H*2266 Session 106 (1985-1986)
H*2266(Rat #0514, Act #0463 of 1986) General Bill, By House Judiciary
Similar(S 283)
A Bill to amend Title 15, Code of Laws of South Carolina, 1976, by adding
Chapter 78, so as to enact the South Carolina Tort Claims Act; to amend
Section 59-67-710, as amended, relating to insurance on state-owned school
buses and the limits of liability involving school bus accidents, so as to
revise these limits and the amounts and types of damages recoverable in these
accidents; to amend Section 59-67-790, as amended, relating to the Major
Medical Benefits Fund to provide benefits for bodily injuries to school bus
passengers under certain conditions, so as to revise the limits of and amount
of benefits payable from this fund, and designate the name of the Fund as the
Pupil Injury Insurance Fund, to provide that if the amount of a verdict or
judgment is not satisfied by reason of the monetary limitations of Chapter 78
upon recovery from the State or political subdivision thereof, the plaintiff's
insurance company, subject to the underinsured and uninsured defendant
provisions of the plaintiff's insurance policy, shall compensate the plaintiff
for the difference between the amount of the verdict or judgment and the
payment by the political subdivision, and to provide that if a cause of action
is barred under Chapter 78, the plaintiff's insurance company must compensate
him for his losses subject to the aforementioned provisions of his insurance
policy; and to repeal Article 3, Chapter 77 of Title 15; Article 13, Chapter 5
of Title 57; Article 9, Chapter 17 of Title 57; and Section 5-7-70 of the 1976
Code all relating to certain damage claims or suits thereon.-amended title
01/29/85 House Introduced, read first time, placed on calendar
without reference HJ-425
01/31/85 House Committed to Committee on Ways and Means HJ-510
03/21/85 House Recalled from Committee on Ways and Means HJ-1568
03/26/85 House Objection by Rep. McLellan, Cleveland, Lewis,
Moss, Dangerfield, HJ-1655
03/26/85 House Objection by Rep. Winstead, O. Phillips,
Blackwell, Petty, Davenport, HJ-1655
03/26/85 House Objection by Rep. L Phillips, Alexander, McAbee,
Koon, Mangum, Rice, HJ-1655
03/26/85 House Objection by Rep. TM Burriss, Pearce, Townsend,
Sharpe, P Harris, HJ-1655
03/26/85 House Objection by Rep. Kirsh, G Brown & Day HJ-1655
05/08/85 House Objection withdrawn by Rep. Pearce HJ-3005
05/16/85 House Special order, set for following consideration of
H 2561 (Under H 2953) HJ-3246
05/21/85 House Debate interrupted HJ-3348
05/22/85 House Amended HJ-3440
05/22/85 House Debate interrupted HJ-3444
05/23/85 House Amended HJ-3475
05/23/85 House Read second time HJ-3493
05/23/85 House Unanimous consent for third reading on next
legislative day HJ-3493
05/24/85 House Read third time and sent to Senate HJ-3497
05/30/85 Senate Introduced, read first time, placed on calendar
without reference SJ-2377
01/22/86 Senate Special order SJ-205
01/28/86 Senate Debate adjourned until February 11, 1986 SJ-275
02/11/86 Senate Debate interrupted SJ-529
02/20/86 Senate Debate interrupted SJ-683
02/21/86 Senate Debate interrupted SJ-692
02/25/86 Senate Amended SJ-694
02/25/86 Senate Debate interrupted SJ-709
02/26/86 Senate Debate interrupted SJ-734
02/27/86 Senate Amended SJ-791
02/27/86 Senate Debate interrupted SJ-792
03/04/86 Senate Debate interrupted SJ-806
03/05/86 Senate Debate interrupted SJ-819
03/06/86 Senate Debate interrupted SJ-855
03/11/86 Senate Debate interrupted SJ-868
03/12/86 Senate Debate interrupted SJ-870
03/18/86 Senate Read second time SJ-1068
03/18/86 Senate Ordered to third reading with notice of
amendments SJ-1069
03/20/86 Senate Special order SJ-1143
04/02/86 Senate Debate interrupted SJ-1404
04/03/86 Senate Debate interrupted SJ-1410
04/08/86 Senate Amended SJ-1473
04/08/86 Senate Debate interrupted SJ-1500
04/09/86 Senate Amended SJ-1533
04/09/86 Senate Debate interrupted SJ-1556
04/10/86 Senate Amended SJ-1563
04/10/86 Senate Read third time SJ-1587
04/10/86 Senate Returned SJ-1587
04/15/86 House Non-concurrence in Senate amendment HJ-2346
04/17/86 Senate Senate insists upon amendment and conference
committee appointed Sens. Applegate, Lourie,
Bryan SJ-1629
04/22/86 House Conference committee appointed J. Anderson,
Freeman & Wilkins HJ-2479
05/13/86 Senate Free conference powers granted SJ-2686
05/13/86 Senate Free conference committee appointed Sens.
