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2011-UP-242 - Bell v. Progressive Direct Insurance

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 Court of Appeals

Joshua Bell, Appellant,

v.

Progressive Direct Insurance Company, Respondent.


Appeal From Horry County
J. Michael Baxley, Circuit Court Judge


Unpublished Opinion No. 2011-UP-242  
Submitted February 1, 2011 – Filed May 24, 2011
Withdrawn, Substituted and Refiled June 23, 2011


AFFIRMED


Gene M. Connell, Jr., of Surfside Beach, for Appellant.

J.R. Murphy, of Columbia, for Respondent.

PER CURIAM: In this insurance case from Horry County, Joshua Bell brought an action against Progressive Direct Insurance Co. (Progressive), seeking to recover underinsured motorist (UIM) coverage from a policy issued to his live-in girlfriend, Sarah Serven.  Bell now appeals the trial court's grant of summary judgment in favor of Progressive.  We affirm.

FACTS

On May 4, 2005, Progressive issued an automobile insurance policy covering a vehicle owned by Serven and effective until May 4, 2006.  The policy listed Serven and Bell as "Drivers and household residents," but listed Serven as the only "named insured."  In March 2006, Bell was in an auto accident while a passenger in a car owned by his employer.[1]  At the time of the accident Bell was living with Serven. 

In March 2006, the couple had a child together.  Around this time, Bell gave Serven a diamond ring and the two were engaged without having set a wedding date.  Sometime around February 2007, Serven and the child moved to Maryland and the couple called off the engagement.  Shortly after Serven moved to Maryland, she and Bell became engaged for a second time, again without setting a date.  While Serven and the child lived in Maryland, Bell visited several times and planned to move there in June 2007.  However, around the end of May 2007, Bell made an unannounced visit to Maryland and found Serven with another man.  Subsequently, the couple permanently called off their engagement.

On July 18, 2007, Bell brought this action, seeking UIM coverage under the Progressive policy.  Progressive moved for summary judgment.  The trial court granted the motion, finding (1) Bell and Serven were not common law married, and therefore, Bell was not a named insured under the policy and (2) South Carolina courts have not adopted the doctrine of reasonable expectations, and therefore, Bell is not entitled to UIM coverage by virtue of being a "driver or household member."  This appeal followed.

STANDARD OF REVIEW

Summary judgment is appropriate when there are no genuine issues of material fact and it is clear the moving party is entitled to a judgment as a matter of law.  Rule 56(c), SCRCP.  "Appellate courts review the grant of summary judgment under the same standard applied by the trial court . . . [granting summary judgment] where there are no genuine issues of material fact, . . . [and viewing] the evidence and all inferences that reasonably can be drawn [therefrom] . . . in the light most favorable to the nonmoving party."  Argoe v. Three Rivers Behavioral Ctr. & Psychiatric Solutions, 388 S.C. 394, 400, 697 S.E.2d 551, 554 (2010) (citations omitted).  "[I]n cases applying the preponderance of the evidence burden of proof, the non-moving party is only required to submit a mere scintilla of evidence in order to withstand a motion for summary judgment."  Hancock v. Mid-South Mgmt. Co., 381 S.C. 326, 330, 673 S.E.2d 801, 803 (2009).

LAW/ANALYSIS

1.  Bell argues the trial court erred in failing to find the policy provided him with UIM coverage.  We disagree. 

If a person's vehicle is not involved in an accident, that person may reach only one at-home policy of which he is an insured.  See S.C. Code Ann. § 38-77-160 (2002) ("If none of the insured's or named insured's vehicles is involved in the accident, coverage is available only to the extent of coverage on any one of the vehicles with the excess or underinsured coverage.").  Here, Bell is not an insured under Serven's policy.

Serven's policy explicitly provides UIM for an "insured person," and it defines that term as "you or a relative."  "You" is defined under the policy as "a person or persons shown as a named insured on the Declarations Page" and "the spouse of a named insured if residing in the same household."  "Relative" is defined as "a person residing in the same household as you, and related to you by blood, marriage, or adoption . . . ."  Consequently, whether Bell is insured by and may therefore reach Serven's policy depends upon whether he falls within one of the defined terms, you or relative.

