                                   UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 16-1770


MARGARET CRAMER,

                   Plaintiff - Appellee,

            v.

NATIONAL CASUALTY COMPANY,

                   Defendant - Appellant,

            and

MARY ANN WALLEY,

                   Defendant.



Appeal from the United States District Court for the District of South Carolina, at
Orangeburg. J. Michelle Childs, District Judge. (5:14-cv-03857-JMC)


Argued: May 10, 2017                                        Decided: May 30, 2017


Before WILKINSON, KEENAN, and THACKER, Circuit Judges.


Reversed by unpublished opinion. Judge Wilkinson wrote the opinion, in which Judge
Keenan and Judge Thacker joined.


ARGUED: John Robert Murphy, MURPHY & GRANTLAND, P.A., Columbia, South
Carolina, for Appellant. Robert F. Goings, GOINGS LAW FIRM, LLC, Columbia,
South Carolina, for Appellee. ON BRIEF: Wesley B. Sawyer, Jason P. Luther,
MURPHY & GRANTLAND, P.A., Columbia, South Carolina, for Appellant. Jessica
Lee Gooding, GOINGS LAW FIRM, LLC, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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WILKINSON, Circuit Judge:

       Margaret Cramer seeks a declaratory judgment against National Casualty

Company stating that she was “occupying” her work vehicle when she was hit by an

underinsured motorist and is consequently entitled to recover under the terms of her

employer’s insurance policy. The district court entered summary judgment in her favor.

We review the decision of the district court de novo and reverse with instructions to enter

judgment in favor of National Casualty.

                                            I.

       Cramer presents the following facts. She was employed in South Carolina as an

emergency medical technician (“EMT”) with a non-emergency medical transport

company, St. Matthews Ambulance Service, LLC. On September 16, 2013, she and her

co-worker were sitting in an ambulance waiting for a patient to complete treatment at a

cancer center when they noticed a rear-end automobile accident on an adjacent road.

Cramer subsequently activated the emergency lights on the ambulance and maneuvered

the vehicle onto the road to block the site of the accident from oncoming traffic. With the

engine running, she and her partner exited the vehicle to check on the drivers, both of

whom were uninjured.

       Cramer then crossed the road to the shoulder of the opposite lane to avoid traffic

and call highway patrol. After completing the call, she tried to return to the ambulance

and waved through a number of cars to clear the road so she could cross. Her stated

purpose in returning to the emergency vehicle was to radio dispatch and notify St.

Matthews of the accident. Unfortunately, one of the oncoming vehicles, driven by an

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underinsured motorist, hit her as she stood on the shoulder of the road. Cramer estimates

that she was eight feet from the ambulance when the collision occurred.

       St. Matthews carries an automobile insurance policy from National Casualty

providing up to $100,000 in coverage for damage caused by underinsured motorists.

Although Cramer was on duty at the time of the accident, National Casualty denied her

insurance claim because she was not “occupying” an ambulance as required by the terms

of the agreement. “Occupying” is defined in the insurance policy as “in, upon, getting in,

on, out or off” of an insured vehicle. J.A. 164–65.

       Cramer filed suit seeking a declaratory judgment against National Casualty stating

that she was “occupying” the ambulance at the time of the accident and was entitled to

recover from the insurance company. * Both parties filed motions for summary judgment.

The district court granted summary judgment in favor of Cramer, holding that she was

“getting in,” and therefore “occupying,” the ambulance when the collision occurred

because she was “engaged in the completion of acts reasonably expected from one

‘getting in’ the vehicle.” Cramer v. Nat’l Casualty Co., 190 F. Supp. 3d 510, 519 (D.S.C.

