Peagler v. Usaa Ins. Co., No. 26128.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtBurnett
Citation628 S.E.2d 475
Decision Date20 March 2006
Docket NumberNo. 26128.
PartiesDavid PEAGLER, as personal representative of the Estate of Kathy Marie Thompson, Plaintiff-Appellee, v. USAA INSURANCE COMPANY, Defendant-Appellant.

Page 475

628 S.E.2d 475
David PEAGLER, as personal representative of the Estate of Kathy Marie Thompson, Plaintiff-Appellee,
v.
USAA INSURANCE COMPANY, Defendant-Appellant.
No. 26128.
Supreme Court of South Carolina.
Heard November 2, 2005.
Decided March 20, 2006.

Page 476

William O. Sweeny, III, and William R. Calhoun, Jr., both of Sweeny, Wingate & Barrow, P.A., of Columbia, for Defendant-Appellant.

J. Calhoun Land, IV, of Land, Parker & Welch, P.A., of Manning, for Plaintiff-Appellee.

Timothy A. Domin and Michael B. McCall, II, both of Clawson & Staubes, LLC, of Charleston, for State Farm Insurance Companies, Amicus Curiae.

CERTIFIED QUESTION ANSWERED

Justice BURNETT.


We accepted this certified question regarding coverage for an accidental weapon discharge under an automobile insurance policy pursuant to Rule 228, SCACR.

FACTUAL AND PROCEDURAL BACKGROUND

David Peagler (Plaintiff), as personal representative of the Estate of Kathy M. Thompson (Decedent), filed a declaratory judgment action against USAA Insurance Co. (Insurer), seeking a declaration that an automobile insurance policy provided coverage for the accident which occurred in this case. Insurer removed the case from state court to federal district court. From the decision of the district court, Plaintiff effected an appeal to the United States Court of Appeals for the Fourth Circuit. The facts, as stipulated by the parties, are drawn from the Court of Appeal's certification order.

Decedent was fatally injured on August 31, 2001, when her husband, Gregory A. Thompson (Thompson), was unloading two shotguns from the pickup truck Decedent was occupying. On that morning, Decedent and the couple's two sons, ages nine and fourteen, were preparing to depart from home to go to work and school. The automobile customarily driven by Decedent failed to start. Decedent and the boys planned to take Thompson's vehicle, a Ford F-150 4×4 super cab pickup truck.

Decedent entered the pickup truck, closed the door, started the engine, and wrapped the seatbelt around her. The older son got in the front passenger seat, closed the door, and fastened his seatbelt. When the younger son opened the rear driver-side door to enter the truck, he saw two cased shotguns lying on the rear seat, with the barrels facing toward him. Decedent instructed him to go in the house and ask Thompson to come remove the shotguns.

Thompson opened the rear passenger-side door to enter the cab area. He lifted the shotguns off the rear seat and placed the barrel of the guns pointing toward the floor, with the butt ends pointing toward the truck's rear window. Thompson then helped his younger son load his bookbag and buckle his seatbelt. As Thompson picked up the shotguns and began to exit the vehicle, one of the shotguns discharged, striking Decedent. She died within seconds as a result of wounds received from the accidental discharge of the shotgun.

On the day before the accident, Thompson and the older son had placed the two shotguns into the truck and traveled to a hunting area to scout deer and practice shooting in preparation for the upcoming hunting season. Thompson and the older son returned the shotguns back to their cases and placed them on the rear seat to return home. The guns remained there during a ride of about forty miles over dirt and paved roads. Both shotguns were believed to be unloaded, however, one of them was not and that gun's safety was not engaged.

The parties further stipulate that the fact the truck's engine was running did not cause or contribute to the discharge of the shotgun; that Insurer did not specifically know Thompson was a hunter, but understood and foresaw that pickup trucks are frequently used in hunting; that the terms "transportation," "operation," and "use of vehicle" are not defined in the insurance policy; and that the term "occupying" is defined in the policy as "in, on, getting into or out of."

