Parker v. Spartanburg Sanitary Sewer Dist.

• Decision Date: 04 January 2005
• Docket Number: No. 3915.,3915.
• Citation: 607 S.E.2d 711,362 S.C. 276
• Court: South Carolina Court of Appeals
• Parties: Wilma K. PARKER, Respondent, v. SPARTANBURG SANITARY SEWER DISTRICT and David Michael Pace, Defendants, of whom Spartanburg Sanitary Sewer District is, Appellant.

362 S.C. 276

607 S.E.2d 711

Wilma K. PARKER, Respondent, v. SPARTANBURG SANITARY SEWER DISTRICT and David Michael Pace, Defendants, of whom Spartanburg Sanitary Sewer District is, Appellant.

No. 3915.

Court of Appeals of South Carolina.

Heard December 7, 2004.

Decided January 4, 2005.

Stephen L. Brown and Matthew K. Mahoney, of Charleston, for Appellant.

Kenneth L. Holland, of Gaffney, for Respondent.

ANDERSON, J.:

Wilma K. Parker brought suit against David Michael Pace and his employer, the Spartanburg Sanitary Sewer District (the Sewer District), alleging Pace's negligence proximately caused an automobile accident in which she suffered injuries. The trial judge dismissed Pace from the suit pursuant to the South Carolina Tort Claims Act (the Tort Claims Act), S.C.Code Ann. §§ 15-78-10 to — 200 (Supp. 2003). The jury returned a $450,000 verdict against the Sewer District. We affirm in part, reverse in part, and remand.

FACTUAL/PROCEDURAL BACKGROUND

Parker and Pace were involved in an automobile accident in which Parker suffered injuries. At the time, Pace was driving a van owned by the Sewer District. Parker filed a complaint against Pace and the Sewer District averring Pace's negligence was the direct and proximate cause of her injuries. Parker claimed that, because Pace was acting as an employee of the Sewer District when the accident occurred, Pace's liability was imputed to the Sewer District. In her complaint, Parker stated: "This action as to Spartanburg Sanitary Sewer District is brought under section 15-78-40 et seq., S.C.Code of Laws, the `S.C. Tort Claims Act.'" The Sewer District did not plead the Tort Claims Act as an affirmative defense in its answer.

On the morning of the first day of trial, the Sewer District filed an amended answer, which asserted:

The Defendants would show the Court that since Defendant Pace was acting within the scope of his employment with the Spartanburg Sanitary Sewer District at the time of the accident complained of and since this action was brought (as to the Spartanburg Sanitary Sewer District) under the South Carolina Tort Claims Act, ... the Plaintiff is entitled to recover only actual damages not to exceed the maximum amount permitted under the applicable provisions of the South Carolina Tort Claims Act.

During the trial, the circuit judge declared:

I didn't see the Amended Answer yesterday. I don't think amended pleadings can be filed without permission of the Court, and particularly after the trial has started . . . .

Well, the Answer I have in the file for this trial, there is no defense found.

. . . .

You cannot file it without leave of the Court under the Rules. I don't believe you can file an Amended Complaint that late or an Amended Answer, without permission of the Court.

The Sewer District then moved to amend its answer to comport with the evidence. The judge denied the motion.

At trial, the Sewer District made two requests to introduce evidence of the amounts actually paid by Medicare for services rendered to Parker as a result of the accident. The trial judge denied these requests.

The jury returned a verdict for Parker in the amount of $450,000. The Sewer District moved to reduce the amount of damages by $150,000 to reflect the monetary statutory cap on recovery provided in the Tort Claims Act. Specifically, the Sewer District asked "for a reduction to the amount of the cap as pleaded by Mr. Holland in his Complaint, less the property damage already paid to his client." The trial judge denied the motion.

LAW/ANALYSIS

I. REDUCTION OF VERDICT

A. Vivacity of Pleading/Accedence at Trial

The Sewer District argues the trial judge erred in denying its request for a reduction in the jury award to comply with the limitation on recovery as set forth in the South Carolina Tort Claims Act. We agree.

The Tort Claims Act governs all tort claims against governmental entities and is the exclusive civil remedy available in an action against a governmental entity or its employees. Flateau v. Harrelson, 355 S.C. 197, 584 S.E.2d 413 (Ct.App.2003); Wells v. City of Lynchburg, 331 S.C. 296, 501 S.E.2d 746 (Ct.App.1998); see also S.C.Code Ann. 15-78-200 (Supp. 2003) ("Notwithstanding any provision of law, this chapter, the South Carolina Tort Claims Act, is the exclusive and sole remedy for any tort committed by an employee of a governmental entity while acting within the scope of the employees official duty."). South Carolina Code section 15-78-120(a)(1), which pertains to the limitation on liability under the Tort Claims Act, provides:

(a) For any action or claim for damages brought under the provisions of this chapter, the liability shall not exceed the following limits:

(1) Except as provided in Section 15-78-120(a)(3), no person shall recover in any action or claim brought here-under a sum exceeding three hundred thousand dollars because of loss arising from a single occurrence regardless of the number of agencies or political subdivisions involved.

