South Carolina Farm Bureau Mut. Ins. Co. v. Windham

• Decision Date: 14 November 1990
• Docket Number: No. 1580,1580
• Citation: 400 S.E.2d 497,303 S.C. 330
• Court: South Carolina Court of Appeals
• Parties: SOUTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Appellant, v. Marvin WINDHAM, Jeanette Windham, Jean Adams, Hanover Insurance Company, Lycenia Prescott, both individually and as Personal Representative of the Estate of Lee A. Prescott, Deceased, Respondents. . Heard

Page 497

400 S.E.2d 497

303 S.C. 330

SOUTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Appellant, v. Marvin WINDHAM, Jeanette Windham, Jean Adams, Hanover Insurance Company, Lycenia Prescott, both individually and as Personal Representative of the Estate of Lee A. Prescott Deceased Respondents.

No. 1580.

Court of Appeals of South Carolina.

Heard Nov. 14, 1990.

Decided Dec. 10, 1990.

Certiorari Denied March 6, 1991.

M.M. Weinberg, III, of Weinberg, Brown & McDougall, Sumter, for appellant.

Jacob H. Jennings, of Jennings & Jennings, Bishopville, and Michael M. Nunn, of Coleman, Aiken & Chase, Florence, for respondents.

CURETON, Judge:

This declaratory judgment action concerns liability insurance coverage. South Carolina Farm Bureau Mutual Insurance Company filed this action to determine whether it had any excess or secondary liability coverage for an accident involving Lee A. Prescott. At the time of the accident, Prescott was driving a car owned by his mother, Lycenia Prescott. The car was insured by Hanover Insurance Company. Lee Prescott owned a van insured by Farm Bureau. Farm Bureau denied coverage for the accident due to an exclusion in its policy for non-owned vehicles. The trial judge sitting without a jury determined Farm Bureau provided excess liability coverage because his mother's car was not "available for regular use" by Lee Prescott. Farm Bureau appeals. We affirm.

On appeal of an action at law tried by the judge without a jury this court will review the factual findings to determine if there is any evidence to support them. Patterson v. I.H. Services Inc., 295 S.C. 300, 368 S.E.2d 215 (Ct.App.1988). In this case the only evidence presented was the policy provision and the deposition testimony of Lycenia Prescott.

The Farm Bureau policy excluded liability coverage for non-owned vehicles. The policy exclusion applied to autos "available (emphasis added) for the regular use" of the insured. Our courts have considered policy exclusions for autos "furnished for regular use." Aetna Casualty & Surety Co. v. Sessions, 260 S.C. 150, 194 S.E.2d 877 (1973); Tollison v. Reaves, 277 S.C. 443, 289 S.E.2d 163 (1982). Farm Bureau argues there is a distinction between the two phrases. It argues the word "furnished" is a stricter standard implying the vehicle was given to the driver on a more or less permanent basis whereas "available" means the auto is simply within the reach of the driver and may be used at the driver's pleasure.

Farm Bureau attempts to create a distinction without a difference. The crucial matter is the "regular use" of the purported non-owned vehicle. As our cases have noted, the purpose of such clauses is to limit coverage to casual or infrequent use of an automobile other than the one defined in the policy. Aetna Casualty, 260 S.C. 150, 194 S.E.2d 877. In fact, use of the combined phrase "furnished or available for regular use" is not uncommon in liability policies. ¹ Annotation, When is automobile furnished or available for regular use within "drive other car" coverage of automobile liability policy, 8 A.L.R.4th 387 (1981); Maybank, Boggs, Shaw, Suggs & Gray, The Law of Automobile Insurance in South Carolina IV-11, 12 (1989).

There is some evidence to support the trial judge's factual findings that the car was not subject to the exclusion for non-owned vehicles. Lee Prescott lived in...