GOODMAN McGUFFEY LINDSEY & JOHNSON, LLP
2016 SOUTH CAROLINA SUMMARY OF LIABILITY LAW
www.gmlj.com Atlanta ♦ Savannah ♦ Orlando ♦ Sarasota ♦ Charlotte ♦ Raleigh ♦ Columbia ♦ Charleston
MINIMUM AUTOMOBILE LIMITS
Minimum required limits of insurance by statute are:
(1) $25,000 per person for bodily injuries. S.C. St. § 38-77-140(a).
(2) $50,000 for bodily injuries to two or more persons per accident. S.C. St. § 38-77140(a).
(3) $25,000 per accident for damage to property of others. S.C. St. § 38-77-140(a).
(4) UM coverage for bodily injury caused by an uninsured motorist is required equal
to $25,000 per person/$50,000 per accident for bodily injuries and $10,000 for
property damage. S.C. St. § 38-77-150.
UNINSURED MOTORIST
▪ Uninsured Motorist coverage is required on all motor vehicle policies. S.C. St. § 3877-150.
▪ Purpose of the uninsured motorist statute is to provide benefits and protection
against the peril of injury or death by an uninsured motorist to an insured motorist
and his family. Nationwide Mut. Ins. Co. v. Smith, 376 S.C. 60, 654 S.E.2d 837 (S.C.
App. 2007).
▪ In order for UM coverage to apply, the injuries must arise out of the ownership,
maintenance, or use of the vehicle. State Farm Mut. Auto. Ins. Co. v Bookert, 337 S.C.
291, 523 S.E.2d 181 (1999).
CONDITIONS FOR BRINGING UNINSURED MOTORIST CLAIM
AGAINST AN UNKNOWN DRIVER
If the owner or operator of any motor vehicle which causes bodily injury or property
damage to the insured is unknown, there is no right of action or recovery under the
uninsured motorist provision, unless:
(1) the insured or someone in his behalf has reported the accident to the
police within a reasonable time, under all the circumstances, after its occurrence;
(2) the injury or damage was caused by physical contact with the unknown
vehicle, or the accident must have been witnessed by someone other than
the owner or operator of the insured vehicle; provided however, the witness must sign an affidavit attesting to the truth of the facts of the accident
contained in the affidavit;
(3) the insured was not negligent in failing to determine the identity of
the other vehicle and the driver of the other vehicle. S.C. St. § 38-77170.
UNINSURED MOTORIST COVERAGE / SUBROGATION
An insurer paying a claim under the uninsured motorist provision is subrogated to
the rights of the insured to whom the claim was paid against any and every person
causing the injury, death, or damage to the extent that payment was made. However,
the insurer shall pay its proportionate part of any reasonable costs and expenses
incurred in connection with any recovery, including reasonable attorneys' fees. S.C.
St. § 38-77-190
PRIORITY OF AUTOMOBILE OWNERSHIP AND LIABILITY
The primary insurer of the owner of a motor vehicle is primarily responsible for damages arising from the ownership maintenance or use of the vehicle. State Auto Ins.
Co. v. Stuart, 287 S.C. 235, 337 S.E.2d 698 (S.C. App. 1985). An accident involving a
truck and a trailer used as a unit arises out of the use of both vehicles regardless of
which part of the unit is actually involved in the accident and the policies on both the
truck and trailer will cover the loss. North Carolina Farm Bureau Mut. Ins. Co. v.
State Farm Mut. Auto. Ins. Co., 304 S.C. 110, 403 S.E.2d 151 (S.C. App. 1991).
REQUEST FOR POLICY
▪ An automobile insurer shall provide, within thirty days of receiving a written request from a claimant's attorney, a statement, under oath, stating with regard to each
known policy of insurance issued by it, the name of the insurer, the name of each
insured, and the limits of coverage. The insurer may provide a copy of the declaration
page of each such policy in lieu of providing such information. The request shall set
forth under oath the specific nature of the claim asserted and shall be mailed to the
insurer by certified mail or statutory overnight delivery. The request also must state
that the attorney is authorized to make such a request and must be accompanied by a
copy of the incident report from which the claim is derived. S.C. St. § 38-77-250(A).
▪ If the request contains information insufficient to allow compliance, the insurer
may so state in writing, stating specifically what additional information is needed.
S.C. St. § 38-77-250(B).
▪ Disclosure of limits for fleet policy limits, umbrella coverages, or excess coverages is
not required. S.C. St. § 38-77-250(E).
