THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

United Services Automobile Association, Respondent, 

v. 

Belinda Pickens, Appellant. 

Appellate Case No. 2020-000439 

Appeal from Richland County 

Robert E. Hood, Circuit Court Judge 

Opinion No. 28050 

Heard May 25, 2021 – Filed August 11, 2021 

AFFIRMED 

Richard C. Alexander and Terence Covington Wise, both 

of Shelly Leeke Law Firm, LLC, of North Charleston, and 

Thomas J. Rode, of Thurmond Kirchner & Timbes, PA, of 

Charleston, for Appellant. 

John Robert Murphy and Wesley Brian Sawyer, both of 

Murphy & Grantland, PA, of Columbia for Respondent. 

JUSTICE HEARN: This case requires us to determine whether Section 38-77-340 

of the South Carolina Code (2015) permits a named driver exclusion that precludes 

uninsured motorist (UM) coverage to a passenger injured in an accident involving 

an unknown driver. We hold that it does. 

FACTS 

After sustaining injuries in a vehicle driven by her son, Kevin Simms, 
 

 

Appellant Belinda Pickens sought UM coverage through her policy with Respondent 

United Services Automobile Association (USAA). At the time of the accident, 

Pickens's policy covered five vehicles, including the 1997 Chevrolet involved in the 

accident. The policy included liability, personal injury protection (PIP), UM, and 

underinsured motorist (UIM) coverage.1

 Pickens also executed a named driver 

exclusion titled, "VOIDING AUTOMOBILE INSURANCE WHILE NAMED 

PERSON IS OPERATING CAR." 

The named driver exclusion stated in part: 

In consideration of the continuation of this policy in force by the 

Company at the rate applicable because of this endorsement, it is 

hereby agreed that with respect to such insurance as is afforded 

under this policy, including any obligation to defend, the 

Company shall not be liable for damages, losses or claims arising 

out of the operation or use of the automobile described in the 

policy or any other automobile to which the terms of the policy 

are extended, whether or not such operation or use was with the 

express or implied permission of its owner, while said 

automobile is being driven or operated by the following named 

person: 

KEVIN S. PICKENS2 

Pickens signed and dated the exclusion and indicated Simms had obtained his own 

policy of insurance. Pickens's declarations page also contained a provision that 

stated, "***COVERAGES EXCLUDED WHEN ANY VEHICLE OPERATED BY 

KEVIN SIMMS***." 

USAA denied Pickens's claim and initiated a declaratory judgment action 

asserting she was not entitled to UM coverage because Simms, the excluded driver, 

was operating the vehicle at the time of the accident. Both parties filed motions for 

summary judgment. Pickens asserted that section 38-77-340 applied solely to 

liability insurance. USAA argued the endorsement excluding all forms of coverage 

1

 Coverage included limits of $100,000 per person for bodily injury, $200,000 per 

accident for bodily injury, and $50,000 per accident for property damage for 

liability, UM, and UIM coverage. 

2

 The parties agree they intended to list Kevin Simms as the excluded driver. 
 

was expressly authorized by section 38-77-340, and to allow Pickens to recover UM 

in this case would create a "perverse incentive" for policyholders to exclude all 

members of their households.3 

After a hearing on the cross-motions for summary judgment, the circuit court 

granted USAA's motion and denied Pickens's. Citing the court of appeals' decision 

in Nationwide Insurance Co. of America v. Knight, 428 S.C. 451, 835 S.E.2d 538 

(Ct. App. 2019), aff'd, Op. No. 28028 (S.C. Sup. Ct. filed May 12, 2021) (Shearouse 

Adv. Sh. No. 16), the circuit court held the excluded driver endorsement was not 

limited to liability coverage, but also applied to UM coverage, particularly given that 

UM was not sold as standalone coverage. The circuit court further held that to permit 

Pickens to recover UM limits after having signed an exclusion naming Simms as an 

excluded driver would violate public policy. Lastly, the circuit court found Knight 

was applicable, and section 38-77-340 permitted the exclusion of UM coverage. 

Pickens appealed to the court of appeals, and this Court certified the case for its 

review pursuant to Rule 204(b), SCACR. 

ISSUE 

Did the circuit court err by interpreting section 38-77-340 to exclude Pickens's claim 

for uninsured motorist coverage as a matter of law? 