Applegate, Bryan, and Lourie SJ-2686
05/21/86 House Free conference powers granted HJ-3209
05/21/86 House Free conference committee appointed J. Anderson,
Freeman & Wilkins HJ-3210
05/22/86 Senate Free conference report received SJ-2826
05/22/86 Senate Free conference report adopted SJ-2845
05/22/86 House Free conference report received HJ-3271
05/22/86 House Free conference report adopted HJ-3290
05/22/86 House Ordered enrolled for ratification HJ-3290
05/28/86 Ratified R 514
06/03/86 Signed By Governor
06/03/86 Effective date 07/01/86
06/03/86 Act No. 463
06/03/86 See Act for exceptions to effective date
06/09/86 Copies available
(A463, R514, H2266)
AN ACT TO AMEND TITLE 15, CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING
CHAPTER 78 SO AS TO ENACT THE SOUTH CAROLINA TORT CLAIMS ACT; TO AMEND SECTION
59-67-710, AS AMENDED, RELATING TO INSURANCE ON STATE-OWNED SCHOOL BUSES AND THE
LIMITS OF LIABILITY INVOLVING SCHOOL BUS ACCIDENTS, SO AS TO REVISE THESE LIMITS
AND THE AMOUNTS AND TYPES OF DAMAGES RECOVERABLE IN THESE ACCIDENTS; TO AMEND
SECTION 59-67-790, AS AMENDED, RELATING TO THE MAJOR MEDICAL BENEFITS FUND TO
PROVIDE BENEFITS FOR BODILY INJURIES TO SCHOOL BUS PASSENGERS UNDER CERTAIN
CONDITIONS, SO AS TO REVISE THE LIMITS OF AND AMOUNT OF BENEFITS PAYABLE FROM
THIS FUND, AND DESIGNATE THE NAME OF THE FUND AS THE PUPIL INJURY INSURANCE FUND,
TO PROVIDE THAT IF THE AMOUNT OF A VERDICT OR JUDGMENT IS NOT SATISFIED BY REASON
OF THE MONETARY LIMITATIONS OF CHAPTER 78 UPON RECOVERY FROM THE STATE OR
POLITICAL SUBDIVISION THEREOF, THE PLAINTIFF'S INSURANCE COMPANY, SUBJECT TO THE
UNDERINSURED AND UNINSURED DEFENDANT PROVISIONS OF THE PLAINTIFF'S INSURANCE
POLICY, SHALL COMPENSATE THE PLAINTIFF FOR THE DIFFERENCE BETWEEN THE AMOUNT OF
THE VERDICT OR JUDGMENT AND THE PAYMENT BY THE POLITICAL SUBDIVISION, AND TO
PROVIDE THAT IF A CAUSE OF ACTION IS BARRED UNDER CHAPTER 78, THE PLAINTIFF'S
INSURANCE COMPANY MUST COMPENSATE HIM FOR HIS LOSSES SUBJECT TO THE
AFOREMENTIONED PROVISIONS OF HIS INSURANCE POLICY; AND TO REPEAL ARTICLE 3,
CHAPTER 77 OF TITLE 15; ARTICLE 13, CHAPTER 5 OF TITLE 57; ARTICLE 9, CHAPTER 17
OF TITLE 57; AND SECTION 5-7-70 OF THE 1976 CODE ALL RELATING TO CERTAIN DAMAGE
CLAIMS OR SUITS THEREON.
Be it enacted by the General Assembly of the State of South Carolina:
Tort Claims Act
SECTION 1. Title 15 of the 1976 Code is amended by adding:
"Chapter 78
South Carolina Tort Claims Act
Section 15-78-10. This chapter may be cited as the 'South Carolina Tort Claims
Act'.
