STATE FARM MUT. AUTO. INS. v. Bookert

• Decision Date: 17 November 1997
• Docket Number: No. 2749.,2749.
• Citation: 330 S.C. 221,499 S.E.2d 480
• Court: South Carolina Court of Appeals
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Mary BOOKERT and Michael Bookert, Respondents.

330 S.C. 221

499 S.E.2d 480

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Mary BOOKERT and Michael Bookert, Respondents.

No. 2749.

Court of Appeals of South Carolina.

Submitted November 4, 1997.

Decided November 17, 1997.

Refiled February 23, 1998.

John U. Bell, III, C. Mitchell Brown, and John A. Ecton, all of Nelson, Mullins, Riley & Scarborough, Columbia, for appellant.

H. Patterson McWhirter, of McWhirter, Bellinger & Associates, Columbia, for respondents.

ORDER WITHDRAWING AND SUBSTITUTING OPINION

PER CURIAM:

After careful consideration of the Petition for Rehearing, the Court hereby withdraws the original opinion and substitutes the following opinion. The Court is unable to discover and material fact or principle of law that has been either overlooked or disregarded and, hence, there is no basis for granting a rehearing. It is, therefore, ordered that the Petition for Rehearing be denied.

/s/ Carol Connor, J. /s/ Ralph King Anderson, J. /s/ Thomas E. Huff, J.

ANDERSON, Judge:

This is a declaratory judgment action in which an insurer, State Farm Mutual Automobile Insurance Company (State Farm), seeks a judicial determination that the policy issued by State Farm to Mary Bookert does not provide underinsured motorist coverage for injuries Michael Bookert received as a result of a shooting in the parking lot of McDonald's. The Bookerts asserted coverage was provided under the insurance policy. The trial court granted the Bookerts' motion for summary judgment concluding the underinsured motorist provisions of the policy provided coverage for the bodily injuries suffered by Michael Bookert. State Farm appeals. We affirm.¹

STIPULATED FACTS

For purposes of cross motions for summary judgment, the parties entered into the following stipulation of facts:

1. Michael Bookert seeks benefits as an insured under his mother, Mary Bookert's, underinsured motorist insurance policy coverage, Policy No. 3210-390-40C.

2. Michael Bookert is an insured under Policy No. 3210-390-40C as a general matter, because he is a "relative" living with the named insured at the time of the incident involved in this case which led to his injuries.

3. No car belonging to Mary Bookert is involved in this matter.

4. On the night of June 6, 1993, Michael Bookert and three other individuals were riding in a Toyota vehicle driven by one of Michael Bookert's friends.

5. Michael Bookert and his friends stopped at Hardee's Restaurant located at 5417 Forest Drive, Forest Acres, near Fort Jackson.

6. At this time, two soldiers from Fort Jackson and a group of approximately fifteen (15) young men became involved in a dispute.

7. After the dispute was broken up, the two soldiers and an additional soldier (all three soldiers are hereinafter referred to as "assailants"), traveled in the Tracker to the McDonald's restaurant located at 1024 Elmwood Avenue on the night of June 6, 1993, and had with them a pistol-grip pump shotgun and a nine millimeter handgun.

8. The assailants then began riding through the Mc-Donald's parking lot, searching for the group of young men with whom they had been in a dispute. 9. Michael Bookert and his friends had previously arrived at the McDonald's restaurant on Elmwood, and some of the same individuals who were in the group of approximately fifteen (15) at the Hardee's near Fort Jackson were also at this McDonald's at this point in time.

10. As he was about to enter the door to the restaurant, Michael Bookert heard three individuals, later known to him as the three aforementioned assailants, yelling and "talking trash." Michael Bookert was unsure at this precise point in time exactly to whom the yelling and "trash talking" was directed.

11. Michael Bookert turned to look in the direction of the yelling and "trash talking." The Geo Tracker was, at this precise time, stopped in the McDonald's restaurant parking lot, with the motor running, in the traffic lane that circles the building.

12. Michael Bookert saw one of the assailants standing in the back of the Geo Tracker brandishing a pistol-grip pump shotgun.

13. The front seat passenger assailant was seen by Michael Bookert at this same time brandishing a nine millimeter handgun.

14. Michael Bookert was "stunned" by what he saw and stood at the entrance to the restaurant watching the assailants.

15. The Tracker jerked forward, and as the assailant holding the shotgun fell out of the vehicle, he fired into a group of people at the restaurant, although Michael Bookert was missed by this gunfire.

