South Carolina General Assembly
106th Session, 1985-1986

Bill 2266

                    Current Status

Bill Number:               2266
Ratification Number:       514
Act Number:                463
Introducing Body:          House
Subject:                   The South Carolina Tort Claims Act
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(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

(A463, R514, H2266)

AN ACT TO AMEND TITLE 15, CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 78 SO AS TO ENACT THE SOUTH CAROLINA TORT CLAIMS ACT; TO AMEND SECTION 59-67-710, AS AMENDED, RELATING TO INSURANCE ON STATE-OWNED SCHOOL BUSES AND THE LIMITS OF LIABILITY INVOLVING SCHOOL BUS ACCIDENTS, SO AS TO REVISE THESE LIMITS AND THE AMOUNTS AND TYPES OF DAMAGES RECOVERABLE IN THESE ACCIDENTS; TO AMEND SECTION 59-67-790, AS AMENDED, RELATING TO THE MAJOR MEDICAL BENEFITS FUND TO PROVIDE BENEFITS FOR BODILY INJURIES TO SCHOOL BUS PASSENGERS UNDER CERTAIN CONDITIONS, SO AS TO REVISE THE LIMITS OF AND AMOUNT OF BENEFITS PAYABLE FROM THIS FUND, AND DESIGNATE THE NAME OF THE FUND AS THE PUPIL INJURY INSURANCE FUND, TO PROVIDE THAT IF THE AMOUNT OF A VERDICT OR JUDGMENT IS NOT SATISFIED BY REASON OF THE MONETARY LIMITATIONS OF CHAPTER 78 UPON RECOVERY FROM THE STATE OR POLITICAL SUBDIVISION THEREOF, THE PLAINTIFF'S INSURANCE COMPANY, SUBJECT TO THE UNDERINSURED AND UNINSURED DEFENDANT PROVISIONS OF THE PLAINTIFF'S INSURANCE POLICY, SHALL COMPENSATE THE PLAINTIFF FOR THE DIFFERENCE BETWEEN THE AMOUNT OF THE VERDICT OR JUDGMENT AND THE PAYMENT BY THE POLITICAL SUBDIVISION, AND TO PROVIDE THAT IF A CAUSE OF ACTION IS BARRED UNDER CHAPTER 78, THE PLAINTIFF'S INSURANCE COMPANY MUST COMPENSATE HIM FOR HIS LOSSES SUBJECT TO THE AFOREMENTIONED PROVISIONS OF HIS INSURANCE POLICY; AND TO REPEAL ARTICLE 3, CHAPTER 77 OF TITLE 15; ARTICLE 13, CHAPTER 5 OF TITLE 57; ARTICLE 9, CHAPTER 17 OF TITLE 57; AND SECTION 5-7-70 OF THE 1976 CODE ALL RELATING TO CERTAIN DAMAGE CLAIMS OR SUITS THEREON.

Be it enacted by the General Assembly of the State of South Carolina:

Tort Claims Act

SECTION 1. Title 15 of the 1976 Code is amended by adding:

"Chapter 78

South Carolina Tort Claims Act

Section 15-78-10. This chapter may be cited as the 'South Carolina Tort Claims Act'.

Section 15-78-20. (a) The General Assembly finds that while a private entrepreneur may be readily held liable for negligence of his employees within the chosen ambit of his activity, the area within which government has the power to act for the public good has been without limit and, therefore, government did not have the duty to do everything which might have been done. The General Assembly further finds that each governmental entity has financial limitations within which it must exercise authorized power and discretion in determining the extent and nature of its activities. Thus, while total immunity from liability on the part of the government is not desirable, see McCall v. Batson, neither should the government be subject to unlimited nor unqualified liability for its actions. The General Assembly recognizes the potential problems and hardships each governmental entity may face being subjected to unlimited and unqualified liability for its actions. Additionally, the General Assembly recognizes the impossibility of insuring for acts retrospectively. The General Assembly seeks an orderly transition to the recognition of individuals' rights against the tortious sovereign as defined herein. Consequently, it is declared to be the public policy of the State of South Carolina that the State, and its political subdivisions, are only liable for torts within the limitations of this chapter and in accordance with the principles established herein. It is further declared to be the public policy of the State of South Carolina that to insure an orderly transition from sovereign immunity to qualified and limited liability that the General Assembly intends to provide for liability on the part of the State and its political subdivisions only from the effective date of this act forward in prospective fashion. No governmental entity which was not insured at the time of the injury for which compensation is sought is liable under this act and those which were insured are liable only to the extent provided herein. Liability for acts or omissions under this chapter is based upon the traditional tort concepts of duty and the reasonably prudent person's standard of care in the performance of that duty.

(b) The General Assembly in this chapter intends to grant the State, its political subdivisions, and employees, while acting within the scope of official duty, immunity from liability and suit for any tort except as waived by this chapter. The General Assembly additionally intends to provide for liability on the part of the State, its political subdivisions and employees, while acting within the scope of official duty, only to the extent provided herein. All other immunities applicable to a governmental entity, its employees, and agents are expressly preserved. The remedy provided by this chapter is the exclusive civil remedy available for any tort committed by a governmental entity, its employees, or its agents except as provided in Section 15-78-70(b).

(c) As to those causes of action that arise or accrue prior to the effective date of this act, the General Assembly reinstates sovereign immunity on the part of the State, its political subdivisions and employees, while acting within the scope of official duty; provided, however, that sovereign immunity will not bar recovery in any case filed on or before the effective date of this act if the defendant maintained liability insurance coverage. In such cases recovery shall not exceed the limits of the liability insurance coverage.

(d) Nothing in this chapter affects liability based on contract nor does it affect the power of the State or its political subdivisions to contract.

(e) Nothing in this chapter is construed as a waiver of the state's or political subdivision's immunity from suit in federal court under the Eleventh Amendment to the Constitution of the United States nor as consent to be sued in any state court beyond the boundaries of the State of South Carolina.

(f) The provisions of this chapter establishing limitations on and exemptions to the liability of the State, its political subdivisions and employees, while acting within the scope of official duty, must be liberally construed in favor of limiting the liability of the State.

Section 15-78-30. (a) 'Agency' means the individual office, agency, authority, department, commission, board, division, instrumentality, or institution, including a state-supported governmental health care facility, school, college, university, or technical college, which employs the employee whose act or omission gives rise to a claim under this chapter.

(b) 'Claim' means any written demand against the State of South Carolina or a political subdivision for money only, on account of loss, caused by the tort of any employee of the State or a political subdivision while acting within the scope of his official duty.

(c) 'Employee' means any officer, employee, or agent of the State or its political subdivisions, including elected or appointed officials, law enforcement officers, and persons acting on behalf or in service of a governmental entity in any official capacity, whether with or without compensation, but the term does not include an independent contractor doing business with the State or any political subdivision thereof. Custody of prisoners by the State or any of its political subdivisions does not in and of itself create an employer and employee relationship between the State and the prisoner. Provided, the provisions of this section shall in no way limit or modify the liability of a licensed physician or dentist.

(d) 'Governmental entity' means the State and its political subdivisions.

(e) 'State' means the State of South Carolina and any of its offices, agencies, authorities, departments, commissions, boards, divisions, instrumentalities, and institutions, including state-supported governmental health care facilities, schools, colleges, universities, and technical colleges.

(f) 'Loss' means bodily injury, disease, death, or damage to tangible property, including lost wages and economic loss to the person who suffered the injury, disease, or death, pain and suffering, mental anguish, and any other element of actual damages recoverable in actions for negligence, but does not include the intentional infliction of emotional harm.

(g) 'Occurrence' means an unfolding sequence of events which proximately flow from a single act of negligence.

(h) 'Political subdivision' means the counties, municipalities, school districts, a regional transportation authority established pursuant to Chapter 25 of Title 58, and an operator as defined in item (8) of Section 58-25-20 which provides public transportation on behalf of a regional transportation authority, and special purpose districts of the State and any agency, governmental health care facility, department, or subdivision thereof.

(i) 'Scope of official duty' means (1) acting in and about the official business of a governmental entity and (2) performing official duties.

(j) 'Governmental health care facility' means one which is operated by the State or a political subdivision through a governing board appointed or elected pursuant to statute or ordinance and which is tax-exempt under state and federal laws as a governmental entity and from which no part of its net income from its operation accrues to the benefit of any individual or nongovernmental entity. Health care facility includes any facility as defined in Title 44, S. C. Code Ann. for the provision of mental or physical care to individuals, whether or not it is required to be licensed under those provisions.

Section 15-78-40. The State, an agency, a political subdivision, and a governmental entity are liable for their torts in the same manner and to the same extent as a private individual under like circumstances, subject to the limitations upon liability and damages, and exemptions from liability and damages, contained herein.

Section 15-78-50. (a) Any person who may suffer a loss proximately caused by a tort of the State, an agency, a political subdivision, or a governmental entity, and its employee acting within the scope of his official duty may file a claim as hereinafter provided.

(b) In no case is a governmental entity liable for a tort of an employee where that employee, if a private person, would not be liable under the laws of this State.

(c) Nothing herein shall affect the power of a court of equity at the suit of a party complainant to enjoin unlawful acts committed by governmental entities or mandate lawful action by governmental entities.

Section 15-78-60. (a) The governmental entity is not liable for a loss resulting from:

(1) legislative, judicial, or quasi-judicial action or inaction;

(2) administrative action or inaction of a legislative, judicial, or quasi-judicial nature;

(3) execution, enforcement, or implementation of the orders of any court or execution, enforcement, or lawful implementation of any process;

(4) adoption, enforcement, or compliance with any law or failure to adopt or enforce any law, whether valid or invalid, including, but not limited to, any charter, provision, ordinance, resolution, rule, regulation, or written policies;

(5) the exercise of discretion or judgment by the governmental entity or employee or the performance or failure to perform any act or service which is in the discretion or judgment of the governmental entity or employee;

(6) civil disobedience, riot, insurrection, or rebellion or the failure to provide the method of providing police or fire protection;

(7) a nuisance;

(8) snow or ice conditions or temporary or natural conditions on any public way or other public place due to weather conditions unless the snow or ice thereon is affirmatively caused by a negligent act of the employee;

(9) entry upon any property where the entry is expressly or impliedly authorized by law;

(10) natural conditions of unimproved property of the governmental entity, unless the defect or condition causing a loss is not corrected by the particular governmental entity responsible for the property within a reasonable time after actual or constructive notice of the defect or condition;

(11) assessment or collection of taxes or special assessments or enforcement of tax laws;

(12) licensing powers or functions including, but not limited to, the issuance, denial, suspension, renewal, or revocation of or failure or refusal to issue, deny, suspend, renew, or revoke any permit, license, certificate, approval, registration, order or similar authority except when the power or function is exercised in a grossly negligent manner;

(13) regulatory inspection powers or functions, including failure to make an inspection, or making an inadequate or negligent inspection, of any property to determine whether the property complies with or violates any law, regulation, code, or ordinance or contains a hazard to health or safety;

(14) any claim covered by the South Carolina Workers' Compensation Act, except claims by or on behalf of an injured employee to recover damages from any person other than the employer, the South Carolina Unemployment Compensation Act, or the South Carolina State Employee's Grievance Act;

(15) absence, condition, or malfunction of any sign, signal, warning device, illumination device, guardrail, or median barrier unless the absence, condition, or malfunction is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or constructive notice. Governmental entities are not liable for the removal or destruction of signs, signals, warning devices, guardrails, or median barriers by third parties except on failure of the political subdivision to correct them within a reasonable time after actual or constructive notice. Nothing herein gives rise to liability arising from a failure of any governmental entity to initially place any of the above signs, signals, warning devices, guardrails, or median barriers when the failure is the result of a discretionary act of the governmental entity. The signs, signals, warning devices, guardrails, or median barriers referred to herein are those used in connection with hazards normally connected with the use of public ways and do not apply to the duty to warn of special conditions such as excavations, dredging, or public way construction. Governmental entities are not liable for loss on public ways under construction when the entity is protected by an indemnity bond. Governmental entities responsible for maintaining highways, roads, streets, causeways, bridges, or other public ways are not liable for loss arising out of a defect or a condition in, on, under, or overhanging a highway, road, street, causeway, bridge, or other public way unless the defect or condition is not corrected by the particular governmental entity responsible for maintenance within a reasonable time after actual or constructive notice. Governmental entities are not liable for the design of highways and other public ways;

(16) maintenance, security, or supervision of any public property, intended or permitted to be used as a park, playground, or open area for recreational purposes, unless the defect or condition causing a loss is not corrected by the particular governmental entity responsible for maintenance, security, or supervision within a reasonable time after actual notice of the defect or condition;

(17) employee conduct outside the scope of his official duties or which constitutes actual fraud, actual malice, intent to harm, or a crime involving moral turpitude;

(18) imposition or establishment of a quarantine by a governmental entity, whether the quarantine relates to persons or property;

(19) emergency preparedness activities and activities of the South Carolina National Guard while engaged in state or federal training or duty. This exemption does not apply to vehicular accidents;

(20) an act or omission of a person other than an employee, including but not limited to the criminal actions of third persons;