Section 15-78-20. (a) The General Assembly finds that while a private
entrepreneur may be readily held liable for negligence of his employees within
the chosen ambit of his activity, the area within which government has the power
to act for the public good has been without limit and, therefore, government did
not have the duty to do everything which might have been done. The General
Assembly further finds that each governmental entity has financial limitations
within which it must exercise authorized power and discretion in determining the
extent and nature of its activities. Thus, while total immunity from liability
on the part of the government is not desirable, see McCall v. Batson, neither
should the government be subject to unlimited nor unqualified liability for its
actions. The General Assembly recognizes the potential problems and hardships
each governmental entity may face being subjected to unlimited and unqualified
liability for its actions. Additionally, the General Assembly recognizes the
impossibility of insuring for acts retrospectively. The General Assembly seeks
an orderly transition to the recognition of individuals' rights against the
tortious sovereign as defined herein. Consequently, it is declared to be the
public policy of the State of South Carolina that the State, and its political
subdivisions, are only liable for torts within the limitations of this chapter
and in accordance with the principles established herein. It is further declared
to be the public policy of the State of South Carolina that to insure an orderly
transition from sovereign immunity to qualified and limited liability that the
General Assembly intends to provide for liability on the part of the State and
its political subdivisions only from the effective date of this act forward in
prospective fashion. No governmental entity which was not insured at the time
of the injury for which compensation is sought is liable under this act and those
which were insured are liable only to the extent provided herein. Liability for
acts or omissions under this chapter is based upon the traditional tort concepts
of duty and the reasonably prudent person's standard of care in the performance
of that duty.
(b) The General Assembly in this chapter intends to grant the State, its
political subdivisions, and employees, while acting within the scope of official
duty, immunity from liability and suit for any tort except as waived by this
chapter. The General Assembly additionally intends to provide for liability on
the part of the State, its political subdivisions and employees, while acting
within the scope of official duty, only to the extent provided herein. All other
immunities applicable to a governmental entity, its employees, and agents are
expressly preserved. The remedy provided by this chapter is the exclusive civil
remedy available for any tort committed by a governmental entity, its employees,
or its agents except as provided in Section 15-78-70(b).
(c) As to those causes of action that arise or accrue prior to the effective
date of this act, the General Assembly reinstates sovereign immunity on the part
of the State, its political subdivisions and employees, while acting within the
scope of official duty; provided, however, that sovereign immunity will not bar
recovery in any case filed on or before the effective date of this act if the
defendant maintained liability insurance coverage. In such cases recovery shall
not exceed the limits of the liability insurance coverage.
(d) Nothing in this chapter affects liability based on contract nor does it
affect the power of the State or its political subdivisions to contract.
(e) Nothing in this chapter is construed as a waiver of the state's or
political subdivision's immunity from suit in federal court under the Eleventh
Amendment to the Constitution of the United States nor as consent to be sued in
any state court beyond the boundaries of the State of South Carolina.
(f) The provisions of this chapter establishing limitations on and exemptions
to the liability of the State, its political subdivisions and employees, while
acting within the scope of official duty, must be liberally construed in favor
of limiting the liability of the State.
Section 15-78-30. (a) 'Agency' means the individual office, agency,
authority, department, commission, board, division, instrumentality, or
institution, including a state-supported governmental health care facility,
school, college, university, or technical college, which employs the employee
whose act or omission gives rise to a claim under this chapter.
(b) 'Claim' means any written demand against the State of South Carolina or
a political subdivision for money only, on account of loss, caused by the tort
of any employee of the State or a political subdivision while acting within the
scope of his official duty.
(c) 'Employee' means any officer, employee, or agent of the State or its
political subdivisions, including elected or appointed officials, law enforcement
officers, and persons acting on behalf or in service of a governmental entity in
any official capacity, whether with or without compensation, but the term does
not include an independent contractor doing business with the State or any
political subdivision thereof. Custody of prisoners by the State or any of its
political subdivisions does not in and of itself create an employer and employee
relationship between the State and the prisoner. Provided, the provisions of
this section shall in no way limit or modify the liability of a licensed
physician or dentist.
(d) 'Governmental entity' means the State and its political subdivisions.
(e) 'State' means the State of South Carolina and any of its offices,
agencies, authorities, departments, commissions, boards, divisions,
instrumentalities, and institutions, including state-supported governmental
health care facilities, schools, colleges, universities, and technical colleges.
(f) 'Loss' means bodily injury, disease, death, or damage to tangible
property, including lost wages and economic loss to the person who suffered the
injury, disease, or death, pain and suffering, mental anguish, and any other
element of actual damages recoverable in actions for negligence, but does not
include the intentional infliction of emotional harm.
(g) 'Occurrence' means an unfolding sequence of events which proximately flow
from a single act of negligence.
(h) 'Political subdivision' means the counties, municipalities, school
districts, a regional transportation authority established pursuant to Chapter
25 of Title 58, and an operator as defined in item (8) of Section 58-25-20 which
provides public transportation on behalf of a regional transportation authority,
and special purpose districts of the State and any agency, governmental health
care facility, department, or subdivision thereof.
