July 25, 2012 South Carolina Supreme Court published opinions

BAC Home Loan Servicing LP v Kinder

TBAC was assigned the interest of a junior mortgagee after the property had been sold. It filed a claim for excess proceeds which the trial court denied on the basis that the lien was extinguished, the assignment was recorded after the sale and there was no evidence an attorney presided over the closing. The Court unanimously reversed. It held that assignments do not need to be recorded to be effective, that assignees have the same right under Rule 71 to file a claim for excess funds and that the rule voiding enforceable interests if an attorney does not apply to claims based on documents dated before the Court’s 2011 opinion declaring the rule.

South Carolina Farm Bureau Mutual Insurance Company v Kennedy

Kennedy was seriously injured when a truck struck him and eventually pinned him against the pickup truck he was using for a work errand. The trail court found Kennedy was resting his hand on the pickup truck when he began running to avoid getting hit and struck the pickup after getting hit thus being “upon” the pickup as required by the underinsured motorist policy. The Court of Appeals reversed holding Kennedy was not “using” the pickup truck when injured. The Court, 3-2, reversed. It held that the trial court’s findings on physical contact were sufficient to demonstrate that Kennedy was “upon” the pickup triggering coverage. It argued in dicta that requiring actual contact with a vehicle when a claimant is struck by an underinsured vehicle would be unconscionable, render coverage illusory and violate the liberal construction of the statute. The dissent argued the undisputed evidence showed Kennedy was not in physical contact with the pickup when struck and thus no coverage existed.

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