Opinion
No. COA09-446.
Filed February 16, 2010.
Mecklenburg County No. 08CVS4026.
Appeal by plaintiff from judgment entered 5 November 2008 by Judge Albert Diaz in Mecklenburg County Superior Court. Heard in the Court of Appeals 14 October 2009.
Rawls, Dickinson Scheer, P.A., by Amanda A. Mingo, for plaintiff. York, Williams Lewis, L.L.P., by Thomas E. Williams and David R. DiMatteo, for defendant Government Employees Insurance Company. McAngus, Goudelock Courie PLLC, by John T. Jeffries and Tracey R. Downs, for defendant Nationwide Mutual Insurance Company.
David A. Meyer (plaintiff) appeals from a 5 November 2008 judgment entering summary judgment in favor of Government Employees Insurance Company (GEICO) and Nationwide Mutual Insurance Company (Nationwide) and dismissing plaintiff's action with prejudice.
On 14 February 2006, plaintiff was driving a truck that belonged to his brother and sister-in-law. While plaintiff was stopped for a railroad crossing signal, a sedan struck the back of the truck that plaintiff was driving. Both drivers exited their vehicles to examine the damage and then agreed to exchange their registration and insurance information. When plaintiff returned to the truck to retrieve his registration and insurance information, the other driver (John Doe) returned to his vehicle and drove away. Plaintiff saw the sedan driving away, but could not see its license plate. According to the initial pleading, "[i]n an effort to identify John Doe before he drove out of sight, as is required under the uninsured motorist coverage provisions of the Geico and Nationwide policies, Plaintiff rushed to get in a position to see John Doe's license plate and fell from the vehicle and was injured." The medical bills to treat these injuries totaled $70,000.00.
When the accident occurred, plaintiff had a personal automobile liability policy issued by Nationwide and his brother's truck was insured under a liability insurance policy issued by GEICO. Both policies had uninsured motorist coverage. Plaintiff filed claims with both insurance companies against John Doe under the uninsured motorist provisions. However, both GEICO and Nationwide refused to pay plaintiff's claims.
On 26 February 2008, plaintiff filed a request for declaratory judgment in the Mecklenburg County Superior Court. He sought a declaration that the uninsured motorist coverage under the GEICO policy was available as primary coverage for his injuries and that the uninsured motorist coverage under the Nationwide policy was available as excess coverage. If applicable, each policy would have provided $25,000.00 in bodily injury coverage for plaintiff. All parties eventually moved for summary judgment, which the trial court granted to the insurance companies on 5 November 2008. Plaintiff now appeals.
As a preliminary matter, we note that we must apply South Carolina law to this dispute. "[T]he general rule is that an automobile insurance contract should be interpreted and the rights and liabilities of the parties thereto determined in accordance with the laws of the state where the contract was entered even if the liability of the insured arose out of an accident in North Carolina." Fortune Ins. Co. v. Owens, 351 N.C. 424, 428, 526 S.E.2d 463, 465-66 (2000) (citation omitted). Here, there is no dispute that both insurance contracts were entered into in the state of South Carolina. Accordingly, we apply the substantive law of South Carolina.
Plaintiff argues that the trial court should not have granted summary judgment to the insurance companies because his injuries were covered under both insurance policies. However, the insurance companies counter that not only are plaintiffs' claims not covered under the policies, but he is barred from bringing a claim by South Carolina Code of Laws § 38-77-170. We agree.
Section 38-77-170 of the South Carolina Code states, in relevant part: If the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, there is no right of action or recovery under the uninsured motorist provision, unless:
(1) the insured or someone in his behalf has reported the accident to some appropriate police authority within a reasonable time, under all the circumstances, after its occurrence;
(2) the injury or damage was caused by physical contact with the unknown vehicle, or the accident must have been witnessed by someone other than the owner or operator of the insured vehicle; provided however, the witness must sign an affidavit attesting to the truth of the facts of the accident contained in the affidavit;
(3) the insured was not negligent in failing to determine the identity of the other vehicle and the driver of the other vehicle at the time of the accident.
S.C. Code Ann. § 38-77-170 (2009). Only subsection (2) is at issue here. The insurance companies argue that plaintiff's injuries were not "caused by physical contact with the unknown vehicle" and the accident was not witnessed by someone other than plaintiff. Plaintiff acknowledges that there was no other witness to the accident, but contends that the rear-end collision was sufficient physical contact to comply with the statute.