(i) 'Scope of official duty' means (1) acting in and about the official
business of a governmental entity and (2) performing official duties.
(j) 'Governmental health care facility' means one which is operated by the
State or a political subdivision through a governing board appointed or elected
pursuant to statute or ordinance and which is tax-exempt under state and federal
laws as a governmental entity and from which no part of its net income from its
operation accrues to the benefit of any individual or nongovernmental entity.
Health care facility includes any facility as defined in Title 44, S. C. Code
Ann. for the provision of mental or physical care to individuals, whether or not
it is required to be licensed under those provisions.
Section 15-78-40. The State, an agency, a political subdivision, and a
governmental entity are liable for their torts in the same manner and to the same
extent as a private individual under like circumstances, subject to the
limitations upon liability and damages, and exemptions from liability and
damages, contained herein.
Section 15-78-50. (a) Any person who may suffer a loss proximately caused by
a tort of the State, an agency, a political subdivision, or a governmental
entity, and its employee acting within the scope of his official duty may file
a claim as hereinafter provided.
(b) In no case is a governmental entity liable for a tort of an employee where
that employee, if a private person, would not be liable under the laws of this
State.
(c) Nothing herein shall affect the power of a court of equity at the suit of
a party complainant to enjoin unlawful acts committed by governmental entities
or mandate lawful action by governmental entities.
Section 15-78-60. (a) The governmental entity is not liable for a loss
resulting from:
(1) legislative, judicial, or quasi-judicial action or inaction;
(2) administrative action or inaction of a legislative, judicial, or
quasi-judicial nature;
(3) execution, enforcement, or implementation of the orders of any court or
execution, enforcement, or lawful implementation of any process;
(4) adoption, enforcement, or compliance with any law or failure to adopt
or enforce any law, whether valid or invalid, including, but not limited to, any
charter, provision, ordinance, resolution, rule, regulation, or written policies;
(5) the exercise of discretion or judgment by the governmental entity or
employee or the performance or failure to perform any act or service which is in
the discretion or judgment of the governmental entity or employee;
(6) civil disobedience, riot, insurrection, or rebellion or the failure to
provide the method of providing police or fire protection;
(7) a nuisance;
(8) snow or ice conditions or temporary or natural conditions on any public
way or other public place due to weather conditions unless the snow or ice
thereon is affirmatively caused by a negligent act of the employee;
(9) entry upon any property where the entry is expressly or impliedly
authorized by law;
(10) natural conditions of unimproved property of the governmental entity,
unless the defect or condition causing a loss is not corrected by the particular
governmental entity responsible for the property within a reasonable time after
actual or constructive notice of the defect or condition;
(11) assessment or collection of taxes or special assessments or enforcement
of tax laws;
(12) licensing powers or functions including, but not limited to, the
issuance, denial, suspension, renewal, or revocation of or failure or refusal to
issue, deny, suspend, renew, or revoke any permit, license, certificate,
approval, registration, order or similar authority except when the power or
function is exercised in a grossly negligent manner;
(13) regulatory inspection powers or functions, including failure to make
an inspection, or making an inadequate or negligent inspection, of any property
to determine whether the property complies with or violates any law, regulation,
code, or ordinance or contains a hazard to health or safety;
(14) any claim covered by the South Carolina Workers' Compensation Act,
except claims by or on behalf of an injured employee to recover damages from any
person other than the employer, the South Carolina Unemployment Compensation Act,
or the South Carolina State Employee's Grievance Act;
(15) absence, condition, or malfunction of any sign, signal, warning device,
illumination device, guardrail, or median barrier unless the absence, condition,
or malfunction is not corrected by the governmental entity responsible for its
maintenance within a reasonable time after actual or constructive notice.