As to whether Bell falls within the defined term "you," Bell first argues the use of the term "household resident" on the policy's declaration page creates an ambiguity as to whether he is a named insured that must be resolved against the insurer, Progressive.  We disagree.  "The majority view is that listing a driver on the declarations page of an insurance policy does not make that person a named insured."  Ex Parte United Servs. Auto Ass'n, 365 S.C. 50, 55, 614 S.E.2d 652, 654 (Ct. App. 2005).  Moreover, the policy's failure to define "household resident" does not by itself make the policy ambiguous.  Cf. id. at 55-56, 614 S.E.2d at 654-55.  The policy defines "you" as the "named insured on the Declarations Page" and "the spouse of the named insured if residing in the same household."  It also defines "relative" as "a person residing in the same household as you, and related to you by blood, marriage, or adoption."  Thus, we see no ambiguity.

Second, Bell argues the trial court erred in finding he was not Serven's spouse because he provided sufficient evidence to survive summary judgment as to whether they were bound in common law marriage.  We disagree.  In South Carolina, common law marriage requires cohabitation accompanied by a present intent to be husband and wife.  See Baker v. Baker, 330 S.C. 361, 367, 499 S.E.2d 503, 507 (Ct. App. 1998) (recognizing mutual understanding and intent are essential to the existence of a common law marriage); see also Callen v. Callen, 365 S.C. 618, 624, 624 S.E.2d 59, 62 (2005) (indicating that cohabitation combined with holding one's self out as married, creates a rebuttable presumption of the existence of a common law marriage).  In this case, Bell failed to provide evidence he and Serven held themselves out as married.  Although the couple lived together, cohabitation alone is insufficient to create a common law marriage.  The evidence indicates Serven and Bell were engaged to be married at some undetermined point in the future.  The only inference to be drawn from this is that the couple did not have a present intent to be married but instead a future intent to be married. 

As to the second defined term, Bell maintains he was a "relative" under the policy because the mother of his child was Serven, the named insured. Again, we disagree.  Bell is not a relative under the policy because he is not related to Serven by blood or marriage.  Accordingly, the trial court properly held Bell could not reach the UIM coverage of Serven's policy because he was not an insured under that policy.

2.  Bell also urges this court to adopt the doctrine of reasonable expectations.  We decline to do so.

This doctrine essentially is that the objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated these expectations.  The theory is based upon the proposition that the construction of the language of an insurance contract is not ordinarily controlled by the standards applicable to a contract negotiated at arm's length between two parties on the same plane.

. . . .

This view has never been accepted by the Supreme Court of this State. In South Carolina insurance policies are subject to the general rules of contract construction.
. . . .

If the intention of the parties is clear, the Courts have no authority to change the contract in any particular and have no power to interpolate into the agreement between the insurer and the insured, a condition or stipulation not contemplated by the parties.  A reviewing court should not rewrite or torture the meaning of policy language to achieve a result never intended by the parties.  

Allstate Ins. Co. v. Mangum, 299 S.C. 226, 231, 383 S.E.2d 464, 466-67 (Ct. App. 1989) (citations and internal quotation marks omitted). 

Bell argues because the doctrine was not properly before the court in Mangum, the court's statement is dicta and as a result, the court has never explicitly rejected the doctrine.  See id. at 232, 383 S.E.2d at 467 (noting that because the doctrine of reasonable expectations was not addressed by the trial court, the issue was not properly preserved for appeal); but see United Servs., 365 S.C. at 54, 614 S.E.2d at 654 (stating that the doctrine of reasonable expectations has been rejected in South Carolina).  Admittedly, the court's statement in Mangum is not the law of the case; however, the supreme court has consistently held that unambiguous insurance policies are subject to the general rules of contract construction.  See, e.g., Gambrell v. Travelers Ins. Co., 280 S.C. 69, 71, 310 S.E.2d 814, 816 (1983); see also United Servs., 365 S.C. at 54, 614 S.E.2d at 654 (suggesting that implementation of this rule is the equivalent of rejecting the doctrine of reasonable expectations).  Therefore, even assuming for the sake of argument that the doctrine has not been explicitly rejected, because the doctrine cannot be reconciled with the rule that unambiguous insurance policies are subject to the traditional rules of contract construction, this court is precluded from adopting the doctrine.  Such a departure from jurisprudence must be left to our supreme court. 

CONCLUSION

Accordingly, the trial court is

AFFIRMED.

FEW, C.J., THOMAS, and KONDUROS, JJ., concur.


[1]  Although the trial court found the date of the accident to be May 31, 2006, the record demonstrates this is a typographical error, and the parties accept that the accident actually occurred in March 2006 during the policy period.