2016). The district court reasoned that Cramer intended to return to the ambulance at the

       *
         Cramer initially filed suit in the South Carolina Court of Common Pleas against
both National Casualty and the underinsured motorist. National Casualty invoked the
jurisdiction of the United States District Court for the District of South Carolina by
removing the action pursuant to 28 U.S.C. § 1441. The district court then severed the
claims against the underinsured motorist and remanded them to state court. Federal
diversity jurisdiction is proper because Cramer is a citizen and resident of North Carolina,
and National Casualty is incorporated in Wisconsin with a principal place of business in
Arizona. See 28 U.S.C. 1332(a)(1). Any jurisdictional defects caused by the non-diverse
underinsured motorist were cured before final judgment was entered. See Caterpillar Inc.
v. Lewis, 519 U.S. 61, 74–78 (1996).

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time of the accident and that her conduct and attempt to “get in” the vehicle were

reasonable considering the normal use of an emergency vehicle. Id. at 518–19. This

appeal followed.

                                             II.

       In South Carolina, “[i]nsurance policies are subject to the general rules of contract

construction.” USAA Prop. & Cas. Ins. Co. v. Clegg, 661 S.E.2d 791, 797 (S.C. 2008)

(quoting B.L.G. Enters., Inc. v. First Fin. Ins. Co., 514 S.E.2d 327, 330 (S.C. 1999)).

“Courts must enforce, not write, contracts of insurance, and their language must be given

its plain, ordinary and popular meaning.” Id. (quoting Sloan Constr. Co., Inc. v. Cent.

Nat’l Ins. Co. of Omaha, 236 S.E.2d 818, 819 (S.C. 1977)). “When a contract is

unambiguous, clear, and explicit, it must be construed according to the terms the parties

have used.” Id. (quoting B.L.G. Enters., 514 S.E.2d at 330). However, “[a]mbiguous or

conflicting terms in an insurance policy must be construed liberally in favor of the

insured and strictly against the insurer.” Id. (quoting Diamond State Ins. Co. v.

Homestead Indus., Inc., 456 S.E.2d 912, 915 (S.C. 1995)).

       In Whitmire v. Nationwide Mutual Insurance Co., 174 S.E.2d 391 (S.C. 1970), the

Supreme Court of South Carolina construed an insurance provision analogous to the

present case. The court held that a passenger who exited and was in the process of

walking around an insured vehicle to reach the adjacent shoulder of the road was

“alighting from,” i.e., “getting out,” and therefore “occupying,” the insured vehicle. Id. at

393–95. The court explained:



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       Where the act of alighting is completed is uncertain. It must be determined
       under the facts of each case, considered in the light of the purpose for
       which coverage is afforded. Its meaning must be related to the particular
       use of the automobile and the hazards to be encountered from such use. It is
       reasonable to conclude that coverage was intended to protect a guest against
       the hazards from passing automobiles in the vicinity, while the guest . . . is
       still engaged in the completion of those acts reasonably to be expected from
       one getting out of an automobile under similar conditions.

Id. at 394. The court then emphasized that the claimant “was struck while within two or

three feet of the automobile and while he was proceeding promptly to the [adjacent]

shoulder of the highway . . . . to remove himself from the hazards from passing vehicles.”

Id. at 395. This is the furthest extension of the term “occupying” by the Supreme Court of

South Carolina.

       Cramer argues that she was “getting in,” and therefore “occupying,” the

ambulance when she was hit by an underinsured motorist. We need not define the

specific contours of “getting in” a vehicle to conclude that a person standing on the

shoulder of the road across from an insured vehicle is not “getting in” by any reasonable

construction of the phrase. The Supreme Court of South Carolina has long recognized

that such provisions “must connote some physical relationship” with the insured vehicle.

McAbee v. Nationwide Mut. Ins. Co., 152 S.E.2d 731, 732 (S.C. 1967). Yet Cramer was

separated from the ambulance by a lane of traffic and passing cars. She had not even

started to cross the street, let alone enter the ambulance. Any latent ambiguity in “getting

in” stops short of these facts. At most, Cramer was “getting to” or “approaching” the

emergency vehicle, which is beyond the terms of the insurance policy. Cf. Jarvis v. Pa.

