THE STATE OF SOUTH CAROLINA In The Court of Appeals

State Farm Mutual Autom obile Insurance Company, Respondent,

v.

Beverly Goyeneche, David R. Gray, III and Amanda Goyeneche (a/k/a Ama nda Goyeneche-Gray), individually and as Parent a nd Natural Guardian of S.G., Defendants,

Of Whom Beveryly Goyenech e, and Amanda Goyeneche are the Appellants.

Appellate Case No. 2016-000840

Appeal From Darlington County Paul M. Burch, Ci rcuit Court Judge

Opinion No. 5697 Heard June 7, 2018 – Filed December 18, 2019

AFFIRMED

Karl Huggins Smith, of Smith Watts & Associates, LLC, of Hartsville, fo r Appellants.

Jonathan M. Robinson, of DuBose Robinson Morgan, PC, of Camden, for Respondent.

MCDONALD, J.: This is a declaratory judgm ent action to determine whether State Farm Mutual Automobile Insurance Co. (State Farm) has a duty to defendand provide liability and unde rinsured motorist (UIM) coverage following the death of an unattended child (S.G.) in a ve hicle insured by a State Farm automobile policy. Appellants Beverly Goyeneche (Grandmother) and Amanda Goyeneche (Mother) appeal the circuit c ourt's order finding their claims arising from S.G.'s
death are excluded from c overage and State Farm has no duty to defend or indemnify Grandmother, Mother, or David R. Gray, III (Father). 1 Appellants argue the circuit court erred in (1) finding the State Farm policies issued to S.G.'s parents and grandmother provide no coverage for S .G.'s death; (2) rejecting persuasive authority from other jurisd ictions; and (3) determining S.G. was a resident relative of only Mother's household. We affirm.

Stipulated Facts 2

The underlying facts of this case are trag ic. On the morning of May 8, 2014, Father placed thirteen-month-old S.G. into her car seat in the back seat of his truck, intending to take her to daycare. Howeve r, Father instead drove to work, leaving

S.G. unattended in the back seat of the truc k. Father's truck was parked, with the ignition off, from approximately 9:30 a. m. until 1:00 p.m., 1:15 p.m. until 2:15 p.m., and again from 2:30 p.m. until 5:15 p.m. At the end of his work day, Father found S.G. unresponsive in his vehi cle; she was pronounced dead from complications of hyperthermia at 5:50 p.m.

Mother made claims under the liability and UIM coverage of the following insurance policies (the Policie s) issued by State Farm:

1. Policy Number 4891-309-40: issued to Father on February 28, 2014, insuring a 2001 Ford F150 pickup truck, and providing liab ility and UIM coverage of $25,000 per person, $50,000 per occurrence, and $25,000 for property damage.

2. Policy Number C483241E: issued to Mother on October 30, 1998, insuring a 2013 Jeep Wrangler, and providing liability and UIM coverage of $50,000 per

1 Father was a defendant in the underlying action but is not a party to this appeal.

2 S.G.'s residence is disputed.person, $100,000 per occu rrence, and $25,000 for property damage.

3. Policy Number 1003667A: issued to Grandmother on September 27, 2004, insuring a 2004 Chevrolet Impala, and providing liability and UI M coverage of $50,000 per person, $100,000 per occu rrence, and $25,000 for property damage.

4. Policy Number 1772085A: issued to Grandmother on June 3, 2008, insuring a 2007 Chevrolet C1500, and providing liability and UIM coverage of $50,000 per person, $100,000 per occu rrence, and $25,000 for property damage.

he Policies provided coverage for "bodily injuries and property damage caused by n accident and arising out of the owners hip, maintenance or use of the insured utomobile, and otherwise subject to the terms of the policy."