In 1979, the South Carolina Supreme Court explained, "To us it is clear that the legislature intended that physical contact be a condition precedent to recovery." Sapp v. State Farm Auto. Ins. Co., 251 S.E.2d 745, 746 (1979) (citation omitted). In 1987, the South Carolina legislature amended § 38-77-170 to allow a plaintiff to bring forth an uninsured motorist claim if either his injuries were caused by physical contact with the unknown vehicle or another person witnessed the accident and attested to the accident in an affidavit. Collins v. Doe, 574 S.E.2d 739, 741 (2002). The South Carolina Supreme Court examined whether the amended statute still restricted "application of this statute to cases in which the vehicle is the direct cause of the injury." Wausau Underwriters Ins. Co. v. Howser, 422 S.E.2d 106, 109 (1992). The Court reached the following conclusion: "We find this language is not intended to require any more of a causal relationship than is necessary for the determination that the injury or damage arose out of the ownership, maintenance or use of the uninsured vehicle as required in Section 38-77-140." Id. This language would appear to resolve this threshold issue in plaintiff's favor, but the analytical conclusion reached by the Court casts some doubt on that pat resolution: "[W]e hold no physical contact with the unknown vehicle is necessary when a witness other than the owner or driver of the insured vehicle is available to attest to the facts of the accident." Id. at 110 (emphasis added). The South Carolina courts have not since clarified whether the amended subsection (2) requires a greater causal relationship than that required by § 38-77-140 when there is no additional witness available to attest to the facts of the accident. However, the only subsequent case to discuss this portion of subsection (2) focused on the "physical contact" language and not the "caused by" language. See Collins, 574 S.E.2d at 742 ("The statute makes proof of physical contact a condition precedent in any case for the recovery of damages caused by an unknown driver and vehicle. There are no exceptions to this rule[.]") (quotations and citation omitted). Accordingly, we apply the rule from Wausau that, if physical contact is confirmed, compliance with subsection (2) requires the same causal relationship necessary for the determination that the injury arose out of the ownership, maintenance, or use of the uninsured vehicle as § 38-77-140 requires.
South Carolina Code § 38-77-140 requires any South Carolina automobile insurance policy to contain 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 within the United States[.]" S.C. Code Ann. § 38-77-140 (2009) (emphasis added). Section 38-77-150, the uninsured motorist provision, requires any South Carolina automobile insurance policy to also contain a provision "undertaking to pay the insured all sums which he is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle[.]" S.C. Code Ann. § 38-77-150(A) (2009).
At issue here is whether plaintiff's injuries arose out of the "ownership, maintenance, or use" of John Doe's uninsured vehicle. The South Carolina Supreme Court articulated a three-pronged test
to determine whether an injury arises out of the "ownership, maintenance, or use" of a motor vehicle. The party seeking coverage must show (1) a causal connection exists between the vehicle and the injury, (2) no act of independent significance breaks the causal link between the vehicle and the injury, and (3) the vehicle was being used for transportation purposes at the time of the injury.
Peagler v. USAA Ins. Co., 628 S.E.2d 475, 478 (2006) (citation omitted). To date, Peagler is one of only two South Carolina appellate cases to address the "ownership, maintenance, or use" question in "the context of an accident involving unintentional conduct." Id. at 478 (footnote omitted); see also Canal Ins. v. Ins. Co. of N. Amer., 431 S.E.2d 577 (1993) (holding that, when a truck-mounted crane tipped over and damaged a building, the accident was not covered by the liability policy on the truck crane because it was not being used for transportation purposes at the time of the injury).
In Peagler, the Court focused on whether the uninsured vehicle was "an active accessory to the injury." In that case, the Court concluded that the truck in question "was not actively used or involved in causing the injury; it was merely the site of the injury." Peagler, 628 S.E.2d at 481. The plaintiff had gone hunting the day before the accident and had left two shotguns in the backseat of the truck after the expedition. Id. at 476. He thought that the guns were unloaded, but, in fact, one was loaded and did not have the safety engaged. Id. While his wife was sitting in the truck's cab with her seatbelt buckled, she directed the plaintiff to remove the shotguns from the backseat. Id. at 476. As he did so, the loaded gun discharged, killing his wife. Id. In its analysis, the Court accepted that "[t]he injury was foreseeably identifiable with the normal use of the pickup truck. Many vehicles in South Carolina, and certainly many pickup trucks, are used for hunting purposes. Using a vehicle to transport firearms to and from hunting grounds is not an abnormal or unanticipated use of a vehicle." Id. The sticking point for the Court was that the truck played a passive role in the shooting accident:
Plaintiff has not demonstrated the truck was an active accessory to the injury. The truck was not actively used or involved in causing the injury; it was merely the site of the injury. . . . [The] Plaintiff has failed to show . . . that a causal connection exists between the pickup truck and the accidental shooting of Decedent.
Id.
Here, John Doe's vehicle did not play an active role in plaintiff's fall. Plaintiff fell while trying to position himself to see John Doe's vehicle as it drove away, but we do not believe that this is sufficient to show a causal connection between the uninsured vehicle and plaintiff's injuries. John Doe's vehicle was not actively used or actively involved in causing the injury.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
Judges STEELMAN and HUNTER, JR., Robert N., concur.
Report per Rule 30(e).