(21) the decision to or implementation of release, discharge, parole, or furlough of any persons in the custody of any governmental entity, including but not limited to a prisoner, inmate, juvenile, patient, or client or the escape of these persons;

(22) termination or reduction of benefits under a public assistance program;

(23) institution or prosecution of any judicial or administrative proceeding;

(24) holding or conduct of elections;

(25) responsibility or duty including but not limited to supervision, protection, control, confinement, or custody of any student, patient, prisoner, inmate, or client of any governmental entity, except when the responsibility or duty is exercised in a grossly negligent manner;

(26) failure to supervise or control areas open for public hunting or activities thereon. Failure to control, maintain, and/or supervise the use of and activities in, on and around public boat ramps except within a reasonable time after actual notice of the defect or condition. Failure to maintain navigational markers, except within a reasonable time after actual notice of the defect or condition.

Section 15-78-70. (a) This chapter constitutes the exclusive remedy for any tort committed by an employee of a governmental entity. An employee of a governmental entity who commits a tort while acting within the scope of his official duty is not liable therefor except as expressly provided for in subsection (b).

(b) Nothing in this chapter may be construed to give an employee of a governmental entity immunity from suit and liability if it is proved that the employee's conduct was not within the scope of his official duties or that it constituted actual fraud, actual malice, intent to harm, or a crime involving moral turpitude.

(c) A person, when bringing an action against a governmental entity under the provisions of this chapter, must name as a party defendant only the agency or political subdivision for which the employee was acting and is not required to name the employee individually, unless the agency or political subdivision for which the employee was acting cannot be determined at the time the action is instituted. In the event that the employee is individually named, the agency or political subdivision for which the employee was acting must be substituted as the party defendant; provided, however, that the provisions of this section shall in no way limit or modify the liability of a licensed physician or dentist.

(d) A settlement or judgment in an action or a settlement of a claim under this chapter constitutes a complete bar to any further action by the claimant against an employee or governmental entity by reason of the same occurrence.

Section 15-78-80. (a) A verified claim for damages under this chapter, setting forth the circumstances which brought about the loss, the extent of the loss, the time and place the loss occurred, the names of all persons involved if known, and the amount of the loss sustained may be filed:

(1) in cases against the State, with the State Budget and Control Board, or with the agency employing an employee whose alleged act or omission gave rise to the claim.

(2) where the claim is against a political subdivision, with the political subdivision employing an employee whose alleged act or omission gave rise to the claim.

(3) where the identification of the proper defendant is in doubt, with the Attorney General.

(b) Each agency and political subdivision must designate an employee or office to accept the filing of the claims.

(c) Filing may be accomplished by receipt of certified mailing of the claims or by compliance with the provisions of law relating to service of process.

(d) The verified claim may be received by the Budget and Control Board or the appropriate agency or political subdivision. If filed, the claim must be received within one year after the loss was or should have been discovered.

(e) In all cases in which a claim is filed, the Budget and Control Board or political subdivision has one hundred eighty days from the date of filing of the claim in which to determine whether the claim should be allowed or disallowed. Failure to notify the claimant of action upon the claim within one hundred eighty days from the date of filing of the claim is considered a disallowance of the claim.

(f) The handling and disposition of claims filed under this chapter are not subject to the provisions of Article 3, Chapter 23 of Title 1.

(g) In all cases, where insurance is provided by the Budget and Control Board, the agency or political subdivision involved must cooperate with the Budget and Control Board in the investigation and handling of any claim.

Section 15-78-90. (a) The Budget and Control Board, or the political subdivision where it has not purchased insurance from the Budget and Control Board, may adjust, compromise, settle, or allow any claim or settle or compromise any action.

(b) Whether or not the claim is filed, the claimant is entitled to institute an action against the appropriate agency or political subdivision. Provided, however, if a claimant files a claim, he may not institute an action until after the occurrence of the earliest of one of the following three events: (1) the passage of one hundred eighty days from the filing of the claim with the governmental entity, (2) the governmental entity's disallowance of the claim, or (3) the governmental entity's rejection of a settlement offer.

Section 15-78-100. (a) An action for damages under this chapter may be instituted at any time within two years after the loss was or should have been discovered. Provided, that if a claim for damages was filed and disallowed or rejected an action for damages filed under this chapter, based upon the same occurrence as the claim, may be instituted within three years after the loss was or should have been discovered.

(b) Jurisdiction for any action brought under this chapter is in the circuit court and brought in the county in which the act or omission occurred.