rocedural History

n September 24, 2014, State Farm br ought this declaratory judgment action eeking a declaration that the Policies did not provide coverage for S.G.'s death, nd, therefore, State Farm owed no dut y to defend or indemnify Grandmother,

other, or Father. Appellants filed a jo int answer and count erclaim, asserting .G.'s death arose from the operation, owne rship, maintenance or use of vehicles overed by the Policies. A ppellants also sought a declaration that the Policies rovide coverage for S.G.'s death.

he parties entered a stipulation of facts, and Appellant s gave deposition estimony. The circuit court held a nonjur y trial on April 7, 2015; State Farm's outh Carolina Policy Form 9840a and th e deposition testimon ies were offered nto evidence without objection. By orde r dated June 1, 2015, the circuit court eclared that the Policies did not provide c overage in this matter. Specifically, the
ircuit court concluded there was no evid ence Father's truck was an "active ccessory" in S.G.'s death. The court further determined that even if a causal
onnection existed between the truck and the injury, Father's neglect was an act of ndependent significance severing the causal connection. The court also found the T

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c ithird prong of the Aytes test, the "transportation" el ement, was not satisfied. 3 Finally, the circuit court determined S.G. wa s a resident solely of Mother's home.
Defendants' filed a Rule 59(e), SCRCP, motion to a lter or amend; following a hearing, the circuit court denied this motion.

Standard of Review

"Declaratory judgment actions are neither legal nor equitable and, therefore, the standard of review depends on the na ture of the underlying issues." Judy v.

Martin , 381 S.C. 455, 458, 674 S.E.2d 151, 153 (2 009). "When the purpose of the underlying dispute is to determine whethe r coverage exists under an insurance policy, the action is one at law." Crossmann Cmtys. of N.C ., Inc. v. Harleysville

Mut. Ins. Co. , 395 S.C. 40, 46, 717 S.E.2d 589, 592 (2011). "In an action at law tried without a jury, the appellate court will not disturb the trial court's findings of
fact unless there is no evidence to reasonably support them." Id. at 46–47, 717 S.E.2d at 592 (quoting Auto Owners Ins. Co. v. Newman , 385 S.C. 187, 191, 684 S.E.2d 541, 543 (2009)). "Whe n an appeal involves stipulated or undisputed facts, an appellate court is free to review whet her the trial court properly applied the law
to those facts." In re Estate of Boynton , 355 S.C. 299, 301, 584 S.E.2d 154, 155 (Ct. App. 2003) (quoting WDW Props. v. City of Sumter , 342 S.C. 6, 10, 535 S.E.2d 631, 632 (2000)). "In such cases, the appellate court owes no particular
deference to the trial cour t's legal conclusions." Id. at 301–02, 584 S.E.2d at 155 (quoting J.K. Constr., Inc. v. W. Carolina Reg'l Sewer Auth. , 336 S.C. 162, 166, 519 S.E.2d 561, 563 (1999)).

Law and Analysis

I. The Aytes Test

Appellants assert the circu it court erred in applying the three-pronged test of State Farm Fire & Casualty Co. v. Aytes in determining the Policies provide no coverage. We disagree.

In Aytes , the insured, Donna Dawson, and Randy Aytes became involved in an
altercation while at the home of Aytes's mother. Id. at 32, 503 S.E.2d at 745. Aytes took Dawson's keys and forced her into her car. Id. Although Aytes was

3 State Farm Fire & Casualty Co. v. Aytes , 332 S.C. 30, 503 S.E.2d 744 (1998) (discussing the factors analyzed when determining whether damages arose from the "ownership, maintenance, or use" of an insured vehicle).forbidden to drive Dawson's car, he drove Dawson to his mother's property with the expressed intent of killing her. Id. While standing outside the car on the passenger side, Aytes fired a pistol towards Dawson, striking her in the foot. Id.

