South Carolina Farm Bureau Mut. Ins. Co. v. Kennedy, 4738.

• Court: Court of Appeals of South Carolina
• Citation: 390 S.C. 125,700 S.E.2d 258
• Decision Date: 15 September 2010
• Docket Number: No. 4738.,4738.
• Parties: SOUTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Appellant, v. Henry KENNEDY, Respondent.

390 S.C. 125
700 S.E.2d 258

SOUTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Appellant,
v.
Henry KENNEDY, Respondent.

No. 4738.

Court of Appeals of South Carolina.

Heard May 18, 2010.
Decided Sept. 15, 2010.
Rehearing Denied Oct. 28, 2010.

700 S.E.2d 259

COPYRIGHT MATERIAL OMITTED.

700 S.E.2d 260

Karl S. Brehmer and L. Darby Plexico, III, of Columbia, for Appellant.

Eric H. Philpot, of Greenville, for Respondent.

SHORT, J.

390 S.C. 127

South Carolina Farm Bureau Mutual Insurance Company (Farm Bureau) appeals from the trial court's order finding

390 S.C. 128

Henry Kennedy was entitled to underinsured motorist (UIM) coverage, arguing the court erred in finding Kennedy was occupying the manure truck when he was hit by the pickup truck because he was not “upon” the insured vehicle at the time of the accident. We reverse.

FACTS

On October 23, 2002, Kennedy was hurt in a pedestrian-vehicle accident. ¹ Kennedy was employed by Irons Poultry Farms, Inc. (Irons Poultry), and at his employer's direction, Kennedy drove the company's manure truck to a restaurant to tell the owner he could pick up some chicken feed at his employer's farm. After delivering the message, Kennedy paused in the restaurant parking lot to talk to his half-brother, Teddy Robinson, who worked at the restaurant. While Kennedy was talking to Robinson, an accident occurred on the highway adjacent to the parking lot, and one of the vehicles careened into the parking lot, striking Kennedy and Robinson who were standing behind the manure truck. The vehicle that struck Kennedy was a pickup truck driven by George Counts. Kennedy sustained injuries with medical costs and lost wages totaling more than $64,000; however, he settled with Counts' insurance company for $50,000 in exchange for a covenant not to execute. Kennedy then made a demand for the full amount of UIM coverage available under Irons Poultry's policy with Farm Bureau. The policy provided UIM coverage in the amount of $50,000 per individual, and $100,000 per occurrence. Farm Bureau denied Kennedy coverage, claiming Kennedy was not entitled to UIM coverage under the policy because he was not occupying Irons Poultry's manure truck at the time of the accident as required by the policy to qualify for UIM coverage. Farm Bureau's policy defined “occupying” as “having actual physical contact with an auto while in, upon, entering, or alighting from it.”

On April 21, 2004, Farm Bureau filed a declaratory judgment action to determine if Kennedy was entitled to UIM coverage under Farm Bureau's commercial auto policy issued to Irons Poultry. Kennedy filed a motion for summary judgment

390 S.C. 129

, asserting he was entitled to coverage under the policy because the evidence conclusively proved he was pinned between the manure truck and Counts' truck, thus establishing he was “upon” the truck. The case was set for a non-jury trial on May 11, 2005. Before trial, Kennedy requested Judge Saunders hear his motion for summary judgment. Judge Saunders granted the motion in an order dated June 16, 2005. ² Farm Bureau filed a motion for reconsideration, which was denied. Farm Bureau then filed an appeal with this court. After oral arguments on the case, this court found a genuine issue of material fact existed as to whether Kennedy was pinned or knocked against the manure truck. Therefore, in an unpublished opinion, this court reversed the circuit court's decision granting summary judgment to Kennedy, and remanded the case to the circuit court for a hearing on the merits. ³ Kennedy filed a Petition for Rehearing with this court, which was denied.

Upon remand from this court, the non-jury

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trial was conducted on July 15 and 17, 2008. ⁴ Several months later, Judge Hayes filed his order finding Kennedy was entitled to UIM coverage because he was momentarily pinned against the manure truck during the accident; therefore, he was “upon” the insured vehicle and “occupying” it according to the policy. ⁵ This appeal followed.

390 S.C. 130

STANDARD OF REVIEW

Declaratory judgment actions are neither legal nor equitable; therefore, the standard of review is determined by the nature of the underlying issue. Hardy v. Aiken, 369 S.C. 160, 164, 631 S.E.2d 539, 541 (2006). “When the purpose of the underlying dispute is to determine whether coverage exists under an insurance policy, the action is one at law.” Auto-Owners Ins. Co. v. Hamin, 368 S.C. 536, 540, 629 S.E.2d 683, 685 (Ct.App.2006). “In an action at law tried without a jury, the appellate court will not disturb the trial court's findings of fact unless they are found to be without evidence that reasonably supports those findings.” Id.