INSURER GOOD FAITH DUTIES
▪ A liability insurer’s duty to defend an action brought against the insured by a
third party is to be determined by the allegations of the complaint in such action.
Where the complaint in such suit alleges a state of facts within the coverage of the
policy. Allstate Ins. Co. v. Wilson, 259 S.C. 586, 193 S.E.2d 527 (1972).
▪ Insurer owes insured duty of settling personal injury claims if settlement is the
reasonable thing to do. Insurer negligently failing to settle case against insured by
injured employee is liable for loss thereby caused even in absence of fraud or bad
faith. Tyger River Pine Co. v. Maryland Cas. Co., 170 S.C. 286, 170 S.E. 346 (1933).
In the defense of an action against its insured, an insurer is bound not only to act
in good faith but also to exercise reasonable care. In such a case unreasonable
refusal on its part to accept an offer of compromise settlement has been held to
render it liable in tort to the insured for the amount of the judgment against him in
excess of the policy limit. Miles v. State Farm Mut. Auto. Ins. Co., 238 S.C. 374,
120 S.E.2d 217 (1961).
▪ In South Carolina an insured may recover for bad faith refusal to pay first party
benefits under a contract of insurance if he can show: (1) the existence of a mutually binding contract of insurance between the plaintiff and the defendant; (2) refusal by the insurer to pay benefits due under the contract; (3) resulting from the
insurer's bad faith or unreasonable action in breach of an implied covenant of
good faith and fair dealing arising on the contract; (4) causing damage to the insured. Crossley v. State Farm Mut. Auto. Ins. Co., 307 S.C. 354, 415 S.E.2d 393
(1992).
▪ Insured may be entitled to actual and punitive damages. Id. However, bad-faith
does not exist if a reasonable ground exists for contesting the claim. Nichols v.
State Farm Mut. Auto. Ins. Co., 279 S.C. 336, 306 S.E.2d 616 (1983).
STATUTE OF LIMITATIONS
▪ The following statutes of limitations apply:
▪ Three years for a claim for personal injuries. S.C. St. § 153-3-530.
▪ Three years for an action on a contract. S.C. St. § 15-3-530.
▪ ▪Three years for an action for damage to property. S.C. St. § 153-3-530.
Three years for an action for wrongful death. S.C. St. § 153-3-530.
▪ South Carolina recognizes the "discovery rule" which means that the statute of
limitations begins to run only when a plaintiff knows, or by the exercise of
reasonable diligence should know, that he has been injured, and someone else
proximately caused his injury. S.C. St. § 153-3-530.
WORKERS’ COMPENSATION / SUBROGATION
Where an employee is injured or killed in the course of his employment due to
the fault of a third-party tortfeasor (not exempted by the worker’s compensation
statute), such employee or his dependents may accept workers’ compensation
benefits, and also pursue a legal action against the at-fault tortfeasor. S.C. St. §
42-1-560(b). The carrier shall have a lien on the proceeds of any recovery from
the third party to the extent of the total amount of compensation paid, or to be
paid by such carrier, less the reasonable and necessary expenses, including
attorney fees, incurred in effecting the recovery. S.C. St. § 42-1-560(b).
JOINT AND SEVERAL LIABILITY
When a judgment is rendered in the plaintiff's favor in a suit against multiple
defendants who are jointly and severally liable, the plaintiff may collect that
judgment from one defendant or divide the award between some or all defendants.
However, under 2005 amendments to the South Carolina Contribution Among
Tortfeasors Act, in an action to recover damages from a tort, if indivisible damages are determined to be proximately caused by more than one defendant, joint
and several liability does not apply to any defendant whose conduct is determined to be less than 50% of the total fault for the indivisible damages as compared with the total of: (i) the fault of all the defendants; and (ii) the fault, if
any, of the plaintiff. A defendant whose conduct is determined to be less than
50% of the total fault shall only be liable for that percentage of the indivisible
damages determined by the jury or trier of fact. S.C. St. § 15-38-15.
South Carolina recognizes the right of contribution against other joint tortfeasors. It may be asserted in a separate action, or as part of the plaintiff's original
suit. If the named tortfeasor brings a separate action, he must do so within a
year of judgment or settlement. S.C. St. § 15-38-40.