In response to certified questions from the United States district court, our supreme court restated South Carolina's three-pr ong test for determ ining whether "[a]n insured is legally entitled to recover damages arising out of the 'ownership, maintenance, or use' of an uninsured vehicle." Id. at 33, 503 S.E.2d at 745; see also S.C. Code § 38-77-140(A) ("An automobile insurance policy may not be
issued or delivered in this State . . . unless it contai ns a provision insuring the persons defined as insured against loss from the liability imposed by law for damages arising out of the ownership, main tenance, or use of these motor vehicles . . . ."). "First, the party seeking c overage must establish a causal connection between the vehicle and the injury. Second , there must exist no act of independent significance breaking the causal link. . . . [T hird,] it must be shown the vehicle was being used for transportation at the time of the assault." Id.

In applying this test to the facts presented, the supreme court concluded:

There was not a causal conn ection in this case as the vehicle was not an active accessory, nor was it being used for transportation at the time of the injury. Further, if there was a causal link, it was broken when the
assailant exited the vehicl e. The only connection between the car and the injury is the fact that Dawson was sitting in the car when sh e was shot. Therefore, we do not find Dawson's injuries resulted from the ownership, maintenance, or use of her vehicle.

Id. at 35, 503 S.E.2d at 746.

This court considered the first two requi rements that later became part of the Aytes
test in Hite v. Hartford Acci dent and Indemnity Co. , 288 S.C. 616, 344 S.E.2d 173 (Ct. App. 1986). Hite was employed by a car dealer ship, which provided an
automobile for his use. Id. at 617, 344 S.E.2d at 174. On the evening of his injury, Hite returned to the dealership and, l eaving the car running, exited the vehicle. While approaching the dealership on foot, Hite heard the night watchman yell that someone (William Martin) had b acked into a new truck. Id. at 618, 344 S.E.2d at

175. Hite walked fifty feet across the pa rking lot to tell Martin, who was sitting in a car, not to leave. Id. However, Martin accelerated the vehicle and ran overHite's legs. Id. In holding there was no causal connection between the insured vehicle Hite had been driving and Hite's injuries, this court concluded, "[i]t is
difficult to see where use of the insured au tomobile was directly connected with or a cause of the ensuing accident." Id. at 621–22, 344 S.E.2d at 177.

Before Aytes , our supreme court considered the availability of automobile insurance coverage for a passenger's gunshot injuries in Wausau Underwriters Ins.

Co. v. Howser , 309 S.C. 269, 422 S.E. 2d 106 (1992). There, a passenger in a Chevrolet Blazer was inju red when an unknown assaila nt in another vehicle bumped, pursued, and then shot at the Blazer. Id. at 271, 422 S.E.2d at 107. Relying on Continental Western In surance Co. v. Klug , 415 N.W.2d 876 (Minn. 1987), the supreme court explained:

In Klug , the court first considered the causal connection
between the vehicle and th e injury. The causation required is something less than proximate cause and something more than the vehi cle being the mere site of the injury. We employed a similar analysis in Chapman

v. Allstate Insurance Co. , 263 S.C. 565, 211 S.E.2d 876 (1975), wherein an uninsured motorist assaulted the insured while traveling in th e uninsured's vehicle. The insured was injured when she fell or jumped from the moving vehicle as a result of th e attack. Accordingly, we held it was clear the injury arose out of the use of the uninsured automobile. Although the assault, not the use of the vehicle, was the cause of the insured's injuries, we found that the use of the vehicle causally contributed to the claimant's injuries.

Howser , 309 S.C. at 272–73, 422 S. E.2d at 108 (citations omitted). In determining the necessary causal connecti on for coverage that exis ted between the uninsured vehicle and the injuries Hows er sustained, the court st ated, "[t]he gunshot was the culmination of an ongoing assault, in wh ich the vehicle played an essential and integral part. Additionally, only a motor vehicle could have pr ovided the assailant a quick and successful escape." Id. at 273, 422 S.E.2d at 108.

Again relying on Klug , the Howser court further explained, "[o]nce causation is established, the court must determine if an act of independent significance occurred breaking the causal link." Id. The court noted consideration of the existence of such an independent act is consistent with South Carolina precedent:In Plaxco v. United States Fidelity and Guaranty Co.

