After ruling against Crum & Forster in November 2015 and ordering the insurer to pay $2 million of a $55 million judgment to its insured, South Carolina District Court Judge Richard Gergel reversed his ruling, in an order on the insurer’s motion to reconsider.
In November, Judge Gergel considered competing summary judgment arguments relating to the insurer’s denial of coverage to its insured, Creekstone Builders, Inc., in an underlying construction defect action, which resulted in a $55 million verdict against Creekstone. Crum & Forster denied coverage based on an exclusion in Creekstone’s CGL policies for work performed in South Carolina – an exclusion about which Crum & Forster insisted Creekstone was repeatedly warned before entering the contracts.
While the Judge refused to grant summary judgment on whether Crum & Forster acted in bad faith in denying coverage based on the exclusion, the Judge did rule that Crum & Forster could not enforce the exclusion for Creekstone’s South Carolina operations. Judge Gergel reasoned that enforcing the exclusion for South Carolina operations against a company that was licensed only to do business in South Carolina, created illusory coverage and an ambiguity in the policies, which must be resolved in favor of the insured. Ultimately the Judge concluded that a jury must decide who should pay the $55 million judgment; however, Crum & Forster must pay the $2 million in coverage limits under the policies issued to Creekstone.
But last week, the Judge reconsidered his November ruling, and reversed his earlier decision on whether Crum & Forster can be held legally responsible for the $55 million state court verdict in part or in whole.
In reversing his decision and finding that the SOE in the policies at issue preclude coverage for Creekstone’s South Carolina operations, the Judge considered extrinsic evidence regarding the parties’ intention to exclude South Carolina operations from coverage, which was not considered prior to the November ruling against Crum & Forster. Based on his extensive review of the extrinsic evidence presented that Creekstone had knowledge of the SOE in the policies, the Judge held that “no reasonable jury could find that the parties intended the policies at issue to cover Creekstone SC’s South Carolina operations.”
Concluding that, as a matter of law, the coverage provided under the policies was not illusory and that the SOE in the policies at issue precluded coverage for Creekstone’s South Carolina operations, Judge Gergel granted summary judgment in favor of Crum & Forster as to Plaintiffs’ declaratory judgment claim, Plaintiffs’ breach of contract claims, Plaintiffs’ reformation claim, Plaintiffs’ bad faith denial of coverage claim, and Plaintiffs’ bad faith failure to settle claim.
This ruling comes as good news for those who seek to rely on extrinsic evidence to resolve a coverage dispute. While South Carolina, historically speaking, has been a state slow to embrace the “reasonable expectations” doctrine of interpreting insurance policies, rulings such as this one and similar state court decisions suggest that our Courts may be moving in that direction, at least when the policy at issue contains ambiguities that cannot be resolved by looking at the policy alone. See Bell v Progressive Direct Ins. Co., 407 S.C. 565, 757 S.E.2d 399 (2014), reh’g denied (May 7, 2014) (applying a modified version of the reasonable expectation doctrine in interpreting insurance contracts and explaining the Court “will look to the reasonable expectations of the insured at the time when he entered into the contract if the terms thereof are ambiguous or conflicting, or if the policy contains a hidden trap or pitfall, or if the fine print takes away that which has been given by the large print.”).