THE STATE OF SOUTH CAROLINA 

In The Court of Appeals 

State Farm Mutual Automobile Insurance Company, 

Respondent, 

v. 

Beverly Goyeneche, David R. Gray, III and Amanda 

Goyeneche (a/k/a Amanda Goyeneche-Gray), 

individually and as Parent and Natural Guardian of S.G., 

Defendants, 

Of Whom Beveryly Goyeneche, and Amanda Goyeneche 

are the Appellants. 

Appellate Case No. 2016-000840 

Appeal From Darlington County 

Paul M. Burch, Circuit Court Judge 

Opinion No. 5697 

Heard June 7, 2018 – Filed December 18, 2019 

AFFIRMED 

Karl Huggins Smith, of Smith Watts & Associates, LLC, 

of Hartsville, for Appellants. 

Jonathan M. Robinson, of DuBose Robinson Morgan, 

PC, of Camden, for Respondent. 

MCDONALD, J.: This is a declaratory judgment action to determine whether 

State Farm Mutual Automobile Insurance Co. (State Farm) has a duty to defend 
 

 

and provide liability and underinsured motorist (UIM) coverage following the 

death of an unattended child (S.G.) in a vehicle insured by a State Farm automobile 

policy. Appellants Beverly Goyeneche (Grandmother) and Amanda Goyeneche 

(Mother) appeal the circuit court's order finding their claims arising from S.G.'s 

death are excluded from coverage 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 jurisdictions; and (3) determining S.G. was a resident relative 

of only Mother's household. We affirm. 

Stipulated Facts2 

The underlying facts of this case are tragic. 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. However, Father instead drove to work, leaving 

S.G. unattended in the back seat of the truck. 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 vehicle; 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 Policies) 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 liability 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 occurrence, 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 UIM coverage of $50,000 per 

person, $100,000 per occurrence, 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 occurrence, 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 ownership, maintenance or use of the insured 

utomobile, and otherwise subject to the terms of the policy." 

rocedural History 

n September 24, 2014, State Farm brought 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 duty to defend or indemnify Grandmother, 

other, or Father. Appellants filed a joint answer and counterclaim, asserting 

.G.'s death arose from the operation, ownership, maintenance or use of vehicles 

overed by the Policies. Appellants also sought a declaration that the Policies 

rovide coverage for S.G.'s death. 

he parties entered a stipulation of facts, and Appellants gave deposition 

estimony. The circuit court held a nonjury trial on April 7, 2015; State Farm's 

outh Carolina Policy Form 9840a and the deposition testimonies were offered 

nto evidence without objection. By order dated June 1, 2015, the circuit court 

eclared that the Policies did not provide coverage in this matter. Specifically, the 

ircuit court concluded there was no evidence 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 

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third prong of the Aytes test, the "transportation" element, was not satisfied.3 

Finally, the circuit court determined S.G. was a resident solely of Mother's home. 

Defendants' filed a Rule 59(e), SCRCP, motion to alter 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 nature of the underlying issues." Judy v. 

Martin, 381 S.C. 455, 458, 674 S.E.2d 151, 153 (2009). "When the purpose of the 

underlying dispute is to determine whether 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)). "When an appeal involves stipulated or undisputed facts, 

an appellate court is free to review whether 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 court'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 circuit 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-prong test for determining 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 contains a provision insuring the 

persons defined as insured against loss from the liability imposed by law for 

damages arising out of the ownership, maintenance, or use of these motor vehicles 

. . . ."). "First, the party seeking coverage must establish a causal connection 

between the vehicle and the injury. Second, there must exist no act of independent 

significance breaking the causal link. . . . [Third,] 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 connection 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 vehicle. The only connection 

between the car and the injury is the fact that Dawson 

was sitting in the car when she 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 requirements that later became part of the Aytes 

test in Hite v. Hartford Accident and Indemnity Co., 288 S.C. 616, 344 S.E.2d 173 

(Ct. App. 1986). Hite was employed by a car dealership, 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, leaving the car running, exited the vehicle. 

While approaching the dealership on foot, Hite heard the night watchman yell that 

someone (William Martin) had backed into a new truck. Id. at 618, 344 S.E.2d at 

175. Hite walked fifty feet across the parking lot to tell Martin, who was sitting in 

a car, not to leave. Id. However, Martin accelerated the vehicle and ran over 
 

Hite'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 automobile 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 injured when an unknown assailant in another vehicle 

bumped, pursued, and then shot at the Blazer. Id. at 271, 422 S.E.2d at 107. 

Relying on Continental Western Insurance 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 the injury. The causation 

required is something less than proximate cause and 

something more than the vehicle 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 the uninsured's vehicle. The 

insured was injured when she fell or jumped from the 

moving vehicle as a result of the 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 connection for coverage that existed between the uninsured 

vehicle and the injuries Howser sustained, the court stated, "[t]he gunshot was the 

culmination of an ongoing assault, in which the vehicle played an essential and 

integral part. Additionally, only a motor vehicle could have provided 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 engine of an airplane. Once 

this was accomplished, the airplane's brakes failed, 

causing it to move forward and 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 purpose 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. Accordingly, 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 additional factor to the coverage test in Canal 

Insurance Co. v. Insurance Co. of North America, 315 S.C. 1, 431 S.E.2d 577 

(1993). There, the owner and operator of a truck crane was 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 vehicle' 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 subsequently addressed the "ownership, maintenance, or 

use" of a vehicle numerous times in the context of assaults involving intentional 
conduct 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 parking lot were excluded from coverage because 

such injuries are not "foreseeably identifiable 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 liability policies because the injuries did not arise out of 

