Simmons v. Robinson, No. 1558

CourtCourt of Appeals of South Carolina
Writing for the CourtSANDERS
Citation303 S.C. 201,399 S.E.2d 605
PartiesArnold SIMMONS, Appellant, 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 Respondent. . Heard
Docket NumberNo. 1558
Decision Date17 April 1990

Page 605

399 S.E.2d 605
303 S.C. 201
Arnold SIMMONS, Appellant,
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 Respondent.
No. 1558.
Court of Appeals of South Carolina.
Heard April 17, 1990.
Decided Oct. 22, 1990.

Page 606

[303 S.C. 203] Kathy D. Lindsay and Philip L. Fairbanks, both of Graber, Baldwin, Fairbanks & Lindsay, Beaufort, for appellant.

K. Lindsay Terrell, of Howell, Gibson & Hughes, Beaufort, for respondent.

SANDERS, Chief Judge:

This action for a declaratory judgment arises out of an accident in which a child was injured while riding as a passenger in a car being driven by his foster mother. The action was brought on behalf of appellant Arnold Simmons, the child, against Rose Mary Robinson, Personal Representative of the estate of Ellen D. Anderson, the foster mother, and respondent South Carolina Department of Social Services. A declaration is sought on the question of whether Mrs. Anderson was covered under a certain liability insurance policy issued to DSS by the Insurance Reserve Fund. The trial judge ruled she was not covered. We reverse and remand.

Page 607

Like Blanche DuBois, Arnold has depended on the kindness of strangers. 1 He became a ward of the State when he was placed, by order of the Family Court, in the custody of DSS. Sometime thereafter, DSS placed him in the home of Mrs. Anderson, a foster mother. A great tragedy ensued.

On or about July 6, 1985, Mrs. Anderson was traveling in her car to visit her relatives. Arnold was riding with her as a passenger. Her car collided with a culvert. She was killed, and he was terribly injured.

Suit was brought on behalf of Arnold against the estate of Mrs. Anderson and DSS, alleging she was negligent and reckless in the operation of her car and that, at the time of the accident, she was "an employee/agent of DSS."

At the time, the doctrine of sovereign immunity barred tort claims against a governmental defendant except to the extent the defendant had liability insurance coverage. See S.C.Code Ann. § 15-78-20(c) (Supp.1989); Taylor v. Murphy, 293 S.C. 316, 360 S.E.2d 314 (1987). DSS answered, denying liability [303 S.C. 204] on the ground that it had no liability insurance coverage because Mrs. Anderson "was not a covered individual under the policy of automobile liability insurance in effect at the time the cause of action arose."

The liability insurance policy in question covers DSS "and its employees." Employees are covered while operating a privately owned vehicle "provided such operation is in the performance of, in connection with, or incidental to their duties."

A second suit was then brought on behalf of Arnold, seeking a declaratory judgment as to whether Mrs. Anderson was covered under the liability insurance policy. Because of the substantial medical expenses incurred by Arnold and the relatively low limits of coverage provided by the policy, counsel agreed that the coverage question should be resolved before the case is tried on its merits.

Thus, two issues were presented to the trial judge: (1) whether, at the time of the accident, Mrs. Anderson was an employee of DSS within the meaning of the policy; and (2) whether she had been operating her vehicle "in the performance of, in connection with, or incidental to [her] duties."

The trial judge found that "the policy was issued in light of the South Carolina Governmental Motor Vehicle Tort Claims Act." The Act provided: "The word 'employee' shall mean and include any officer, employee or agent of the State...." S.C.Code Ann. § 15-77-220(3) (1976) (repealed 1986). Therefore, the trial judge ruled, in effect, that the policy covered not only employees, but agents as well. His ruling in this regard is not disputed.

The trial judge concluded, however, that Mrs. Anderson, as a foster parent, had not been an employee of DSS, even under the expanded definition provided by the Act. He further concluded that, even if Mrs. Anderson had been an employee, her operation of her car was not "in the performance of, in connection with or incidental to her duties." Although his order is exceptionally well written, we are constrained to reach opposite conclusions on both issues.