, 252 S.C. 437, 166 S.E.2d 799 (1969), the vehicle's battery was used to start the en gine of an airplane. Once this was accomplished, the airplane's brakes failed, causing it to move forward a nd damage another plane. This Court found the only connection between the vehicle and the plane was the use of the vehicle to start the plane. Since that purpo se had been completed when the plane moved forward, any causal connection was
broken and the accident resulted from the use of the plane and not the vehicle.

In this case, no independent act occurred to break the causal link. Here, as in Klug , the unknown driver's use of his vehicle and the shooting were inextricably linked as one continuing assault. Acco rdingly, we conclude that for the purposes of Howser's uninsured motorist coverage, her injuries arose out of the use of her
assailant's vehicle.

Howser , 309 S.C. at 273–74, 422 S.E. 2d at 108–09 (citations omitted).

The supreme court added an additiona l factor to the coverage test in Canal

Insurance Co. v. Insuran ce Co. of North America , 315 S.C. 1, 431 S.E.2d 577 (1993). There, the owner a nd operator of a truck crane wa s using the crane to lift a condenser onto a roof when the crane became unbalanced, tipped over, and crashed into the building. Id. at 2–3, 431 S.E.2d at 578–79. In construing section 38-77

- 140, the court defined "'use of a motor vehicl e' as limited to transportation uses."
Id. at 4, 431 S.E.2d at 579. Thus, because the truck crane was not being used for transportation at the time of the accident, the supreme court reversed the circuit court's judgment finding coverage available under the subject policy. Id. at 4, 431 S.E.2d 577, 579–80; see also Peagler v. USAA Ins. Co. , 368 S.C. 153, 165, 628 S.E.2d 475, 481 (2006) (finding no coverage for decedent's fatal injury due to accidental discharge of a shotgun which occurred during the unloading of firearms from a stationary, occupied vehicle that had been used for hunting purposes the previous day).

Our appellate courts have s ubsequently addressed the "o wnership, maintenance, or
use" of a vehicle numerous times in the context of assaults involving intentionalconduct by an assailant. See e.g. , State Farm Mut. Auto. Ins. Co. v. Bookert , 337
S.C. 291, 293, 523 S.E.2d 181, 182 (1999) (holding injuries arising from gunshots fired from a truck in a restaurant parki ng lot were excluded fro m coverage because such injuries are not "foreseeably id entifiable with the normal use of an automobile" (quoting Aytes , 332 S.C. at 33, 503 S.E.2d at 746)); Doe v. S.C. State Budget and Control Bd. , 337 S.C. 294, 297, 523 S.E.2d 457, 45 (1999) (concluding injuries suffered by sexual assault victims were not covered by police department's automobile and general liab ility policies because the injuries did not arise out of "use" of officer's patrol car w ithin meaning of auto policy); Home Ins. Co. v. Towe

, 314 S.C. 105, 107–08, 441 S.E.2d 825, 827 (1994) (holding necessary causal
connection existed between use of insured' s vehicle and serious injuries sustained by tractor trailer driver struck by bottle thrown from passing vehicle; the causal connection was not broken by the insured' s passenger's intentionally throwing bottle at a road sign). But our supreme cour t has clarified that "[n]o distinction is made as to whether [an] injury resulted fr om a negligent, reckless, or intentional

act." Towe , 314 S.C. at 107, 441 S.E.2d at 827.

A. Causal Connection

Appellants challenge the circu it court's application of the Aytes coverage factors to the facts here, arguing the court erroneous ly found there was no causal connection between the "ownership, mainte nance or use" of Father's truck and S.G.'s death. Regarding the initial "causal connection" prong of the coverage inquiry, our supreme court has found a party must demonstr ate: "(a) the vehi cle was an 'active accessory' to the assault; and (b) someth ing less than proximate cause but more than mere site of the injury ; and (c) that the 'injury must be foreseeably identifiable
with the normal use of the automobile.'" Bookert , 337 S.C. at 293, 523 S.E.2d at 182 (quoting Aytes , 332 S.C. at 33, 503 S.E.2d at 745–46). "The required causal connection does not exist when the only connection between an injury and the
insured vehicle's use is the fact that the injured person was an occupant of the vehicle when the [injury] occurred." Aytes , 332 S.C. at 33, 503 S.E.2d at 746.

