Unpublished Opinion No. 2003-UP-446
Submitted May 12, 2003 – Filed July 1, 2003

PER CURIAM: This is a wrongful death action. The estate of James Terry Green attached as defendants in this action a truck, a trailer, and a backhoe (collectively the “Vehicle Defendants”) pursuant to S.C. Code Ann. § 29-15-20 (1991). The trial court dismissed these defendants under Rule 12(b)(6), SCRCP. The Estate appeals, arguing the trial court erred by finding a truck, trailer, and backhoe were not “motor vehicles” as contemplated by the attachment statute. We affirm.

Jerome Alston is the owner of AA Septic Tank Service, of which James Terry Green was the sole employee. Alston leased a 1994 Mack Truck, a Hudson Trailer, and a John Deere Backhoe for use in his septic tank business. On February 21, 2001, Alston and Green were installing residential septic tanks, which required the use of the truck, the trailer, and the backhoe. Alston drove the truck, which towed the trailer loaded with the backhoe, and parked it along the side of the road. Once the backhoe was unloaded from the trailer, the truck was disconnected from the trailer so the truck could be used in the installation process.

After installing the septic tank, Alston backed the truck to the front of the trailer in order to reconnect the trailer to the truck. However, before Green connected the trailer to the truck, Alston began to drive the backhoe onto the ramps on the rear of the trailer. Because the trailer was not secured to the truck, the weight of the backhoe on the rear of the trailer caused the front end of the trailer to rise forcefully. Green, who was between the truck and trailer, was fatally crushed between the ascending trailer and the rear of the truck.

The Estate commenced an action in negligence against Alston d/b/a AA Septic Tank Service. The complaint also named as defendants the truck, the trailer, and the backhoe pursuant to S.C. Code Ann. § 29-15-20 (1991). The Vehicle Defendants filed a motion to dismiss pursuant to Rule 12(b)(6), SCRCP. The trial court granted the motion finding the vehicles in question were not being operated as “motor vehicles” as contemplated by the statute. This appeal follows.

A trial court’s ruling on a Rule 12(b)(6), SCRCP motion to dismiss must be based solely upon the allegations set forth on the face of the complaint. Dye v. Gainey, 320 S.C. 65, 67, 463 S.E.2d 97, 98 (Ct. App. 1995). The motion must be denied if facts alleged in the complaint and inferences reasonably deducible therefrom would entitle the plaintiff to any relief on any theory of the case. Id., 320 S.C. at 67-8, 463 S.E.2d at 98-9. The question is whether, when viewed in the light most favorable to plaintiff, the complaint states any valid claim for relief. Id., 320 S.C at 68, 463 S.E.2d at 99. All properly pleaded factual allegations are deemed admitted for the purposes of considering a motion for judgment on the pleadings. Russell v. City of Columbia, 305 S.C. 86, 89, 406 S.E.2d 338, 339 (1991).

Here, the trial court’s decision to grant the Rule 12(b)(6) motion was based upon its belief that the truck, trailer, and backhoe are not “motor vehicles” as contemplated by S.C. Code Ann. § 29-15-20. The statute provides:

The statute itself does not define what constitutes a motor vehicle for purposes of the statute. A court construing a statute must first seek to ascertain and effectuate legislative intent. Koenig v. South Carolina Dep’t of Pub. Safety, 325 S.C. 400, 403, 480 S.E.2d 98, 99 (Ct. App. 1996). The cardinal rule of statutory construction is to give words used in a statute their plain and ordinary meaning without resorting to subtle or forced construction. Id. at 404, 480 S.E.2d at 99. The language must be read to harmonize its subject matter with its general purpose. Id. Courts will give a term in a statute its usual and customary meaning where left undefined by the legislature. Adoptive Parents v. Biological Parents, 315 S.C. 535, 543, 446 S.E.2d 404, 409 (1994).

In Gunn v. Burnette, 236 S.C. 496, 115 S.E.2d 171 (1960), a case involving the statute at issue here, the supreme court considered the definition of a “motor vehicle” and stated: “[A] motor vehicle is defined as one which is operated by a power developed within itself and used for the purpose of carrying passengers or materials.” Id., 236 at 499, 115 S.E.2d at 172 (citations omitted). We therefore must determine whether, under the facts of this case, the truck, trailer, and backhoe fall within the scope of this definition and the purposes of section 29-15-20.