GOODMAN McGUFFEY LINDSEY & JOHNSON, LLP
2016 SOUTH CAROLINA SUMMARY OF LIABILITY LAW
Columbia Office:
1320 Main Street
Suite 300
Columbia, SC 29201
800-404-6930
www.gmlj.com Atlanta ♦ Savannah ♦ Orlando ♦ Sarasota ♦ Charlotte ♦ Raleigh ♦ Columbia ♦ Charleston
LIABILITY APPORTIONMENT
South Carolina applies a modified comparative negligence scheme in apportioning
fault in negligence cases. A plaintiff in a negligence action may recover damages if
his or her negligence is not greater than that of the defendant. The amount of the
plaintiff's recovery shall be reduced in proportion to the amount of his or her negligence. If there is more than one defendant, the plaintiff's negligence shall be compared to the combined negligence of all defendants. Nelson v. Concrete Supply, 303
S.C. 243, 399 S.E.2d 783 (1991). A passenger has a duty to exercise due care for her
own safety to caution the driver and, if the warning is disregarded and speed unaltered, she must request the automobile be stopped and she be permitted to leave.
Thompson v. Michael, 315 S.C. 268, 433 S.E.2d 853 (1993).
STANDARD OF NEGLIGENCE
Negligence has been defined as “the failure to do what a reasonable and prudent
person would ordinarily have done under the circumstances of the situation; or
doing what such a person, under the existing circumstances, would not have done.
In other words, the duty is dictated and measured by the exigencies of the occasion.” Jones v. American Fidelity & Casualty Co., 210 S.C. 470, 481, 43 S.E.2d 355,
359 (1947). However, a minor's conduct is to be judged by that standard of behavior
to be expected from children of like age, intelligence, and experience under like
circumstances. Standard v. Shine, 278 S.C. 337, 295 S.E.2d 786 (1982). Negligence
requires three elements: (1) a duty of care owed by the defendant to the plaintiff; (2)
a breach of that duty; and (3) damage proximately resulting from the breach of
duty. Charleston Dry Cleaners & Laundry, Inc. v. Zurich American Ins. Co., 355 S.C.
614, 586 S.E.2d 586 (2003).
PREMISES LIABILITY
▪ An owner or possessor of land owes a duty to warn or protect a visitor against
dangers that exist on the land depending on the legal status of the visitor. Different
standards of care apply depending on whether the visitor is considered an "invitee,"
i.e., an invited (express or implied) business guest; a "licensee," i.e., a person not
invited, but whose presence is suffered; a "trespasser," i.e., a person whose presence
is neither invited nor suffered; or a child. However, it is well settled that the owner is
not an insurer of the safety of his visitors. Felder v. K-Mart Corp., 297 S.C. 446, 377
S.E.2d 332 (1989). A landowner owes a duty to an invitee to warn or protect his
customers of hidden dangers of which the possessor knows or has reason to know.
Rogers v. Scyphers, 251 S.C. 128, 161 S.E.2d 81 (1968). Under this rule, a possessor
of land has liability for dangers he either knows of, has created by reason of his
operations, or could reasonably discover through the exercise of reasonable care.
The owner has no duty to warn a visitor of open and obvious dangers that could be
discovered by the visitor through the exercise of reasonable care.
▪ The owner's duty to a licensee is to avoid injuring the licensee by his activities and
to warn him of hidden dangers of which the owner has actual knowledge, and which
the guest would not reasonably be expected to discover. Varn v. South Carolina Dep't
of Highways & Pub. Transp., 311 S.C. 349, 428 S.E.2d 895 (Ct. App. 1993).
▪ An owner ordinarily owes no duty to maintain his property or to carry on his activities in a way so as not to endanger a trespasser. Silas v. Bowen, 277 F. Supp. 314
(D.S.C. 1967).
▪ Under the doctrine of attractive nuisance: a landowner or possessor is liable for
injuries to children when (1) an artificial condition on the land creates a condition
that is both attractive and dangerous to children, and the owner or occupier fails to
take reasonable steps to guard or protect them; or (2) a dangerous condition (though
not necessarily attractive) is left exposed and no reasonable measures are taken to
protect children from coming into contact with it. Lynch v. Motel Enterprises, Inc.,
248 S.C. 490, 151 S.E.2d 435 (1966).
PRODUCTS LIABILITY
Under the South Carolina Defective Products Act (DPA), one who sells any product
in a defective condition unreasonably dangerous to the user or consumer or to his
or her property, is subject to liability for physical harm caused to the ultimate user
or consumer, or to his or her property, if the following apply: 1) the seller is engaged in the business of selling such a product, and 2) it is expected to and does
reach the user or consumer without substantial change in the condition in which it
is sold. S.C. St. § 15-73-10. That rule applies even if the seller has exercised all possible care in the preparation and sale of his product, or the user or consumer has
not bought the product from or entered into any contractual relation with the seller.
