Simmons v. Robinson

Decision Date12 June 1991
Docket NumberNo. 23473,23473
Citation409 S.E.2d 381,305 S.C. 428
CourtSouth Carolina Supreme Court
PartiesArnold SIMMONS, Respondent, v. Rose Mary ROBINSON, Personal Representative of the Estate of Ellen D. Anderson, and South Carolina Department of Social Services, of whom South Carolina Department of Social Services is Petitioner. . Heard

K. Lindsay Terrell, and A. Parker Barnes, Jr., Beaufort, for petitioner.

Kathy D. Lindsay and Philip L. Fairbanks, Beaufort, for respondent.

TOAL, Justice:

This appeal arises on a petition for writ of certiorari to review the Court of Appeals' decision reported at --- S.C. ----, 399 S.E.2d 605 (1990). In that decision, the Court of Appeals held that a foster parent, as an employee of D.S.S., was covered under a liability insurance policy issued to that agency. We reverse.

FACTS

Simmons, while still a minor, was placed in a foster home with a licensed D.S.S. foster mother. On July 6, 1985, Simmons and his foster mother were travelling in her private automobile to visit members of her family. En route, they were involved in a single car accident injuring Simmons and killing his foster mother. Two years later, Simmons filed this action against the estate of his foster mother and the South Carolina Department of Social Services, alleging that his foster mother was negligent and reckless in the operation of her vehicle, and that D.S.S. was vicariously liable for her actions.

To establish his vicarious liability claim against D.S.S., Simmons asserted that his foster mother was an employee of D.S.S. acting within the scope of her employment. He further alleged that his foster mother, as an employee of D.S.S., was insured by the South Carolina Insurance Reserve Fund in effect on the date of the accident. This policy provided for the coverage of D.S.S. employees and agents operating personal vehicles while engaged in official D.S.S. business. D.S.S. responded by denying the foster mother was an employee within the ambit of the policy's coverage and that the agency had sovereign immunity barring Simmons' claim.

The case was referred to the Master-in-Equity, who found that the foster mother was not an employee of D.S.S., and that, regardless of her employment status, she was not performing a task incidental to her official duties. In addressing the issue of insurance coverage, the master held that the accident occurred prior to July 1, 1986, 1 there was no insurance applicable for the loss, and S.C.Code Ann. § 15-78-20 (Supp.1991) acted to grant sovereign immunity against Simmons' claim.

Simmons appealed and the Court of Appeals reversed the master's decision, holding that the foster mother was an employee of D.S.S. engaged in an activity incidental to her duties as a foster parent. The appeals court alternatively held that even as an independent contractor, the foster mother would be covered by the D.S.S. insurance policy.

LAW/ANALYSIS

This court is now faced with the issue of whether a foster parent is an employee of the Department of Social Services, and if so, whether the foster parent is subject to coverage under the departmental insurance policy? To answer this question we must examine the legal basis for the relationship between a foster parent and D.S.S.

A foster home must first obtain a license before it can receive any children from D.S.S. To obtain the license, the foster parent must comply with the provisions of 27 S.C.Code Ann.Regs. 114-5-50 (Law.Co-op. Supp.1990) which outline the procedures for obtaining and holding a foster care license. In Heslep v. State Highway Department of South Carolina, 171 S.C. 186, 171 S.E. 913 (1933), a license is defined as a formal permit to carry on business or perform an act which, to do otherwise, would be unlawful. In Heslep, we said, "[a] license is not a contract or obligation between the authority ... granting it and the person to whom it is granted...." Id. at 189, 171 S.E. 913, 914 (emphasis added). Accordingly, D.S.S. regulations, promulgated to insure compliance with the S.C.Code, are no more than conditions the foster parents must meet to obtain and hold a license. They do not constitute a right of control in the normal sense of vicarious liability analysis.

A government entity exercising its power to license is severed from liability for an injury incurred as a result of that license. It is well settled that, "[t]he mere granting of a license or permit to do an act which is not in itself unlawful or dangerous or a nuisance does not render a municipality liable for injuries caused by the performance of the act." 63 C.J.S. Municipal Corporations § 780 (Supp.1991). 2 Applying this rule...

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  • Kara B. by Albert v. Dane County
    • United States
    • Wisconsin Court of Appeals
    • November 2, 1995
    ... ... Steele County, 322 ... Page 793 ... N.W.2d 187 (Minn.1982); Simmons v. Robinson, 305 S.C. 428, 409 S.E.2d 381 (1991); Stanley v. State Indus., Inc., 267 N.J.Super. 167, 630 A.2d 1188 (1993); Blanca C. v. County of ... ...
  • Hunte v. Blumenthal
    • United States
    • Connecticut Supreme Court
    • July 23, 1996
    ...regulations serve only as licensure requirements and not as affirmative or prohibitory directives. It relies on Simmons v. Robinson, 305 S.C. 428, 430-31, 409 S.E.2d 381 (1991), for the proposition that "[t]he mere granting of a license or permit to do an act which is not itself unlawful or......
  • I.H. By v. County Of Lehigh
    • United States
    • U.S. Court of Appeals — Third Circuit
    • July 7, 2010
    ...So.2d 761 (La.2003); Archer v. Dare Family Servs., No. CA 98-04354, 2002 WL 243649 (Mass.Super.Ct. Feb. 4, 2002); Simmons v. Robinson, 305 S.C. 428, 409 S.E.2d 381 (1991). But see Commerce Bank v. Youth Servs. of Mid-Ill., Inc., 333 Ill.App.3d 150, 266 Ill.Dec. 735, 775 N.E.2d 297 (2002) (a......
  • Faile v. SC Dept. of Juvenile Justice
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    • South Carolina Supreme Court
    • July 1, 2002
    ...to perform certain tasks, this fact alone is not dispositive of whether Dorsey is an employee of the court. See Simmons v. Robinson, 305 S.C. 428, 409 S.E.2d 381 (1991). More important is the Fleming rule that the court "agent" is assisting the court, but is not acting as a true agent on it......
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