In Gunn, the court considered whether a stationary tow truck engaged in hoisting another vehicle was being operated as a “motor vehicle” as contemplated under the attachment statute. The court emphasized the language of the statute which states: “When a motor vehicle is operated . . . .” Id., 236 S.C. at 499, 115 S.E.2d at 171. The court recognized that the purpose of the statute is to protect persons traveling on public highways, and the statute is a “proper regulation of the operation of a dangerous instrumentality on the highways . . . .” Id., 236 S.C. at 499, 115 S.E.2d at172. Applying this construction, the court held that a stationary tow truck did not fall within the applicable definition of a motor vehicle because a stationary machine is not being “operated” as a motor vehicle. Id.

The same logic applies to the present case. Though the truck might generally be used to transport passengers or materials, this fact alone is not dispositive. Section 29-15-20 expressly requires that the motor vehicle at issue be in operation when the harm is caused. Because the truck in this case was not in operation [1] at the time of Green’s death, it does not fall within the attachment statute. Accordingly, the trial court properly dismissed the truck as a defendant in the action.

As stated in Gunn, “a motor vehicle is defined as one which is operated by a power developed within itself . . . .” Id., 236 S.C. at 499, 115 S.E.2d at 172. Applying this language, a trailer without a motor is not a motor vehicle. However, “a trailer being drawn by a truck-tractor on the highway and securely attached to the tractor is, together with the truck-tractor to which it is attached, a motor vehicle . . .” subject to the attachment statute. Fruehauf Trailer Co. v. South Carolina Elec. & Gas Co., 223 S.C. 320, 324, 75 S.E.2d 688, 689 (1953) (emphasis added).

Applying Fruehauf, there are two reasons the trailer in this case is not a motor vehicle under section 29-15-20. First, it is the connection to a motor vehicle that brings a trailer within the attachment statute. Here, it is undisputed that the trailer was not securely attached to the truck. Second, even if the trailer had been fastened to the truck, it would not fall within the statute because we hold the truck was not being operated as a motor vehicle. A trailer cannot be a motor vehicle unless the machine to which it is securely attached falls within the statutory meaning of a motor vehicle. Accordingly, the trailer was properly dismissed as a defendant in the action.

Whether the backhoe falls within section 29-15-20 is a closer question. Here, the backhoe was moving forward under its own power at the time of the accident. The question before this court is whether the process of loading the backhoe onto the stationary trailer brings the machine within the scope of the attachment statute. We hold it does not.

Within section 29-15-20, “motor vehicle” must be defined in such a way as to harmonize its usual and customary meaning in light of the statute’s purpose. See Koenig, 325 S.C. at 403, 480 S.E.2d at 99 (stating the court must first seek to ascertain and effectuate legislative intent of the statute); Adoptive Parents, 315 S.C. at 543, 446 S.E.2d at 409 (stating the court will give an undefined term in a statute its usual and customary meaning).

In Anderson v. State Farm Mut. Auto. Ins. Co., 314 S.C. 140, 442 S.E.2d 179 (1994), the supreme court considered whether a farm tractor is a motor vehicle within the meaning of South Carolina’s uninsured motorist laws. Although the decision did not deal with the attachment statute in question, it did address whether a farm tractor was commonly understood to be a motor vehicle. Similar to section 29-15-20, the statute in Anderson was meant to apply to vehicles used on public highways. The court held the farm tractor was not a motor vehicle because it was not designed for use on a public highway, although it may incidentally be used on a highway.

We find the rationale in Anderson instructive. The attachment statute was designed to protect people from the hazards created by the negligent operation of motor vehicles on the highways. Gunn, 236 S.C. at 498, 115 S.E.2d 170-71. The statute was designed with the safety of the “traveling public” in mind. Id. A backhoe is not intended for the transportation of passengers or materials on public roadways. Moreover, neither Alston, Green, nor the backhoe, was traveling on the highway at the time of the accident. Viewing the circumstances surrounding the accident in light of the purpose of the attachment statute, we find the backhoe is not a motor vehicle within the meaning of section 29-15-20.

We hold the truck, trailer, and backhoe are not motor vehicles as contemplated by section 29-15-20. Accordingly, the trial court properly dismissed the machines as defendants in the action pursuant to Rule 12(b)(6), SCRCP. Therefore, trial court is

[1] The Estate argues the attachment statute should apply because the tires of the truck were partially on the surface of the road. This contention lacks merit. In Gunn, the court assumed that the accident occurred on a road or highway. Nevertheless, the court found the tow truck was not being operated as motor vehicle at the time of the accident. Gunn, 236 S.C. at 499, 115 S.E.2d at 172.