Zurich Am. Ins. Co. v. Tolbert
| Decision Date | 12 April 2010 |
| Docket Number | No. 26798.,26798. |
| Court | South Carolina Supreme Court |
| Parties | ZURICH AMERICAN INSURANCE COMPANY, Petitioner,v.Tony Fitzgerald TOLBERT and Tonesha Tolbert, Respondents. |
J.R. Murphy and Ashley B. Stratton, both of Murphy & Grantland, of Columbia, for Petitioner.
Matthew Christian, of Christian Moorhead & Davis, of Greenville, for Respondents.
We granted certiorari to consider a Court of Appeals decision reversing a circuit court order which granted petitioner (Zurich) summary judgment in this declaratory judgment action to determine respondents' entitlement to Underinsured Motorist (UIM) coverage. Zurich Am. Ins. Co. v. Tolbert, 378 S.C. 493, 662 S.E.2d 606 (Ct.App.2008). We affirm.
Respondent Tony Tolbert (Tolbert) owned a Honda Accord, and leased a BMW through his employer. He rejected UIM coverage on the Honda, but the BMW was insured by BMW of North America, LLC through Zurich, under a policy which had UIM coverage. Tolbert had an accident while driving the Honda on a personal errand. After he and his wife (together respondents) settled their suit against the other driver involved in the accident, they sought to recover UIM benefits under the BMW/Zurich policy.
Zurich brought this declaratory judgment action, and filed a summary judgment motion alleging there was no coverage under the policy's “Drive Other Car” endorsement. Respondents opposed Zurich's motion, and alleged in their cross-motion for summary judgment that the Zurich policy applied pursuant to a “temporary substitute” endorsement because, at the time of the accident, the Honda qualified as a “temporary substitute” for the BMW. In support of respondents' summary judgment motion, Tolbert provided an affidavit in which he stated, “The reason I drove the [Honda] and not the BMW ... was due to the fact that the BMW was in need of service and an oil change and could not be driven.”
The circuit court granted Zurich's summary judgment motion and denied respondents' motion. On appeal, the Court of Appeals agreed that there was no coverage under the “Drive Other Car” endorsement, but found a genuine question of material fact such that summary judgment was improper under the “temporary substitute” vehicle endorsement found in the “South Carolina Underinsured Motorist Coverage” (SCUIM) provision of the Zurich policy, and reversed.
Did the Court of Appeals err in reversing the circuit court order granting summary judgment to Zurich?
The SCUIM endorsement defines who is an UIM insured for purposes of automobiles principally garaged in South Carolina as:
a. Anyone “occupying” a covered “auto” or a temporary substitute for a covered “auto.” The covered “auto” must be out of service because of its breakdown, repair, servicing, “loss” or destruction.
Summary judgment should be denied where the non-moving party submits a mere scintilla of evidence. Hancock v. Mid-South Mgmt. Co., Inc., 381 S.C. 326, 673 S.E.2d 801 (2009). In our view, respondents presented a scintilla of evidence through Tolbert's affidavit, sufficient to withstand summary judgment, that there may be coverage under the SCUIM endorsement.
Tolbert averred, “The reason I drove the 1989 Honda Accord and not the BMW ...” was because it needed service. This averment is some evidence that once the BMW was back in service, Tolbert intended to resume driving it, i.e., that he was driving the Honda as a temporary substitute. In this same sentence, Tolbert averred that the BMW “was in need of service and an oil change and could not be driven.” In our view, this averment constitutes the scintilla of evidence necessary to withstand summary judgment on the question whether the “covered “auto” [was] out of service because of its ... servicing ....” and thus covered by the SCUIM endorsement. Unlike the dissent, we do not view the terms used in this provision as requiring that the covered automobile be “actually disabled,” but rather that it be “out of service” due to one of five enumerated reasons. Here, the affidavit states the BMW “could not be driven” because, among other reasons,1 it “was in need of service.” Under the SCUIM, a person occupying the temporary substitute automobile is an insured if the covered auto is “out of service because of its ... servicing....” Tolbert's affidavit satisfied the scintilla standard, and thus the Court of Appeals correctly reversed the order granting Zurich summary judgment. Hancock, supra.
I respectfully dissent from the majority's opinion and would reverse the court of appeals' decision finding Tony Tolbert and Tonesha Tolbert's (Respondents) affidavit creates a genuine issue of material fact sufficient to survive Zurich American Insurance Company's (Petitioner) motion for summary judgment.
Tony Tolbert (Tolbert), a BMW employee, leased a 2003 BMW 325(BMW) as part of a lease program for BMW employees. Petitioner issued a business automobile insurance policy (Policy) to BMW which provided underinsured (UIM) coverage to the leasing employees in certain circumstances.
On a Saturday in 2003, Tolbert picked up his son in Greenwood, South Carolina. Tolbert was driving a 1989 Honda Accord (Honda) registered and titled in his name, instead of the leased BMW. The Honda was insured, but Tolbert chose to reject UIM coverage under the Honda policy. On the return trip from Greenwood to Greenville, Tolbert was involved in an accident caused by William Humbert (Humbert). Tolbert was injured, but settled with Humbert for the minimum liability limits of $15,000 Humbert carried on his automobile.
Petitioner filed this declaratory judgment action against Respondents seeking a determination on several different grounds that Tolbert did not qualify as an insured for purposes of UIM coverage under the Policy. Both parties filed motions for summary judgment, and a hearing was scheduled at the circuit court. At the hearing, Respondents argued the Honda was a temporary substitute for the leased BMW, and thus qualified Respondents for UIM coverage under a Policy endorsement. In support of their argument, Respondents submitted an affidavit stating the reason Tolbert was driving the Honda instead of the BMW was because the BMW was “in need of service and an oil change and could not be driven.” The circuit court granted Petitioner's motion for summary judgment. The court of appeals reversed and held Respondents' affidavit created a genuine issue of material fact as to whether Tolbert's Honda qualified as a temporary substitute for the covered BMW. Zurich American Ins. Co. v. Tolbert, 378 S.C. 493, 501, 662 S.E.2d 606, 610 (Ct.App.2008).
The UIM policy provision upon which Respondents rely states:
This Court addressed a temporary substitute clause in Nationwide Mutual Insurance Co. v....
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