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2009-MO-037 - Miller v. Unity Group

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Supreme Court


Regina Miller, Plaintiff,

v.

The Unity Group, Inc., Modern Business Associates, Continental Casualty Insurance Company, and SCUEF, Defendants,

of whom The Unity Group, Inc. Modern Business Associates is Respondent,

and Continental Casualty Insurance Company is, Petitioner.


ON WRIT OF CERTIORARI TO THE COURT OF APPEALS


Appeal From Horry County
James E. Lockemy, Circuit Court Judge


Memorandum Opinion No.  2009-MO-037
Heard June 9, 2009 – Filed July 13, 2009 


REVERSED


Kirsten L. Barr, of Trask and Howell, of Mt. Pleasant, for Petitioner.

Natale Fata, of Surfside Beach, for Respondent.


PER CURIAM:  We granted a writ of certiorari to review the court of appeals unpublished opinion in this case.  We reverse.

On the basis of a finding that The Unity Group was an “additional insured” under Modern Business Associates’ workers’ compensation insurance policy with Continental Casualty Insurance Company, the court of appeals affirmed the circuit court.  The circuit court had determined Continental Insurance had a conflict in its representation of Unity Group.  As a result, the circuit court ordered Continental Insurance to “appoint separate counsel to defend the Unity Group.”  The finding of a conflict was in error.

We need not reach the question of whether Unity Group is an additional insured under Modern Business Associates’ policy with Continental Casualty as a result of Unity Group’s status as an alternate employer.  We decline to do so because even assuming Unity Group is an additional insured, its status as an insured is unquestionably restricted to Regina Miller’s July 2002 claim in the underlying workers’ compensation case; Miller’s separate March 2002 claim occurred outside of the policy period.  R. A. Earnhardt Textile Mach. Div., Inc. v. S.C. Ins. Co., 277 S.C. 88, 90, 282 S.E.2d 856, 857 (1981) (“If the alleged facts in the complaint fail to bring the case within the policy coverage, the insurer is free of the obligation to defend.”).

The circuit court erred in finding a conflict between Continental Insurance’s counsel’s representation of Unity Group and Unity Group’s interest as an alleged insured.  We hold there was no conflict of interest as Continental owed no duty to defend Unity Group in Miller’s March 2002 claim.

REVERSED.

TOAL, C.J., WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur.