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UNITED STATES FIRE INSURANCE CO. v. MACLOSKIE11/27/1995
United States Fire Insurance Company (United) filed this declaratory judgment action, which arose out of a tragic one-car accident which killed both occupants. The passenger's estate filed a wrongful death claim against both the driver's estate and his employer. Pending that suit, the employer's liability carrier, United, brought the present action, seeking a judicial determination of: (1) whether the driver was a covered insured under the policy; and (2) whether the carrier was obligated to defend the driver's estate in the wrongful death suit. From an unfavorable judgment, passenger's estate appeals.
I. Facts
Barry Bennett (Bennett) owns and operates Pedaling Pelican Bike Rentals, Inc., (Pelican), located on Hilton Head Island. Morris Middleton (Morris), an employee , borrowed a company truck on Friday May 29, 1992, so he would have transportation to work the following morning. Morris left work between 5:00 and 6:00 p.m., driving a 1986 Toyota pick-up truck owned by Pelican and insured by United.
Morris arrived at his aunt's (Tamer Middleton, Appellant) and uncle's home on St. Helena Island at approximately 7:00 p.m. Morris and his cousin, Frederick Middleton (hereinafter "Frederick", also the truck passenger, Appellant's son and decedent), left together sometime after 8:00 p.m. in Pelican's truck.
Morris's and Frederick's whereabouts thereafter until 10:30 p.m. are unclear. One witness, Frederick's brother Benjamin, testified he saw the Pelican truck that night parked outside a "little club" on Highway 21. At 10:30 p.m., Morris and Frederick were involved in a single car accident while heading east on U.S. Highway 21. Frederick was dead when the highway patrol arrived, and Morris was dead on arrival at the hospital. Blood alcohol analysis revealed Morris's
II. STANDARD OF REVIEW
A declaratory judgment action to determine the coverage under an insurance policy's omnibus clause is an action at law. Felts v. Richland County, 299 S.C. 214, 383 S.E.2d 261 (Ct.App. 1989) (characterization of declaratory judgment suit depends on nature of underlying controversy), aff'd 303 S.C. 354, 400 S.E.2d 781 (1991); Allstate Ins. Co. v. Federated Mut. Implement & Hardware Ins. Co., 251 S.C. 203, 161 S.E.2d 240 (1968) (issue of liability under omnibus clause of an auto insurance policy is an action at law). In an action at law tried without a jury, findings of fact made by the trial court have the same force and effect as those of a jury; that is, the court's findings will not be disturbed on appeal unless without evidence which reasonably supports the judge's findings. Townes Assocs. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976).
III. DISCUSSION
Appellant has the burden to show that Morris was covered within the confines of Bennett's permission. See Liberty Mut. Ins. Co. v. Edwards, 294 S.C. 368, 364 S.E.2d 750 (1988)(the burden is on the party seeking coverage to establish that permission was given by the named insured). This analysis requires determining the scope of permission granted, and whether the scope of the permissive use was exceeded.
The trial court found that Morris's permissive use of Pelican's truck was limited to driving it directly home, parking it, and driving it back to work the next morning; he was not to use the truck for his personal use. Appellant attacks this finding on three interrelated grounds: (1) incompetency of certain United witnesses to testify under the Dead Man's Statute, S.C. Code Ann. § 19-11-20 (1985); (2) improperly admitted hearsay statements; and (3) insufficiency of the evidence.
Appellant asserts that under the Dead Man's Statute, S.C. Code
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