(c) In all actions brought pursuant to this chapter when an alleged joint tortfeasor is named as party defendant in addition to the governmental entity, the trier of fact must return a special verdict specifying the proportion of monetary liability of each defendant against whom liability is determined.

Section 15-78-110. Any action brought pursuant to this chapter is forever barred unless an action is commenced within two years after the date the loss was or should have been discovered; provided that if the claimant first filed a claim pursuant to this chapter then the action for damages based upon the same occurrence is forever barred unless the action is commenced within three years of the date the loss was or should have been discovered.

Section 15-78-120. (a) For any action or claim for damages brought under the provisions of this chapter, the liability shall not exceed the following limits:

(1) No person shall recover in any action or claim brought hereunder a sum exceeding two hundred fifty thousand dollars because of loss arising from a single occurrence regardless of the number of agencies or political subdivisions involved; provided, the provisions of this section shall in no way limit or modify the liability of a licensed physician or dentist.

(2) The total sum recovered hereunder arising out of a single occurrence shall not exceed five hundred thousand dollars regardless of the number of agencies or political subdivisions or claims or actions involved; provided, the provisions of this section shall in no way limit or modify the liability of a licensed physician or dentist.

(b) No award for damages under this chapter shall include punitive or exemplary damages or interest prior to judgment.

(c) In any claim, action, or proceeding to enforce a provision of this chapter, the signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.

Section 15-78-130. The defense for a political subdivision against an action brought pursuant to this chapter, when the political subdivision does not purchase insurance through the Budget and Control Board, must be provided by the political subdivision or its designee.

Section 15-78-140. (a) It is the duty of the Budget and Control Board to cover risks for which immunity has been waived under the provisions of this chapter by the purchase of insurance as authorized in Section 15-78-150.

(b) The political subdivisions of this State, in regard to tort and automobile liability, property and casualty insurance, must procure insurance to cover these risks for which immunity has been waived by (1) the purchase of liability insurance pursuant to Section 1-11-140; or (2) the purchase of liability insurance from a private carrier; or (3) self-insurance; or (4) establishing pooled self-insurance liability funds, by intergovernmental agreement, which may not be construed as transacting the business of insurance or otherwise subject to state laws regulating insurance. A pooled self-insurance liability pool is authorized to purchase specific and aggregate excess insurance. A pooled self-insurance liability fund must provide liability coverage for all employees of a political subdivision applying for participation in the fund. If the insurance is obtained other than pursuant to Section 1-11-140, it must be obtained subject to the following conditions:

(1) If the political subdivision does not procure tort liability insurance pursuant to Section 1-11-140, it must also procure its automobile liability and property and casualty insurance from other sources and shall not procure these coverages through the Budget and Control Board;

(2) If a political subdivision procures its tort liability insurance, automobile liability insurance, or property and casualty insurance through the Budget and Control Board, all liability exposures of the political subdivision as well as its property and casualty insurance must be insured with the Budget and Control Board;

(3) If the political subdivision, at any time, procures its tort liability, automobile liability, property, or casualty insurance other than through the Budget and Control Board and then subsequently desires to obtain this coverage with the Budget and Control Board, notice of its intention to so obtain this subsequent coverage must be provided the Budget and Control Board at least six months prior to the beginning of the coverage with the State Budget and Control Board. The other lines of insurance that the political subdivision is required to procure from the board are not required to commence until the coverage for that line of insurance expires. Any political subdivision may cancel all lines of insurance with the State Budget and Control Board if it gives six months' notice to the board. The Budget and Control Board may negotiate the insurance coverage for any political subdivision separate from the insurance coverage for other insureds.

(4) If any political subdivision cancels its insurance with the Budget and Control Board, the political subdivision is entitled to an appropriate refund of the premium, less reasonable administrative cost.

(c) For any claim filed under this act, the remedy provided in Section 15-78-120 is exclusive. The immunity of the State and its political subdivisions, with regard to the seizure, execution, or encumbrance of their properties is reaffirmed.

Section 15-78-150. (a) The Budget and Control Board is authorized to purchase liability insurance.

(b) The purchase of insurance must be funded by participating governmental entities by payment of premiums as required by the Budget and Control Board.

Section 15-78-155. Any insurance company or reinsurance company selected to handle or assist in handling the insurance programs required by this chapter for any political subdivision of this State, which company is not selected by the Budget and Control Board pursuant to Section 1-11-140, must be approved and regulated by the State Department of Insurance in the same manner that other insurance companies operating in this State are approved and regulated by the Department and must be admitted and licensed to perform insurance operations in the State of South Carolina by the Department of Insurance.

