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Will You Get Your Fair Day in Court?

| Aug 20, 2010

Two recent South Carolina Supreme Court decisions discuss the issue of accessing automobile insurance coverage on your car's policy if you are injured in a car accident while driving or riding in a car that is a substitute for the car with the sought-after coverage.

In Murr v. Nationwide, an Anderson County man was seriously injured while riding as a passenger in a Saturn that was owned by his stepson and driven by his wife, whose Pontiac was broken down. According to the Murrs, the Saturn was lent to them by the son while the Pontiac was broken, until they could repair it. After Murr's stepson's liability coverage on the Saturn tendered its policy limits, Murr sought excess liability coverage under his wife's liability policy on their Pontiac.

Nationwide's policy on the Pontiac covered the wife while she drove a "temporary substitute." Because the facts of the substitution raised a question over whether the Murr's intended to use the son's car as a temporary substitute or as something more permanent, Nationwide denied coverage.

In Zurich v. Tolbert, an employee of the Greer BMW plant, who was provided a leased BMW to drive, was seriously injured while driving a Honda that he owned. After collecting the liability policy limits from the person who caused the accident's insurance, Tolbert sought underinsured motorist coverage from automobile policies in his household. The Honda he was in at the time of the crash had no UIM coverage.

However, the BMW provided by his employer under the lease had $1 million in UIM coverage with Zurich. Zurich denied coverage arguing, among other things, that the Honda was not being used as a substitute for the covered BMW.

Most auto insurance policies are designed to cover the persons and vehicles named in the policy and no others. Most policies recognize that you might need to use a vehicle not listed in the policy as a temporary substitute. Insurance companies seek to limit coverage. One way is to challenge claims on the definitions of the words "temporary" and "substitute." Is the use of the car really temporary? Is the car really being used as a substitute?

This is one of many issues that the insurance company adjusters will be looking for as they ask you what happened after an accident. Insurance adjusters look to limit payouts, including denying coverage altogether. This is why it is so important to hire an attorney before you speak to any insurance adjuster, including your own insurance company's adjuster, about your case or the facts and circumstances of your coverage at the time of an accident. Having legal representation by an experienced injury law firm will allow you to avoid ambiguous statements that can lead to litigation over details such as those presented in the Murr v. Nationwide and Zurich v. Tolbert cases. If these issues are raised, an experienced injury attorney will be able to help you present the facts necessary to establish coverage.

In these two cases, the insurance companies filed lawsuits called declaratory judgment actions, meaning that they were seeking a legal ruling from the judge rather than an award of damages from a jury. In each of these "DJ" lawsuits, the trial court decided to rule on the issues before the actual presentation of evidence at a trial.

Therefore, these decisions by the Supreme Court do not carry the weight of decisions based upon the full evidence of the case. Both Nationwide and Zurich asked the trial judge to rule in their favor without the need for a trial (summary judgement), citing that the evidence is so clearly in favor of the insurance company, there was no need to have a trial. In order to grant summary judgment, the trial judge must determine that the evidence presented at the summary judgment hearing, usually by deposition transcript or affidavit, is so strong in favor of one side, even viewing the evidence in the light most favorable to the party not seeking the motion, that the trial judge decides there is "no material question of fact" which might require a full-blown trial on the merits of the case. So, in Murr, the trial judge ruled that the evidence was so clear that the Saturn was not a temporary substitute for the Murr's Pontiac that coverage was denied as a matter of law.

The Supreme Court reversed holding that the evidence presented indicated that the factfinder, after hearing all of the evidence at trial, could have determined that the Saturn was actually being used as a temporary substitute and the repairs to the Pontiac were going to happen, even though they were taking months to get it repaired. If the trial resulted in a finding that the Saturn was only being used temporarily, coverage could apply. In Tolbert, the trial judge ruled, prior to a trial, that there was no way for Tobert to prove that his use of his Honda at the time of the crash was as a substitute for the BMW.

The Supreme Court ruled that his affidavit stating that he was driving the Honda because the BMW was in need or an oil change and service created enough of a factual question that the case should have gone to trial. If the trial had resulted in a finding that the Honda was actually being used as a substitute for the BMW at the time of the crash, coverage might apply.

These two recent decisions show us why it is so important to hire an experienced South Carolina personal injury attorney immediately after a car accident and before you give any interviews or statements to any insurance adjusters. Making sure the facts of your case are fully documented and developed in the evidentiary record can help your claim survive summary judgment, so that you have a right to your fair day in court and to pursue all the insurance coverage to which you are legally entitled.

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