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2004-UP-579 - South Carolina Farm Bureau Mutual Insurance Company v. Moore

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS
PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

South Carolina Farm Bureau Mutual Insurance Company, Respondent,

v.

Steven P. Moore, Tracey Lee Moore, Becky T. Smith and Barry Smith, Defendants,

of whom

Becky T. Smith and Barry Smith are the Appellants.


Appeal From Oconee County
 Alexander S. Macaulay, Circuit Court Judge


Unpublished Opinion No. 2004-UP-579   
Submitted November 1, 2004 – Filed November 17, 2004


AFFIRMED


Steven M. Krause, Esquire, Daniel L. Draisen, of Anderson, for Appellants.

Reginald L. Foster, of Spartanburg, for Respondent.

PER CURIAM:  This declaratory judgment action concerns excess liability insurance coverage.  South Carolina Farm Bureau Mutual Insurance Company filed this action to determine whether it had any excess liability coverage for an accident involving Tracey Moore, Becky Smith, and Barry Smith. At the time of the accident, Tracey Moore was driving an Isuzu Trooper owned by her mother-in-law and insured by Farm Bureau.  Tracy Moore’s husband, Stephen Moore, owned a truck also insured by Farm Bureau.  Farm Bureau, as insurer of the Isuzu, paid its policy limits to the Smiths and brought suit to determine whether its policy on Stephen Moore’s truck provided excess liability coverage that would be available to the Smiths.  The trial judge, sitting without a jury, determined Farm Bureau did not provide excess coverage because Stephen Moore’s policy contained a “regular use exclusion” and the Isuzu was “available for the regular use” of Tracey Moore.  The Smiths appeal.  We affirm. [1]

The Smiths argue the Isuzu was not available for the regular use of Tracy Moore as defined by the Farm Bureau policy. 

“On appeal of an action at law tried by the judge without a jury this court will review the factual findings to determine if there is any evidence to support them.”  South Carolina Farm Bureau Mut. Ins. Co. v. Windham, 303 S.C. 330, 331, 400 S.E.2d 497 (Ct. App. 1990).  Evidence presented in this case includes Farm Bureau’s exclusionary provision and Tracey Moore’s deposition testimony.

The Farm Bureau policy excluded liability for non-owned vehicles available for the “regular use of the insured.”  The purpose of a regular use provision is “to afford coverage for the infrequent and casual use of vehicles other than the one described in the policy, but not to cover the insured with respect to his use of another vehicle which he frequently uses or has the opportunity to use.”  AETNA Cas. & Sur. v. Sessions, et al., 260 S.C. 150, 155, 194 S.E.2d 877, 879 (1973).  “Regular use” is be distinguished from casual, occasional, or infrequent use.  Grantham v. U.S. Fidelity and Guar. Co., 245 S.C. 144, 149, 139 S.E.2d 744, 746 (1964). 

The trial judge found as fact that the Isuzu was available for the regular use of Tracey Moore.  Evidence in the record supports this finding.  In her deposition, Tracey Moore stated she had a set of keys for the Isuzu, she kept the Isuzu at her house “half of the time,” and she could use the vehicle for any purpose.  The Isuzu was Tracey Moore’s primary means of transportation while Stephen Moore was at work.  In addition, the declarations page of the insurance policy on the Isuzu listed Tracy Moore as a driver.

AFFIRMED.

HEARN, C.J., GOOLSBY and WILLIAMS, JJ., concur.


[1] This case is decided without oral argument pursuant to Rule 215, SCACR.