I

The primary issue, and the issue the trial judge determined was dispositive, is whether the relationship between DSS and a foster parent is that of employer and [303 S.C. 205] employee or whether, on the other hand, a foster parent is an independent contractor. "The words 'employer' and 'employee' are the outgrowth of the old terms 'master' and 'servant'; they have been adopted by reason of the shift of the relation in general from a personal to an impersonal one, and are the terms now commonly used to describe the relationship." 53 Am.Jur.2d Master and Servant § 1 at 81 (1970). 2

Page 608

Therefore, while the term employee has different meanings according to the context in which it is used, the relationship of employer and employee is the same as that of master and servant, and for the purposes of the instant case, the terms servant and employee mean the same thing. The term independent contractor, on the other hand, has always been used to designate an entirely different relationship. Id. at § 4.

"The decisive test in determining whether the relation of master and servant [or employer and employee] exists is whether the purported master [or employer] has the right or power to direct and control the servant [or employee] in the performance of [the] work and in the manner in which the work is to be done." Felts v. Richland County, 299 S.C. 214, 217, 383 S.E.2d 261, 263 (Ct.App.1989). There is scant evidence that DSS actually exercised control over Mrs. Anderson, but there is abundant evidence that the agency had the right and authority to control and direct foster parents, including Mrs. Anderson, in the performance of their work and in the manner in which the work is to be done. Numerous examples are found in DSS regulations as well as a manual promulgated by the agency and entitled Policy and Procedure Manual.

DSS issues or denies a license to foster parents based on a review and assessment of the foster family home. 27 S.C.Code Ann., Regs. 114-5-50(C)(3) (Supp.1989). A license may be revoked "if the foster family fails to maintain proper standards[303 S.C. 206] of care and services to children." 7-A South Carolina Department of Social Services, Policy and Procedure Manual § 09.21.75 (1981). The foster home must meet location, fire, hazard, health and sanitary standards required by DSS. S.C.Regs. 114-5-50(I)(1)(a)-(d). Foster parents are required to notify DSS of any significant change in the foster home. Id. at (L)(5). Household members must submit medical reports to DSS. Id. at (I)(1)(e). Foster parents working outside the home must submit a total care plan, and any individuals who are to provide child care on their behalf must first be interviewed by DSS staff. Id. at (F)(1), (2). A child cannot be left without competent supervision. Id. at (J)(16). Foster parents must get the permission of DSS to have an unrelated lodger or boarder in the foster home. Id. at (L)(6). Foster parents must have a minimum of ten hours pre-service training prior to being licensed and another five hours annually prior to being relicensed, all of which is provided or approved by DSS. Id. at (I)(1)(h).

Within five working days of placement, DSS gives foster parents detailed information concerning the child and the plans DSS has for the child. Policy and Procedure Manual § 09.22.64. DSS requires foster parents to plan a daily routine for the child and to provide the child with adequate health aids and a varied, wholesome and adequate daily diet. S.C.Regs. 114-5-50(J)(1), (2), (10). Foster parents are required to provide religious education "in accordance with the expressed wishes of the natural parents." Id. at (J)(12). DSS requires foster parents to make available varied recreational activities and to keep "a life book/scrapbook on [the] child." Id. at (J)(17). DSS imposes numerous and detailed restrictions with respect to the sleeping arrangements for the child. E.g., id. at (J)(7) ("The top level of bunk beds shall not be used for pre-school children."). Foster parents must obtain permission from DSS to take the child on out-of-state trips of more than seven working days. Policy and Procedure Manual § 09.23.35. DSS must be given notice of trips of shorter duration, and biological parents must be advised of plans for trips. Id.

