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25020 - Doe and Roe v. S.C. State Budget and Control Board, et al.

Shearouse Adv. Sh. No.
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Jane Doe and Mary

Roe, Petitioners,

v.

South Carolina State

Budget and Control

Board, Office of

Insurance Services,

Insurance Reserve

Fund; Gary Wayne

Roberson, in his

individual and official

capacities; John Short,

in his individual and

official capacity as Chief

of Police; Joe Gebbia, in

his individual and

official capacities; and

the City of Tega Cay Defendants,

of whom

South Carolina State

Budget and Control

Board, Office of

Insurance Services,

Insurance Reserve

Fund, is, Respondent.

ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS

p.36


DOE and ROE v. S.C. STATE BUDGET AND CONTROL BOARD, etc.

Appeal From York County

J. Buford Grier, Special Circuit Court Judge

Opinion No. 25020

Heard June 8, 1999 - Filed November 22, 1999

AFFIRMED

J. Marvin Mullis, Jr., Frank A. Barton, both of Law

Offices of Mullis & Barton, of Columbia; and A.

Philip Baity, of Fort Mill, all for petitioners.

Andrew F. Lindemann, William H. Davidson, II, both

of Davidson, Morrison and Lindemann, P.A., of

Columbia, for respondent.

PER CURIAM: We granted certiorari to review the Court of

Appeals' decision in Doe v. South Carolina Budget and Control Bd., 329 S.C.

2141494 S.E.2d 469 (Ct.App. 1997). We affirm.

Petitioners brought a declaratory judgment action to determine

whether sexual assaults committed against them by Tega Cay Police Officer

Roberson were covered under two separate insurance policies, an automobile

liability policy and a general tort liability policy. The circuit court granted

respondent's summary judgment motion, and the Court of Appeals affirmed.

Doe, supra.

Each petitioner was stopped by Roberson at night on suspicion of

driving under the influence, and offered the option of being arrested or

having sex with him. Petitioner Doe agreed to meet Roberson at a secluded

location, and once there she was forced to perform oral sex on him in his

parked cruiser and then to engage in intercourse on the hood of his car.

Roberson then drove Doe to another location where they exited the cruiser

and engaged in sexual activities in a parked bus.

p.37


DOE and ROE v. S.C. STATE BUDGET AND CONTROL BOARD, etc.

Roberson stopped petitioner Roe and seated her in his cruiser. After

she agreed to sex in return for not being arrested, Roe either drove herself to

a golf course or was driven to the golf course in the cruiser by Roberson.1

Once, there, Roberson first forced Roe to perform oral sex on him while

seated in the parked cruiser, and then they had intercourse.

In State Farm Fire & Casualty Co. v. Aytes, 332 S.C. 30, 503 S.E.2d

744 (1998), decided after the Court of Appeals issued its Doe opinion, we

restated the test for determining when an individual's personal injuries arise

out of the "ownership, maintenance, or use" of an automobile such that they

are covered by an automobile insurance policy. Aytes sets forth a three part

test:

1. There exists a causal connection between the vehicle and the

injury; and

2. No act of independent significance breaks the causal link; and

3. The vehicle is being used for transportation at the time of the

assault.

In this context, causal connection means:

a. the vehicle was an "active accessory" to the assault; and

b. something less than proximate cause but more than mere site

of the injury; and

c. the "injury must be foreseeably identifiable with the normal

use of the automobile."

It is clear that Doe and Roe cannot meet the Aytes requirements. For

example, the cruiser was not being used for transportation at the time of the

assaults, it was not an "active accessory", and the petitioners' acceptance of

Roberson's offers were acts of independent significance which broke any

causal link. We agree with the Court of Appeals that respondent was

properly granted summary judgment on the automobile liability coverage

claims.


1 The factual allegations in Roe's complaint are inconsistent. The

method of transportation to the golf course does not affect our analysis of the

coverage issue.

p.38


DOE and ROE v. S.C. STATE BUDGET AND CONTROL BOARD, etc.

We also granted certiorari to review the holding granting respondent

summary judgment on petitioners' general liability policy claims. We affirm,

finding as did the circuit court and the Court of Appeals that Roberson's

actions were not within "the scope of his. . official duties," and thus not

covered by this policy.

For these reasons, the decision of the Court of Appeals is

AFFIRMED.

C.J.

A.J.

A.J.

A.J.

A.J.

p.39