Labor & Employment – South Carolina Tort Claims Act – Scope of Employment

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Under the Tort Claims Act, a plaintiff can settle with a government employee in their individual capacity and still sue the employer for the employee’s actions within the scope of employment.

We reversed the lower court’s dismissal.

Appellant appealed the circuit court’s dismissal of her lawsuit against State of South Carolina, Office of the Governor, after she had previously settled with Campbell, the driver she alleged caused her injuries in a motor vehicle accident. Appellant initially sued Campbell individually, recovered under Campbell’s personal and underinsured motorist insurance policies, and signed a settlement agreement and a Covenant Not to Execute that preserved her right to pursue claims against other parties. She then filed a separate lawsuit against the State, asserting that Campbell was acting within the scope of her employment at the time of the accident and that the State was liable under the South Carolina Tort Claims Act (TCA) through the doctrine of respondeat superior. The State argued Campbell was not acting within the scope of her employment and later asserted Appellant’s prior settlement with Campbell barred further action under section 15-78-70(d) of the TCA. The circuit court granted the TCA-related motion, relying on the Court of Appeals’ decision in Andrade v. Johnson, which held settlement of a claim against an employee extinguishes derivative liability claims against the employer.

On appeal, Appellant argued the court erred by applying common law principles of derivative liability instead of controlling precedent under the TCA, citing the South Carolina Supreme Court’s decision in Wade v. Berkeley County, where the plaintiff had settled with an individual driver and later filed a TCA claim against the driver’s employer, Berkeley County. That court held the prior settlement with the individual driver did not bar a subsequent TCA claim against the employer because section 15-78-70(d) only bars claims arising from prior settlements or judgments under the TCA itself.

The Court of Appeals found Wade directly on point, as Appellant’s claim against the State was derivative since it alleged no independent torts outside of Campbell’s conduct. It also determined the circuit court improperly relied on Andrade, which addressed common law derivative liability between private parties and is inapplicable to TCA claims. The TCA is the exclusive remedy for torts committed by government employees within the scope of employment, and common law doctrines such as respondeat superior do not apply to governmental entities in South Carolina. Following Wade, the Court concluded Appellant could pursue her claim against the State even after settling with Campbell individually, noting that Campbell’s settlement still protected her from potential personal liability.

The TCA permits a plaintiff to settle with a government employee in an individual capacity and subsequently bring a claim against the employer, and that the common law bar to employer liability applied in Andrade does not apply in TCA cases. Appellant’s action against the State was therefore not barred by her prior settlement with Campbell.

Reversed.

Whetstone v. State of South Carolina, Office of the Governor (Lawyers Weekly No. 011-006-26, 6 pp.) (Kristi F. Curtis, J.) Appealed from Richland County Circuit Court (William A. McKinnon, J.) Mark D. Chappell and Mark Dale Chappell, Jr., of Chappell Smith & Arden, of Columbia; and William Sellars Detwiler, of Chappell, Chappell & Newman, Attorneys, LLC, of Columbia, all for Appellant. David Allen Anderson, Carmen Vaughn Ganjehsani, and Hunter Weston Adams, all of Richardson Plowden & Robinson, PA, of Columbia; Thomas Ashley Limehouse, Jr., of Limehouse LLC, of Charleston; and William Grayson Lambert and Erica Wells Shedd, of Columbia, all for Respondent. South Carolina Court of Appeals