United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
Richard Mark Gergel United States District Judge.
the Court is Plaintiffs motion for judgment on the pleadings.
(Dkt. No. 37.) For the reasons set forth below, the motion is
an insurance coverage action in which Government Employees
Insurance Company ("GEICO") moves for judgment on
the pleadings that the automobile insurance policies it
issued to Lisa and John Cobin (the "Cobin Policy")
and Kareem and Sharmane Bland (the "Bland Policy")
do not provide sole remaining Defendant Deja Bland, the
daughter of Kareem and Sharmane Bland, with liability
coverage relating to her state court personal injury action
arising from an alleged shooting. (Dkt. No. 1 ¶¶
the pleadings are closed-but early enough not to delay
trial-a party may move for judgment on the pleadings."
Fed.R.Civ.P. 12(c). A judgment on the pleadings is only
warranted if "the moving party has clearly established
that no material issue of fact remains to be resolved and the
party is entitled to judgment as a matter of law."
Lewis v. Excel Meek, LLC, 2:13-CV-281-PMD, 2013 WL
4585873 at * 2 (D.S.C. Aug. 28, 2013). The court's review
is therefore limited to the pleadings, Abell Co. v. Bait.
Typographical Union No. 12, 338 F.2d 190, 193 (4th Cir.
1964), and to "any documents and exhibits attached to
and incorporated into the pleadings," Lewis,
2013 WL 4585873 at *1. The pleadings on a Rule 12(c) motion
should be construed in the light most favorable to the
non-movants. Burbach Broad. Co. v. Elkins Radio
Corp., 278 F.3d 401, 405-06 (4th Cir. 2002).
Therefore, the "court must accept all well pleaded
factual allegations in the non-moving party's pleadings
as true and reject all contravening assertions in the moving
party's pleadings as false." Lewis, 2013 WL
4585873, at *2 (internal quotations omitted).
Cobin Policy lists Jenkins as an "additional
driver" and provides, in relevant part:
SECTION I - Liability Coverages, Losses We
Will Pay for You Under Section I Under Section I, we
will pay damages which an insured becomes legally
obligated to pay because of: (1) bodily injury,
sustained by a person; and (2) damage to or
destruction of property; arising out of the ownership,
maintenance or use of the owned auto or a non-owned auto.
(Dkt. No. 1-1 at 9) (emphasis in original). The Bland Policy
similarly provides, in relevant part:
Under this coverage we will pay damage for bodily
injury and property damage caused by accident
which the insured is legally entitled to recover
from the owner or operator of an uninsured motor
vehicle arising out of the ownership, maintenance or use
of that motor vehicle.
(Dkt. No. 1-2 at 14. (emphasis in original).
South Carolina, an insured is entitled to recover damages
"arising out of the ownership, maintenance, or use"
of the vehicle if (1) there is a causal connection between
the vehicle and the injury, (2) no act of independent
significance breaks the causal link, and (3) the vehicle was
being used for transportation at the time of the incident.
State Farm Fire & Casualty Co. v. Aytes, 503
S.E.2d 744, 745 (1998). Regarding the first requisite of the
Aytes test, a "causal connection is established
where it can be shown the vehicle was an 'active
accessory' to the assault." Id. (quoting
Wausau Underwriters Ins. Co. v. Howser, 422 S.E.2d
106, 108 (1992)). To be an "active accessory," the
vehicle must be used for more than mere "transportation
to the situs of the shooting." Howser, 422
S.E.2d at 108. Moreover, the "injury must be foreseeably
identifiable with the normal use of the vehicle."
Aytes, 503 S.E.2d at 745-46.
alleges that in May 2015 in the outdoor common area of the
Oakbrook Apartments in Ladson, South Carolina, a vehicle
driven by Mouzon "rode up" to her when Jenkins, a
passenger in the vehicle, "fired a gun and negligently
shot and injured" her. (Dkt. No. 1-3 ¶¶ 5-10.)
Construing the pleadings in this declaratory judgment action
in a light most favorable to Bland, the Court cannot find
that her ...