Page 477

After entering into a stipulation of facts, both parties filed motions for summary judgment on whether the policy provided coverage under the facts of this case. The federal district court granted Plaintiff's motion, finding that coverage existed, and denied Insurer's motion. Peagler v. USAA Ins. Co., 325 F.Supp.2d 620 (D.S.C.2004). Insurer appealed to the Fourth Circuit, which has certified the following question to this Court:

Did Decedent's fatal injury arise out of the "ownership, maintenance, or use" of a motor vehicle pursuant to S.C.Code Ann. § 38-77-140 (2002), such that the vehicle's insurance policy provides coverage for the accidental discharge of a shotgun which occurred during the unloading of firearms from a stationary, occupied vehicle which had been used for hunting purposes the previous day?1

STANDARD OF REVIEW

In answering a certified question raising a novel question of law, the Court is free to decide the question based on its assessment of which answer and reasoning would best comport with the law and public policies of this state and the Court's sense of law, justice, and right. See I`On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 411, 526 S.E.2d 716, 719 (2000) (citing S.C. Const. art. V, §§ 5 and 9, S.C.Code Ann. § 14-3-320 and -330 (1976 & Supp.2004), and S.C.Code Ann § 14-8-200 (Supp.2004)); Osprey, Inc. v. Cabana Ltd. Partnership, 340 S.C. 367, 372, 532 S.E.2d 269, 272 (2000) (same); Clark v. Cantrell, 339 S.C. 369, 378, 529 S.E.2d 528, 533 (2000) (same); Antley v. New York Life Ins. Co., 139 S.C. 23, 30, 137 S.E. 199, 201 (1927) ("In [a] state of conflict between the decisions, it is up to the court to `choose ye this day whom ye will serve'; and, in the duty of this decision, the court has the right to determine which doctrine best appeals to its sense of law, justice, and right.").

LAW AND ANALYSIS

Insurer argues no coverage exists in this case because its policy does not define "loading and unloading" to be within the definition of "use" of the insured vehicle. Insurer contends it would constitute an erroneous and improper "rewriting" of the liability policy to include loading and unloading as covered uses. Insurer further argues that coverage does not exist under the analysis previously set forth by this Court in State Farm Fire & Cas. Co. v. Aytes, 332 S.C. 30, 503 S.E.2d 744 (1998).

Plaintiff contends that coverage exists in this case based on South Carolina and foreign authority which demonstrate that the loading and unloading of an insured vehicle are covered "uses" under the circumstances of this case, and further asserts that coverage properly exists under the Aytes analysis.

As an initial matter, we may easily resolve one argument raised by the parties. Insurer asserts that because "use" is not defined in the insurance policy, this Court would have to "rewrite" the policy in order to conclude that the loading and unloading of vehicles is a covered use.

Plaintiff argues this Court's precedent teaches that loading and unloading are covered uses when a vehicle is being used in a normal, foreseeable manner. Thus, coverage exists because Thompson was unloading shotguns from a pickup truck used in hunting activities, an expected and foreseeable use of such a vehicle. Plaintiff relies on Home Indemnity Co. v. Harleysville Mut. Ins. Co., 252 S.C. 452, 166 S.E.2d 819 (1969) (policy which provided that "use of an automobile includes the loading and unloading thereof" included coverage, under the "complete operation doctrine," for injury to person struck by truck being moved for purposes of weighing and unloading it); Wrenn & Outlaw, Inc. v. Employers' Liability Assurance Corp., 246 S.C. 97, 142 S.E.2d 741 (1965) (policy which provided that "use of an automobile includes the loading and unloading thereof" included coverage for injury to customer whose hand was injured when bagboy slammed customer's car door on it; loading of groceries, which required opening the door, was normal and expected use of the car); and Coletrain v. Coletrain, 238 S.C. 555, 121 S.E.2d 89 (1961) (policy which provided that use of an automobile for the purposes stated includes

Page 478

the loading and unloading included coverage for injury to wife whose hand was injured when husband slammed taxicab door on it).2

We reject both parties' reasoning and conclude the present case does not raise an issue of policy revision or interpretation. Unlike the South Carolina cases cited by Plaintiff, the policy in this case is silent on the issue; it simply says nothing about whether loading or unloading a vehicle is a covered use. Therefore, the issue must be resolved based on statutes which mandate coverage for damages arising out of the "ownership, use, or maintenance" of a motor vehicle, and cases arising under those statutes which establish a method of resolving the issue. Cf. Hogan v. Home Ins. Co., 260 S.C. 157, 194 S.E.2d 890 (1973) (statute controls when provision in automobile policy excluding coverage conflicts with statute).

