Kevin Lawrimore v. Old Republic Insurance Company

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:14-cv-01275-RMG Copies to all parties and the district court/agency. [999729822].. [15-1431]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1431

KEVIN LAWRIMORE,
Plaintiff - Appellant,
v.
PROGRESSIVE DIRECT INSURANCE COMPANY,
Defendant – Appellee,
and
OLD REPUBLIC INSURANCE COMPANY,
Defendant.

Appeal from the United States District Court for the District of
South Carolina, at Charleston.
Richard Mark Gergel, District
Judge. (2:14-cv-01275-RMG)

Submitted:

December 17, 2015

Decided:

January 5, 2016

Before WILKINSON and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Carl H. Jacobson, Jeffrey W. Buncher, Jr., URICCHIO HOWE KRELL
JACOBSON TOPOREK THEOS & KEITH, P.A., Charleston, South
Carolina, for Appellant.
Bradley L. Lanford, BAKER, RAVENEL &
BENDER, L.L.P., Columbia, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kevin
granting

Lawrimore

Progressive

appeals
Direct

the

district

Insurance

court’s

Company’s

orders

(Progressive)

motion for summary judgment and denying Lawrimore’s Fed. R. Civ.
P. 59(e) motion.
“We review the district court’s grant of summary judgment
de

novo,

viewing

the

facts

and

the

reasonable

inferences

therefrom in the light most favorable to the nonmoving party.”
Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011).

“Summary

judgment is appropriate where there are no genuine issues of
material fact and the moving party is entitled to judgment as a
matter of law.”

Hoschar v. Appalachian Power Co., 739 F.3d 163,

169 (4th Cir. 2014).
R.

We review the district court’s denial of

Lawrimore’s

Fed.

Civ.

P.

59(e)

motion

for

abuse

of

discretion.

Wilkins v. Montgomery, 751 F.3d 214, 220 (4th Cir.

2014).
As the district court exercised diversity jurisdiction over
this action, South Carolina law governs whether Progressive has
a coverage liability for the underlying accident.

Erie R.R. v.

Tompkins, 304 U.S. 64, 78-80 (1938); see Francis v. Allstate
Ins. Co., 709 F.3d 362, 369-72 (4th Cir. 2013) (applying state
law to determine if insurance company had duty under policy).
Under South Carolina law, “[i]nsurance policies are subject to
general rules of contract construction.”
3

Standard Fire Co. v.

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Marine

Contracting

1990).

“Terms

liberally

in

insurer.”

of

favor

Id.

&

Towing
an

of

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Co.,

392

insurance
the

insured

S.E.2d

policy
and

460,

must

461

be

strictly

(S.C.

construed

against

the

“Moreover, if the intention of the parties is

clear, courts have no authority to change insurance contracts in
any particular or to interpolate a condition or stipulation not
contemplated either by the law or by the contract between the
parties.”

Id. at 461-62.

Applying

the

policy’s

definition

of

“auto,”

it

is

indisputable that Progressive does not have a coverage liability
for the accident in question because the vehicle driven by the
insured exceeded the gross vehicular weight rating for vehicles
covered by the policy.
policy’s

conformity

Lawrimore, however, maintains that the

clause

has

the

effect

of

replacing

the

policy’s definition of “auto” with the broader definition of
“motor vehicle” found in the South Carolina Code.

See S.C. Code

Ann. § 38-77-30(9) (2015) (defining “motor vehicle” to include
“every self-propelled vehicle which is designed for use upon a
highway”).

For purposes of interpreting the insurance policy

within the context of the claim at bar—i.e., a claim arising
from the insured’s use of a rental truck—we reject Lawrimore’s
argument.
A conformity clause has the effect of excising a provision
of an insurance policy that conflicts with or is voided by state
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law

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and

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replacing

the

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provision

with

statute or judicial rule of law.

the

prevailing

state

See Kay v. State Farm Mut.

Auto. Ins. Co., 562 S.E.2d 676, 678-79 (S.C. Ct. App. 2002)
(relying
replace

on

conformity

voided

statute).

clause

provision

in

with

auto

insurance

coverage

policy

requirement

in

to

state

Under South Carolina law, “liability coverage for

hired and non-owned vehicles is not statutorily required . . .
and is provided by a voluntary contract between the insurer and
the insured.

Therefore, the parties may choose their own terms

regarding coverage for hired and non-owned vehicles.”

Howell v.

U.S. Fid. & Guar. Ins. Co., 636 S.E.2d 626, 628 (S.C. 2006).
Thus,

because

coverage

for

non-owned

vehicles

is

entirely

voluntary and subject to the agreed-upon terms in the policy,
the policy’s definition of “auto” is not voided by S.C. Code
Ann. § 38-77-30(9)’s definition of “motor vehicle” for purposes
of

determining

Progressive’s

coverage

liability

for

the

vehicular accident underlying this action.
Accordingly, we affirm the district court’s orders granting
Progressive

summary

judgment

Civ. P. 59(e) motion.

and

denying

Lawrimore’s

Fed.

R.

We dispense with oral argument because

the facts and legal contentions are adequately presented in the
materials

before

this

court

and

argument

would

not

aid

the

decisional process.
AFFIRMED
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