Threshermen & Farmers’ Mut. Cas. Ins. Co., 94 S.E.2d 843, 844 (N.C. 1956)


                                             6
(distinguishing between “entering” and “approaching” an insured vehicle). To hold

otherwise would impermissibly torture the plain language of the insurance policy and

expand coverage in a manner unintended by the parties. See Bell v. Progressive Direct

Ins. Co., 757 S.E.2d 399, 406 (S.C. 2014).

         The present case is also well beyond the facts of Whitmire. Cramer was separated

from the ambulance by a lane of traffic. She was not within two or three feet of the

emergency vehicle. She was instead standing on the shoulder of the road in the place of

relative safety that Whitmire explicitly distinguished. As a result, we conclude that

Cramer was not engaged in the completion of acts reasonably expected from one actually

getting in a vehicle under similar conditions. See also Robert Roy, Annotation, What

Constitutes “Entering” or “Alighting From” a Vehicle Within the Meaning of Insurance

Policy, or Statute Mandating Insurance Coverage, 59 A.L.R.4th 149 (1988 & Supp.

2011).

         Cramer urges the court to construe “getting in” to cover persons with the present

intent of getting in an insured vehicle coupled with action reasonably anticipated from

someone getting in a vehicle under the particular circumstances. As explained above,

however, she was not yet engaged in actions reasonably anticipated from someone

actually getting in a vehicle. Moreover, South Carolina has already rejected the argument

that intent is dispositive of “getting in” a vehicle. S.C. Prop. & Cas. Guar. Ass’n v.

Yensen, 548 S.E.2d 880, 884 (S.C. Ct. App. 2001).

         Cramer also argues that the insurance policy fails to adequately extend coverage as

required by statute. South Carolina Code § 38-77-30(7) defines insured persons to

                                              7
include “any person who uses with the consent, expressed or implied, of the named

insured the motor vehicle to which the policy applies.” This argument, however,

overlooks how the statutory term “use” is interpreted throughout the insurance provisions

of the South Carolina Code. A party seeking to establish “use” of a vehicle must show

that “the vehicle was being used for transportation purposes at the time of the injury.” See

Peagler v. USAA Ins. Co., 628 S.E.2d 475, 478 (S.C. 2006); cf. Canal Ins. Co. v. Ins. Co.

of N. Am., 431 S.E.2d 577, 579 (S.C. 1993) (“We now construe § 38-77-140 and define

‘use of a motor vehicle’ as limited to transportation uses.”). We see no reason to interpret

§ 38-77-30(7) any differently. It is sufficient to observe that Cramer was not using the

ambulance for transportation purposes at the time of the accident, and thus was not

“using” the emergency vehicle under South Carolina law.

       In the alternative, Cramer lastly argues that she is entitled to recover because she

was “upon,” “out,” or “off,” and therefore “occupying,” the ambulance. She suggests that

“out” and “off” are completely independent from the gerund “getting.” In other words,

the definition of “occupying” should not be read as “in, upon, getting in, [getting] on,

[getting] out or [getting] off” of an insured vehicle. The Supreme Court of South Carolina

has been clear, however, that “upon” requires physical contact with the insured vehicle.

Whitmire, 174 S.E.2d at 394; see also S.C. Farm Bureau Mut. Ins. Co. v. Kennedy, 730

S.E.2d 862, 867–88 (S.C. 2012) (clarifying that a person is still “upon” an insured vehicle

if contact is “relinquish[ed] . . . in order to attempt to avoid injury”). And the Supreme

Court of South Carolina has not adopted Cramer’s proposed interpretation of “out” or

“off.” Severing these terms from “getting” would extend coverage to all persons both

                                             8
“in” and “out,” or “upon” and “off,” of an insured vehicle—meaning everyone. We

decline to read the policy so implausibly. Cramer therefore cannot meet her burden of

showing she is entitled to coverage. See Cooper v. Firemen’s Fund Ins. Co., 167 S.E.2d

745, 746 (S.C. 1969).

                                           III.

       The judgment of the district court is accordingly reversed and remanded with

instructions to enter judgment in favor of National Casualty.

                                                                         REVERSED




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