Whitmire v. Nationwide Mut. Ins. Co., 19051
| Decision Date | 11 May 1970 |
| Docket Number | No. 19051,19051 |
| Parties | Russell M. WHITMIRE, Jr., Plaintiff-Respondent, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant-Appellant, and National Grange Insurance Company, Defendant-Respondent, and Ernest Lee Raines and Robert Lee Cox. |
| Court | South Carolina Supreme Court |
James H. Watson and Joseph E. Major, of Leatherwood, Walker, Todd & Mann, Greenville, for defendant-appellant.
C. Ben Bowen, of Abrams, Bowen & Townes, Greenville, for plaintiff-respondent.
John J. McKay, Jr., of Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, for defendant-respondent.
This action for declaratory judgment was brought to determine the liability of the defendant insurance companies, under the uninsured motorist provisions of their respective policies, for a judgment obtained by plaintiff against an uninsured motorist.
Plaintiff was injured when the parked automobile of one Ernest Lee Raines, in which plaintiff had been riding as a guest, was struck by an automobile driven by one Robert Lee Cox. The injuries were received immediately after plaintiff had left the Raines vehicle. In an action brought against both Raines and Cox, plaintiff recovered judgment in the amount of $10,000.00 against Cox alone. Cox was an uninsured motorist.
Defendant Nationwide Mutual Insurance Company had in effect an automobile liability policy covering the automobile of Raines, in which plaintiff was a passenger, and the defendant National Grange Insurance Company had in effect a similar policy insuring the plaintiff. The policies of Nationwide and Grange contained identically worded uninsured motorist provisions. The coverage afforded by each policy was sufficient to pay the judgment obtained by plaintiff.
Upon the failure of the insurance carriers to pay, plaintiff brought this declaratory judgment action against both to determine the liability of each for the payment of the judgment. Both insurers denied liability, but on different grounds. Grange, which issued the policy to plaintiff, admitted coverage but refused to pay on the ground that Nationwide, which insured the Raines vehicle in which plaintiff had been riding, afforded primary coverage for the loss. Grange argued that, since the primary coverage afforded by Nationwide was ample to pay the entire loss, it (Grange) was not liable in any amount. Nationwide denied liability upon the ground that, since plaintiff had left the Raines vehicle when the injuries were sustained, plaintiff was not an insured under its policy. The alternative position was taken by Nationwide that, if plaintiff was an insured to pay the entire should not be required to pay the entire judgment but that the liability should be prorated between the two insurers.
The parties waived a jury trial and submitted all issues to the court for determination. The lower court held that plaintiff was an insured under the policy of Nationwide and that its policy provided primary coverage for the loss. Since the loss was within the primary coverage, judgment was awarded against Nationwide for the entire amount. This appeal by Nationwide followed.
The questions to be decided are (1) whether plaintiff was an insured under Nationwide's policy and, if so, (2) whether plaintiff's loss should be paid entirely by Nationwide or pro rata by it and Grange. The exceptions challenge, first, the finding that plaintiff was an insured under the policy of Nationwide.
The uninsured motorist endorsement in the policy of Nationwide includes in the definition of an insured 'any other person while occupying an insured automobile.' The word Occupying as used in the policy is defined as 'in or upon or entering into or alighting from' the insured vehicle.
Therefore, in order for plaintiff to qualify as an insured under the policy, he must have been Occupying the insured vehicle at the time of his injury. He would have been so considered, if at the time of injury, he was In or upon or Entering into or Alighting from the insured automobile. It is conceded that he was not In or Upon or Entering into the vehicle. The contention is that plaintiff was Alighting from the automobile insured by Nationwide and was, therefore, an insured under its policy. The following facts, taken substantially from the order of the trial judge, are not challenged by any exception.
On or about April 27, 1968 plaintiff and a Mr. Medlin made repairs to a 1960 Corvair automobile owned by Ernest Lee Raines. After completing the repairs, Raines drove Plaintiff, plaintiff's son, and Medlin to Medlin's home in Marietta, South Carolina. This occurred at night. Medlin lived on the west side of Slater Road in the town and, when they arrived at his home, Raines parked on the side nearest the Medlin yard, which was on the driver's left of the highway, with his car approximately half on and half off the paved portion and left his headlights burning. This placed the Raines automobile heading in a northerly direction on the southbound side of the road. There were other and safe places to park and plaintiff called Raines' attention to the danger in so parking the car.
The Corvair, in which they were riding, was a two door automobile and plaintiff and his son were seated in the rear, with Medlin occupying the front seat with Raines, the driver. Since this was a two door car, the normal exit for passengers was the right side which, in this case, made the passenger leave the vehicle on to the travelled portion of the highway. Therefore, in order to get to the shoulder of the road, it was necessary for the passengers to leave from the right side and then go either around the front or the rear of the Raines vehicle.
Shortly after Raines parked the car, Medlin left through the right door, followed by plaintiff and his son. When plaintiff left the car he turned to his right and proceeded to the rear of the vehicle in order to reach the shoulder of the road and the Medlin yard. In doing so, he walked very close to the car--'close enough to have touched it.' As plaintiff reached the rear bumper, he heard the noise of an approaching vehicle and about the same time saw it through the rear window and the windshield of the Raines car. He realized that a collision between the two vehicles was imminent and started running toward the Medlin yard. The approaching vehicle was operated by Robert Lee Cox, the uninsured motorist. The Cox automobile collided with the Raines' automobile, in which Raines was still seated, and plaintiff was struck by one of the two vehicles when he reached a point about two or three feet west of the rear bumper of the Raines car.
Plaintiff did not stop or delay in leaving the automobile. His only appreciable change of pace was when he started running to avoid the danger from the approaching vehicle. In view of the position and location in which the car had been stopped, the route taken by him was a direct one.
The question is whether, under the foregoing facts, plaintiff was engaged in Alighting from the Raines car at the time of injury, so as to bring him within the coverage afforded by the above quoted provision of Nationwide's policy.
The words Alighting from are used in a policy provision which refers to other positions in relation to an insured vehicle. Each has a particular meaning. The terms are not synonymous, and each clearly is intended to cover a class of persons and situations not necessarily included in the other terms used. McAbee v. Nationwide Mutual Insurance Company, 249 S.C. 96, 152 S.E.2d 731.
We considered a similar policy provision in the McAbee case with reference to the meaning of the word 'upon' as used therein. We concluded there that the words 'in or upon' were not free from ambiguity and required a broad and liberal construction in favor of the insured. The same rule of liberal construction applies in construing the words used in the present policy provision.
Under the present policy provision, a person is an occupant, and therefore insured, if he is In, upon, entering into, or Alighting from the vehicle. The words 'in' and 'upon' encompass situations where a person has some physical contact with the vehicle at the time of injury. McAbee v....
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