S.C. St. § 15-73-10.
CHARLESTON OFFICE
147 Wappoo Creek
Suite 204
Charleston, SC 29412
843-737-4619 WRONGFUL DEATH
The wrongful death statute provides a cause of action to the decedent's representative if
the act, neglect or default is such as would, if death had not ensued, have entitled the
party injured to maintain an action. S.C. St. § 15-51-10. Survival actions are separate and
distinct claims from wrongful death actions.
S.C. St. § 15-5-90.
PUNITIVE DAMAGES
▪ Punitive damages may be awarded only if the plaintiff proves by clear and convincing
evidence that his harm was the result of the defendant's willful, wanton, or reckless conduct. S.C. St. § 15-32-520.
▪ Evidence of violation of a statute is sufficient to carry the issue of punitive damages to
the jury and that violation of a statute may warrant the inference of reckless, willful, and
wanton conduct. Bethea v. Pedro Land, Inc., 290 S.C. 341, 347, 350 S.E.2d 392, 395 (Ct.
App. 1986). In the event punitive damages are awarded, the trial judge should conduct a
post-trial review of the punitive damages awards and consider the following eight factors:
(a) the defendant's degree of culpability; (b) the duration of the conduct; (c) the defendant's awareness or concealment; (d) the existence of similar past conduct; (e) the likelihood that the award will deter others from such conduct; (f) whether the award is reasonably related to the harm likely to result from such conduct; (g) the defendant's ability to
pay; and (h) other factors deemed appropriate. Gamble v. Stevenson, 305 S.C. 104, 406
S.E.2d 350 (1991).
▪ Punitive damages are normally limited to the greater of three times the amount of compensatory damages or $500,000. S.C. St. § 15-32-530(a).
▪ However, in the event the wrongful conduct was motivated primarily by unreasonable
financial gain or could subject defendant to a felony conviction, then punitive damages
are limited to the greater of four times the amount of compensatory damages or
$2,000,000.
▪ However, there is NO cap on punitive damages if there was an intent to harm, defendant
was convicted or pled guilty to a felony for the harmful conduct, or the defendant was
under the influence of alcohol or drugs not lawfully prescribed.
OFFER OF JUDGMENT
A party may file, twenty days before the trial date, a written offer of judgment for a certain
sum stated. Service of the offer of judgment shall be made as provided in these rules. If an
offer of judgment is not accepted within 20 days of the service of the offer and the party
making the offer obtains a verdict as favorable or better than the rejected offer, the party
making the offer shall recover: (1) any administrative, filing, or court costs from the date
of the offer until the entry of the judgment; (2) if the plaintiff, eight percent interest computed on the amount of the verdict or award from the date of the offer to the entry of
judgment; or (3) if the defendant, reduction from the judgment or award of eight percent
interest computed on the amount of the verdict or award from the date of the offer to the
entry of the judgment. S.C.R.C.P. 68.
MINOR SETTLEMENTS
▪ The settlement of any claim over $25,000 in favor of or against any minor or incapacitated person for the payment of money or the possession of personal property, requires
that, petitioner file with the circuit court a verified petition setting forth all of the pertinent facts concerning the claim, payment, attorney's fees, and expenses, if any, and the
reasons why, in the opinion of the petitioner, the proposed settlement should be approved. For all claims that exceed $25,000, the verified petition must include a statement by the petitioner that, in his opinion, the proposed settlement is in the best interests of the minor or incapacitated person. A conservator must be appointed to accept
payment of the settlement on behalf of the minor. S.C. St. § 62-5-433.
▪ If the settlement of the claims is less than $25,000, the minor’s guardian must petition
the court to approve the settlement. S.C. St. § 62-5-433.
▪ The settlement of any claim that does not exceed $2,500 may be settled by the minor’s
guardian without the approval of the circuit court. S.C. St. § 62-5-433.
NOTE: The material contained in this document is intended as a general
overview of specific areas of South Carolina law, and is not legal advice.
For a specific claim involving an area covered in this document, you should
seek a legal opinion based on the law as a whole and the facts of your particular case.
Rev. 8/2015