McDONALD, J.
In this declaratory judgment action, Auto-Owners Insurance Company (Auto-Owners) appeals the circuit court's grant
Naida Singleton and Brett Singleton own and operate Pee Dee, which is located in Chesterfield County. On February 14, 2008, Auto-Owners issued Pee Dee an automobile insurance policy (Auto Policy). The Auto Policy provided $300,000 in coverage for combined liability, uninsured, and underinsured protection on five scheduled drivers and six scheduled vehicles, as well as comprehensive coverage, collision, and "road trouble service."
On February 15, 2008, Auto-Owners issued Pee Dee a CGL Policy providing $2,000,000 in commercial general liability coverage and an endorsement providing $1,000,000 in liability coverage for "hired auto" and "non-owned auto." The policy provisions forming the basis of the inquiry in this case are contained in three portions of the CGL Policy: (1) the commercial general liability Aircraft, Auto or Watercraft Exclusion (the Exclusion); (2) the commercial general liability Other Insurance Condition (the Condition); and (3) the commercial general liability Endorsement (the Endorsement).
Pursuant to the Exclusion, found in
The Condition, found in
Finally, the Endorsement modifies the insurance provided by the CGL
Although the CGL Policy generally excluded automobile accidents under the Exclusion, Pee Dee purchased the Endorsement, which, in limited circumstances, provided liability coverage under the CGL Policy for "bodily injury" and "property damage" arising out of an automobile accident. However, the CGL Policy contained a clause stating the Endorsement only applied "if you do not have any other insurance available to you which affords the same or similar coverage." April 1, 2008 was the effective date for both the CGL Policy and its Endorsement as well as the Auto Policy.
On April 7, 2008, a Pee Dee employee, Joshua Lee Cail, was involved in an automobile accident with Elouise Benjamin. At the time of the accident, Cail was driving a 2004 Toyota Tacoma pickup truck owned by Naida Singleton, used by Pee Dee for business purposes, and insured by the Auto-Owners Auto Policy. Elouise Benjamin's medical expenses exceed $500,000.
On June 14, 2011, Auto-Owners and the Benjamins entered into a settlement agreement providing that Auto-Owners would pay the Benjamins the Auto Policy limits of $300,000. In turn, the Benjamins released Cail and Auto-Owners under the Auto Policy and signed a covenant not to execute against Singleton and Pee Dee. The settlement agreement further provided that Auto-Owners reserved the right to seek a declaratory judgment to determine whether the CGL Policy provided coverage for the automobile accident. The Benjamins agreed that if the circuit court determined the CGL Policy provided coverage for their claims, the total recovery available would be the aggregate amount of $300,000 from the Auto Policy and the applicable limits of the CGL Policy.
Auto-Owners filed the current declaratory judgment action on July 8, 2011. Both Auto-Owners and the Benjamins filed cross motions for summary judgment as to whether the CGL Policy provided coverage for the Benjamins' claims. Following a January 28, 2013 hearing, the circuit court granted the Benjamins' motion for summary judgment and denied Auto-Owners' cross-motion by order filed March 22, 2013. On June 3, 2013, the circuit court denied Auto-Owners' motion to alter or amend.
Did the circuit court err in finding Pee Dee's CGL Policy provided coverage in addition to that provided by the Auto Policy?
"An appellate court reviews the granting of summary judgment under the same standard applied by the trial court under
Auto-Owners contends the circuit court erred in granting the Benjamins' motion for summary judgment, arguing that the CGL Policy's Endorsement provides no coverage for the automobile accident due to the "same or similar coverage" provided by the Auto Policy. We disagree.
"Insurance policies are subject to the general rules of contract construction." Whitlock v. Stewart Title Guar. Co., 399 S.C. 610, 614, 732 S.E.2d 626, 628 (2012) (quoting M & M Corp. of S.C. v. Auto-Owners Ins. Co., 390 S.C. 255, 259, 701 S.E.2d 33, 35 (2010)). "The cardinal rule of contract interpretation is to ascertain and give legal effect to the parties' intentions as determined by the contract language." Id. (quoting McGill v. Moore, 381 S.C. 179, 185, 672 S.E.2d 571, 574 (2009)). "Courts must enforce, not write, contracts of insurance, and their language must be given its plain, ordinary and popular meaning." Id. (quoting USAA Prop. & Cas. Ins. Co. v. Clegg, 377 S.C. 643, 655, 661 S.E.2d 791, 797 (2008)).