We agree with Appellants that Father's truck was an active ac cessory to S.G.'s death. At trial, State Farm argued S.G.'s hyperthermia was "caused by the atmospheric conditions around us when we we re in Hartsville [in] May 2014. The heat is what caused the hyperthermia to eventually—if this happened in February, we'd likely have a different story." Ho wever, Appellants contend it is well known that vehicles trap heat and the vehicle its elf was the producing cause of the onset of S.G.'s hyperthermia. At tr ial, Appellants stated they did not know whether S.G.
would have died if she had been left outsi de the vehicle: "[ She] may have had asunstroke. [She] may have had heat e xhaustion. [She] may have died of dehydration but in this particular case[, sh e] died from being inside a vehicle."

In their brief to this court, Appellants assert, "Hypertherm ia would not have happened just anywhere—the na ture of the injury is inex tricably linked to the fact that Infant was in Father's vehicle, wh ich he then drove and parked, leaving her inside, prior to completing his transport of her to daycare." An d at oral argument, Appellants explained Father's truck was not merely the site of the injury, it caused the injury; the very nature of the ve hicle produced the excessive heat that concentrated inside, causi ng S.G.'s fatal injury. See e.g. , Towe , 314 S.C. at 107, 441 S.E.2d at 827 (determining automobile wa s an active accessory that gave rise to the injuries because insured's use of the automobile placed his passenger in the position to throw a bottle at a road sign a nd the vehicle's speed contributed to the velocity of the bottle, which increased th e seriousness of victim's injuries);

Howser , 309 S.C. at 273, 422 S.E.2d at 108 (fi nding a sufficient causal connection
existed between use of assaila nt's vehicle and insured's injuries because the use of
the vehicle allowed the assailant to cl osely pursue Howser; the gunshot was the culmination of an ongoing assault in whic h the vehicle played "an essential and integral part;" and only an automobile could have provided the assailant with the means to escape).

It is undisputed that Father placed S.G. in his truck to transport her to daycare and that she was ultimately harmed because Fath er forgot she was in her car seat and
left her in the vehicle for over seven hours. Because the physical makeup of
automobiles and trucks causes them to tr ap heat—and the ex cessive temperature
caused S.G.'s death—we find Father's truck not only contributed to but played "an essential and integral part" in her death. Contra Aytes , 332 S.C. at 33, 503 S.E.2d at 746 ("The required causal connection does not exist when the only connection between an injury and the insured vehicle' s use is the fact that the injured person was an occupant of the vehicle when the shooting occurred.").

Additionally, the fatal injury was foreseea bly identifiable with the normal use of a
vehicle. See Aytes , 332 S.C. at 33, 503 S.E.2d at 745–46 ("The injury must be foreseeably identifiable with the normal use of the vehicle."). Many vehicles in South Carolina are used to transport ch ildren; transporting children to and from daycare is neither an abnormal nor an unanticipated use. Significantly, our Legislature has recognized that the inten tional or unintentional act of leaving a
child inside a locked vehicle is fores eeably identifiable with the normal use a
vehicle. See S.C. Code Ann § 15-3- 700 (2016) ("A person is immune from civil liability for property damage resulting from hi s forcible entry into a motor vehiclefor the purpose of removing a minor or vul nerable adult from the vehicle if the person has a reasonable good faith belief that forcible entry into the vehicle is necessary because the minor or vulnerable adult is in imminent danger of suffering harm."). Accordingly, we find Appe llants established the necessary causal
connection between Father's tr uck and S.G.'s death.

