Moore v. Berkeley County

• Decision Date: 07 May 1986
• Docket Number: No. 22607,22607
• Court: South Carolina Supreme Court
• Parties: John MOORE, Respondent, v. BERKELEY COUNTY and South Carolina Wildlife and Marine Resources Department, Appellants. . Heard

Page 174

348 S.E.2d 174

290 S.C. 43

John MOORE, Respondent, v. BERKELEY COUNTY and South Carolina Wildlife and Marine

Resources Department, Appellants.

No. 22607.

Supreme Court of South Carolina.

Heard May 7, 1986.

Decided Sept. 2, 1986.

Chief Counsel Buford S. Mabry, Jr., and Staff Counsel James A. Quinn, both of South Carolina Wildlife and Marine Resources Dept., Columbia, for appellant South Carolina Wildlife and Marine Resources Dept.

John H. Tiencken, Jr., of Watson, Creech & Tiencken, Moncks Corner, for appellant Berkeley County.

Kenneth Michael Suggs, of Suggs and Kelly, Columbia, for respondent.

FINNEY, Justice:

This is a tort action by the respondent, John Moore, against the appellants, Berkeley County and the South Carolina Wildlife and Marine Resources Department, for personal injuries received on August 27, 1982, as a result of a diving accident in waters known as Durham Creek in Berkeley County. The action was commenced on June 12, 1985. The appellants answered and moved for summary judgment alleging, among other defenses, sovereign immunity. Prior to the hearing on the motion, the respondent orally moved for a voluntary nonsuit without prejudice. The trial court granted the motion for nonsuit and this appeal followed. We affirm.

Procedurally, the heart of this controversy is the trial court's ruling on the motion for a voluntary nonsuit after the appellants filed an answer and a motion for summary judgment. Under South Carolina Rules of Civil Procedure 41(a)(2) ¹ an action shall not be dismissed at the plaintiff's instance after the service of an answer or motion for summary judgment, except by order of the Court.

In Marlow v. Marlow, 284 S.C. 155, 325 S.E.2d 703 (S.C.App.1984) the Court of Appeals summarized the right of a plaintiff to a nonsuit as follows:

Ordinarily a plaintiff is entitled to a voluntary nonsuit without prejudice as a matter of right, unless there is a showing of legal prejudice to the Defendant. Gulledge v. Young, 242 S.C. 287, 130 S.E.2d 695 (1963). If no legal prejudice is shown, the trial judge has no discretion with respect to granting a motion for discontinuance; but if prejudice is shown, the matter becomes one of discretion for the trial judge. Id.; Ralston Purina Co. v. Odell, 248 S.C. 37, 148 S.E.2d 736 (1966); Harmon v. Harmon, 257 S.C. 154, 184 S.E.2d 553 (1971).

The appellants contend they will be legally prejudiced if the nonsuit is sustained because they will lose their absolute defense of sovereign immunity, citing McCall v. Batson, 285 S.C. 243, 329 S.E.2d 741 (1985). The respondent contends the McCall decision is clear, needs no amplification, and further, that it would be inappropriate for this Court to issue an advisory opinion regarding the applicability of McCall to possible future proceedings in this action. We disagree with the respondent's position. It is obvious that a clarification of McCall v. Batson is essential to a just resolution of this controversy.

In McCall, this Court abolished the doctrine of sovereign immunity as it applies to the state and local subdivisions of government, subject to certain limitations and allowed a transition period. The limitations pertinent to this case are:

(2) Sovereign immunity will not bar recovery in any case currently pending or in those filed on or before July 1, 1986, provided the defendant has liability insurance coverage. Recovery shall not exceed the limits of the liability insurance coverage.

(3) Sovereign immunity shall not apply to any case filed after July 1, 1986.

The source of the difference between the positions of the appellants and the respondent is the use of the word "filed" in Items (2) and (3) above. In deciding McCall v. Batson, the Court...