Gunnels v. American Liberty Ins. Co.
| Decision Date | 04 June 1968 |
| Docket Number | No. 18798,18798 |
| Citation | 251 S.C. 242,161 S.E.2d 822 |
| Court | South Carolina Supreme Court |
| Parties | Frampton GUNNELS, Respondent, v. AMERICAN LIBERTY INSURANCE COMPANY, Appellant. |
Fulmer, Barnes, Berry & Austin, Columbia, for appellant.
Blatt, Fales & Peeples, Barnwell, for respondent.
In this action, arising under the South Carolina Uninsured Motorist Law, the plaintiff Gunnels seeks to recover from his liability insurer, American Liberty Insurance Company (hereinafter referred to simply as American), to the extent of his uninsured motorist coverage, a judgment obtained by Gunnels against one Hewitt in the State of North Carolina. Appeal is from an order of the circuit court overruling a demurrer to plaintiff's complaint.
The facts necessary to an understanding of the single issue are as follows. A collision between vehicles of Gunnels and Hewitt occurred in North Carolina in February 1965, and American was notified. Hewitt had liability coverage with Republic Casualty Company. Gunnels brought action against Hewitt, but Hewitt being then an insured Motorist, copies of the pleadings were not served upon American. Hewitt counterclaimed and American participated in the trial of the case in defense of such counterclaim, Hewitt being represented by counsel retained by Republic. Shortly after a verdict and judgment in favor of gunnels, Hewitt became an uninsured motorist by virtue of Republic becoming insolvent, and involved in delinquency proceedings, suspension and receivership. Sec. 46--750.31, 1967 Code Supplement. Payment of Gunnels' judgment, to the extent of his uninsured motorist coverage, was then demanded of American who refused payment, and this action followed.
American demurred to the complaint on the ground that it was not served with a copy of the summons and complaint in the tort action against Hewitt in accordance with Code Section 46--750.33, 1967 Code Supplement, which, in part, reads as follows:
'* * * No action shall be brought under the uninsured motorist provision unless copies of the pleadings in the action establishing such liability are served in the manner provided by law upon the insurance carrier writing such uninsured motorist provision. * * *'
American contends that literal compliance with the cited Code provision is a condition precedent to any liability on its part under the uninsured motorist endorsement issued by it to Gunnels in compliance with the statute; that the language of the statute is mandatory, clear and unambiguous and not open to construction by the court.
The question raised by American is apparently one of novel impression and no case directly in point has been cited by counsel or come to our attention through independent research. A case somewhat, but not precisely, in point is the decision of the Supreme Court of Virginia in the case of McDaniel v. State Farm Mutual, 205 Va. 815, 139 S.E.2d 806. That decision is persuasive not only because of its logic, but because the South Carolina Uninsured Motorist Act is modeled after the Virginia Act. Laird v. Nationwide Ins. Co., 243 S.C. 388, 134 S.E.2d 206. The section of the Virginia Act requiring service of process in the tort action upon plaintiff's liability carrier is quite similar to our Code Section. In the McDaniel case, plaintiff's insurer was not served with process at the commencement of the tort action, the defendant being at the time, as here, an insured motorist. The defendant in the tort action, however, forfeited his coverage for lack of co-operation with his insurer prior to the trial of the tort action, and plaintiff's insurer was notfied of such fact by letter and the service of a motion for judgment in the tort action. It was held that plaintiff's failure to serve his insurer with process at the commencement of the action did not forfeit his uninsured motorist coverage. The court said:
'The uninsured motorist legislation is remedial in...
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