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MCPHERSON v. MICHIGAN MUTUAL INS. CO.12/2/1991
Heard April 16, 1991; Decided December 2, 1991.
Rehearing Denied January 15, 1992.
This is an action to recover money alleged to be due under a contract of liability insurance. Jonathan McPherson (by his guardian ad litem Theresa McPherson) and the City of Charleston, South Carolina, sued the South Carolina State Budget and Control Board Division of General Services Insurance Reserve Fund and the Michigan Mutual Insurance Company. The Insurance Reserve Fund is an agency of the State of South Carolina created to provide insurance coverage to governmental bodies. The Fund issued an automobile liability policy and a general tort liability policy to the City of Charleston. Michigan Mutual is a private insurance company which contracted with the Fund to reinsure all risks within the coverage of the general tort liability policy.
McPherson's claim arises from permanent brain injuries he received when he was struck by a police car owned by the City and operated by a City policeman in the course of his duties. The Fund denied the claim under the general tort liability policy, asserting that it came within an automobile exclusion
The facts material to the appeals are as follows. In 1986, McPherson sued the City and Wayne Sojourner, a City policeman. The complaint alleged two causes of action against each defendant: the first in common law tort and the second for acting under color of state law to deprive McPherson of his civil rights in violation of the Constitution and laws of the United States. After a mistrial due to juror misconduct, the case was settled.
The evidence showed the occurrence in question arose from a routine police call in the early morning hours of August 18, 1984. A resident of downtown Charleston telephoned the police department to report a prowler on Drake Street. The first police officer to respond was Kevin McGowan. He arrived in the vicinity, left his police car, and approached on foot a man fitting the description given by the caller. When he identified himself as a police officer, the suspect ran. McGowan gave chase on foot.
Officer Sojourner also responded to the Drake Street call. As Sojourner approached the vicinity in his police car, he heard McGowan radio that he was chasing the suspect down Reid Street. Sojourner turned into Reid Street. As he headed toward McGowan and the fleeing suspect, the suspect turned into America Street. Sojourner pursued in his automobile.
According to Sojourner's testimony, the suspect was running on the sidewalk on the right hand side of America Street. Sojourner drove his car down the center of the street. He first coasted abreast of the suspect to get a good look at him. He then intended to accelerate past the suspect to a point ahead of him, stop, get out of the car, and either pursue or block the suspect on foot while McGowan came from the rear. As Sojourner took his eyes off the suspect and looked ahead to
McPherson testified he was not the person seen by McGowan on Drake Street. He said he had spent the evening with friends at a party in the Elk's Hall on Cooper Street. After the hall closed, he started walking down America Street to go home. As he was walking down the sidewalk on the right side of the street, a car came and hit him. He did not remember if he tried to cross the street or how the accident occurred.
At trial, McPherson's theory was that he was an innocent passerby struck when Sojourner drove his car onto the curb while pursuing an unknown pedestrian suspect. McPherson maintained Sojourner engaged in a maneuver known as "channeling" in which the patrolman uses the patrol car itself to block the suspect's path, rather than blocking him on f
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