B. Act of Independe nt Significance

However, we disagree with Appellants' contention that the circuit court erred in finding Father's leaving the child unattended in the truck for over seven hours was an act of independent significance th at broke any causal connection between
Father's truck and S.G.'s death.

While our appellate courts ha ve not addressed the factual scenario presented here, South Carolina courts have previously found an assailant's exiting an insured vehicle prior to injuring another to be an act of independent significance breaking
the causal chain. See e.g.

, Aytes , 332 S.C. at 35, 503 S.E.2d at 746 ("[I]f there was a causal link, it was broken when th e assailant exited the vehicle."); Carraway v. Smith by S.C. Ins. Co. , 321 S.C. 23, 26, 467 S.E. 2d 120, 121 (Ct. App. 1995) ("Smith exited the car and carried on a conve rsation with a third person for several minutes before the shooting occurred. Even if the use of the car and the shooting were connected, that link was broken by Sm ith's actions."). We agree with the
circuit court that Father's act of ab andoning S.G. for over seven hours, however unintentional, was an act of independent significance breaking the causal
connective link between Father's truck and S.G.'s death.

C. Transportation

Appellants next contend the circuit court e rroneously found that even if no act of independent significance existed to break the causal chain, the Policies provide no coverage because the truck was not being used for transportation at the time of
S.G.'s death. We find no error.

The parties stipulated that Father turned off his ignition, left the truck unattended in the parking lot at his place of employment, and did not occupy the truck for approximately seven hours. The truck never left the parking space, and only S.G. occupied the vehicle. Thus, we agree with the circuit court's finding that Father's truck was not being used for transportati on at the time of S.G.'s fatal injury.

II. Authority from Other JurisdictionsWhen there is no South Carolina case di rectly on point, our courts may look to persuasive authority from other jurisdictions. Williams v. Morris , 320 S.C. 196, 200, 464 S.E.2d 97, 99 (1995). However, in considering such cases, we may not apply them in such a manner that we overrule supreme court precedent. See S.C. Const. art. V, § 9 ("The decisions of th e Supreme Court shall bind the Court of Appeals as precedents.").

Appellants rely heavily on Lincoln General Insurance Co. v. Aisha's Learning

Center , 468 F.3d 857 (5th Cir. 2006) to suppo rt their argument that the circuit court erred in finding the Policies provide no coverage here. There, the Fifth Circuit applied Texas law, reasoning that because a vehicle was being used to transport children to a destination—even though the vehicle had been parked for seven hours and was no longer in motion—the vehicle's intended purpose had not yet been fulfilled and was thus ongoing. Id. at 860. The Fifth Circuit acknowledged "Texas courts define 'use' broa dly: "the phrase 'arising from use' is treated as being a 'general catchall . . . designed and constr ued to include all proper uses of the vehicle not falling with in other terms of definition.'" Id. at 859 (quoting Tucker v. Allstate Tex. Lloyds Ins. Co. , 180 S.W.3d 880, 886 (T ex. App. 2005). The Fifth Circuit's analysis includes not only a broader meaning of the term "use" than our supreme court has set forth, but also a fundamentally different consideration of "transportation" in the context automobile in surance coverage.

As noted above, South Carolina courts have held the party seeking coverage must show the vehicle was being used for tr ansportation at the time of injury. See
Canal , 315 at 4, 431 S.E.2d at 479 (cons truing section 38-77-140 and defining
"'use of a motor vehicle' as limited to transportation uses"). The law on which the Fifth Circuit relied, however, has no such transportation requirement. The Fifth Circuit applied Texas's test, which considers a person's "intended" use of a vehicle.
See Lincoln General , 486 F.3d at 861 ("Whether a pers on is using a vehicle as a vehicle depends not only on his c onduct but on his intent." (quoting Mid-Century Ins. Co. v. Lindsey , 997 S.W.2d 153, 156 (Tex. 1999)). South Carolina courts have not adopted a party's intended use of a vehicle in relation to the Aytes test; thus, we believe the Fifth Circuit's expanded definitions of the terms "use" and "transportation" are inconsistent with existing South Carolina law. See Aytes , 332
S.C. at 33, 503 S.E.2d at 745 (recognizing " it must be shown the vehicle was being used for transportation at the time of the assault.").

