Jordan v. Aetna Cas. & Sur. Co., 20010

• Decision Date: 12 May 1975
• Docket Number: No. 20010,20010
• Citation: 214 S.E.2d 818,264 S.C. 294
• Court: South Carolina Supreme Court
• Parties: Andrew J. JORDAN, Jr., Appellant, v. AETNA CASUALTY & SURETY COMPANY, Respondent.

Page 818

214 S.E.2d 818

264 S.C. 294

Andrew J. JORDAN, Jr., Appellant, v. AETNA CASUALTY & SURETY COMPANY, Respondent.

No. 20010.

Supreme Court of South Carolina.

May 12, 1975.

Joseph R. Young, Young, Clement & Rivers, Charleston, for appellant.

Joseph W. Cabaniss, Grimball & Cabaniss, Charleston, for respondent.

LITTLEJOHN, Justice:

The lower court ruled that the defendant, Aetna Casualty and Surety Company was not liable to pay its named insured for her injuries, growing out of an automobile collision, because of an exclusion in its policy. The plaintiff, Andrew J. Jordan, Jr., has appealed.

Peggy Hall, the named insured, procured a policy of liability insurance from Aetna. It was issued pursuant to the provisions of our Motor Vehicle Financial Responsibility Act, § 46--701 et seq., Code of Laws of South Carolina (Cum.Supp.1974). While the named insured was riding as a passenger in her own automobile, which was being driven by Jordan (appellant) with her permission, the vehicle collided with another automobile being driven by Jonathan Samuel, Jr. The named insured brought an action against both Samuel and Jordan. Samuel was an uninsured motorist; Jordan had liability insurance coverage of his own with Lumbermen's Mutual Casualty Company.

Aetna defended Samuel under the provisions of the uninsured motorist coverage of its policy issued to the named insured, Hall, but refused to defend on behalf of Jordan, the permissive driver, because of an exclusion in the policy which undertook to exclude coverage for bodily injury to the named insured. Jordan's own insurance carrier, Lumbermen's settled with Hall, and Aetna settled the uninsured motorist claim against Samuel.

This action was brought in the name of Jordan for the benefit of Lumbermen's to recover the amount paid to Hall in the settlement.

The lower court found that Aetna was not liable to pay Hall, its named insured, by reason of an exclusion in its policy. In this appeal Jordan submits that the holding of the lower court contravenes Code §§ 46--750.31 and 46--750.32. We agree.

In its policy Aetna undertakes to relieve itself of liability for injuries sustained by the named insured, Hall, by including in the policy a provision which reads as follows:

'This policy does not apply:

'(j) To bodily injury to (1) any person, if such person is related by blood, marriage or adoption to and is a resident of the same household as (i) the Insured or (ii) the person for whose use of the automobile or trailer the Insured is legally responsible, or (2) The named Insured;' (emphasis added)

Exclusions almost identical to this one have been upheld in other jurisdictions. In those jurisdictions such exclusions were held to be valid and binding unless there was a statutory provision prohibiting the exclusion. For an interesting discussion of the reasoning used to justify exclusions of this nature see the annotation in 46 A.L.R.3d 1061.

While parties are generally permitted to contract as they desire, freedom to contract is not absolute and coverage required by law may not be omitted. In Boyd v....