Opinion
18836
November 6, 1968.
Messrs. Watkins, Vandiver, Kirven, Long Gamble, of Anderson, for Appellant, cite: As to the Defendant, in the original automobile accident case, being an insured motorist: 244 S.C. 393, 137 S.E.2d 264; 247 S.C. 58, 145 S.E.2d 673. As to statute being completely silent on the procedure available to an insurance company to defend a claim under the Uninsured Motorist endorsement provision of the policy, not prohibiting the insurance company from appearing in behalf of the alleged negligent uninsured motorist; nor did the statute spell out the appropriate procedure to be followed in such a case: 244 S.C. 425, 137 S.E.2d 608; 247 S.C. 58, 145 S.E.2d 678; 8 Applemann, Insurance Law, Sec. 4860. As to error on part of trial Judge in finding, as a matter of law, that the defendant in the original automobile accident case was an uninsured motorist as of the time of the accident with the original plaintiff: 244 S.C. 393, 137 S.E.2d 264; 247 S.C. 58, 145 S.E.2d 673; 204 Va. 887, 134 S.E.2d 277; 203 Va. 440, 125 S.E.2d 154; 243 S.C. 388, 134 S.E.2d 206.
Messrs. Anderson, Chapman Kenyon, of Anderson, for Respondent, cite: As to where the uninsured motorist endorsement provides for notice "as soon as practicable", this should be interpreted as if it read "as soon as practicable after discovery of the uninsured status": 24 Misc.2d 550, 206 N.Y.S.2d 294; 247 S.C. 58, 145 S.E.2d 673. As to appellate Court not considering issues not raised in trial court: 244 S.C. 480, 137 S.E.2d 577.
November 6, 1968.
The plaintiff recovered judgment against The Travelers Insurance company under the uninsured motorist clause of his automobile liability insurance policy, and Travelers has appealed. While several questions are stated, the appeal must fail unless we sustain Travelers' claim that the motor vehicle driven by the tort-feasor on December 7, 1962, when the collision occurred, was insured, and that it did not become uninsured until October 13, 1964, when Nationwide Mutual Insurance Company, which had conditionally undertaken the defense of the tort-feasor, withdrew from the case.
The Nationwide policy, in which the tort-feasor was the named insured, expressly excluded the operation of a stolen automobile from its coverage. The trial judge found as a fact that the automobile in which the tort-feasor collided with plaintiff had been stolen by him. No appeal was taken from this finding. Hence, the exclusionary clause applied, and the stolen automobile while operated by the tort-feasor, was a motor vehicle as to which there was no liability insurance, clearly an "uninsured motor vehicle" as defined by Section 46-750.11 (3), Code of 1962. This was the state of affairs at the time the collision occurred and when Travelers was given notice of the collision in compliance with the requirements of the uninsured motorist clause of plaintiff's insurance policy. The appearance of Nationwide for the tort-feasor, under a full reservation of rights, did not alter the status of the motor vehicle as uninsured. Neither the policy nor the statute required a second notice to Travelers when Nationwide withdrew its conditional defense upon the failure of the tort-feasor to appear at the trial.
Travelers' reliance upon certain language from the decisions in North River Ins. Co. v. Gibson, 244 S.C. 393, 137 S.E.2d 264; Squires v. Nat'l Grange Mut. Ins. Co., 247 S.C. 58, 145 S.E.2d 673, as supporting the conclusion that the tort-feasor did not become uninsured until Nationwide withdrew from the case, is misplaced. Those decisions dealt with motor vehicles as to which there was liability insurance, but the insurance company denied coverage thereunder. They fell under a different aspect of Section 46-750.11 (3), which extended the definition of an uninsured motor vehicle "to certain situations in which the tort-feasor is not, literally, the operator of an uninsured motor vehicle at the time of the collision," North River Ins. Co. v. Gibson, supra, 244 S.C. 393, 137 S.E.2d 264, but becomes so afterward.
We find no merit in the appeal.
Affirmed.
MOSS, C.J., and LEWIS, BUSSEY and LITTLEJOHN, JJ., concur.