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.
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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.
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