LAW/ANALYSIS

Farm Bureau argues the trial court erred in finding Kennedy was occupying the manure truck when he was hit by the pickup truck because he was not upon the manure truck at the time of the accident. We agree.

The general rules of contract construction apply to insurance policies. MGC Mgmt. of Charleston, Inc. v. Kinghorn Ins. Agency, 336 S.C. 542, 548, 520 S.E.2d 820, 823 (Ct.App.1999). “[T]he law is clear that, in construing an insurance contract, all of its provisions must be considered together.” Id. “Therefore, the court must consider the entire contract between the parties to determine the meaning of its provisions, and that construction will be adopted which will give effect to the whole instrument and each of its various parts, so long as it is reasonable to do so.” Id. “This court must enforce, not write, contracts of insurance and we must

390 S.C. 131

give policy language its plain, ordinary, and popular meaning.” Id. at 548-49, 520 S.E.2d at 823. “An insurer's obligation under a policy of insurance is defined by the terms of the policy itself, and cannot be enlarged by judicial construction.” Id. “[A]mbiguous or conflicting terms in an insurance policy must be construed liberally in favor of the insured and strictly against the insurer.” Id. “However, if the intention of the parties is clear, courts have no authority to torture the meaning of policy language to extend or defeat coverage that was never intended by the parties.” Id.

Farm Bureau's policy defined “occupying” as “having actual physical contact with an auto while in, upon, entering, or alighting from it.” In this case, Kennedy was not getting in or out of the manure truck at the time of the accident. He was standing near the truck when he was hit. Kennedy argues the pickup truck hit him and briefly pinned him against the manure truck. The issue now before us is whether the impact of the pickup truck pushing Kennedy into the manure truck was enough for Kennedy to have been “upon” the manure truck so as to fall under the policy. Two South Carolina cases

700 S.E.2d 262

have dealt with similar issues, but neither is the exact issue presented in this case.

In McAbee v. Nationwide Mutual Insurance Co., 249 S.C. 96, 98-99, 152 S.E.2d 731, 732 (1967), our supreme court was presented with the sole question of whether the insured, while standing on the ground with his back against a parked truck in an effort to keep a tractor from rolling against him, was “upon” the truck within the meaning of the policy. ⁶ The court stated it did not think the meaning of the word “upon” is restricted to “on top of,” such as a person resting the weight of his or her body upon the vehicle or being supported by the vehicle. Id. at 100, 152 S.E.2d at 732. The court noted that according to Webster's Third New International Dictionary, “[o]ne of the common and ordinary meanings of the word ‘upon’ is that of ‘contact with’.” Id.; see S.C. Prop. & Cas. Guar. Ass'n v. Yensen, 345 S.C. 512, 518 n. 2, 548 S.E.2d 880, 883 n. 2 (Ct.App.2001) (stating that McAbee discussed that the

390 S.C. 132

term “upon” was synonymous with “contact with”). The court stated that because the policy contained no restrictions as to how or in what manner the insured was to be upon the vehicle, the court thought “it reasonable to conclude that the parties contemplated a construction of the word that would include actual physical contact with the vehicle the insured was using.” Id. at 100, 152 S.E.2d at 732-33. Therefore, the court held the insured was in actual physical contact with the vehicle and was “upon” it within the meaning of the policy provision when he placed his back against the vehicle in an attempt to protect himself from the rolling tractor. Id. at 100, 152 S.E.2d at 733.

This case is distinguishable from McAbee because in McAbee, the insured had his back to the truck and was pushing against it when he was crushed to death. Therefore, the insured was physically touching the truck when he was killed. Here, Kennedy was near the manure truck when he was hit by the other vehicle and asserts he was pushed into the manure truck by the pickup truck. Therefore, Kennedy was not physically touching the truck when he was first hit by the pickup truck.

In South Carolina Property and Casualty Guaranty Ass'n v. Yensen, 345 S.C. 512, 518, 548 S.E.2d 880, 883 (Ct.App.2001), this court held the owner of a disabled car, Yensen, was not “occupying” a tow truck when a car struck him as he stood alongside his disabled car. The court found Yensen was not an “insured” entitled to UIM benefits under the tow truck owner's policy, even though he intended to occupy the tow truck for a ride, because at the time of the accident he was not in, upon, getting in, on, out or off the truck, and no causal connection existed between the truck and the injuries. Id. at 518-20, 548 S.E.2d at 883-84. The tow truck's policy defined “insured” as “anyone else ‘occupying’ a covered auto.” Id. at 517, 548 S.E.2d at 883. According to the policy, “occupying” was defined as “in, upon, getting in, on, out or off.” Id. Therefore, this court determined Yensen was not occupying the tow truck as the policy defined that term. Id. at 518, 548 S.E.2d at 883. The court found that under the plain meaning of the words, Yensen was not “in, upon,...