Hartford Acc. & Indem. Co. v. South Carolina Ins. Co.
| Decision Date | 21 March 1969 |
| Docket Number | No. 18895,18895 |
| Citation | 166 S.E.2d 762,252 S.C. 428 |
| Parties | HARTFORD ACCIDENT AND INDEMNITY COMPANY, Appellant, v. The SOUTH CAROLINA INSURANCE COMPANY, Respondent. |
| Court | South Carolina Supreme Court |
J. Spratt White, Donald V. Richardson, Columbia, for appellant.
Joseph L. Nettles, Columbia, for respondent.
Hartford Accident and Indemnity Company, hereinafter referred to as Hartford, the appellant herein, instituted this action against The South Carolina Insurance Company, hereinafter referred to as Carolina, the respondent herein, to recover costs, expenses, interest and attorney fees incurred by the appellant in defense of an action against Bedford Gerald Tomberlin, an insured under liability policies issued by Hartford and Carolina. It was alleged in the complaint that Carolina had agreed to pay the limits of its liability policy and withdrew from further defense of the action and as a result of such withdrawal Hartford was forced to defend said action under adverse conditions, which resulted in a verdict in excess of the coverage of Carolina, thereby requiring the payment by Hartford of attorney fees, costs, expenses and interest to its damage in the sum of $6,000.00, for which judgment is sought in this action.
Carolina demurred to this complaint for insufficiency of facts to state a cause of action. This demurrer was sustained and Hartford appealed to this court. We reversed the order of the circuit court sustaining the demurrer and remanded the case to the lower court for trial. Hartford Accident & Indemnity Co. v. South Carolina Ins. Co., 249 S.C. 120, 153 S.E.2d 124. Following the remand of this case to the lower court, it was referred to the Master of Richland County, and, after a hearing before him, issued his report on November 22, 1967, recommending judgment in favor of Carolina. Hartford excepted to said report and such was heard by The Honorable Louis Rosen, and by his order of September 14, 1968, he overruled the exceptions to the Master's report and affirmed his recommendation that the complaint be dismissed and judgment entered for Carolina. Hartford has appealed.
Hartford, on February 28, 1962, issued and delivered to Mrs. Miriam C. Tomberlin its policy of liability insurance, in which it agreed to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury sustained by any person arising out of the ownership, maintenance or use of the automobile described in said policy or any nonowned automobile, with a limit for said bodily injury of $20,000.00 for each person. The policy further provided that Hartford would defend any suit alleging bodily injury and seeking damages which were payable under the terms of the policy, even if any of the allegations of the suit were groundess, false or fraudulent. The persons insured under the aforesaid policy, with respect to a nonowned automobile, were the named insured and any relative of the same household, provided the actual use of the nonowned automobile was with the permission of the owner. The policy further provided that, as to a nonowned automobile, the coverage provided was excess insurance over any other valid and collectible insurance.
Carolina, on February 26, 1962, issued and delivered to William John Cameron its policy of liability insurance in which it agreed to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury sustained by any person caused by accident and arising out of the ownership, maintenance or use of the insured automobile, with a limit for said bodily injury of $10,000.00 for each person or $20,000.00 for each accident. The policy further provided that Carolina would defend any suit against the insured alleging bodily injury even if such suit was groundless, false or fraudulent. In addition to the named insured, the policy provided coverage, as an additional insured, any person driving the automobile described in the policy with permission of the named insured.
It is agreed that while both liability policies were in full force and effect that, on May 20, 1962, Bedford Gerald Tomberlin, son of the named insured in the Hartford policy, was driving a Ford automobile owned by William John Cameron, with the permission of Cameron, and said automobile was involved in a collision with an automobile driven by Thelma Byrum in which Sheila Byrum was a passenger, both of whom sustained bodily injuries.
It thus appears that at the time of the collision that the automobile being driven by Tomberlin was a nonowned one and the coverage provided by the Hartford policy was 'excess' to that provided by Carolina. Each of the policies contained a provision obligating the insurer to defend any action against the insured upon a claim within the coverage of the indemnifying provision of the policy.
Several suits were filed against Bedford Gerald Tomberlin as a result of the collision he had with the automobile driven by Thelma Byrum. One action was brought against Tomberlin on behalf of Sheila Byrum seeking damages in the amount of $40,000.00 for the injuries she sustained. Thelma Byrum brought an action against Tomberlin seeking $10,000.00 damages for her injuries. Otis Byrum, the husband of Thelma Byrum, and the father of Sheila Byrum, brought two actions, one in which he sought $5,000.00 in damages on account of injuries to his wife and the other seeking $10,000.00 damages on account of injuries to his daughter, Sheila Byrum. Hartford and Carolina were notified of the institution of these actions. Carolina retained counsel to defend Tomberlin and Hartford took no action. Investigation of the collision revealed a clear case of liability on the part of Tomberlin and it necessarily followed that the actions should be settled if a reasonable compromise could be obtained. The attorney for Carolina undertook such negotiations and was able to and did settle, within its policy limits, all claims other than that...
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