Ohio Cas. Ins. Co. v. Hill

Decision Date19 December 1996
Docket NumberNo. 2528,2528
Citation323 S.C. 208,473 S.E.2d 843
CourtSouth Carolina Court of Appeals
PartiesOHIO CASUALTY INSURANCE COMPANY, Appellant, v. Clifford and Mary HILL, Respondents.

T. David Rheney, of Clarkson, Fortson & Walsh, Greenville, for appellant.

J. Stephen Welch, of Welch & Crain, Greenwood, for respondents.

GOOLSBY, Judge:

Ohio Casualty Insurance Company (Ohio) brought this declaratory judgment action to determine whether Clifford and Mary Hill were entitled to additional underinsured motorist benefits for injuries Clifford Hill sustained in a motorcycle accident. The trial court granted summary judgment to the Hills and ordered Ohio to pay the disputed amount. We reverse. 1

The accident occurred when Hill, while operating his motorcycle, was struck by a vehicle driven by Leo Owens. Owens's vehicle was covered by a liability insurance policy issued by Superior Insurance Company. Superior assumed liability for the accident and paid the Hills the policy limit of $100,000.

The parties stipulated Hill's damages from the accident exceeded $100,000. The parties further stipulated Owens was operating an underinsured automobile as that term is defined in S.C.Code Ann. § 38-77-10(14) (1989). On the day of the accident, Hill's motorcycle was covered under a policy of liability insurance issued by Alpha Property and Casualty Insurance Company (Alpha). The parties stipulated Alpha had made Hill a valid offer of underinsured motorist coverage (UIM) at the time the policy was issued and Hill expressly rejected the offer.

The Hills also owned two automobiles insured under a policy issued by Ohio. The policy provided UIM coverage with limits of $25,000/$50,000 on each vehicle. In exchange for a partial release, Ohio paid the Hills $25,000 pursuant to the UIM provisions of the policy. Ohio then brought a declaratory judgment action to determine whether the Hills could stack an additional $25,000 in UIM coverage under the Ohio policy. In response, the Hills later filed a motion for summary judgment, which the trial court granted.

Ohio argues the trial court erred in allowing the Hills to stack their UIM coverage. S.C.Code Ann. § 38-77-160 (Supp.1995) provides in part:

Automobile insurance carriers shall offer ... at the option of the insured, underinsured motorist coverage up to the limits of the insured liability coverage to provide coverage in the event that damages are sustained in excess of the liability limits carried by an at-fault insured or underinsured motorist or in excess of any damages cap or limitation imposed by statute. If, however, an insured or named insured is protected by uninsured or underinsured motorist coverage in excess of the basic limits, the policy shall provide that the insured or named insured is protected only to the extent of the coverage he has on the vehicle involved in the accident. If none of the insured's or named insured's vehicles is involved in the accident, coverage is available only to the extent of coverage on any one of the vehicles with the excess or underinsured coverage.

(Emphasis added).

The critical question in determining whether an insured has the right to stack is whether he is a Class I or Class II insured. American Sec. Ins. Co. v. Howard, 315 S.C. 47, 431 S.E.2d 604 (Ct.App.1993). A Class I insured is an insured or named insured who has a vehicle involved in the accident. South Carolina Farm Bureau Mut. Ins. Co. v. Mooneyham, 304 S.C. 442, 405 S.E.2d 396 (1991). An insured is a Class II insured if none of his vehicles are involved in the accident. Fireman's Ins. Co. v. State Farm Mut. Auto. Ins. Co., 295 S.C. 538, 370 S.E.2d 85 (1988). Only a Class I insured may stack. Id. at 545, 370 S.E.2d at 370.

Ohio argues that a Class I insured can stack UIM coverage only to the extent of the UIM insurance on the vehicle involved in an accident; therefore, Hill, even if he is a Class I insured, cannot stack UIM insurance from his Ohio policies because he did not carry UIM insurance on the vehicle involved in the accident. We agree. 2

Our supreme court has held in two recent cases that a Class I insured may not stack an amount greater...

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    ...a Class I insured. Fireman's Ins. Co. v. State Farm Mut. Auto. Ins. Co., 295 S.C. 538, 370 S.E.2d 85 (1988); Ohio Cas. Ins. Co. v. Hill, 323 S.C. 208, 473 S.E.2d 843 (Ct.App.1996). As Mickle is not the "named insured" in the policy, the question is whether she is a spouse or relative of the......
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