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S.C. FARM BUREAU v. U.S. FIDELITY & GUARANTY12/28/1995
rnative ground, the trial court held Canty was a Class I insured under the Farm Bureau policy and a Class II insured under the USF&G policy. Applying an "Other Insurance" provision of the USF&G policy, the court held Canty must exhaust his Class I UIM coverage under the Farm Bureau policy before receiving any Class II UIM benefits from the USF&G policy.
Canty was the named insured of a personal auto policy purchased from Farm Bureau. That policy provided underinsured motorist coverage in which Farm Bureau agreed to pay "damages for bodily injury or property damage a covered person is legally entitled to collect from the owner or operator of an underinsured motor vehicle." As the named insured, Canty was a "covered person" as defined in the policy. The additional limits of liability and other coverage section of the Farm Bureau policy contained a provision addressing multiple coverages.
Subsection 6 states: "If a covered person sustains bodily injury or property damage while occupying a vehicle not owned by a covered person, this coverage applies as excess coverage to any basic limits uninsured and/or underinsured motorist coverage which applied to the vehicle as primary coverage."
The USF&G policy provided the company would pay "in accordance with the South Carolina Uninsured [Underinsured] Motorists Law all sums the `insured' is legally entitled to recover as damages from the owner or driver of an `uninsured [underinsured] motor vehicle'". Canty was a covered person under this policy by virtue of his permissive use of the Scottswood Plantation vehicle at the time of the accident. The USF&G policy and endorsement contained an "Other Insurance" provision which stated " or any covered `auto' you own, this Coverage Form provides primary insurance. For any covered `auto' you don't own, the insurance provided by this Coverage Form is excess over any collectible insurance."
The trial court held Farm Bureau provided the primary underinsured coverage and USF&G provided excess underinsured coverage. This was error. Based upon the contractual provisions of the insurance policies, USF&G provided the primary coverage because the vehicle involved in the accident was a Scottswoods Plantation vehicle insured by the USF&G policy. The vehicle was being permissively used by Canty at the time of the accident. See Whitmire v. Nationwide Mut. Ins. Co., 254 S.C. 184, 174 S.E.2d 391 (1970). This interpretation is in accord with the Farm Bureau policy which provides excess coverage for a covered person who sustains bodily injury while occupying a vehicle not owned by the covered person.
The trial court erred in its interpretations of the Farm Bureau and USF&G policies. We conclude the USF&G policy provides primary underinsured motorist coverage to Canty as a permissive user of the Scottswood Plantation vehicle. The decision of the trial court is
Reversed.
SHAW, CONNOR and HEARN, JJ., concur.
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