Governmental entities are not liable for the removal or destruction of signs,
signals, warning devices, guardrails, or median barriers by third parties except
on failure of the political subdivision to correct them within a reasonable time
after actual or constructive notice. Nothing herein gives rise to liability
arising from a failure of any governmental entity to initially place any of the
above signs, signals, warning devices, guardrails, or median barriers when the
failure is the result of a discretionary act of the governmental entity. The
signs, signals, warning devices, guardrails, or median barriers referred to
herein are those used in connection with hazards normally connected with the use
of public ways and do not apply to the duty to warn of special conditions such
as excavations, dredging, or public way construction. Governmental entities are
not liable for loss on public ways under construction when the entity is
protected by an indemnity bond. Governmental entities responsible for
maintaining highways, roads, streets, causeways, bridges, or other public ways
are not liable for loss arising out of a defect or a condition in, on, under, or
overhanging a highway, road, street, causeway, bridge, or other public way unless
the defect or condition is not corrected by the particular governmental entity
responsible for maintenance within a reasonable time after actual or constructive
notice. Governmental entities are not liable for the design of highways and
other public ways;
(16) maintenance, security, or supervision of any public property, intended
or permitted to be used as a park, playground, or open area for recreational
purposes, unless the defect or condition causing a loss is not corrected by the
particular governmental entity responsible for maintenance, security, or
supervision within a reasonable time after actual notice of the defect or
condition;
(17) employee conduct outside the scope of his official duties or which
constitutes actual fraud, actual malice, intent to harm, or a crime involving
moral turpitude;
(18) imposition or establishment of a quarantine by a governmental entity,
whether the quarantine relates to persons or property;
(19) emergency preparedness activities and activities of the South Carolina
National Guard while engaged in state or federal training or duty. This
exemption does not apply to vehicular accidents;
(20) an act or omission of a person other than an employee, including but
not limited to the criminal actions of third persons;
(21) the decision to or implementation of release, discharge, parole, or
furlough of any persons in the custody of any governmental entity, including but
not limited to a prisoner, inmate, juvenile, patient, or client or the escape of
these persons;
(22) termination or reduction of benefits under a public assistance program;
(23) institution or prosecution of any judicial or administrative
proceeding;
(24) holding or conduct of elections;
(25) responsibility or duty including but not limited to supervision,
protection, control, confinement, or custody of any student, patient, prisoner,
inmate, or client of any governmental entity, except when the responsibility or
duty is exercised in a grossly negligent manner;
(26) failure to supervise or control areas open for public hunting or
activities thereon. Failure to control, maintain, and/or supervise the use of
and activities in, on and around public boat ramps except within a reasonable
time after actual notice of the defect or condition. Failure to maintain
navigational markers, except within a reasonable time after actual notice of the
defect or condition.
Section 15-78-70. (a) This chapter constitutes the exclusive remedy for any
tort committed by an employee of a governmental entity. An employee of a
governmental entity who commits a tort while acting within the scope of his
official duty is not liable therefor except as expressly provided for in
subsection (b).
(b) Nothing in this chapter may be construed to give an employee of a
governmental entity immunity from suit and liability if it is proved that the
employee's conduct was not within the scope of his official duties or that it
constituted actual fraud, actual malice, intent to harm, or a crime involving
moral turpitude.
(c) A person, when bringing an action against a governmental entity under the
provisions of this chapter, must name as a party defendant only the agency or
political subdivision for which the employee was acting and is not required to
name the employee individually, unless the agency or political subdivision for
which the employee was acting cannot be determined at the time the action is
instituted. In the event that the employee is individually named, the agency or
political subdivision for which the employee was acting must be substituted as
the party defendant; provided, however, that the provisions of this section shall
in no way limit or modify the liability of a licensed physician or dentist.
(d) A settlement or judgment in an action or a settlement of a claim under
this chapter constitutes a complete bar to any further action by the claimant
against an employee or governmental entity by reason of the same occurrence.
Section 15-78-80. (a) A verified claim for damages under this chapter,
setting forth the circumstances which brought about the loss, the extent of the
loss, the time and place the loss occurred, the names of all persons involved if
known, and the amount of the loss sustained may be filed:
(1) in cases against the State, with the State Budget and Control Board, or
with the agency employing an employee whose alleged act or omission gave rise to
the claim.
(2) where the claim is against a political subdivision, with the political
subdivision employing an employee whose alleged act or omission gave rise to the
claim.
(3) where the identification of the proper defendant is in doubt, with the
Attorney General.
(b) Each agency and political subdivision must designate an employee or office
to accept the filing of the claims.
(c) Filing may be accomplished by receipt of certified mailing of the claims
or by compliance with the provisions of law relating to service of process.
(d) The verified claim may be received by the Budget and Control Board or the
appropriate agency or political subdivision. If filed, the claim must be
received within one year after the loss was or should have been discovered.
(e) In all cases in which a claim is filed, the Budget and Control Board or
political subdivision has one hundred eighty days from the date of filing of the
claim in which to determine whether the claim should be allowed or disallowed.
Failure to notify the claimant of action upon the claim within one hundred eighty
days from the date of filing of the claim is considered a disallowance of the
claim.
(f) The handling and disposition of claims filed under this chapter are not
subject to the provisions of Article 3, Chapter 23 of Title 1.
(g) In all cases, where insurance is provided by the Budget and Control Board,
the agency or political subdivision involved must cooperate with the Budget and
Control Board in the investigation and handling of any claim.
