Nakatsu v. Encompass Indem. Co., 4748.
| Citation | 700 S.E.2d 283,390 S.C. 172 |
| Decision Date | 29 September 2010 |
| Docket Number | No. 4748.,4748. |
| Court | Court of Appeals of South Carolina |
| Parties | Meagan Y. NAKATSU, Appellant, v. ENCOMPASS INDEMNITY COMPANY, Respondent. |
390 S.C. 172
700 S.E.2d 283
Meagan Y. NAKATSU, Appellant,
v.
ENCOMPASS INDEMNITY COMPANY, Respondent.
No. 4748.
Court of Appeals of South Carolina.
Heard May 19, 2010.
Decided Sept. 29, 2010.
Rehearing Denied Oct. 29, 2010.
John Robert Peace, of Greenville, for Appellant.
Robert D. Moseley, Jr. and C. Fredric Marcinak, of Greenville, for Respondent.
KONDUROS, J.
Meagan Nakatsu had an automobile accident while she resided with her sister, Kellie Buckner. Nakatsu brought a declaratory judgment action against Encompass Indemnity
Company seeking to stack underinsured (UIM) coverage from her sister's Encompass insurance policy with her own UIM coverage from a different insurer. The trial court granted summary judgment to Encompass finding the policy excluded UIM coverage for resident relatives not operating covered vehicles. Nakatsu appeals. We reverse.
On December 16, 2007, Zunita Mattison ran a stop sign while driving and struck Nakatsu's vehicle. Mattison fled the scene in another vehicle and was apprehended at the emergency room. As a result of the collision, Nakatsu's car was totaled, and she required surgery to repair a broken wrist and ankle.
Mattison's insurance company paid Nakatsu $25,000, the limit on Mattison's policy. Nakatsu also collected $25,000 in UIM coverage from the insurance policy she maintained on her vehicle, which she was driving during the accident. At the time of the accident, Nakatsu resided with Kellie and Kellie's husband, Adam Buckner (collectively the Buckners). The Buckners insured three vehicles under a policy with Encompass; each vehicle had UIM limits of $50,000 per person and $100,000 per accident. Their policy provided:
In consideration of an additional premium, if the Coverage Summary shows an amount of “Underinsured Motorists” coverage, we will provide the coverage described by the provisions of this endorsement.
DEFINITIONS
The following words and phrases are defined for this “UNDERINSURED MOTORISTS COVERAGE” endorsement. Only in regard to the coverage provided by this endorsement, the following definitions replace any corresponding definitions in the “MOTOR VEHICLE” Segment.
1. Covered Person means:
a. You for the ownership, maintenance or use of any vehicle, except while occupying, or when struck by, a vehicle owned by you which is not insured for by this coverage under this policy;
b. Any family member:
(1) Who does not own an automobile, for the maintenance or use of any vehicle;
(2) Who owns an automobile, but only for the use of an insured motor vehicle;
Except while occupying, or when struck by, a vehicle owned by you or that person which is not insured for this coverage under this policy;
c. Any other person occupying an insured motor vehicle with your consent, except when struck by a vehicle owned by you or that person which is not insured for this coverage under this policy;
....
2. Insured Motor Vehicle means:
a. An automobile, motorcycle or motorhome shown in the Coverage Summary if the Coverage Summary indicates “Underinsured Motorists” coverage for that vehicle. This includes an automobile, motorcycle or motorhome that replaces one shown in the Coverage Summary, if you ask us to insure the automobile, motorcycle or motorhome, and we agree.
b. Additional automobiles, motorcycles or motorhomes for 30 days after you become the owner, provided all the other automobiles, motorcycles and motorhomes owned by you are either covered by us or excluded by endorsement.
For coverage beyond the 30 days, you must ask us to insure the automobile, motorcycle or motorhome, and we must agree.
c. An automobile, motorcycle, motorhome or trailer not owned by you or a family member if being temporarily used while an automobile, motorcycle or motorhome shown in the Coverage Summary is out of its normal use because
of its breakdown, repair, servicing, loss or destruction. It must not be available or furnished for the regular use of you or any family member.
d. An automobile, motorcycle, motorhome or trailer not owned by you or any family member if being operated by you. This vehicle must not be furnished for the regular use of you or any family member.
....
Nakatsu brought a declaratory judgment action against Encompass seeking to stack up to $74,999.99 in UIM coverage from the Buckners' policy, $25,000 for each of their three cars, to the $25,000 in UIM coverage from her own policy. 1 Nakatsu stipulated the policy does not allow her UIM coverage because she was operating a vehicle not insured under the policy but argued that provision was invalid. Encompass moved for summary judgment, asserting the policy did not allow UIM coverage for resident relatives not driving covered vehicles and South Carolina case law allowed such a provision. Nakatsu also moved for summary judgment, arguing because she is a Class I insured, she was entitled to stack UIM coverage and the policy's language to the contrary violates South Carolina statutory law. The trial court granted Encompass's motion, relying on Burgess v. Nationwide Mutual Insurance Co., 373 S.C. 37, 644 S.E.2d 40 (2007). This appeal followed.
The purpose of summary judgment is to expedite the disposition of cases not requiring the services of a fact finder. George v. Fabri, 345 S.C. 440, 452, 548 S.E.2d 868, 874 (2001). When reviewing the grant of a summary judgment motion, this court applies the same standard that governs the trial court under Rule 56(c), SCRCP; summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002). In determining whether a genuine issue of fact exists, the evidence and all reasonable inferences drawn from it must be viewed in the light most favorable to the nonmoving party. Sauner v. Pub. Serv. Auth. of S.C., 354 S.C. 397, 404, 581 S.E.2d 161, 165 (2003).
LAW/ANALYSIS
Nakatsu argues the trial court erred in granting Encompass summary judgment because the policy excluded stacking of UIM coverage for resident relatives not driving covered vehicles. She contends that exclusion is invalid because it is inconsistent with statutory provisions and Burgess v. Nationwide Mutual Insurance Co., 373 S.C. 37, 644 S.E.2d 40 (2007), is inapplicable to this...
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