S.C.Code Ann. 15-78-120(a)(1) (Supp. 2003); see Wimberly v. Barr, 359 S.C. 414, 421, 597 S.E.2d 853, 857 (Ct.App.2004)

("With some exceptions, the Tort Claims Act limits the amount of damages recoverable for any claim to $300,000."); see also Oliver v. South Carolina Dept. of Hwys. and Pub. Transp., 309 S.C. 313, 316, 422 S.E.2d 128, 130 (1992) ("The jury awarded Oliver damages in the amount of $3,250,000.00," which the judge reduced to $250,000, "pursuant to the statutory cap" provided in the Tort Claims Act); Jeter v. South Carolina Dept. of Transp., 358 S.C. 528, 532, 595 S.E.2d 827, 829 (Ct.App.2004) ("By consent order, the trial court reduced the verdicts in accordance with the statutory caps set forth in the [Tort Claims] Act."); Clark v. South Carolina Dept. of Pub. Safety, 353 S.C. 291, 298, 578 S.E.2d 16, 19 (Ct.App.2002) (in case tried prior to amendment increasing limitation on liability to $300,000, "[t]he trial court reduced the verdict against the Department to $250,000 in accordance with the limit imposed by the Tort Claims Act"); Smalls v. South Carolina Dept. of Educ., 339 S.C. 208, 528 S.E.2d 682 (Ct.App.2000) (noting that proper method to set off damages awarded against Department of Education under Tort Claims Act by amount of pre-trial settlement paid by private defendant was to reduce jury's verdict by amount of settlement allocated to each cause of action, to then further reduce verdict by plaintiffs comparative negligence, and, finally, to apply damages cap under Tort Claims Act).

Parker contends "the trial court did not err in refusing to reduce the verdict to the Tort Claims cap amount based on the fact that Defendants had not properly pled the cap as an affirmative defense which means that they waived it." The cases Parker cites in support of this proposition are distinguishable. In Steinke v. South Carolina Dept. of Labor, Licensing Regulation, 336 S.C. 373, 520 S.E.2d 142 (1999), the issue presented on appeal was whether the trial judge erred in denying the defendants motion for a new trial nisi remittitur, in which it asked the judge to reduce the verdicts for the plaintiffs to $250,000 each under the Tort Claims Act. The Supreme Court noted the case was filed "two days before the reinstatement of the limits [of the Tort Claims Act]." Id. at 402, 520 S.E.2d at 157. In addition, Steinke examined the various statutory exceptions to the waiver of immunity as they related to the defendant. The question of whether the statutory cap is an affirmative defense which is waived if not pled was not discussed. Likewise, Pike v. South Carolina Dept. of Transp., 343 S.C. 224, 540 S.E.2d 87 (2000), does not analyze the issue presented in this appeal. The defendant maintained the verdict should have been reduced to $250,000 in accordance with the reenactment of the statutory cap. The Pike court explicated: "The instant action was filed on June 23, 1994[, eight days before the reinstatement of the limits]. . . . Pursuant to Steinke, the statutory cap simply does not apply." Id. at 236, 540 S.E.2d at 93. Furthermore, Pike addressed applicability of the exception to the waiver of immunity for discretionary acts under the Tort Claims Act. This discussion is inapposite to the present issue.

Additionally, the Sewer District did not need to plead the Tort Claims Act statutory cap as an affirmative defense in its answer because Parker already conceded the Tort Claims Act applied to her claim. Parker expressly set forth in her complaint that she brought her cause of action pursuant to the Tort Claims Act. Moreover, upon a motion by the Sewer District to dismiss Pace as a defendant pursuant to section 15-78-80 of the South Carolina Code (Supp.2003), the trial court and Parkers counsel agreed the Tort Claims Act applied to this action:

[Attorney for the Sewer District]: . . . I would submit that should you direct a motion to dismiss Mr. Pace, then any charge related to punitive damages we would object to as irrelevant, in view of the Tort Claim[s] Act.

. . . .

[Attorney for Parker]: . . . Of course, the Tort Claims Act applies. In this case, we have alleged at the outset of this case — have established that this gentleman's independent gross negligence brought this about.

That makes his employer responsible under the Tort Claims Act, but I don't know of any structure in the law which shields him from personal responsibility.

The Tort Claims Act is real clear that punitives are not recoverable against a State agency or governmental agency under the Tort Claims Act, but I don't know of an umbrella that David Michael Pace is carrying around that keeps that rainful [sic] from coming down on him.

. . . .

The Court: I'm not sure that the individual — I know of nothing that protects the individual from gross negligence, recklessness or willfulness.

However, the Tort Claims Act would apply to the Sewer District in regard to the actual damages.

(Emphasis added).

Subsequent to this discussion on the...