Foster parents must obtain permission from DSS for the child to obtain a driver's license. Id. at § 09.23.34. DSS specifies the discipline which foster parents are allowed to administer. [303 S.C. 207] S.C.Regs. 114-5-50(J)(13). They are prohibited from assigning tasks to the child except those "appropriate to the ability of the child, similar to responsibilities assigned to other children,

Page 609

and geared toward teaching personal responsibility." Id. at (J)(14). DSS requires that "[s]pace for a child's possessions shall be provided." Id. at (J)(3). Foster parents are required to follow the instructions and suggestions of health care providers, to immediately obtain needed emergency medical treatment for the child, and to notify DSS of any such treatment within one working day. Id. at (J)(8)(9). DSS reserves the right to require foster parents to cooperate in assuring that the child is able to maintain regular contact with the biological parents. Id. at (E)(4)(c).

Perhaps even more significant than everything we have already pointed out is the fact that DSS expressly reserves the right to supervise foster parents. The Policy and Procedure Manual requires that a DSS worker must regularly visit the child. Policy and Procedure Manual § 08.24.20. These visits are explicitly termed "On-going Supervisory Visits." The Manual requires the DSS worker...

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4 practice notes
  • Stanley by Stanley v. State Industries, Inc.
    • United States
    • Superior Court of New Jersey
    • April 30, 1993
    ...liable for a foster parent's ordinary negligence resulting in personal injury to the Page 171 foster child. See Simmons v. Robinson, 303 S.C. 201, 399 S.E.2d 605 (Ct.App.1990), rev'd, 305 S.C. 428, 409 S.E.2d 381 Several out of state cases have addressed issues somewhat similar to those pre......
  • District of Columbia v. Hampton, No. 90-CV-1148.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • September 29, 1995
    ...as a foster parent. 17 The state supreme court in Simmons reversed the decision of the state court of appeals in Simmons v. Robinson, 303 S.C. 201, 399 S.E.2d 605 (S.C.Ct.App.1990), which held that a foster parent was an agent of the state's Department of Social 18 Other regulations pertain......
  • Simmons v. Robinson, No. 23473
    • United States
    • United States State Supreme Court of South Carolina
    • June 12, 1991
    ...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 pol......
  • Mitzner By and Through Bishop v. State, No. 71491
    • United States
    • United States State Supreme Court of Kansas
    • March 10, 1995
    ..."nondelegable" and thus imposed vicarious liability upon the agency for the alleged negligence of the foster mother. Simmons v. Robinson, 303 S.C. 201, 213, 399 S.E.2d 605 (Ct.App.1990). In reversing the appellate court's judgment, the South Carolina Supreme Court held that the foster mothe......
4 cases
  • Stanley by Stanley v. State Industries, Inc.
    • United States
    • Superior Court of New Jersey
    • April 30, 1993
    ...liable for a foster parent's ordinary negligence resulting in personal injury to the Page 171 foster child. See Simmons v. Robinson, 303 S.C. 201, 399 S.E.2d 605 (Ct.App.1990), rev'd, 305 S.C. 428, 409 S.E.2d 381 Several out of state cases have addressed issues somewhat similar to those pre......
  • District of Columbia v. Hampton, No. 90-CV-1148.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • September 29, 1995
    ...as a foster parent. 17 The state supreme court in Simmons reversed the decision of the state court of appeals in Simmons v. Robinson, 303 S.C. 201, 399 S.E.2d 605 (S.C.Ct.App.1990), which held that a foster parent was an agent of the state's Department of Social 18 Other regulations pertain......
  • Simmons v. Robinson, No. 23473
    • United States
    • United States State Supreme Court of South Carolina
    • June 12, 1991
    ...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 pol......
  • Mitzner By and Through Bishop v. State, No. 71491
    • United States
    • United States State Supreme Court of Kansas
    • March 10, 1995
    ..."nondelegable" and thus imposed vicarious liability upon the agency for the alleged negligence of the foster mother. Simmons v. Robinson, 303 S.C. 201, 213, 399 S.E.2d 605 (Ct.App.1990). In reversing the appellate court's judgment, the South Carolina Supreme Court held that the foster mothe......

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