Willis v. Fidelity & Cas. Co. of New York
| Decision Date | 30 July 1969 |
| Docket Number | No. 18946,18946 |
| Citation | 253 S.C. 91,169 S.E.2d 282 |
| Parties | Norma Jean WILLIS, by her Guardian ad Litem, Dewey E. Willis, Appellant, v. FIDELITY AND CASUALTY COMPANY OF NEW YORK, Respondent. |
| Court | South Carolina Supreme Court |
Odom, Nolen & Foster, Johnson & Smith, James J. Raman, Spartanburg, for appellant.
Fulmer, Barnes, Berry & Austin, Columbia, for respondent.
Nelson, Mullin, Grier & Scarborough, and Tompkins, McMaster & Thomas, Columbia, amicus curiae.
The sole question involved on this appeal is whether the exclusion of an automobile owned by a member of the household of the named insured from the 'nonowned automobile' coverage of a liability insurance policy is inconsistent with the Motor Vehicle Safety Responsibility Act, as amended, and hence invalid. It arises on these facts.
Charles R. Russell and his mother, Mary Russell, resided with Guy G. Scruggs, Mrs. Russell's father, as members of his household. Mrs. Russell owned an uninsured 1954 Chevrolet. Mr. Scruggs owned a 1955 Chevrolet which was the described automobile in a liability insurance policy issued to him by Fidelity and Casualty Company of New York on July 14, 1965. Charles, while driving his mother's uninsured automobile, negligently injured Norma Jean Willis. Miss Willis sued Charles to judgment and then sued Mr. Scruggs' insurance carrier. She appeals from an adverse judgment of the circuit court.
The policy in question provides coverage to an insured while driving an automobile not listed in the policy with the following exception:
'(b) This insuring agreement does not apply:
'(1) to any automobile owned by or furnished for regular use to either the named insured or a member of the same household * * *.'
This case falls squarely within the quoted exclusionary clause. There can be no recovery against the insurer unless the Motor Vehicle Safety Responsibity Act required that liability coverage be furnished to the insured's grandson under the recited facts.
Plaintiff's reliance is upon two sections of the Act as amended by Act No. 312 of 1963, which appear as Section 46--750.31(2) and Section 46--750.32, 1968 Cumulative Supplement, Code of 1962. The first of these defines the term 'insured.' The second specifies the character and extent of coverage required of automobile liability policies issued in this State. We quote the two sections:
Sec. 46--750.31(2). 'The term 'insured' means the named insured and, while resident of the same household, the spouse of any such named insured and relatives of either, while in a motor vehicle or otherwise, and any person who uses, with the consent, expressed or implied, of the named insured, the motor vehicle to which the policy applies and a guest in such motor vehicle to which the policy applies or the personal representative of any of the above.'
Sec. 46--750.32. 'No policy or contract of bodily injury lability insurance or of property damage liability insurance, covering liability arising from the ownership, maintenance or use of any motor vehicle, shall be issed or delivered in this State to the owner of such vehicle, or shall 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 such motor vehicles within the United States of America or the Dominion of Canada, subject to limits exclusive of interest and costs, with respect to each motor vehicle * * *.
This definition of 'insured,' which had formerly been applicable only to uninsured motorist coverage (Sec. 46--750.11(2), Code of 1962, was made applicable to liability coverage by Act No. 312 of 1963. Pacific Ins. Co. of N.Y. v. Fireman's Fund Ins. Co., 247 S.C. 282, 147 S.E.2d 273 (1966). In the original formulation of this definition, the use of the words 'while in a motor vehicle or otherwise' was appropriate, although probably unnecessary, to emphasize the legislative intention that the named insured, his spouse and his or her relatives residing in the same household should have the benefit of uninsured motorist coverage at all times, as distinguished from permissive users or guests who should be covered only when occupying the insured automobile. Davidson v. Eastern Fire & Cas. Ins. Co., 245 S.C. 472, 141 S.E.2d 135 (1965). This obligation of the insurer is to pay all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle. It arises without regard to the activity in which the insured was engaged when injured by the negligence of...
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