Smalls v. Blackmon, 20550

• Citation: 269 S.C. 614,239 S.E.2d 640
• Decision Date: 29 November 1977
• Docket Number: No. 20550,20550
• Court: United States State Supreme Court of South Carolina
• Parties: William SMALLS, Respondent, v. Staff Sgt. Barry E. BLACKMON, Edward Warren, and One 1970 Pontiac, Florida License # 4W167352, Vehicle Identification # 276570A118107, of which Edward Warren is, Appellant.

Page 640

239 S.E.2d 640

269 S.C. 614

William SMALLS, Respondent, v. Staff Sgt. Barry E. BLACKMON, Edward Warren, and One 1970 Pontiac, Florida License # 4W167352, Vehicle Identification # 276570A118107, of which Edward Warren is, Appellant.

No. 20550.

Supreme Court of South Carolina.

Nov. 29, 1977.

Wallace G. Holland, of Young, Clemment & Rivers, Charleston, for appellant.

Louis O. Dore, of Moss, Carter, Branton & Bailey, Beaufort, for respondent.

RHODES, Justice.

The central question presented on this appeal is whether an employee who has collected compensation benefits under the Federal Longshoremen's and Harbor Workers' Compensation Act ¹ (Longshoremen's Act) has a cause of action against a negligent co-employee who is also a "permissive user" of an automobile and covered by liability insurance. Appellant contends that the Longshoremen's Act is the sole and exclusive remedy, and further asserts that a "permissive user" status does not, in itself, give rise to a cause of action. We agree with appellant and reverse the action of the lower court in overruling his demurrer.

William Smalls, the respondent, and Edward Warren, the appellant, were co-employees at the Parris Island Marine Corps Exchange Service Station when the accident giving rise to this action occurred. The respondent was injured when a customer's automobile being driven by Warren suddenly lunged and pinned the respondent against a wall at the service station. Smalls collected benefits under the Longshoremen's Act for his injuries arising out of and in the course of his employment and, subsequently, brought a negligence action naming as defendants, Warren, the customer (Blackmon), and the automobile. Warren demurred to the complaint (actually amended complaint) on the ground that it failed to state a cause of action as to him since he was a co-employee of the respondent and the Longshoremen's Act provided the exclusive remedy against a fellow employee. The lower court denied the demurrer holding that Warren could be made a party defendant in his capacity as a "permissive user" of the automobile. Warren appeals.

The Longshoremen's Act provides that (t)he right to compensation or benefits under this chapter shall be the exclusive remedy to an employee when he is injured, . . . by the negligence or wrong of any other person, or persons in the same employ ; Provided, That this provision shall not affect the liability of a person other than an . . . employee of the employer.

33 U.S.C.A. § 933(i) (emphasis added). The clear language of this provision has been accorded a literal interpretation "(I)t extends to the employer and fellow employee an absolute civil immunity," Nations v. Morris, 483 F.2d 577, 589 (5th Cir. 1973), cert. den. 414 U.S. 1071, 94 S.Ct. 584, 38 L.Ed.2d 477 (1973).

Smalls, however, attempts to circumvent the clear language of § 933(i). He asserts that Warren, having operated the defendant automobile with the consent of the named insured, is a "permissive user" under the omnibus clause, ² and that he, the respondent, is suing Warren as a "permissive user", not co-employee. Relying primarily on St. Paul Fire & Marine Ins. Co. v. American Ins. Co., 251 S.C. 56, 159 S.E.2d 921 (1968), the lower court held the omnibus clause created a cause of action against a "permissive user" independent of any other relationship between the parties, and allowed the action to continue against Warren "as a permissive user only".

The lower court's construction of the omnibus clause was based on language found in the case of St. Paul Fire & Marine Ins. Co. v. American Ins. Co., supra. That case presented the question of whether the named insured's father was a "permissive user" under the named insured's automobile liability policy. In...