The California state court cas e cited by Appellants offers another illustration of a broader standard of coverage that does not include the transportation prong required in South Carolina. In Prince v. United National Insurance Co. , theCalifornia Court of Appeals noted "[p]as t California cases have established beyond contention that this language of 'arising out of the use,' when u tilized in a coverage or insuring clause of an insurance policy, has a broad and comprehensive application, and affords c overage for injuries bearing almost any causal relation with the vehicle." 47 Cal. Rptr. 3d 727, 730 (Cal. App. 2006) (quoting State Farm Mut. Auto Ins. Co. v. Partridge , 514 P.2d 123, 127 (Cal. 1973) ). Because these jurisdictions apply a broader definition of "use" than that recognized in existing South Carolina precedent and do not require a similar "transportation" analysis, we find the circuit court appropriately dec lined to follow these authorities.

III. Residency

Appellants argue the circuit court erred in finding S.G. wa s a resident relative of only Mother's household. Appellants furt her argue the circuit court erred in declaring the residency issue unpres erved for appellate review.

In Elam v. South Carolina Department of Transportation , our supreme court explained:

[O]ur rules contemplate two basic situations in which a party should consider filing a Rule 59(e) motion. A party may wish to file such a motion when she believes the court has misunderstood, faile d to fully consider, or perhaps failed to rule on an argument or issue, and the party wishes for the court to reconsider or rule on it. A party must file such a moti on when an issue or argument has been raised, but not ruled on, in order to preserve it for appellate review.

361 S.C. 9, 24, 602 S.E.2d 772, 780 (2004). "If a part y is unsure whether he properly raised all issues and obtained a ruli ng, he must file a Rule 59(e) motion or an appellate court may late r determine the issue or argument is not preserved for
review." Id. at 25, 602 S.E.2d at 780.

In their Rule 59(e) motion to alter or amend, Appellants listed the following grounds:

1. The Court's Order denies the Defendants' grounds for insurance coverage under the existing vehicular policies
of the Plaintiff. The Court further found that the death of[Infant] did not arise out of the ownership, maintenance
or use of the vehicle.

2. The Court based the ruling on State Farm Fire and Casualty Company v. Aytes , 322 S. C. 30, 503 S.E. 2d 744 (1998), which sets forth a three (3) pronged test for determining coverage. The Order ignored the case law presented by the Defendants to support their argument or the Order failed to fully e xplain why said cases and arguments are different from the facts set forth in the
present case.

3. The stipulated facts further failed to set forth the
details of the "use" of the ve hicle by the Defendant driver during the lunch hour while the infant was still present in the vehicle and ignored the fact that the infant's transportation to the daycar e facility had never ceased. The Defendants request the Court reopen its judgment, take additional testimony or evidence, amend its findings of fact and conclusion of law or make new findings and conclusions and direct entry of a new judgment.

In its order denying Appella nts' motion to alter or amend, the circuit court reaffirmed its prior ruling and noted Appella nts failed to raise the resident relative
issue in their motion to reconsider. However, Appellants' motion stated, "The
Court's Order denies the Defendants' grounds for insurance coverage under the existing vehicular policies of the Plaintiff. " Arguably, this statement placed the circuit court on notice that Appella nts were seeking a review of all of the court's rulings—including its ruling on the question of S.G.'s re sidency. Furthermore, because Appellants made a permissive motion for reconsideration and not a mandatory motion necessary to preserve an unaddressed error, we find the residency issue is preserved for our review.