Section 15-78-90. (a) The Budget and Control Board, or the political
subdivision where it has not purchased insurance from the Budget and Control
Board, may adjust, compromise, settle, or allow any claim or settle or compromise
any action.
(b) Whether or not the claim is filed, the claimant is entitled to institute
an action against the appropriate agency or political subdivision. Provided,
however, if a claimant files a claim, he may not institute an action until after
the occurrence of the earliest of one of the following three events: (1) the
passage of one hundred eighty days from the filing of the claim with the
governmental entity, (2) the governmental entity's disallowance of the claim, or
(3) the governmental entity's rejection of a settlement offer.
Section 15-78-100. (a) An action for damages under this chapter may be
instituted at any time within two years after the loss was or should have been
discovered. Provided, that if a claim for damages was filed and disallowed or
rejected an action for damages filed under this chapter, based upon the same
occurrence as the claim, may be instituted within three years after the loss was
or should have been discovered.
(b) Jurisdiction for any action brought under this chapter is in the circuit
court and brought in the county in which the act or omission occurred.
(c) In all actions brought pursuant to this chapter when an alleged joint
tortfeasor is named as party defendant in addition to the governmental entity,
the trier of fact must return a special verdict specifying the proportion of
monetary liability of each defendant against whom liability is determined.
Section 15-78-110. Any action brought pursuant to this chapter is forever
barred unless an action is commenced within two years after the date the loss was
or should have been discovered; provided that if the claimant first filed a claim
pursuant to this chapter then the action for damages based upon the same
occurrence is forever barred unless the action is commenced within three years
of the date the loss was or should have been discovered.
Section 15-78-120. (a) For any action or claim for damages brought under the
provisions of this chapter, the liability shall not exceed the following limits:
(1) No person shall recover in any action or claim brought hereunder a sum
exceeding two hundred fifty thousand dollars because of loss arising from a
single occurrence regardless of the number of agencies or political subdivisions
involved; provided, the provisions of this section shall in no way limit or
modify the liability of a licensed physician or dentist.
(2) The total sum recovered hereunder arising out of a single occurrence
shall not exceed five hundred thousand dollars regardless of the number of
agencies or political subdivisions or claims or actions involved; provided, the
provisions of this section shall in no way limit or modify the liability of a
licensed physician or dentist.
(b) No award for damages under this chapter shall include punitive or
exemplary damages or interest prior to judgment.
(c) In any claim, action, or proceeding to enforce a provision of this
chapter, the signature of an attorney or party constitutes a certificate by him
that he has read the pleading, motion, or other paper; that to the best of his
knowledge, information, and belief formed after reasonable inquiry it is
well-grounded in fact and is warranted by existing law or a good faith argument
for the extension, modification, or reversal of existing law, and that it is not
interposed for any improper purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation. If a pleading, motion, or
other paper is not signed, it shall be stricken unless it is signed promptly
after the omission is called to the attention of the pleader or movant. If a
pleading, motion, or other paper is signed in violation of this rule, the court,
upon motion or upon its own initiative, shall impose upon the person who signed
it, a represented party, or both, an appropriate sanction, which may include an
order to pay the other party or parties the amount of the reasonable expenses
incurred because of the filing of the pleading, motion, or other paper, including
a reasonable attorney's fee.
Section 15-78-130. The defense for a political subdivision against an action
brought pursuant to this chapter, when the political subdivision does not
purchase insurance through the Budget and Control Board, must be provided by the
political subdivision or its designee.
Section 15-78-140. (a) It is the duty of the Budget and Control Board to
cover risks for which immunity has been waived under the provisions of this
chapter by the purchase of insurance as authorized in Section 15-78-150.
(b) The political subdivisions of this State, in regard to tort and automobile
liability, property and casualty insurance, must procure insurance to cover these
risks for which immunity has been waived by (1) the purchase of liability
insurance pursuant to Section 1-11-140; or (2) the purchase of liability
insurance from a private carrier; or (3) self-insurance; or (4) establishing
pooled self-insurance liability funds, by intergovernmental agreement, which may
not be construed as transacting the business of insurance or otherwise subject
to state laws regulating insurance. A pooled self-insurance liability pool is
authorized to purchase specific and aggregate excess insurance. A pooled
self-insurance liability fund must provide liability coverage for all employees
of a political subdivision applying for participation in the fund. If the
insurance is obtained other than pursuant to Section 1-11-140, it must be
obtained subject to the following conditions:
(1) If the political subdivision does not procure tort liability insurance
pursuant to Section 1-11-140, it must also procure its automobile liability and
property and casualty insurance from other sources and shall not procure these
coverages through the Budget and Control Board;
(2) If a political subdivision procures its tort liability insurance,
automobile liability insurance, or property and casualty insurance through the
Budget and Control Board, all liability exposures of the political subdivision
as well as its property and casualty insurance must be insured with the Budget
and Control Board;
(3) If the political subdivision, at any time, procures its tort liability,
automobile liability, property, or casualty insurance other than through the
Budget and Control Board and then subsequently desires to obtain this coverage
with the Budget and Control Board, notice of its intention to so obtain this
subsequent coverage must be provided the Budget and Control Board at least six
months prior to the beginning of the coverage with the State Budget and Control
Board. The other lines of insurance that the political subdivision is required
to procure from the board are not required to commence until the coverage for
that line of insurance expires. Any political subdivision may cancel all lines
of insurance with the State Budget and Control Board if it gives six months'
notice to the board. The Budget and Control Board may negotiate the insurance
coverage for any political subdivision separate from the insurance coverage for
other insureds.
