Opinion
22405
November 12, 1985.
James M. Shoemaker, Jr., of Wyche, Burgess, Freeman Parham, Greenville, for appellant. D. Denby Davenport, Jr., of Gaddy Davenport, Greenville, for respondent.
Nov. 12, 1985.
In this action respondent seeks both contract and tort damages arising from State Farm's refusal to pay insurance benefits. The trial court granted respondent judgment and interest on the contract action, and ordered the tort claim to trial. State Farm appeals. We affirm.
Regarding the contract action, appellant contends the trial court erred in permitting the stacking of supplemental personal injury protection (APIP) benefits. Though appellant seeks to factually distinguish the present case, it is clear that our decisions in Esler v. United Services Auto. Assn., 273 S.C. 259, 255 S.E.2d 676 (1979), and Belk v. Nationwide Mutual Ins. Co., 271 S.C. 24, 244 S.E.2d 744 (1978), control this issue; therefore, this argument fails.
State Farm also argues the trial court erred in ordering the tort claim to trial. The company contends this Court's decision in Nichols v. State Farm Mut. Auto. Ins., 279 S.C. 336, 306 S.E.2d 616 (1983) should not be retroactively applied because it created a new cause of action. This position is without merit.
In Carter v. American Mutual Fire Ins. Co., 279 S.C. 367, 307 S.E.2d 225 (1983), this Court permitted recovery in a Nichols case where the cause of action arose prior to the Nichols decision. Though Carter does not expressly address the question of retroactive application, the opinion implicitly recognizes such an application. See also Brown v. S.C. Insurance Co., 284 S.C. 47, 324 S.E.2d 641 (S.C.App. 1984), cert. granted 329 S.E.2d 768 (S.C. 1985).
In the Brown Petition for Certiorari, the issue of the retroactivity of Nichols was raised; however, certiorari was denied on that issue.
Appellant's remaining exceptions are without merit, and are affirmed pursuant to Supreme Court Rule 23.
The order of the lower court is, accordingly
Affirmed.
NESS, C.J., and HARWELL, CHANDLER and FINNEY, JJ., concur.