Our supreme court first analyzed whether a person was a resident relative of the
same household as a named insured in Buddin v. Nationwide Mutual Insurance

Co. , 250 S.C. 332, 157 S.E.2d 633 (1967). The court stated "'a resident of the same household is one, other than a temporary or transient visitor, who lives together with others in the same house for a period of some duration, although he may not intend to remain there permanently.'" Id. at 339, 157 S.E.2d at 636 (quoting Hardware Mut. Cas. Co . v. Home Indem. Co. , 50 Cal.Rptr. 508, 514 (Cal.App. 1966)). The supreme court noted seve ral factors for possible consideration— rent or boarding payments; the presence or absence of control over the relative; and
whether there was a lack of a permanent living arrangement—but found none were
determinative of the issue. Id. at 338–39, 157 S.E.2d at 636.

In Auto-Owners Insuran ce Company v. Horne , 356 S.C. 52, 66, 586 S.E.2d 865, 873 (Ct. App. 2003), this c ourt concluded "there is no single test to determine
whether a minor child is a resident of a noncustodial parent's household for purposes of determining UIM benefits. Ra ther, the courts generally look at the
facts and circumstances of each case in tota lity to determine the child's residency."
While the Horne court found the seventeen-yea r-old child was not a resident
relative of her non-custodial father's hous ehold, the question of whether a person may be a resident relative of more than one household has not ye t been addressed.
See Smith v. Auto-Owners Ins. Co. , 377 S.C. 512, 516, 660 S.E.2d 271, 273 (Ct. App. 2008) ("No statute provides guidance concerning whether an insured may
maintain more than one household simu ltaneously. Although the courts have contemplated the meaning of 'resident re lative' on numerous occasions, the issue of whether an insured may reside in multip le households simultaneously is one of first impression." (footnote omitted)).

Here, Father admitted Mother was S.G.'s primary custodian because she lived with Mother. Father explained that while he was allowed very liberal visitation with S.G., the parties had no set visitation sche dule. Father testified S.G.'s first overnight visit with him occurred in Janua ry 2014, and Mother sent an overnight bag whenever S.G. stayed with him. Father also acknowledged he has never claimed S.G. as a depende nt on his taxes.

At the time of S.G.'s death, Mother lived with her parents, whose home was listed as the principal address for documentation relating to S.G. Mother testified she
and Father never shared a residence and S.G. stayed exclusively with her during her six-week maternity leave. She e xplained that beginning in December 2013, S.G. began staying with Father on a regular basis. According to Mother, she and
Father had a "four-three schedule" meani ng S.G. "would stay four days with one parent, three days with the [other parent ,] and then we woul d often alternate and change the schedule if something came up. " Mother admitted Father kept a Pack N' Play (portable crib) while she had a permanent wooden crib at her home. Mother concluded her deposition testimony by stating, "I belie ve we had shared custody but I would say I would be primary."Grandmother testified Mother was living at her home on April 8, 2013, the day
S.G. was born. She character ized S.G.'s home in May 2014 as Mother's house and Father's house. Grandmother explained that in the last three or four months of her life, S.G. stayed "so many nights at [Fat her's] house and so many nights at our house with [Mother]." Cognizant of our standard of review, we find evidence exists to reasonably support the circuit c ourt's decision that S.G. was a "resident relative" of only Mother's household. See Crossmann Cmtys. of N.C., Inc. , 395 S.C. at 46–47, 717 S.E.2d at 592 ("In an ac tion at law tried without a jury, the appellate court will not disturb the trial co urt's findings of fact unless there is no evidence to reasonably support them." (quoting Newman , 385 S.C. at 191, 684 S.E.2d at 543)).

Conclusion

We find Father's act of leaving S.G. in hi s truck for over seven hours was an act of independent significance breaking any causal link between the use of the truck and her tragic death. Moreove r, Appellants are unable to establish the vehicle was being used for transportation during the time S.G. was left in the truck. Finally, evidence supports the circuit court's findi ng that S.G. was a resident relative of only Mother's household. Thus, the judgment of the circuit court is

AFFIRMED.

HUFF and GEATHERS, JJ., concur.