(4) If any political subdivision cancels its insurance with the Budget and
Control Board, the political subdivision is entitled to an appropriate refund of
the premium, less reasonable administrative cost.
(c) For any claim filed under this act, the remedy provided in Section
15-78-120 is exclusive. The immunity of the State and its political
subdivisions, with regard to the seizure, execution, or encumbrance of their
properties is reaffirmed.
Section 15-78-150. (a) The Budget and Control Board is authorized to purchase
liability insurance.
(b) The purchase of insurance must be funded by participating governmental
entities by payment of premiums as required by the Budget and Control Board.
Section 15-78-155. Any insurance company or reinsurance company selected to
handle or assist in handling the insurance programs required by this chapter for
any political subdivision of this State, which company is not selected by the
Budget and Control Board pursuant to Section 1-11-140, must be approved and
regulated by the State Department of Insurance in the same manner that other
insurance companies operating in this State are approved and regulated by the
Department and must be admitted and licensed to perform insurance operations in
the State of South Carolina by the Department of Insurance.
Section 15-78-160. If any agency or political subdivision fails to pay any
required premium and the failure results in loss of coverage, then the Budget and
Control Board is not liable for any uncovered or unfunded risk.
Section 15-78-170. An action or claim for the death of a person may be brought
under this chapter by the executor or administrator respectively, of the person's
estate when death results from bodily injury if the bodily injury would have
entitled the injured party to maintain an action or claim if death had not
ensued. The provisions and limitations of this chapter are applicable to any
such action or claim. Every action or claim must be for the benefit of the wife
or husband and child, or children of the person whose death has been so caused
and if there is no wife, husband, child or children, then for the benefit of the
parent or parents, and if there is none, then for the benefit of the heirs at law
or the distributees of the person whose death has been so caused. Any amount
recovered must be divided among the before-mentioned parties in those shares as
they would have been entitled to if the deceased had died intestate and the
amount recovered had been personal assets of his estate."
Repeal
SECTION 2. Article 3, Chapter 77 of Title 15; Article 13, Chapter 5 of Title 57;
Article 9, Chapter 17 of Title 57; and Section 5-7-70 of the 1976 Code are
repealed.
Applicability of provisions
SECTION 3. The provisions of Chapter 78 of Title 15 of the 1976 Code shall only
apply to those causes of action arising or accruing after the effective date of
this act; provided however, the provisions of Section 15-78-20(c) of the 1976
Code are applicable to all causes of action arising on or before the effective
date of the act.
Insurance coverage
SECTION 4. Section 59-67-710 of the 1976 Code, as last amended by Act 215 of
1977, is further amended to read:
"Section 59-67-710. (1) The Director of the Division of General
Services, with the approval of the State Budget and Control Board, shall provide
insurance coverage on all state-owned school buses which are operated under the
authority of, and which are being used for the purposes of, Article 3 of this
chapter. Such insurance contracts must be provided either through commercial
carriers or through the insurance reserve funds of the Division of General
Services. The insurance contracts shall provide at least the following benefits:
(a) for the lawful occupant of any such school bus who suffers bodily
injuries or death, a death benefit of not less than fifty thousand dollars;
(b) for the lawful occupant of any such school bus who suffers bodily
injuries, an amount sufficient to defray the cost of hospitalization, surgery,
dentistry, medicine, and all other medical expenses up to three thousand dollars
or such amount as promulgated by regulation of the Department of Education;
(c) additional coverage must also be provided for the following named
perils:
(i) for the loss of both hands or both feet or sight of both eyes, fifty
thousand dollars;
(ii) for loss of one hand and one foot, thirty thousand dollars;
(iii) for loss of either hand or foot and sight of one eye, thirty
thousand dollars; and
(iv) for loss of either hand or foot or sight of one eye, thirty thousand
dollars.
