Park v. Safeco Ins. Co. of America, 18820
| Decision Date | 14 August 1968 |
| Docket Number | No. 18820,18820 |
| Citation | 162 S.E.2d 709,251 S.C. 410 |
| Court | South Carolina Supreme Court |
| Parties | H. C. PARK, Appellant, v. SAFECO INSURANCE COMPANY OF AMERICA and Southern Home Insurance Company, ofwhom Safeco Insurance Company is, Respondent. |
Odom, Nolen & Foster, James J. Raman, Spartanburg, for appellant.
Means, Evins, Browne & Hamilton, Spartanburg, for respondent.
Plaintiff's complaint (to which defendant Safeco Insurance Company of America demurs) alleges that he sustained injuries entitling him to damages, growing out of a collision between his Buick automobile and a Ford car driven by Boyce Richard McCall, who is not a party to this declaratory judgment action.
It further alleges that Southern Home Insurance Company issued to him a liability insurance policy on his Buick, with an uninsured motorist endorsement (as required by Section 46--750.33).
The complaint says that McCall, at the time and place of the collision, was insured under an automobile liability insurance policy issued by the defendant Safeco Insurance Company of America but that Safeco denies any policy issued by it affords McCall coverage. The policy was not issued in the name of McCall, but since for the purpose of a demurrer we treat the complaint as true, we shall refer to McCall as the insured.
The complaint continues by asserting that if Safeco's denial of coverage is successful, then McCall is an uninsured motorist, and in that event plaintiff would be entitled to the benefits of the uninsured motorist endoresement in his own policy written by Southern.
The complaint does not allege that Safeco has actually Successfully denied coverage. It requests an order of the court (1) decreeing Whether Safeco has successfully denied liability coverage to McCall, (2) declaring the rights of the parties to this action, and (3) declaring that plaintiff is entitled to uninsured motorist benefits if it be found that Safeco has successfully denied coverage.
To this complaint Safeco demurs, submitting that the complaint should be dismissed as to it because it appears on the face of the complaint: (1) that plaintiff is not a party to Safeco's contract of insurance alleged to protect McCall and the Ford involved in the collision, and has no rights thereunder until and unless he first establishes liability and obtains a judgment binding McCall or one protected by Safeco; and, (2) that there is no allegation that plaintiff has procured such judgment and that he is therefore a stranger to the contract without standing in court.
The lower court sustained the demurrer and dismissed the complaint as to Safeco. Plaintiff has appealed, submitting one issue for determination by this court: Did the lower court err in refusing to adjudicate the rights of plaintiff and Safeco?
Appellant phrases the question as follows in his brief:
'Does a person injured in an automobile collision have a standing to institute a declaratory judgment action to determine whether the tort-feasor's autombile liability insurer 'has successfully denied' coverage within the meaning of § 46--750.31 et seq. of the 1967 Cumulative Supplement to the 1962 South Carolina Code of Laws thereby making the uninsured motorist coverage of the Defendant, Southern Home Insurance Company, available to the Plaintiff?'
A part of the Motor Vehicle Safety Responsibility Act (as amended) provides that an automobile liability insurance policy, such as alleged to have been issued by Southern to the plaintiff, must contain provisions that insured persons who suffer injuries may collect a judgment from their own liability insurance carrier, when the injuries are caused by an uninsured motor vehicle. An uninsured motor vehicle is defined (in part) as 'a motor vehicle as to which * * * (b) there is nominally such insurance, but the insurance carrier writing the same successfully denies coverage thereunder, * * *.' Section 46--750.31.
Plaintiff's alleged right to sue is at this time primarily and basically against McCall. He has no right to call upon McCall for payment of damages until he establishes liability, and accordingly, he has no right to call upon any insurance company alleged to protect McCall, nor to call upon his own insurance carrier under the uninsured motorist endorsement of his own policy until such liability is fixed. Stated another way, no right to recover can accrue to plaintiff against either insurance company until and unless McCall...
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