STANDARD OF REVIEW 

When parties file cross-motions for summary judgment, the issue is decided 

as a matter of law. Neumayer v. Philadelphia Indem. Ins. Co., 427 S.C. 261, 265, 

831 S.E.2d 406, 408 (2019) (citing Wiegand v. U.S. Auto. Ass'n, 391 S.C. 159, 163, 

705 S.E.2d 432, 434 (2011)). "Further, the interpretation of a statute is a question 

of law, which we review de novo." Neumayer, 427 S.C. at 265, 831 S.E.2d at 408 

(citing Town of Summerville v. City of N. Charleston, 378 S.C. 107, 110, 662 S.E.2d 

40, 41 (2008)). 

DISCUSSION 

Pickens argues section 38-77-340 applies only to liability coverage, and any 

3

 The parties also entered into a stipulation and agreement, noting, inter alia, the 

exclusion form should have listed Kevin Simms rather than Kevin Pickens as 

Pickens's excluded resident relative, Pickens was a passenger in her 1997 Chevrolet 

covered by her policy, and Simms was operating the vehicle at the time Pickens was 

injured. 
 

exclusion permitted by the statute excludes coverage in relation to the named driver 

and not the policyholder.4

 USAA contends section 38-77-340 allows exclusions on 

all forms of coverage under a liability policy, including UM coverage. Further, 

USAA asserts the exclusion voids all coverage while the named driver operates the 

covered vehicle. We agree with USAA. 

Section 38-77-340, titled "Agreement to exclude designated natural person 

from coverage," states in full: 

Notwithstanding the definition of "insured" in Section 38-77-30, 

the insurer and any named insured must, by the terms of a written 

amendatory endorsement, the form of which has been approved 

by the director or his designee, agree that coverage under such a 

policy of liability insurance shall not apply while the motor 

vehicle is being operated by a natural person designated by name. 

The agreement, when signed by the named insured, is binding 

upon every insured to whom the policy applies and any 

substitution or renewal of it. However, no natural person may be 

excluded unless the named insured declares in the agreement that 

(1) the driver's license of the excluded person has been turned in 

to the Department of Motor Vehicles or (2) an appropriate policy 

of liability insurance or other security as may be authorized by 

law has been properly executed in the name of the person to be 

excluded. 

S.C. Code Ann. § 38-77-340 (2015). 

In Knight, this Court held section 38-77-340 did not prohibit the exclusion of 

UIM coverage. Op. No. 28028 (S.C. Sup. Ct. filed May 12, 2021) (Shearouse Adv. 

4

 Pickens also asserts the policy language of the exclusion refers to only liability 

coverage. USAA contends that argument is unpreserved. While it is arguable 

whether Pickens actually raised this argument during the hearing before the circuit 

court, it is clear the court did not rule on the policy exclusion's language. 

Accordingly, because Pickens did not file a Rule 59(e), SCRCP motion, it is 

unpreserved. I'On, LLC v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d 

716, 724 (2000) ("If the losing party has raised an issue in the lower court, but the 

court fails to rule upon it, the party must file a motion to alter or amend the judgment 

in order to preserve the issue for appeal review . . . . Imposing this preservation 

requirement on the appellant is meant to enable the lower court to rule properly after 

it has considered all relevant facts, law, and arguments."). 
 

Sh. No. 16 at 20). There, Knight, individually and as representative of her deceased 

husband's estate, attempted to recover UIM limits under her policy through 

Nationwide. Id. at 20-21. However, Knight had executed an exclusion naming her 

husband as an excluded driver and providing "all coverages in your policy are not in 

effect while Danny Knight is operating any motor vehicle." Id. at 20. When Knight's 

husband died in a motorcycle accident, she attempted to recover UIM coverage 

under her insurance policy, but Nationwide denied the claim, relying on the named 

driver exclusion. Id. at 20-21. Knight argued the General Assembly intended that 

section 38-77-340 allow exclusions for only liability coverage, not UIM. Id. at 26. 

This Court disagreed, noting that freedom of contract affords parties the ability to 

enter into such exclusions, and section 38-77-340 permits the exclusion of UIM 

coverage. Id. at 26-27. 