(2) The benefits provided for in subsection (1) shall exist without regard to
fault or negligence. The insurance shall cover any accident which occurs:
(a) while getting on a school bus;
(b) while riding within a school bus;
(c) by being thrown from within a school bus;
(d) while getting off a school bus;
(e) by being run down, struck, or run over while crossing a public highway
while approaching or leaving a school bus at the point of loading or unloading;
or
(f) by being run down, struck, or run over by any moving vehicle while en
route between home and the point of loading or en route between the point of
unloading and home.
(3) (a) For any action or claim for damages brought under the provisions of
Chapter 78 of Title 15 of the 1976 Code, the liability shall not exceed the
following limits:
(i) No person shall recover in any action or claim brought hereunder for
bodily injury or death a sum exceeding two hundred fifty thousand dollars because
of loss arising from a single occurrence regardless of the number of agencies or
political subdivisions involved.
(ii) The total sum recovered hereunder arising out of a single occurrence
shall not exceed five hundred thousand dollars regardless of the number of
agencies or political subdivisions or claims or actions involved; provided, the
provisions of this section shall in no way limit or modify the liability of a
licensed physician or dentist.
(b) No award for damages under Chapter 78 of Title 15 of the 1976 Code may
include punitive or exemplary damages or interest prior to judgment.
(c) The insurance required by this section shall contain sufficient coverage
for the provisions of this item.
(d) Any recovery from the State or governmental entity shall be reduced by
the sum received pursuant to subsections (1)(a) and (c) and (2) of this section.
In any recovery from a third party, the State shall have a right of subrogation
for recovery of payments pursuant to this section."
Fund created
SECTION 5. Section 59-67-790 of the 1976 Code, as last amended by Act 215 of
1977, is further amended to read:
"Section 59-67-790. There is hereby created a fund to be administered by
the Director of the Division of General Services to provide major medical
benefits for bodily injuries to school bus passengers when the cost exceeds the
benefits provided for in subsection (1)(a) of Section 59-67-710 of the 1976 Code.
No claim shall exceed fifty thousand dollars for any one person for any one
accident.
The Director of the Division of General Services shall pay into the Pupil
Injury Insurance Fund that portion of the premiums charged to the State
Department of Education for providing insurance covering buses he deems necessary
to maintain the Pupil Injury Insurance Fund at an actuarially sound level
sufficient to pay the benefits authorized by this section.
No payment from the Pupil Injury Insurance Fund shall be permitted when other
insurance benefits or workers' compensation is available to pay such cost or
where no charge is made for treatment. Whoever shall file a claim for payment
from the Pupil Injury Insurance Fund shall at the same time file an affidavit
swearing under oath that the requested claim is not covered by other insurance
benefits or workers' compensation to be received for that claim; provided, this
shall not apply to any injured school bus passenger who receives, for bodily
injuries, an amount not exceeding three thousand dollars under Section
59-67-710(1)(b) of the 1976 Code.
Any recovery from the State or governmental entity under Chapter 78 of Title
15 of the 1976 Code shall be reduced by the sum received pursuant to this
section. In any recovery from a third party, the State shall have a right of
subrogation for recovery of payments pursuant to this section.
The Director of the Division of General Services, with the approval of the
State Budget and Control Board, shall promulgate such rules and regulations as
may be necessary to carry out the provisions of this section."
Plaintiff to be compensated
SECTION 6. If the amount of the verdict or judgment is not satisfied by reason
of the monetary limitations of this chapter upon recovery from the State or
political subdivision thereof, the plaintiff's insurance company, subject to the
underinsured and uninsured defendant provisions of the plaintiff's insurance
policy, if any, shall compensate the plaintiff for the difference between the
amount of the verdict or judgment and the payment by the political subdivision.
If a cause of action is barred under Section 15-78-60 of the 1976 Code, the
plaintiff's insurance company must compensate him for his losses subject to the
aforementioned provisions of his insurance policy.
Provisions severable
SECTION 7. If any provision of this act or the application thereof to any person
or circumstance is held invalid, the invalidity does not affect other provisions
or applications of the act which can be given effect without the invalid
provision or application, and to this end the provisions of this act are
severable.
Time effective
SECTION 8. This act shall take effect July 1, 1986, except that the provisions
of subsection (c) of Section 15-78-20 of the 1976 Code shall take effect
immediately upon approval by the Governor, and the provisions of subsection (b)
of Section 15-78-140 of the 1976 Code shall take effect on July 1, 1987. |