Turning to the statute-based question, South Carolina Code Ann. 38-77-140 (2002) provides that "[n]o automobile insurance policy may be issued or delivered in this State to the owner of a motor vehicle or may be issued or delivered by an insurer licensed in this State upon any motor vehicle then principally garaged or principally used in this State, unless it contains a provision insuring the persons defined as insured against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of these motor vehicles. . . ." See also S.C.Code Ann. § 38-77-30(10.5) (2002) ("`policy of automobile insurance' or `policy' means a policy or contract for bodily injury or property damage liability insurance issued or delivered in this State covering liability arising from the ownership, maintenance, or use of any motor vehicle. . ."); S.C.Code Ann. 38-77-142 (2002) (tracking the "ownership, maintenance, or use" language of Section 38-77-140 in requiring certain...

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    ...[¶ 18.] Milbank urges us to adopt the nexus test set forth by the South Carolina Supreme Court in Peagler v. USAA Ins. Co., 368 S.C. 153, 628 S.E.2d 475 (S.C. 2006). The Peagler court used a three-part test previously adopted in State Farm Fire & Cas. Co. v. Aytes, 332 S.C. 30, 503 S.E.2d 7......
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    • United States State Supreme Court of South Carolina
    • April 9, 2007
    ...and public policies of the state as well as the Court's sense of law, justice, and right. Peagler v. USAA Ins. Co., 368 S.C. 153, 157, 628 S.E.2d 475, 477 (2006). LAW/ANALYSIS This certified question asks whether South Carolina law recognizes a secured creditor's independent right to bring ......
  • Request a trial to view additional results
17 cases
  • Dan Ryan Builders W. Va., LLC v. Main St. Am. Assurance Co., No. 2:18-cv-00589-DCN
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • April 3, 2020
    ...interprets the phrase in the context of an insurance policy exclusion. Selective also cites to Peagler v. USAA Ins. Co., 368 S.C. 153, 628 S.E.2d 475 (2006), along with a number of out-of-state cases, to convince the court to construe the phrase "arises out of" broadly. Not one of these cas......
  • Colleton Academy v. Hoover Universal, No. 26535.
    • United States
    • United States State Supreme Court of South Carolina
    • August 25, 2008
    ...v. United States Fid. & Guar. Ins. Co., 370 S.C. 505, 508, 636 S.E.2d 626, 627 (2006); Peagler v. USAA Ins. Co., 368 S.C. 153, 157, 628 S.E.2d 475, 477 CERTIFIED QUESTIONS (1) Can the user of a defective product recover in tort when only the product itself has been injured and when the prod......
  • North Star Mut. Ins. Co. v. Peterson, No. 24449.
    • United States
    • Supreme Court of South Dakota
    • May 7, 2008
    ...[¶ 18.] Milbank urges us to adopt the nexus test set forth by the South Carolina Supreme Court in Peagler v. USAA Ins. Co., 368 S.C. 153, 628 S.E.2d 475 (S.C. 2006). The Peagler court used a three-part test previously adopted in State Farm Fire & Cas. Co. v. Aytes, 332 S.C. 30, 503 S.E.2d 7......
  • McCullough v. Goodrich & Pennington, No. 26303.
    • United States
    • United States State Supreme Court of South Carolina
    • April 9, 2007
    ...and public policies of the state as well as the Court's sense of law, justice, and right. Peagler v. USAA Ins. Co., 368 S.C. 153, 157, 628 S.E.2d 475, 477 (2006). LAW/ANALYSIS This certified question asks whether South Carolina law recognizes a secured creditor's independent right to bring ......
  • Request a trial to view additional results

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