Hite v. Hartford Acc. and Indem. Co.

• Decision Date: 27 March 1986
• Docket Number: No. 0700,0700
• Court: South Carolina Court of Appeals
• Parties: Lester HITE, Appellant, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Respondent. . Heard

Page 173

344 S.E.2d 173

288 S.C. 616

Lester HITE, Appellant, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Respondent.

No. 0700.

Court of Appeals of South Carolina.

Heard March 27, 1986.

Decided May 12, 1986.

[288 S.C. 617] Richard J. Breibart, Lexington, for appellant.

R. Davis Howser and W. Hugh McAngus, Richardson, and Plowden, Grier & Howser, Columbia, for respondent.

SHAW, Judge:

Appellant Lester Hite initiated this action against respondent Hartford Accident and Indemnity Company seeking Eight Thousand ($8,000.00) Dollars in damages for Hartford's alleged breach of contract. Hite now appeals the trial court's directed verdict for Hartford. We affirm.

Because this court considers Judge Bristow's order a clear and thorough analysis of the issue on appeal, we adopt and publish his order, as modified and supplemented, as the view of this court. The modifications and supplements are reflected by either ellipses or bracketed material.

ORDER OF JUDGE BRISTOW

.... The threshold question to be determined in this action seeking third party benefits under a contract of insurance is should [Hite] be construed as an "insured" under S.C. Code Sec. 56-9-810(2) (1976), the uninsured motorist law.

The parties have stipulated to the following facts. On March 27, 1981, [Hite] was an employee of Jim Rawls Ford Mercury, Inc. The employer gave permission and provided automobiles for [Hite's] use. The automobiles were insured by [Hartford], who provided for uninsured motorists' protection as required by South Carolina law. On March 27, 1981, [Hite] was struck by an automobile driven by William Martin. At that time [Hite] was not in, on, or touching a vehicle insured by [Hartford]. [Hartford] was served with notice of the lawsuit on May 3, 1982, and elected not to take part in it as long as the suit was defended by National Grange Mutual Insurance Company, insurer of the automobile driven by Martin. National Grange contended that it did not provide coverage on Martin as he did not have permission to operate the automobile. The insurance policy issued by [Hartford] would provide uninsured motorist coverage to [Hite] if (1) Martin was operating an uninsured vehicle, and (2) [Hite] was occupying or using a covered automobile, and (3) [Hite] met and complied with all of the policy provisions, and (4) [Hite] did not violate any of the policy provisions. [Hite] was awarded a jury verdict against Martin of Fifteen Thousand ($15,000.00) Dollars on March 15, 1983.

[Hartford] was contacted by [Hite] as to the result of the trial and [Hartford], aware that National Grange alleged that Martin was not a permissive user, refused to pay the verdict on various grounds. [Hite] was cognizant of testimony that Martin lacked express permission to operate the car and ... released all claims against National Grange, William Martin, Ruth Holloway, or Cleveland Cyrus for Seven Thousand ($7,000.00) Dollars.

Several facts presented at trial are crucial to a determination of the threshold question in this case. [Hite] testified that on the evening of his injury he drove back from supper to the car dealership in an automobile provided by his employer. Leaving the car running, [Hite] got out of the car, approached the dealership on foot, and heard the night watchman yell to him that someone (Martin) had backed into a new truck. [Hite] walked fifty feet across the parking lot to tell Martin, who was sitting in a car, not to leave. Martin then accelerated the vehicle, and [Hite's] legs were run over by the left rear tire.

In determining whether [Hite] is covered under [Hartford's] policy, we must look first to the uninsured motorist law. S.C.Code Sec. 56-9-810(2) (1976) defines two classes of "insured." The first is a "named insured and, while resident of the same household, the spouse of any such named insured and relatives of either, while in a motor vehicle or otherwise...." The parties have stipulated that [Hite] is not a named insured under [Hartford's] policy, nor is he a spouse or a relative or a resident of the household of any individual named in the policy. The second class of "insured" is "any person who uses with the consent, expressed or implied, of the named insured, the motor vehicle to which the policy applies and a guest in such motor vehicle to which the policy applies or the personal representative of any of the above." [Emphasis added.] In Davidson v. Eastern Fire & Casualty Co. Ins. Co., 245 SC 472, 141 SE2d 135 (1965), the Supreme Court analyzed Sec. 56-9-810(2) by stating, "The members of the first class are covered 'while in a motor vehicle or otherwise,' i.e., at all times. The members of the second, viz.: the permissive user and the guest, are covered while using, or a guest in, the motor vehicle to which the policy applies ..." It is clear that [Hite], claiming uninsured motorist benefits from a vehicle of which he was a permissive user, must prove that he sustained his injuries while "using" the motor vehicle.

... It has been held that the "use" of an automobile involves its employment for some purpose of the user, while its "operation" involves the user's direction and control of its mechanism as its driver for the purpose of propelling it as a vehicle. Metcalf v. Hartford Acc. & Indem. Co., 176 Neb 468, 126 NW2d 471, 474 (1964). One who operates a motor vehicle obviously uses it, but one can use a motor vehicle without operating it; an automobile is being used, for example, by one riding in it, although another is driving or operating it. Orrill v. Garrett, 100 IllApp2d 194, 241 NE2d 1, 3 (1968).

Although "use" is unquestionably a broader term than "operate" or "drive," the difficult determination is whether this situation of an injury sustained remote to the actual operation of the vehicle is encompassed by the term "use."

[Hite] cites the case of [ Federated Mutual Implement & Hardware Ins. Co. v. Gupton, 357 F2d 155 (4th Cir.1966),] as an interpretation of the word "use" broad enough to encompass [his] actions.... The insured vehicle in Federated was being used at the time of the accident by being unloaded, and the vehicle was involved in the actual injury. Neither of these facts is present in the instant case.

In Wrenn & Outlaw, Inc. v. Employees Liability Assurance Corp., 246 SC 97, 142 SE2d 741 (1965), the Supreme Court held that where a bag boy at a supermarket placed groceries in the customer's automobile and closed the car door on the customer's hand, this was a "use" of the automobile with the customer's permission. As in Federated, the vehicle was being used in loading and was involved in the actual injury.... Our Supreme Court emphasized in Wrenn that the loading and injury constituted one continuous operation without interruption, highlighting the importance of the loading activity to the finding of a use. No loading took place in the instant case.

In Coletrain v. Coletrain, 238 SC 555, 121 SE2d 89 (1961), the court held that a husband...