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2007-UP-514 - Peerless Insurance Company v. Wilson

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

Peerless Insurance Company, Respondent,

v.

Lynn Wilson, Appellant.


Appeal From Oconee County
 Alison Renee Lee, Circuit Court Judge


Unpublished Opinion No. 2007-UP-514
Hearnd September 13, 2006 – Filed November 7, 2007   


AFFIRMED


Andrew C. Barr, of Greenville, for Appellant

Ellis M. Johnston, of Greenville, for Respondent.

GOOLSBY, A.J.:  Lynn Wilson appeals the finding by the circuit court that she is not entitled to underinsured motorist (UIM) coverage.  We affirm.

Contracting Décors, Inc., a business owned by Wilson’s husband, obtained an automobile insurance policy from the respondent Peerless Insurance Company on January 7, 2000.  The policy covered eighteen motor vehicles, including a 1995 Ford Contour.  Although the policy listed Contracting Décors as the owner of the car, the parties stipulated at trial that Wilson’s husband actually owned it.

An UIM coverage endorsement contained within the policy states Peerless will pay, consistent with South Carolina UIM law, all sums the “insured” may be legally entitled to recover.  The endorsement defines the term “insured” as:

1.  You.
2. If you are an individual, any “family member”.
3. Anyone else “occupying” a covered “auto” or a temporary substitute for a covered “auto”. . . .

The policy defines a “covered auto” for purposes of UIM as “[o]nly those ‘autos’ [the named insured] own[s].” 

Nine months after Contracting Décors obtained the Peerless policy, Wilson was involved in an accident while driving the Ford Contour.  Because her damages exceeded the liability limits of the at-fault driver’s policy, Wilson sued Peerless to obtain UIM benefits.  Wilson maintained she should be qualified as a Class II insured because the Peerless policy lists the Ford Contour as a “covered auto.”  Peerless, however, disagreed, arguing Contracting Décors did not own the insured vehicle and therefore could not give Wilson the permission necessary to make Wilson a Class II insured under the policy.

The trial court gave judgment to Peerless, finding the policy unambiguous and finding Wilson excluded from UIM coverage by the plain language of the policy.

We agree with the trial judge.

In order for underinsured motorist coverage to apply to a vehicle listed in the policy, the vehicle must first have been owned by the named insured, Contracting Décors.  Here, the parties stipulated Wilson’s husband owned the vehicle at issue, not Contracting Décors.  The fact that the policy listed the vehicle as an insured vehicle is of no moment since the named insured did not own the vehicle.  Wilson, then, was not driving a “covered auto” as defined by the policy at the time of the accident.[1]

We also agree with the trial judge that Wilson cannot be classified as a Class II insured under the policy.  Again, the owner of the vehicle, Wilson’s husband, was not the named insured under the policy.  Contracting Décor was the named insured; thus, the vehicle Wilson was driving at the time of the accident was not a vehicle to which the policy applied.  Because Wilson was not using a vehicle to which the policy applied, she cannot be deemed a Class II insured.[2]

AFFIRMED.

WILLIAMS, J. and BEATTY, A.J. concur.


[1]  See MGC Management of Charleston, Inc. v. Kinghorn Ins. Agency, 336 S.C. 542, 548-49, 520 S.E.2d 820, 823 (Ct. App. 1999). (“This court must enforce, not write, contracts of insurance and we must give policy language its plain, ordinary, and popular meaning. . . . [I]f the intention of the parties is clear, courts have no authority to torture the meaning of policy language to extend or defeat coverage that was never intended by the parties.”).

[2]  See Floyd v. Nationwide Mut. Ins. Co., 367 S.C. 253, 257, 626 S.E.2d 6, 9 (2005) (“Class II insureds are those using the insured vehicle with permission of the named insured and a guest in the motor vehicle.”).