"Where the contract's language is clear and unambiguous, the language alone determines the contract's force and effect." Whitlock, 399 S.C. at 615, 732 S.E.2d at 628 (quoting McGill, 381 S.C. at 185, 672 S.E.2d at 574). Whether
In Beaufort County School District, this court explained the differences between a patent ambiguity and a latent ambiguity:
392 S.C. at 526, 709 S.E.2d at 95-96 (citations omitted).
Here, the Benjamins' "bodily injury" and "property damage" arose out of the maintenance or use of an "auto" owned by Naida Singleton, driven by Cail, and insured under Auto-Owners' Auto Policy. Pee Dee is the named insured on the Auto Policy as well as the CGL Policy and its Endorsement. Although Cail was not listed as a scheduled driver on the Auto Policy, the circuit court found that he was a permissive user and was therefore covered under the Auto Policy.
Our review of the record reveals Pee Dee satisfied the requirements for CGL coverage as listed in the Endorsement. Specifically, Pee Dee did not own the 2004 Toyota Tacoma pickup truck involved in the accident; the truck was not
According to Auto-Owners, "[t]he Endorsement is neither supplemental nor excess coverage to the Auto Policy.... [I]t provides coverage to Pee Dee for a different set of facts." We disagree. The exclusions applicable to
Auto-Owners argues "the inclusion of the term `same' precludes the court from interpreting [similar] to mean `the same' or `identical.'" However, Auto-Owners did not address the term "same" in its motion for summary judgment, its reply to Respondents' response in opposition, or its motion to alter or amend. Additionally, the circuit court did not address the interpretation of the term "same" in its order granting the Benjamins' motion for summary judgment or its order denying Auto-Owners' motion alter or amend. See Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000) ("It is well-settled that an issue cannot be raised for the first
Auto-Owners argues the circuit court erred in finding the "similar coverage" provision of the Endorsement was ambiguous and in relying on South Carolina Farm Bureau Mutual Insurance Company v. Courtney, 342 S.C. 271, 536 S.E.2d 689 (Ct.App.2000), aff'd on other grounds, 349 S.C. 366, 563 S.E.2d 648 (2002) (holding an automatic termination clause allowing unilateral cancellation by insurer when the insured obtains similar coverage on a covered automobile is invalid). We disagree.
In Courtney, a husband and wife owned a Saturn and a Chevrolet Camaro, which were insured by Farm Bureau under separate policies. 342 S.C. at 273, 536 S.E.2d at 690. Both policies included underinsured motorist coverage (UIM) in limits of $100,000 per person and $300,000 per occurrence, with property damage limits of $25,000 per accident (100/300/25). Id. In September 1997, wife was involved in an accident, and the Camaro was subsequently declared a total loss. Id. Farm Bureau tendered payment under the vehicle's collision coverage. Id. Although the policy on the Camaro was set to expire on October 4, 1997, Farm Bureau neither issued husband a notice of cancellation nor refunded any unearned premiums. Id. Using the proceeds from the policy on the Camaro, wife purchased a pick-up truck, which she insured with Unisun on October 8, 1997, without husband's knowledge or consent. Id. The Unisun policy provided personal liability limits of $15,000 per person and $30,000 per occurrence, with property damage limits of $25,000. Id. Although the Unisun
On October 27, 1997, husband was seriously injured in an accident while driving the Saturn. Id. Husband's medical bills and other losses exceeded the amount received from the at-fault driver's insurer. Id. Farm Bureau paid husband the UIM limits from the Saturn's policy "but denied his attempt to stack UIM coverage from the Camaro's policy, claiming the Unisun policy obtained by [wife] automatically terminated Farm Bureau's policy on the Camaro." Id. Farm Bureau brought a declaratory judgment action, seeking a determination as to its obligation under the Camaro's policy. Id. The circuit court found that the Unisun policy on the pick-up truck was not "similar" insurance sufficient to invoke the automatic termination clause in the Farm Bureau policy on the Camaro. Id. at 275, 536 S.E.2d at 691. This court affirmed, concluding that because the Unisun policy differed "in both the amount of coverage and the kind of coverage provided, the policies will not be held to be `similar' insurance." Id. at 279, 536 S.E.2d at 693. Our supreme court agreed with this construction of the automatic termination clause, but went a step further, concluding "such a clause is not valid in any event." Courtney, 349 S.C. at 372, 563 S.E.2d at 651.
Here, the circuit court found the "similar coverage" provision of the Endorsement to be ambiguous, and thus was required to construe the provision liberally in favor of the Benjamins and strictly against Auto-Owners. See, e.g., Whitlock, 399 S.C. at 615, 732 S.E.2d at 628 (explaining that appellate courts must construe "[a]mbiguous or conflicting terms in an insurance policy ... liberally in favor of the insured and strictly against the insurer" (quoting Clegg, 377 S.C. at 655, 661 S.E.2d at 797)); Clayton, 364 S.C. at 560, 614 S.E.2d at 614 (clarifying that insurance policy exclusions are construed "most strongly against the insurance company, which also bears the burden of establishing the exclusion's applicability"). The circuit court was not persuaded by Auto-Owners' argument that "the Courtney decisions are inapplicable here" and instead "[found] them instructive."
