Noisette v. Ismail

• Citation: 304 S.C. 56,403 S.E.2d 122
• Decision Date: 04 October 1990
• Docket Number: No. 23373,23373
• Court: United States State Supreme Court of South Carolina
• Parties: Lurline NOISETTE, Respondent, v. Bassem ISMAIL, B.G. Owens d/b/a Auto Refurbishing, Penn National Insurance Company, Aetna Casualty and Surety Company and Allstate Insurance Company, Defendants, of whom Penn National Insurance Company is, Petitioner, and B.G. Owens d/b/a Auto Refurbishing is, Respondent. . Heard

Page 122

403 S.E.2d 122

304 S.C. 56

Lurline NOISETTE, Respondent, v. Bassem ISMAIL, B.G. Owens d/b/a Auto Refurbishing, Penn

National Insurance Company, Aetna Casualty and

Surety Company and Allstate Insurance

Company, Defendants,

of whom Penn National Insurance Company is, Petitioner,

and B.G. Owens d/b/a Auto Refurbishing is, Respondent.

No. 23373.

Supreme Court of South Carolina.

Heard Oct. 4, 1990.

Decided April 1, 1991.

Rehearing Denied May 1, 1991.

Stephen E. Darling and Bert G. Utsey, III, Sinkler & Boyd, P.A., Charleston, for petitioner.

Peggy Chandler, Belk, Cobb & Chandler, Charleston, for respondent B.G. Owens d/b/a Auto Refurbishing.

Arnold S. Goodstein and Mary A. Marwick, Goodstein & Goodstein, Summerville, for respondent Lurline Noisette.

Jon Austin, Wise & Cole, P.A., Charleston, for defendant Aetna Cas. and Sur. Co.

David M. Collins, Buist, Moore, Smythe & McGee, Charleston, for defendant Allstate Ins. Co.

FINNEY, Justice:

Petitioner Penn National Insurance Company (Penn National) appeals from the Court of Appeals' opinion which affirmed in part, vacated in part, reversed in part and remanded this declaratory judgment action to the circuit court. Noisette v. Ismail, 299 S.C. 243, 384 S.E.2d 310 (Ct.App.1989). We reverse that portion of the Court of Appeals' ruling which vacated the trial court's judgment that Penn National is liable for damages recovered by Respondent Lurline Noisette (Noisette) and remanded to the trial court for further consideration the issue of whether Defendant Bassem Ismail (Ismail) was a permissive user. The holding of the trial court on this sole issue is reinstated.

This action arose when Noisette sustained injuries and damages from an automobile accident on February 14, 1982, involving a vehicle driven by Ismail and owned by Defendant B.G. Owens d/b/a Auto Refurbishing (Owens). Noisette filed suit on February 15, 1983, and obtained a $60,000 judgment against Ismail. On December 11, 1984, Noisette brought a declaratory judgment action on the question of whether the vehicle driven by Ismail was covered under liability insurance provided by Penn National and Defendant Allstate Insurance Company (Allstate) at the time of the accident.

The trial court determined (1) that Penn National provided garage liability insurance with a $100,000 limit to Owens on February 14, 1982; (2) that Ismail was an insured; and (3) that Penn National was obligated to satisfy Noisette's judgment against Ismail.

On appeal the Court of Appeals, inter alia, vacated the trial court's judgment that Penn National was liable for damages recovered by Noisette against Ismail and remanded for the trial court to make specific findings of fact regarding whether Ismail was a permissive user of Owens' automobile at the time of the accident.

The sole issue on appeal to this Court is whether the Court of Appeals erred in remanding to the trial court the issue of whether Ismail was a permissive user.

Before the Court of Appeals, Penn National argued that Noisette failed to prove that Ismail was a permissive user of Owens' automobile at the time of the accident. Conversely, Noisette contended that she did, in fact, prove that Ismail was a permissive user. The Court of Appeals determined that a remand of the permissive user question was necessary because the trial court made no findings of fact on the issue.

Under South Carolina Rule of Civil Procedure 52(a), "[i]n all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts...