland Insurance Company. The total premium for the coverage was $280.00 and a down payment of $98.00 was made to Carl E. Watkins, the producer of record, and the balance of the premium was to be financed by Piedmont Premium Service, Inc., and such was to be paid in monthly installments. Elizabeth Mackey assigned to Piedmont Premium Service Inc., any and all unearned premiums and dividends which may become payable under the policies financed by it. It was further provided that any money received from the insurance company should be credited to the balance due under the agreement.
The application of Elizabeth Mackey was sent to the South Carolina Automobile Assigned Risk Plan and such was assigned to the respondent for the issuance of a liability insurance policy, coverage to become effective on August 26, 1970. Following its customary procedure, the respondent, through an independent agency, obtained from the South Carolina Highway Department, an official motor vehicle report of any traffic violations by Elizabeth Mackey or Robert Mackey, her son.
It is conclusive from the application in the record, that Robert Mackey, date of birth July 10, 1954, driver's license number 4526473, was to be one of the two licensed operators of the insured motor vehicle. The official motor vehicle report received from the South Carolina Highway Department showed an offense of 'driving uninsured', on June 13, 1968, by the said Robert Mackey.
The respondent issued a liability policy to Elizabeth Mackey in accordance with the rules of the Assigned Risk Plan and billed her for an additional premium of $121.00 because of the application of an 80 per cent surcharge. Accompanying the policy was a notice that the surcharge resulted from the conviction listed on the motor vehicle report obtained from the State Highway Department. The insured was given thirty days in which to remit the additional premium. The producer of record received a copy of the policy and because of the demand for an additional premium of $121.00, contacted the insured. As a result of such conversation, the producer, on September 17, 1970, wrote the respondent the following letter:
.
The respondent, on September 28, 1970, replied to the foregoing letter as follows:
'Regarding you letter of 9/17/70:
.
After receiving this reply, the producer, on October 5, 1970, again wrote the respondent and stated:
.
The respondent, by letter dated October 16, 1970, in reply to the letter of the producer dated October 5, 1970, enclosed a copy of the motor vehicle report, contents of such are above referred to, and stating, 'If you can help us in clearing up this matter, please advise'. Upon receipt of this letter and the motor vehicle report, the producer again contacted Elizabeth Mackey and advised her that the report showed a violation against her son, and that if the surcharge was not paid, the policy would be cancelled. Elizabeth Mackey stated...
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