In The Court of Appeals

Charlotte Davis and Roy Davis, Jr.,        Appellants,


Barbara Jean Dacus and Unisun Insurance, Defendants

Of whom Barbara Jean Dacus  is the        Respondent.

Appeal From Beaufort County
Thomas Kemmerlin, Jr., Special Circuit Judge

Unpublished Opinion No. 2004-UP-521
Submitted September 15, 2004 – Filed October 14, 2004


James H. Moss, of Beaufort, for Appellant.

E. Mitchell Griffith, of Beaufort, for Respondent.

PER CURIAM: In this declaratory judgment action, Charlotte and Roy Davis appeal from the trial court’s grant of summary judgment in favor of Barbara Jean Dacus.  We affirm. [1]


Both parties stipulate to the following facts of this case.  On November 23, 1998, Dacus was driving the Davises to an appointment in Savannah, Georgia when they were involved in an automobile accident. Dacus, an employee of the South Carolina Department of Social Services, was driving a DSS vehicle and was acting within the course and scope of her employment at the time of the accident. 

After the accident, the Davises filed suit against Dacus and DSS, seeking recovery for injuries they sustained.  Dacus moved to dismiss the case, arguing the complaint failed to state a cause of action against her because she had immunity under the South Carolina Tort Claims Act, S.C. Code Ann. §§ 15-78-10 to -200 (Supp. 2003).  The trial court agreed, stating: “The Defendant Dacus cannot be joined in this action.  If there is some possibility of insurance coverage it must be established other than in this law suit [sic].”

Subsequent to that order, the Davises brought this declaratory judgment action, asking the court to declare that Dacus’s liability and underinsured motorist coverage, provided by Unisun, is “valid and binding upon the insurance company and the insured, and requiring the insurance company to pay amounts under the liability provision of the policy or the underinsured motorist provisions of the policy.”  Dacus and Unisun filed a motion for summary judgment, arguing that because Dacus is immune from liability pursuant to the Tort Claims Act, there could be no direct suit against her insurance company.  The trial court granted the motion.  The Davises filed a motion to reconsider, which the trial court denied. This appeal followed.


When reviewing the grant of a summary judgment motion, the appellate court applies the same standard which governs the trial court under Rule 56(c), SCRCP.  Baughman v. Am. Tel. & Tel. Co., 306 S.C. 101, 114-115, 410 S.E.2d 537, 545 (1991).  Pursuant to Rule 56, SCRCP, summary judgment is proper when “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.”  “In determining whether any triable issues of fact exist, the evidence and all inferences which can be reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party.”  Strother v. Lexington County Recreation Comm’n, 332 S.C. 54, 61, 504 S.E.2d 117, 121 (1998) (citation omitted).


The Davises argue the trial court erred in granting summary judgment in favor of Dacus and her insurance company.  Specifically, the Davises claim that the Tort Claims Act does not prevent them from recovering under Dacus’s automobile policy because the insurance coverage is based in contract, and contractual liability is expressly excluded from the Act.  We disagree. 

While section 15-78-20(d) of the Tort Claims Act does expressly exclude contractual liability from immunity, there is no contractual relationship between the Davises and Dacus or Unisun.  Rather, Dacus’s liability to the Davises, if such liability exists, would sound in tort.  However, we agree with the trial court that pursuant to the Tort Claims Act, Dacus cannot be held personally liable for the Davises’ injuries. 

The Tort Claims Act bars civil suits against any employee of the State who is acting within the scope of his or her employment at the time the tort occurs, unless the employee’s actions constitute actual fraud, actual malice, intent to harm, or a crime involving moral turpitude.  S.C. Code Ann. § 15-78-70(a)-(b).  Here, there is no question that Dacus was acting within the scope of her employment when the accident occurred, and there is no assertion that her actions constituted actual fraud, malice, or intent to harm.  Thus, Dacus cannot be held personally liable for the injuries the Davises suffered. 

Furthermore, as is typical with personal automobile policies, Dacus’s policy with Unisun only covers injuries and property damage for which Dacus is legally responsible.  Because Dacus cannot be held either personally liable to the Davises or legally responsible for the Davises’ injuries or property damage, Unisun likewise has no responsibility to the Davises.  We therefore find the trial court did not err in granting summary judgment in favor of Dacus and Unisun.


HEARN, C.J., HUFF and KITTREDGE, JJ., concur. 

[1] We decide this case without oral argument pursuant to Rule 215, SCACR.