"use" of officer's patrol car within 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 court has clarified that "[n]o distinction is 

made as to whether [an] injury resulted from a negligent, reckless, or intentional 

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

A. Causal Connection 

Appellants challenge the circuit court's application of the Aytes coverage factors to 

the facts here, arguing the court erroneously found there was no causal connection 

between the "ownership, maintenance 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 demonstrate: "(a) the vehicle was an 'active 

accessory' to the assault; and (b) something 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 accessory to S.G.'s 

death. At trial, State Farm argued S.G.'s hyperthermia was "caused by the 

atmospheric conditions around us when we were 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." However, Appellants contend it is well known 

that vehicles trap heat and the vehicle itself was the producing cause of the onset of 

S.G.'s hyperthermia. At trial, Appellants stated they did not know whether S.G. 

would have died if she had been left outside the vehicle: "[She] may have had a 
sunstroke. [She] may have had heat exhaustion. [She] may have died of 

dehydration but in this particular case[, she] died from being inside a vehicle." 

In their brief to this court, Appellants assert, "Hyperthermia would not have 

happened just anywhere—the nature of the injury is inextricably linked to the fact 

that Infant was in Father's vehicle, which he then drove and parked, leaving her 

inside, prior to completing his transport of her to daycare." And 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 vehicle produced the excessive heat that 

concentrated inside, causing S.G.'s fatal injury. See e.g., Towe, 314 S.C. at 107, 

441 S.E.2d at 827 (determining automobile was 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 and the vehicle's speed contributed to the 

velocity of the bottle, which increased the seriousness of victim's injuries); 

Howser, 309 S.C. at 273, 422 S.E.2d at 108 (finding a sufficient causal connection 

existed between use of assailant's vehicle and insured's injuries because the use of 

the vehicle allowed the assailant to closely pursue Howser; the gunshot was the 

culmination of an ongoing assault in which 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 Father 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 trap heat—and the excessive 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 foreseeably 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 children; transporting children to and from 

daycare is neither an abnormal nor an unanticipated use. Significantly, our 

Legislature has recognized that the intentional or unintentional act of leaving a 

child inside a locked vehicle is foreseeably 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 his forcible entry into a motor vehicle 
for the purpose of removing a minor or vulnerable 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 Appellants established the necessary causal 

connection between Father's truck and S.G.'s death. 

B. Act of Independent 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 that broke any causal connection between 

Father's truck and S.G.'s death. 

While our appellate courts have 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 the 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 conversation 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 Smith's actions."). We agree with the 

circuit court that Father's act of abandoning 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 erroneously 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 transportation at the time of S.G.'s fatal injury. 

II. Authority from Other Jurisdictions 
When there is no South Carolina case directly 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 the 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 support 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' broadly: "the phrase 'arising from use' is 

treated as being a 'general catchall . . . designed and construed to include all proper 

uses of the vehicle not falling within other terms of definition.'" Id. at 859 (quoting 

Tucker v. Allstate Tex. Lloyds Ins. Co., 180 S.W.3d 880, 886 (Tex. 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 insurance coverage. 

As noted above, South Carolina courts have held the party seeking coverage must 

show the vehicle was being used for transportation at the time of injury. See 

Canal, 315 at 4, 431 S.E.2d at 479 (construing 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 person is using a vehicle as a 

vehicle depends not only on his conduct 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 case 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., the 
California Court of Appeals noted "[p]ast California cases have established beyond 

contention that this language of 'arising out of the use,' when utilized in a coverage 

or insuring clause of an insurance policy, has a broad and comprehensive 

application, and affords coverage 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 declined to follow these authorities. 

III. Residency 

Appellants argue the circuit court erred in finding S.G. was a resident relative of 

only Mother's household. Appellants further argue the circuit court erred in 

declaring the residency issue unpreserved 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, failed 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 motion 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 party is unsure whether he 

properly raised all issues and obtained a ruling, he must file a Rule 59(e) motion or 

an appellate court may later 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 explain 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 vehicle 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 daycare 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 Appellants' motion to alter or amend, the circuit court 

reaffirmed its prior ruling and noted Appellants 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 Appellants were seeking a review of all of the court's 

rulings—including its ruling on the question of S.G.'s residency. 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 several 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 Insurance Company v. Horne, 356 S.C. 52, 66, 586 S.E.2d 865, 

873 (Ct. App. 2003), this court 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. Rather, the courts generally look at the 

facts and circumstances of each case in totality to determine the child's residency." 

While the Horne court found the seventeen-year-old child was not a resident 

relative of her non-custodial father's household, the question of whether a person 

may be a resident relative of more than one household has not yet 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 simultaneously. Although the courts have 

contemplated the meaning of 'resident relative' on numerous occasions, the issue of 

whether an insured may reside in multiple 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 schedule. Father testified S.G.'s first 

overnight visit with him occurred in January 2014, and Mother sent an overnight 

bag whenever S.G. stayed with him. Father also acknowledged he has never 

claimed S.G. as a dependent 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 explained 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" meaning S.G. "would stay four days with one 

parent, three days with the [other parent,] and then we would 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 believe 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 characterized 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 [Father'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 court'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 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." (quoting Newman, 385 S.C. at 191, 684 

S.E.2d at 543)). 

Conclusion 

We find Father's act of leaving S.G. in his 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. Moreover, 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 finding 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.