Conversely, other jurisdictions have concluded that the term "similar" is not ambiguous. See, e.g., Cal. Dairies Inc. v. RSUI Indem. Co., 617 F.Supp.2d 1023, 1037-38 (E.D.Cal.2009) (noting that if the court were to define the term "similar" as the "same" or "identical," that definition would defeat the exclusionary provision's purpose of avoiding the moral hazard of employers insuring against labor law violations); Gangi v. Sears, Roebuck & Co., 33 Conn.Sup. 81, 360 A.2d 907, 908 (1976) (explaining that the word "similar" as ordinarily used means "general likeness although allowing for some degree of difference"); Newman v. Raleigh Internal Med. Assocs., P.A., 88 N.C. App. 95, 362 S.E.2d 623, 626 (1987) (finding that
In this case, the Endorsement clause provides coverage under the CGL Policy for "bodily injury" and "property damage" arising out of an automobile accident in limited circumstances, "but only if you do not have any other insurance available to you which affords the same or similar coverage." Because the term "similar" is not defined in the CGL Policy or its Endorsement, it must be defined according to the usual understanding of the ordinary person. See Beaufort Cty. Sch. Dist., 392 S.C. at 518, 709 S.E.2d at 91 (stating policy language must be given its "plain, ordinary, and popular meaning").
The term "similar" means "having likeness or resemblance especially in a general way." Random House College Dictionary 1226 (rev. ed.1980). The term "similar" is also defined as:
Similar, BLACK'S LAW DICTIONARY (6th ed.1990).
That the term "similar" is not defined in the Endorsement creates ambiguity as to its precise meaning.
Auto-Owners further contends that the circuit court erroneously interpreted the term "similar" without properly considering the context in which it was used in the policy. We disagree.
In its order, the circuit court concluded that the Courtney court's focus was "term-centric" and that the word "similar" was as ambiguous in the Endorsement as it was in the Courtney policy. Like the circuit court, we recognize "the `vast difference' in coverage between the two policies," and we agree that the coverage provided by the two policies is not "similar."
Auto-Owners contends the Auto Policy and Endorsement have "characteristics in common" and are "alike although not identical." Both policies provide coverage for "bodily injury" and "property damage" liability from the maintenance or use of an automobile, coverage to Pee Dee and any permissive user, and protection from personal liability arising out of an auto accident. However, our review of the policies as a whole reveals a number of differences between the Auto Policy and the CGL Policy's Endorsement:
Auto Policy CGL Policy Endorsement Issued February 14, 2008 February 15, 2008 Effective April 1, 2008 April 1, 2008 Limits $300,000 $1,000,000 Coverage Liability, UM, UIM, collision, Liability in limited circumstances and "road trouble service"
Scheduled 5 total None Drivers Scheduled 6 automobiles including None Vehicles the 2004 Toyota Tacoma Application 5 scheduled drivers as Automobile must be used well as any permissive in your business and must drivers and the 6 scheduled be one which you do not automobiles as described own; is not registered in in the Declarations your name; and is not leased or rented to you for more than 90 consecutive days
In the context of the Endorsement providing coverage for "bodily injury" and "property damage" liability under the CGL Policy, "but only if you do not have any other insurance available to you which affords the same or similar coverage[,]" the term "similar" modifies "coverage." The circuit court concluded that "[d]ue to the $700,000 difference in coverage between the two policies ... the coverage provided by the two policies is not `similar.'" See Motors Ins. Corp. v. Bodie, 770 F.Supp. 547, 550 (E.D.Cal.1991) (holding the motors policy is not enough like the financial policies to be found similar, "they provide different limits for third party liability ... likely to be the most important and significant difference in the eyes of the insured"); Emp'rs Mut. Cas. Co. v. Martin, 671 A.2d 798, 801 (R.I.1996) (finding the disparity in coverage between the policies precluded any interpretation that they represented similar insurance as intended by the policy language).
Here, the Endorsement coverage differs from that of the Auto Policy in not only the amount of coverage, but also the type of coverage provided, as well as its application. Therefore, the policies do not afford "similar coverage" as contemplated in the Endorsement. Accordingly, we find the circuit court properly granted the Benjamins' motion for summary judgment.
For the foregoing reasons, we hold the circuit court properly determined that Pee Dee's CGL Policy provided coverage in addition to that disbursed under the Auto Policy. Accordingly, the ruling of the circuit court is
WILLIAMS and GEATHERS, JJ., concur.