Like Knight, Pickens entered into an agreement with USAA naming Simms 

as an excluded driver. Pickens also verified that Simms had sufficient coverage 

under his own, separate policy as required by statute. See S.C. Code Ann. §§ 38-77-

140, -150 (2015). We hold the reasoning expressed in Knight applies equally here: 

where the parties agree to exclude coverage when a named driver is operating a 

vehicle, that exclusion extends to all forms of coverage in the policy. The exclusion 

at issue specifically applies to "such insurance as is afforded under this policy," and 

provides that USAA will not be liable when Simms is operating a vehicle described 

in the policy. Accordingly, USAA's denial of UM coverage to Pickens did not 

violate section 38-77-340. 

We recognize that subsection 38-77-150(A) requires all insurance policies to 

include UM coverage: "No automobile insurance policy or contract may be issued 

or delivered unless it contains a provision by endorsement or otherwise, herein 

referred to as the uninsured motorist provision, undertaking to pay the insured all 

sums which he is legally entitled to recover as damages from the owner or operator 

of an uninsured motor vehicle, within limits which may be no less than the 

requirements of Section 38-77-140." S.C. Code Ann. § 38-77-150(A) (2015). 

However, excluding a named driver from all forms of coverage—even mandatory 

coverage—is permitted by section 38-77-340 and therefore does not violate section 

38-77-150. Indeed, liability coverage is also mandatory, and Pickens does not 

suggest that it cannot be excluded under section 38-77-340. 

Pickens also argues that to allow USAA to exclude UM coverage here defeats 

the purpose of UM, particularly if the uninsured motorist at fault in this case was an 
 

 

unknown driver rather than Simms.5 We believe section 38-77-340 expressly 

answers that argument by stating: "The agreement, when signed by the named 

insured, is binding upon every insured to whom the policy applies and any 

substitution or renewal of it." S.C. Code Ann. § 38-77-340 (2015) (emphasis added). 

Ultimately, under this outcome, the statute's purposes—providing the named insured 

the opportunity to pay lower premiums when a bad driver would otherwise be 

included within the policy and protecting the motoring public by requiring the 

excluded driver to either surrender his driver's license or be insured under his own 

policy—are accomplished. See Nationwide v. Knight, Op. No. 28028 (S.C. Sup. Ct. 

filed May 12, 2021) (Shearouse Adv. Sh. No. 16 at 25-26); Lincoln Gen. Ins. Co. v. 

Progressive N. Ins. Co., 406 S.C. 534, 541, 753 S.E.2d 437, 441 (Ct. App. 2013) 

(citing Lovette, 274 S.C. at 600, 266 S.E.2d at 783). As the circuit court noted, no 

liability coverage would have been afforded to a third party had Simms been at fault, 

and thus, it would violate public policy to allow Pickens to recover UM when she 

was the person who executed the exclusion yet knowingly allowed Simms to drive 

her vehicle. 

CONCLUSION 

For the foregoing reasons, we affirm the circuit court. 

5

 Pickens relies on the Court's holdings in Nationwide Mutual Insurance Co. v. 

Erwood and Unisun Insurance Co. v. Schmidt for the proposition that UM is personal 

and portable, and coverage should be evaluated from Pickens's perspective rather 

than be dependent on whether Simms was insured. Erwood, 373 S.C. 88, 644 S.E.2d 

62 (2007); Schmidt, 339 S.C. 362, 529 S.E.2d 280 (2000). Although those cases 

hold that a policyholder's UM coverage could not be limited simply because she was 

a passenger on her husband's motorcycle—a vehicle not covered under her policy— 

when she was injured (Erwood, 373 S.C. at 90-92, 644 S.E.2d at 63-64) and that a 

permissive passenger could not lose her status as an insured for purposes of UM 

coverage when a non-permissive driver was behind the wheel (Schmidt, 339 S.C. at 

368, 529 S.E.2d at 283), those cases did not involve an agreed-upon named driver 

exclusion and are therefore inapposite. Similarly, while Pickens insists this Court's 

decision in Lovette stands for the proposition that the named driver statute is 

intended to apply to those other than the named insured, that case is distinguishable 

because the policyholder listed himself as the excluded driver, and the Court held 

insurance would never have existed under the driver's own policy. Lovette v. U.S. 

Fidelity & Guar. Co., 274 S.C. 597, 600-01, 266 S.E.2d 782, 784 (1980). 
AFFIRMED. 

BEATTY, C.J., KITTREDGE, FEW and JAMES, JJ., concur.