16. An instant later while said Geo was still moving forward, the soldier in the front passenger seat of the Tracker fired the nine millimeter, hitting Michael Bookert with two bullets, one in each leg.

17. The injuries Michael Bookert sustained resulted from the nine millimeter handgun fired by the assailant in the front seat. 18. The Tracker was used for the transportation of the assailants and their weapons as well as their arrival at Bookert's location at McDonald's.

19. The parties know of no facts that would have prevented the assailants from parking the Tracker, getting out of the Tracker, walking over to Michael Bookert, and shooting him as he stood in the entrance of the McDonald's restaurant.

20. The assailants then escaped from the McDonald's parking lot in the Tracker, with the exception of the assailant with the shotgun, who escaped from the McDonald's parking lot on foot.

21. The two assailants who fled the scene in the Tracker were immediately captured by the police a few blocks away from the McDonald's restaurant.

22. The third assailant who fled on foot was arrested and charged a few days later.

23. All three assailants were charged with and convicted of various criminal violations, including assault and battery with intent to kill, aggravated assault, and accessory after the fact to a felony.

PROCEDURAL BACKGROUND

Based on the stipulated facts, both parties moved for summary judgment.² The court granted summary judgment in the Bookerts' favor and held the underinsured motorist provisions of the policy issued by State Farm to Mary Bookert were inconsistent with S.C.Code Ann. § 38-77-160 (Supp. 1996). The court reformed the policy by substituting the words "ownership, maintenance, or use" for the words "operation or ownership" in the portion of the policy relating to underinsured motorist coverage. The policy initially provided underinsured motorist coverage as follows:

We will pay damages for bodily injury or property damage an insured is legally entitled to collect from the owner or driver of an underinsured motor vehicle. The bodily injury or property damage must be caused by accident arising out of the operation or ownership of the underinsured motor vehicle. (emphasis added).³

Additionally, the court determined Bookert's injuries arose out of the "ownership, maintenance, or use" of a motor vehicle. Finally, the court concluded the underinsured motorist provisions of the policy provided coverage for the gunshot injuries sustained by Michael Bookert. State Farm filed a motion for reconsideration, which was denied.

ISSUES

I. Did the trial court err in reforming the insurance policy when it found the language relating to underinsured motorist coverage inconsistent with S.C.Code Ann. § 38-77-160 (Supp.1996)?

II. Did the trial court err in finding underinsured motorist coverage was available to Michael Bookert under the reformed policy?

III. Did the trial court err in considering an affidavit submitted by the Bookerts in support of their summary judgment motion where the case was submitted on stipulated facts?

LAW/ANALYSIS

I. REFORMATION OF POLICY

State Farm contends the trial court erred in reforming the contractual language of the policy when it found the policy language inconsistent with S.C.Code Ann. § 38-77-160 (Supp. 1996).

In its motion for summary judgment, State Farm conceded the bodily injury incurred by Michael Bookert was an "accident" within the terms of its policy. However, State Farm argued the bodily injury did not arise out of the "operation" of the underinsured motor vehicle, nor did the bodily injury arise out of the "use." In Hite v. Hartford Accident & Indent. Co., 288 S.C. 616, 344 S.E.2d 173 (Ct.App.1986), this Court recognized the term "use" was broader than the term "operate" and explained:

It has been held that the "use" of an automobile involves its employment for some purpose of the user, while its "operation" involves the user's direction and control of its mechanism as its driver for the purpose of propelling it as a vehicle. One who operates a motor vehicle obviously uses it, but one can use a motor vehicle without operating it; an automobile is being used, for example, by one riding in it, although another is driving or operating it.

Hite, 288 S.C. at 619, 344 S.E.2d at 175 (citations omitted).

In South Carolina, automobile insurance policies are statutorily required to contain liability and uninsured motorist coverage in certain basic limits. S.C.Code Ann. §§ 38-77-140 and-150 (Rev.1989 and Supp.1996). South Carolina law mandates that no automobile insurance policy may be issued unless it contains (1) 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 and (2) an uninsured motorist provision to protect against damages an insured is legally entitled to recover which "arise out of the ownership, maintenance or use" of an uninsured vehicle. S.C.Code Ann. §§ 38-77-140 and -150 (Rev.1989 & Supp.1996).

The initial policy language—"operation or ownership"—is inconsistent with the legislative intent behind S.C.Code Ann. § 38-77-160 (Supp.1996). That section provides:

Automobile insurance carriers shall offer, at the option of the insured, uninsured motorist coverage up to the limits of the insured's liability coverage in addition to the mandatory

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