Opinion
Civil Action 8:21-cv-3832-JDA-KFM
02-14-2024
State Farm Mutual Automobile Insurance Company, Plaintiff, v. Arturo Burgos, Jr., Donatello Farrow, Shanna Newkirk, Antwan Gallman, Sidney Antwan Cheeks, and Bush River Baptist Church, Defendants.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD UNITED STATES MAGISTRATE JUDGE
This matter is before the court on the motion for summary judgment of the plaintiff State Farm Mutual Automobile Insurance Company (“State Farm”) in this declaratory judgment action (doc. 98). Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases involving pro se litigants and to submit findings and recommendations to the district court.
BACKGROUND
This case arises out of single vehicle accident that took place on May 28, 2020, on the property of defendant Bush River Baptist Church (“Bush River Baptist”) near Newberry, South Carolina. At the time of the accident, defendant Shanna Newkirk (“Newkirk”) was operating a vehicle owned by defendant Arturo Burgos, Jr. (“Burgos”). State Farm issued two automobile insurance policies to defendant Burgos that were in effect on the date of the accident (docs. 1-3, 1-4). Defendants Donatello Farrow (“Farrow”), Antwan Gallman (“Gallman”), and Sidney Antwan Cheeks (“Cheeks”) were passengers in the car operated by defendant Newkirk at the time of the accident. Following the accident, defendant Farrow filed a lawsuit against defendant Newkirk in state court, Donatello Farrow v. Shanna Newkirk, C. A. No. 2021-CP-36-00026 (“ (“the underlying action”) (doc. 1-1).
State Farm filed the present action on November 23, 2021, seeking a declaration that (1) the policies issued by State Farm to defendant Burgos do not provide coverage for claims arising out of the automobile accident on May 28, 2020; and (2) State Farm has neither a duty to defend nor a duty to indemnify defendant Newkirk for the claims and damages asserted in the underlying action (doc. 1 at 11). Only defendants Farrow and Gallman have appeared in this action (doc. 20). Defendants Farrow and Gallman were initially represented by the same counsel (id.). However, on April 14 and May 5, 2023, the Honorable Timothy M. Cain, United States District Judge, granted defense counsel's motions to be relieved as counsel for defendant Farrow (docs. 74, 79) and gave defendant Farrow time to obtain substitute legal representation (doc. 74, 79). When defendant Farrow did not obtain substitute counsel within the allotted time, the district court presumed that defendant Farrow intended to proceed pro se, the case was referred to the undersigned (doc. 84), and the case moved forward with a new scheduling order (docs. 89, 95).
The Clerk of Court has entered the default of defendants Burgos, Newkirk, Cheeks, and Bush River Baptist (doc. 36).
Attorneys Crystal Swinford, Eric Poulin, Joseph E. Thoensen, and Roy T. Willey, IV, have not moved to be relieved as counsel for defendant Gallman.
On October 2, 2023, State Farm filed a motion for summary judgment (doc. 98). Because defendant Farrow is proceeding pro se, on October 12, 2023, by order of this court pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), defendant Farrow was advised of the summary judgment and dismissal procedure and the possible consequences if he failed to respond adequately (doc. 100). Neither defendant Gallman, who is represented by counsel, nor defendant Farrow, who is proceeding pro se, filed a response to the motion for summary judgment. Accordingly, the motion is now ripe for review.
The Clerk of Court has mailed all court filings to defendant Farrow at his last known address as provided by his former attorneys (see docs. 70-1, 82, 83). Three of the court's filings in June and July 2023 were returned as undeliverable (see docs. 92, 93). Documents mailed by the Clerk of Court to defendant Farrow since that time have not been returned.
FACTS PRESENTED
As noted, the single-vehicle accident at issue here took place on May 28, 2020, and, at the time of the accident, defendant Newkirk was driving a 2007 Acura owned by defendant Burgos (doc. 1, comp. ¶ 13). State Farm issued two automobile insurance policies to defendant Burgos (docs. 1-3, 1-4). The first policy, bearing policy number 617 1209-F14-40, was in effect for the policy term December 14, 2019, to June 14, 2020 (“the policy”) (doc. 1-3; doc. 1, comp. ¶ 17). The policy identifies a 2003 GMC K2500 Pickup (Vehicle Id. No. 1GTHK23U33F168210) on the declarations page (doc. 1-3; doc. 1, comp. ¶ 18). The second policy, bearing policy number 622 1320-B19-40, was in effect for the policy term February 19, 2020, to August 19, 2020 (“the second policy”) (doc. 1-4; doc. 1, comp. ¶ 19). The second policy identifies a 2014 Kia Optima 4DR (Vehicle Id. No. 5XXGM470EG279347) on the declarations page (doc. 1-4; doc. 1, comp. ¶ 20).
The policy and the second policy (collectively, “the policies”) provide as follows with respect to liability coverage:
DEFINITIONS
We define certain words and phrases below for use throughout the policy. Each coverage includes additional definitions only for use with that coverage. These definitions apply to the singular, plural, possessive, and any other form of the words and phrases. Defined words and phrases are printed in boldface italics.
* * *
Car means a land motor vehicle with four or more wheels, designed for use primarily on public roads. Car does not include:
1. Any vehicle while located for use as a dwelling or other premises; or
2. A truck-tractor designed to pull any type of trailer.
* * *
Newly Acquired Car (as modified by Amendatory Endorsement 6128DP) means a Car newly
owned by you
or a resident relative.
A Car ceases to be a Newly Acquired Car on the earlier of:
1. the effective date and time of a policy, including any binder, issued by us or any other company that describes that Car as an insured vehicle; or
2. the end of the 14th calendar day immediately following the date the Car is delivered to you or a resident relative.
* * *
Non-Owned Car means a Car that is in the lawful possession of you or any resident relative that neither:
1. is owned by:
a. you;
b. any resident relative;
c. any other person who resides primarily in your household; or
d. an employer of any person described in a., b., or c. above; nor
2. has been operated by, rented by, or in the possession of:
a. you ; or
b. any resident relative
during any part of each of the 31 or more consecutive days immediately prior to the date of the accident or loss.
* * *
* * *
Owned By means:
1. owned by;
2. registered to; or
3. leased, if the lease is written for a period of 31 or more consecutive days, to.
* * *
Temporary Substitute Car means a Car that is in the lawful possession of the person operating it and that:
1. replaces your car for a short time while your car is out of use due to its:
a. breakdown;
b. repair;
c. servicing;
d. damage; or
e. theft; and
2. neither you nor the person operating it own or have registered.
* * *
* * *
Us means the Company issuing this policy as shown on the Declarations Page.
We means the Company issuing this policy as shown on the Declarations Page.
You or Your means the named insured or named insureds shown on the Declarations Page. If a named insured shown on the Declarations Page is a person, then “You” or “your' includes the spouse of the first person shown as a named insured if the spouse resides primarily with that named insured.
Your Car means the vehicle shown under “YOUR CAR” on the Declarations Page. Your Car does not include a vehicle that You no longer own or lease.
* * *
LIABILITY COVERAGE
* * *
Additional Definition
Insured means:
1. You and resident relatives for:
a. the ownership, maintenance, or use of:
(1) Your Car;
(2) a Newly Acquired Car; or
(3) a trailer; and
b. the maintenance or use of:
(1) a Non-Owned Car; or
(2) a Temporary Substitute Car;
* * *
3. any other person for his or her use of:
a. Your Car;
b. a Newly Acquired Car;
c. a Temporary Substitute Car; or
d. a trailer while attached to a Car described in a., b., or c. above.
* * *
Insuring Agreement (as modified by Amendatory Endorsement 6940A)
1. We will pay damages an Insured becomes legally liable to pay because of:
a. bodily injury to others; and
b. damage to property
caused by an accident that involves a vehicle for which that Insured is provided Liability Coverage by this policy.
2. We have the right to:
a. investigate, negotiate, and settle any claim or lawsuit;
b. defend an Insured in any claim or lawsuit, with attorneys chosen by Us; and
c. appeal any award or legal decision for damages payable under this policy's Liability Coverage.
* * *
* * * (Docs. 1-3, comp., ex. C, the policy; doc. 1-4, comp., ex. D, the second policy; doc. 1, comp. ¶ 23).
The policies also provide as follows with respect to newly owned or leased cars:
GENERAL TERMS
* * *
3. Newly Owned or Newly Leased Car
If You want to insure a Car newly owned by You with the State Farm Companies after that Car ceases to be a Newly Acquired Car, You must either:
a. request We replace the Car currently shown on the Declarations Page of this policy with the car newly owned by You and pay Us any added amount due. If You make such a request while this policy is in force and:
(1) before the Car newly owned by you ceases to be a Newly Acquired Car, then that Car newly owned by You will be insured by this policy as your car beginning on the date the Car newly owned by You is delivered to you. The
added amount due will be calculated based on that date; or
(2) after the Car newly owned by you ceases to be a Newly Acquired Car, then that Car newly owned by You will be insured by this policy as your car beginning on the date and time You make the request. The added amount due will be calculated based on that date; or
b. apply to the State Farm Companies for a separate policy to insure the Car newly owned by You. Such policy will be issued only if both the applicant and the vehicle are eligible for coverage at the time of the application.
(As added by Amendatory Endorsement 6128DP) If a resident relative wants to insure a Car newly Owned By the resident relative with the State Farm Companies after that car ceases to be a Newly Acquired Car, then the resident relative must apply to the State Farm Companies for a separate policy to insure the Car newly Owned By the resident relative. Such policy will be issued only if both the applicant and the vehicle are eligible for coverage at the time of the application.
* * * (Docs. 1-3, comp., ex. C, the policy; doc. 1-4, comp., ex. D, the second policy; doc. 1, comp. ¶ 23).
Defendant Burgos purchased the 2007 Acura involved in the accident on April 24, 2020, and registered it with the South Carolina Department of Motor Vehicles (“SCDMV”) on May 8, 2020 (doc. 1-2, comp., ex. B, SCDMV title).
On May 5, 2022, State Farm filed a motion for judgment on the pleadi (doc. 37). On January 19, 2023, the Honorable Timothy M. Cain, United States District Judge, denied State Farm's motion on the grounds that defendants Farrow and Gallman (1) were not bound by the defaulting parties' admissions and (2) effectively denied the allegations in the complaint by stating they had insufficient knowledge or information to admit or deny the allegations (doc. 55). Following the court's order, State Farm's counsel attempted on several occasions to depose defendants Farrow and Gallman (see docs. 56, 60). Defendant Gallman was deposed on March 10, 2023 and testified, in relevant part, as follows:
Q. All right. Do you know an individual named Arturo Burgos, Jr.?
A. Uh-huh.
Q. No?
A. No, ma'am.
Q. Have you ever heard that name before?
A. I heard of him, yes.
Q. But you have you ever met him?
A. Never met him, but I heard he -- I heard -- I know about him a little bit, and what he do, what kind of business he do.
Q. Okay. Are you aware that the vehicle that you were in -- I believe it's a 2007 Acura -- at the time of the accident in 2020 was owned by Mr. Burgos?
A. I didn't know that.
Q. You didn't know that?
A. No, ma'am.
Q. Okay. So this is the first time you're learning that Mr. Burgos was the owner of that vehicle?
A. (Indicates affirmative response)
Q. Is that a yes?
A. Yes, ma'am.
Q. Do you know when Mr. Burgos purchased the 2007 Acura?
A. No, ma'am.
Q. Okay. Do you know when Mr. Burgos registered the 2007 Acura with the South Carolina Department of Motor Vehicles?
A. No, ma'am.
Q. Do you have any idea when Mr. Burgos took possession of the 2007 Acura?
A. No, ma'am.
Q. Okay. Do you have any idea when the 2007 Acura was delivered to Mr. Burgos?
A. No, ma'am.
Q. Do you have any knowledge about the State Farm insurance policy issued to Mr. Burgos?
A. No, ma'am. No, ma'am.
Q. Do you know whether Mr. Burgos ever added the 2007 Acura to his insurance policy?
A. I don't know that, either.
(Doc. 98-2, Gallman dep. 23-25).
The deposition of defendant Farrow was also noticed for March 10, 2023 (doc. 98-3). Defendant Farrow did not appear for his deposition (doc. 98-4, Farrow dep. 4-5). Counsel for defendant Farrow agreed on the record to reschedule the deposition for the following week (id.). The following week, however, counsel for defendant Farrow filed a motion to be relieved as counsel (docs. 66, 70). As discussed above, the court granted counsel's motion on April 14, 2023, and stayed the proceedings thirty days to allow defendant Farrow to obtain substitute legal representation (doc. 74). Matthew Foss, co-counsel for defendant Farrow, filed a motion to be relieved as counsel on April 17, 2023 (doc. 77). The court granted this motion on May 5, 2023, and extended the stay another thirty days to allow defendant Farrow to obtain substitute legal representation (doc. 79). On June 21,2023, the court acknowledged that defendant Farrow had not identified substitute legal counsel and, therefore, would be proceeding pro se (doc. 89). At that time, the undersigned also lifted the stay on the proceedings and advised counsel to submit a new proposed scheduling order (id.). Pursuant to the court's order, counsel submitted a proposed fifth amended scheduling order, and it was entered by the court on July 20, 2023 (doc. 95). The discovery deadline in the fifth amended scheduling order was September 29, 2023 (id.).
On July 21, 2023, State Farm served defendant Farrow with requests for admission (doc. 98-5, requests for admission), which included the following:
1. Admit you have no personal knowledge of the date on which Defendant Arturo Burgos took possession of the 2007 Acura.
2. Admit you have no personal knowledge of the date on which the 2007 Acura was delivered to Defendant Arturo Burgos.(Id., requests for admission ¶¶ 1-2). Defendant Farrow has not served responses to State Farm's requests for admission (doc. 98-1 at 11). Neither defendant Gallman nor defendant Farrow have noticed depositions or propounded written discovery in this matter (id.).
APPLICABLE LAW
Summary Judgment Standard
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id.
Interpretation of Insurance Policies
Under South Carolina law, “‘[i]nsurance policies are subject to the general rules of contract construction.'” Whitlock v. Stewart Title Guar. Co., No. 27169, 2012 WL 4013558, at * 2 (S.C. Sept. 12, 2012) (quoting M&M Corp. of S.C. v. Auto-Owners Ins. Co., 701 S.E.2d 33, 35 (S.C. 2010)). “An insurer's obligation under a policy of insurance is defined by the terms of the policy itself and cannot be enlarged by judicial construction.” Berenyi, Inc. v. Landmark Am. Ins. Co., C. A. No. 2:09-CV-01556-PMD, 2010 WL 233861, at * 3 (D.S.C. Jan. 14, 2010) (citing S.C. Ins. Co. v. White, 390 S.E.2d 471 (S.C. Ct. App. 1990)). “South Carolina law requires that if a policy's language is unambiguous, the language alone determines the policy's force and effect, and each term within the insurance policy must be given its intended purpose.” Dilmar Oil, Inc. v. FederatedMut. Ins. Co, 986 F.Supp. 959, 978 (D.S.C. 1997) (citing Torrington Co. v. Aetna Cas. & Sur. Co., 216 S.E.2d 547, 550 (S.C. 1975)). Further, “[i]f the intention of the parties is clear, . . . courts have no authority to torture the meaning of policy language to extend coverage that was never intended by the parties.” Berenyi, Inc., 2010 WL 233861, at *3 (citing S.C. Farm Bureau Mut. Ins. Co. v. Wilson, 544 S.E.2d 848, 850 (S.C. Ct. App. 2001)).
Declaratory Judgment Actions
“In an action for a declaratory judgment, the obligation of a liability insurance company to defend and indemnify is determined by the allegations in the complaint.” Collins Holding Corp. v. Wausau Underwriters Ins. Co., 666 S.E.2d 897, 899 (S.C. 2008) (citations omitted). “If the facts alleged in the complaint fail to bring a claim within the policy's coverage, the insurer has no duty to defend.” Id. (citation omitted). “The insured must show that the underlying complaint creates a ‘reasonable possibility' of coverage under the insurance policy.” Liberty Mut. Fire Ins. Co. v. Gen. Info. Services, Inc., 22 F.Supp.3d 597, 600-01 (E.D. Va. 2014) (citing Gordon Gallup Realtors Inc. v. Cincinnati Ins. Co., 265 S.E.2d 38, 40 (S.C. 1980)). The burden of proof is on the party seeking coverage to show that a claim falls within the coverage of an insurance contract, and the insurer bears the burden of establishing exclusions to coverage. Agape Senior Primary Care, Inc. v. Evanston Ins. Co., 304 F.Supp.3d 492, 497 (D.S.C. 2018).
ANALYSIS
State Farm's coverage position in this case is not based on the application of an exclusion. Thus, the burden of proof is on the defendants who are seeking coverage to show that a claim falls within the coverage of the insurance contract. See id. As argued by State Farm (doc. 98-1 at 13-14), in order for coverage to be triggered under the policies, defendant Burgos and defendant Newkirk must qualify as “insureds,” and they only qualify as “insureds” under the policies if the 2007 Acura is an insured vehicle (see doc. 1-3, comp., ex. C, the policy; doc. 1-4, comp., ex. D, the second policy).
As noted above, default has been entered against defendants Burgos and Newkirk. “Upon entry of default, the defaulting party is deemed to have admitted all well-plead[ed] allegations of fact contained in the complaint.” Richardson v. Duncan, C. A. No. 4:16-CV-0835-RBH-TER, 2018 WL 851342, at *2 (D.S.C. Jan. 11,2018), R&R adopted by 2018 WL 835227 (D.S.C. Feb. 13, 2018) (citing Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001)). Accordingly, defendant Burgos is deemed to have admitted that he purchased the 2007 Acura on April 24, 2020, and that he did not add it to the policies (doc. 1, comp. ¶¶ 14, 21). Similarly, defendant Newkirk, who was the driver of the 2007 Acura owned by defendant Burgos at the time of the accident (doc. 1, comp. ¶ 13), is deemed to have admitted the allegations of fact in the complaint.
As noted, defendants Farrow and Gallman are the only parties who have appeared in this action (doc. 20, answer). However, they are not parties to the policies and do not have personal knowledge of the allegations in the complaint related to the policies (doc. 1-3, comp., ex. C, the policy; doc. 1-4, comp., ex. D, the second policy; doc. 20, answer; doc. 98-2, Gallman dep 25-29). Similarly, defendants Farrow and Gallman do not have any personal knowledge of the facts and circumstances surrounding defendant Burgos' purchase, possession, delivery or registration of the 2007 Acura (doc. 20, answer ¶ 14; doc. 98-2, Gallman dep. 24-25; doc. 98-5, requests for admission). See Fed.R.Civ.P. 36 (“A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney.”). Further, defendants Farrow and Gallman have not presented any admissible evidence that creates a material question of fact regarding defendant Burgos' acquisition of the policies or his purchase, possession, delivery or registration of the 2007 Acura. Neither defendant Gallman nor defendant Farrow propounded any discovery in this matter, and neither responded to the motion for summary judgment. Further, the discovery conducted by State Farm and submitted in support of the motion for summary judgment reveals that neither has knowledge about these facts.
Based upon the foregoing, defendants Burgos, Newkirk, Farrow, and Gallman have not satisfied their burden of proof to show that the claims arising out of the accident on May 28, 2020, are covered under the policies.
The undersigned finds that State Farm is entitled to a declaration that there is no coverage for the accident giving rise to the underlying action because neither defendant Newkirk nor defendant Burgos is an “insured” as defined by the policies. The policies unambiguously provide that coverage is afforded for “insureds” and define “insured,” in relevant part, as follows:
Insured means:
1. You and resident relatives for:
a. the ownership, maintenance, or use of:
(1) Your Car;
(2) a Newly Acquired Car; or
(3) a trailer; and
b. the maintenance or use of:
(1) a Non-Owned Car; or
(2) a Temporary Substitute Car;
* * *
3. any other person for his or her use of:
a. Your Car;
b. a Newly Acquired Car;
c. a Temporary Substitute Car; or
d. a trailer while attached to a Car described in a., b., or c. above.
* * * (Doc. 1-3, comp., ex. C, the policy; doc. 1-4, comp., ex. D, the second policy).
As argued by State Farm, defendant Burgos, and not defendant Newkirk, is “you” as defined by the policies. As such, in order to trigger coverage for defendant Newkirk as the driver of the 2007 Acura, the accident must involve “your car,” a “newly acquired car,” or a “temporary substitute car” as defined by the policies. The 2007 Acura involved in the accident does not qualify as “your car” under the policies because “your car” must be identified on the policy declarations page, and it is not (doc. 1-3, comp., ex. C, the policy; doc. 1-4, comp., ex. D, the second policy). Instead, the vehicles on the declarations pages of the policies are a 2003 GMC pickup truck and a 2014 Kia Optima (doc. 1-3 at 3, comp., ex. C, the policy; doc. 1-4 at 3, comp., ex. D, the second policy).Thus, the 2007 Acura does not qualify as “your car” as defined in the policies.
Likewise, the 2007 Acura is not a “newly acquired car.” As set out in the excerpts of the policies quoted above, a vehicle does not qualify as a “newly acquired car” after the end of the fourteenth day following delivery to the named insured (doc. 1-3, comp., ex. C, the policy; doc. 1-4, comp., ex. D, the second policy). Here, it is undisputed that defendant Burgos purchased the 2007 Acura on April 24, 2020, and registered it with the SCDMV on May 8, 2020, more than fourteen days before the accident on May 28, 2020 (doc. 1-2, comp., ex. B, SCDMV title). Additionally, neither defendant Farrow nor defendant Gallman has presented any evidence, much less admissible evidence, that the 2007 Acura was delivered to defendant Burgos within fourteen days of the accident. Thus, on the date of the accident, the 2007 Acura was not a “newly acquired car” as defined in the policies.
Further, the 2007 Acura is not a “temporary substitute car.” As set out in the excerpts of the policies quoted above, a “temporary substitute car” must be a temporary replacement for a vehicle identified on the declarations page and must be owned by someone other than defendants Burgos or Newkirk (doc. 1-3, comp., ex. C, the policy; doc. 1-4, comp., ex. D, the second policy). Because defendant Burgos purchased the 2007 Acura on April 24, 2020, and registered it with the SCDMV on May 8, 2020, it was not a “temporary substitute car” on the date of the accident.
Based on the foregoing, the 2007 Acura is not an insured vehicle, and defendant Newkirk is not an “insured” entitled to coverage under the policies. Thus, State Farm is entitled to a declaration that it has no duty to defend or indemnify any claims against defendant Newkirk arising out of the accident, including the claims asserted in the underlying action.
With regard to defendant Burgos, he is the “you” referenced in the definition of “insured” set forth above. Therefore, in order to trigger coverage for defendant Burgos under the policies, the accident must involve “your car,” a “newly acquired car,” a “non-owned car,” or a “temporary substitute car” as defined by the policies. As discussed above, “your car” is defined as the vehicle shown under “your car” on the declarations. The 2007 Acura is not identified as “your car” on the declarations pages of the policies (doc. 13, comp., ex. C, the policy; doc. 1-4, comp., ex. D, the second policy). Likewise, the 2007 Acura is not a “newly acquired car” or “temporary substitute car” as defined by the policies for the reasons discussed above (doc. 1-3, comp., ex. C, the policy; doc. 1-4, comp., ex. D, the second policy; doc. 1-2, comp., ex. B, SCDMV title).
Moreover, the 2007 Acura is not a “non-owned car” as defined by the policies. As set out in the excerpts of the policies quoted above, the policies define “non-owned car” as a car that is in the lawful possession of the named insured or any resident relative of the named insured that is neither owned by the named insured or any resident relative during any part of each of the thirty-one or more consecutive days immediately prior to the accident or loss (doc. 1-3, comp., ex. C, the policy; doc. 1-4, comp., ex. D, the second policy). As it is undisputed that defendant Burgos was the owner of the 2007 Acura at the time of the accident and that he purchased the 2007 Acura on April 24, 2020, more than thirty days before the accident (doc. 1-2, comp., ex. B, SCDMV title), the 2007 Acura is not a “non-owned car” as defined by the policies.
Because the 2007 Acura is not a vehicle for which liability coverage is provided by the policies, defendant Burgos is not an “insured” entitled to coverage under the policies. Thus, State Farm is entitled to a declaration that it has no duty to defend or indemnify him for claims arising out of the accident.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the motion for summary judgment (doc. 98) by plaintiff State Farm should be granted. The undersigned recommends that State Farm be granted a declaratory judgment that the policies it issued to defendant Burgos do not provide coverage for claims arising out of the automobile accident on May 28, 2020, and it has neither a duty to defend nor a duty to indemnify defendant Newkirk for the claims and damages asserted in the underlying action.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 250 East North Street, Suite 2300 Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).