Zurich American Insurance v. Tolbert

Chief Justice TOAL.

I respectfully dissent from the majority’s opinion and would reverse the court of appeals’ decision finding Tony Tolbert and Tonesha Tolbert’s (Respondents) affidavit creates a genuine issue of material fact sufficient to survive Zurich American Insurance Company’s (Petitioner) motion for summary judgment.

Tony Tolbert (Tolbert), a BMW employee, leased a 2003 BMW 325(BMW) as part of a lease program for BMW employees. Petitioner issued a business automobile insurance policy (Policy) to BMW which provided underinsured (UIM) coverage to the leasing employees in certain circumstances.

On a Saturday in 2003, Tolbert picked up his son in Greenwood, South Carolina. Tolbert was driving a 1989 Honda Accord (Honda) registered and titled in his name, instead of the leased BMW. The Honda was insured, but Tolbert chose to reject UIM coverage under the Honda policy. On the return trip from Greenwood to Greenville, Tolbert was involved in an accident caused by William Humbert (Humbert). Tolbert was injured, but settled with Humbert for the minimum liability limits of $15,000 Humbert carried on his automobile.

Petitioner filed this declaratory judgment action against Respondents seeking a determination on several different grounds that Tolbert did not qualify as an insured for purposes of UIM coverage under the Policy. Both parties filed *285motions for summary judgment, and a hearing was scheduled at the circuit court. At the hearing, Respondents argued the Honda was a temporary substitute for the leased BMW, and thus qualified Respondents for UIM coverage under a Policy endorsement. In support of their argument, Respondents submitted an affidavit stating the reason Tolbert was driving the Honda instead of the BMW was because the BMW was “in need of service and an oil change and could not be driven.” The circuit court granted Petitioner’s motion for summary judgment. The court of appeals reversed and held Respondents’ affidavit created a genuine issue of material fact as to whether Tolbert’s Honda qualified as a temporary substitute for the covered BMW. Zurich American Ins. Co. v. Tolbert, 378 S.C. 493, 501, 662 S.E.2d 606, 610 (Ct.App.2008).

1. The Honda Was Not a Temporary Substitute

The UIM policy provision upon which Respondents rely states:

B. Who Is An Insured
If the Named Insured is designated in the Declarations as:
2. A partnership, limited liability company, corporation or any other form of organization, 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.

This Court addressed a temporary substitute clause in Nationwide Mutual Insurance Co. v. Douglas, 273 S.C. 243, 255 S.E.2d 828 (1979). We noted that “in order for coverage to be extended under a substitution provision, the use of the alleged substitute automobile must be Temporary.” Douglas, 273 S.C. at 246, 255 S.E.2d at 830. In Douglas, the Court found the automobile alleged to be a temporary substitute for the covered automobile was not a temporary substitute because “[t]he record is barren of any evidence that she was using the Pontiac temporarily.” Id.

In this case, there is no evidence in the record that Tolbert was using the Honda temporarily. Indeed, there was nothing *286temporary about Tolbert’s use of the Honda he was driving at the time of the accident. The Honda was registered and titled in Tolbert’s name and was available for Tolbert’s use at any time. Similar to the vehicles in Douglas, both the Honda and BMW were intended for Tolbert’s continued use until he chose to dispose of them. There is no evidence the Honda was being used temporarily or as a substitute for the BMW at the time of the accident. Thus, the court of appeals should be reversed.

II. The BMW Was Not “Out of Service”

Moreover, even if the Honda were being used as a temporary substitute, the policy language also requires the covered automobile to be “be out of service because of its breakdown, repair, servicing, ‘loss’ or destruction.” In this case, the only possibility for coverage would be if the car was deemed to be out of service due to servicing.

Other courts have held that routine auto service does not sufficiently remove a vehicle from service to trigger temporary substitute auto coverage. See State Farm Mut. Auto. Ins. Co. v. O’Brien, 14 Cal.3d 96, 120 Cal.Rptr. 692, 534 P.2d 388 (1975) (holding the fact that the insured vehicle was low on gas did not allow for another vehicle to qualify as a temporary substitute); Iowa Mut. Ins. Co. v. Addy, 132 Colo. 202, 286 P.2d 622, 624 (1955) (finding when an insured vehicle was low on fuel and had snow tires on it was insufficient for another vehicle to qualify as a temporary substitute because “[a] reasonable and logical interpretation of the word ‘servicing’ would seem to present a condition where the automobile covered by the policy was in some manner actually disabled.”). In my view, alleging that an oil change and service are needed is not sufficient to trigger UIM coverage under the policy language. Similar to the O’Brien case where the covered vehicle needed gas, Respondents’ affidavit alleges that the BMW needed an oil change. There was no evidence that the BMW was actually disabled. I would find that merely needing an oil change and service does not constitute a car being out of service for the purpose of UIM coverage under this policy.

To conclude, in my opinion, the Honda fails to be a temporary substitute for the BMW for two reasons: (1) there is no evidence in the record to show that Tolbert’s use of the Honda *287was temporary or that it was being used as a substitute for the BMW at the time of the accident; and (2) even if the Honda were being used as a temporary substitute, it was not out of service for the purpose of UIM coverage. Thus, I would reverse the court of appeals and affirm the trial court’s decision to grant Petitioner’s motion for summary judgment.

KITTREDGE, J., concurs in Section I only.