McNeely v. South Carolina Farm Bureau Mut. Ins. Co., 19457
| Decision Date | 18 July 1972 |
| Docket Number | No. 19457,19457 |
| Citation | 190 S.E.2d 499,259 S.C. 39 |
| Court | South Carolina Supreme Court |
| Parties | Steve McNEELY, Appellant, v. SOUTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Respondent. |
Melvin L. Roberts and Levy S. Alford, York, for appellant.
Forrest C. Wilkerson, Rock Hill, for respondent.
We are of the opinion that the order of the Honorable J. B. Ness in the court below properly sets forth and disposes of all the issues submitted to this Court on appeal. The estoppel issue argued by appellant in his brief was not made by the pleadings nor raised in the exceptions. Accordingly that issue is not before this Court.
The order of Judge Ness (with deletions of matters unnecessary to proper disposition of the case) shall be printed as the directive of this Court.
This is an action to recover for a total loss under a policy of fire and windstorm insurance. The case was called for trial before me and a jury at the fall term of the Court of Common Pleas of York County, at which time it was agreed between the attorneys for the parties that the jury would decide solely the question of whether or not the property was a total loss, and that the Court would decide as a matter of law the issue as to the amount of liability under Section 37--154 of the 1962 Code of Laws of this State.
The jury rendered a verdict finding that the property was a total loss, hence the sole issue to be decided concerns the claimed right of the insurer to replace the property destroyed rather than paying the full amount of the policy.
The defendant, Farm Bureau Mutual Insurance Company, issued to the plaintiff, Steve McNeely, a policy of insurance under which a mobile home owned by the plaintiff was insured against loss by fire in the amount of Six Thousand ($6,000.00) Dollars. The policy also insured the mobile home against loss by windstorm. The mobile home was totally destroyed by windstorm while the policy was in full force and effect. Upon the filing of proof of loss, the defendant notified the plaintiff that it elected to replace the building destroyed with another of like kind and quality instead of paying the amount of insurance, relying upon the following policy provisions:
'It shall be optional with this Company to take all, or any part, of the property at the agreed or appraised value, and also to repair, rebuild or replace the property destroyed or damaged with other of like kind and quality within a reasonable time on giving notice of its intention so to do within thirty days after the receipt of the proof of loss herein required.'
The plaintiff refused to accept this and took the position that the policy provisions, construed in connection with the applicable statutes, required the defendant to pay the face amount of the insurance. The parties were unable to agree upon an adjustment of the loss, and this action was brought to recover the sum of Six Thousand ($6,000.00) Dollars, the face amount of the policy.
As heretofore stated the sole question before this Court involves the claimed right of the insurer to replace the property destroyed rather than pay the full amount of the policy.
The plaintiff relies upon Section 37--154 of the 1962 Code of Laws. This section provides, in part, as follows:
* * *'
As stated in the case of Tedder v. Hartford Fire Insurance Company, 246 S.C. 163, 166, 143 S.E.2d 122, 123:
'Under settled principles, this statute forms a part of every fire insurance policy issued in this State and any policy provisions in conflict with the statute are null and void.'
This section plainly says that 'in case of total loss by fire the insured shall be entitled to recover the full amount of insurance' provided by the policy. It is agreed that the amount of insurance was Six Thousand ($6,000.00) Dollars and that the property insured...
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...Generally, claims or defenses not presented in the pleadings will not be considered on appeal. McNeely v. S.C. Farm Bureau Mut. Ins. Co., 259 S.C. 39, 41, 190 S.E.2d 499, 499 (1972). On appeal, RIM insists that a res judicata defense is not available to Blackwell because Blackwell did not r......
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