Section 15-78-160. If any agency or political subdivision fails to pay any required premium and the failure results in loss of coverage, then the Budget and Control Board is not liable for any uncovered or unfunded risk.

Section 15-78-170. An action or claim for the death of a person may be brought under this chapter by the executor or administrator respectively, of the person's estate when death results from bodily injury if the bodily injury would have entitled the injured party to maintain an action or claim if death had not ensued. The provisions and limitations of this chapter are applicable to any such action or claim. Every action or claim must be for the benefit of the wife or husband and child, or children of the person whose death has been so caused and if there is no wife, husband, child or children, then for the benefit of the parent or parents, and if there is none, then for the benefit of the heirs at law or the distributees of the person whose death has been so caused. Any amount recovered must be divided among the before-mentioned parties in those shares as they would have been entitled to if the deceased had died intestate and the amount recovered had been personal assets of his estate."

Repeal

SECTION 2. Article 3, Chapter 77 of Title 15; Article 13, Chapter 5 of Title 57; Article 9, Chapter 17 of Title 57; and Section 5-7-70 of the 1976 Code are repealed.

Applicability of provisions

SECTION 3. The provisions of Chapter 78 of Title 15 of the 1976 Code shall only apply to those causes of action arising or accruing after the effective date of this act; provided however, the provisions of Section 15-78-20(c) of the 1976 Code are applicable to all causes of action arising on or before the effective date of the act.

Insurance coverage

SECTION 4. Section 59-67-710 of the 1976 Code, as last amended by Act 215 of 1977, is further amended to read:

"Section 59-67-710. (1) The Director of the Division of General Services, with the approval of the State Budget and Control Board, shall provide insurance coverage on all state-owned school buses which are operated under the authority of, and which are being used for the purposes of, Article 3 of this chapter. Such insurance contracts must be provided either through commercial carriers or through the insurance reserve funds of the Division of General Services. The insurance contracts shall provide at least the following benefits:

(a) for the lawful occupant of any such school bus who suffers bodily injuries or death, a death benefit of not less than fifty thousand dollars;

(b) for the lawful occupant of any such school bus who suffers bodily injuries, an amount sufficient to defray the cost of hospitalization, surgery, dentistry, medicine, and all other medical expenses up to three thousand dollars or such amount as promulgated by regulation of the Department of Education;

(c) additional coverage must also be provided for the following named perils:

(i) for the loss of both hands or both feet or sight of both eyes, fifty thousand dollars;

(ii) for loss of one hand and one foot, thirty thousand dollars;

(iii) for loss of either hand or foot and sight of one eye, thirty thousand dollars; and

(iv) for loss of either hand or foot or sight of one eye, thirty thousand dollars.

(2) The benefits provided for in subsection (1) shall exist without regard to fault or negligence. The insurance shall cover any accident which occurs:

(a) while getting on a school bus;

(b) while riding within a school bus;

(c) by being thrown from within a school bus;

(d) while getting off a school bus;

(e) by being run down, struck, or run over while crossing a public highway while approaching or leaving a school bus at the point of loading or unloading; or

(f) by being run down, struck, or run over by any moving vehicle while en route between home and the point of loading or en route between the point of unloading and home.

(3) (a) For any action or claim for damages brought under the provisions of Chapter 78 of Title 15 of the 1976 Code, the liability shall not exceed the following limits:

(i) No person shall recover in any action or claim brought hereunder for bodily injury or death a sum exceeding two hundred fifty thousand dollars because of loss arising from a single occurrence regardless of the number of agencies or political subdivisions involved.

(ii) The total sum recovered hereunder arising out of a single occurrence shall not exceed five hundred thousand dollars regardless of the number of agencies or political subdivisions or claims or actions involved; provided, the provisions of this section shall in no way limit or modify the liability of a licensed physician or dentist.

(b) No award for damages under Chapter 78 of Title 15 of the 1976 Code may include punitive or exemplary damages or interest prior to judgment.

(c) The insurance required by this section shall contain sufficient coverage for the provisions of this item.

(d) Any recovery from the State or governmental entity shall be reduced by the sum received pursuant to subsections (1)(a) and (c) and (2) of this section. In any recovery from a third party, the State shall have a right of subrogation for recovery of payments pursuant to this section."

Fund created

SECTION 5. