Zurich American Insurance v. Tolbert

692 S.E.2d 523, 387 S.C. 280, 2010 S.C. LEXIS 112

• Court: Supreme Court of South Carolina
• Decided: April 12, 2010
• Docket: 26798
• Status: Published

Opinions

Justice PLEICONES.

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.

FACTS

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.

ISSUE

Did the Court of Appeals err in reversing the circuit court order granting summary judgment to Zurich?

ANALYSIS

The SCUIM endorsement defines who is an UIM insured for purposes of automobiles principally garaged in South Carolina as:

B. Who is an Insured

If the Named Insured designated in the Declaration is:

2. A ... corporation, then the following are “insureds:”

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.

CONCLUSION

The decision of the.Court of Appeals reversing the grant of summary judgment to Zurich is

AFFIRMED.

BEATTY, J. and Acting Justice JAMES E. MOORE, concur. TOAL, C.J., dissenting in a separate opinion in which KITTREDGE, J., concurs in Section I only.

1 . As we read the affidavit, the BMW was in need of both an oil change and a service, unlike the cars in both State Farm Mut. Auto. Ins. Co. v. O’Brien, 14 Cal.3d 96, 120 Cal.Rptr. 692, 534 P.2d 388 (1975) and Iowa Mut. Ins. Co. v. Addy, 132 Colo. 202, 286 P.2d 622 (1955) which needed only more gasoline in order to be driven.