Burgess v. Nationwide Mutual Insurance Company

In Burgess v. Nationwide Mutual Insurance Company, 361 S.C. 196, 603 S.E.2d 861 (Ct. App. 2004), cert. pending, this court recently addressed the proper interpretation of section 38-77-160 in relation to UIM coverage. Section 38-77-160 provides in relevant part: "If, however, an insured or named insured is protected by uninsured or underinsured motorist coverage in excess of the basic limits, the policy shall provide that the insured or named insured is protected only to the extent of the coverage he has on the vehicle involved in the accident." S.C. Code Ann. 38-77-160 (2002). Burgess was involved in an accident while operating his motorcycle. He collected liability benefits from the at-fault driver. Id. at 199, 603 S.E.2d at 863. Although he did not have UIM coverage on the motorcycle involved in the accident, he owned three other vehicles covered by a Nationwide policy that provided UIM coverage of $ 25,000. The policy contained the exact provision at issue in the instant case, which states, in pertinent part: "the amount of coverage applicable under this policy shall be the lesser of the coverage limits under this policy or the coverage limits on the vehicle involved in the accident." Id. Burgess demanded payment from Nationwide. Nationwide refused to pay Burgess, arguing that Burgess had not purchased UIM coverage for the motorcycle, and the policy provision precluded coverage. Id. Burgess afforded the Court the opportunity to decide the novel issue of whether section 38-77-160 permits an insured who purchases UIM benefits under a policy covering vehicles which are not involved in the accident to recover basic UIM benefits under those policies. Burgess, 361 S.C. at 202, 603 S.E.2d at 865. In Burgess, the Court noted that our supreme court has addressed the public policy reasons for affording UM coverage to insured individuals in the following passage: "Uninsured motorist coverage is not to provide coverage for the uninsured vehicle but to afford additional protection to the insured." Nationwide Mut. Ins. Co. v. Howard, 288 S.C. 5, 12, 339 S.E.2d 501, 504 (citing Hogan v. Home Ins. Co., 260 S.C. 157, 162, 194 S.E.2d 890, 892 (1973)). The court further clarified in Hogan that "unlike the provisions relative to liability coverage, the statute plainly affords uninsured motorist coverage to the named insured and resident relatives of his or her household at all times and without regard to the activity in which they were engaged at the time. Such coverage is nowhere limited in the statute to the use of the insured vehicle." Hogan, 260 S.C. at 162, 194 S.E.2d at 892. (Id. at 201-02, 603 S.E.2d at 864.) Because UIM coverage is a variation of UM coverage, we found the legislative intent behind UM coverage was applicable to UIM coverage. Therefore, the Court held that section 38-77-160 does not allow the exclusion or restriction of basic UIM coverage, and UIM coverage is personal and portable. Id. at 202, 603 S.E.2d at 865. In other words, "where the coverage follows the person any person who enjoys the status of an insured under a motor vehicle policy of insurance which includes uninsured/underinsured coverage enjoys coverage protection simply by reason of having been injured by an uninsured/underinsured motorist." Id. at 202, 603 S.E.2d at 865.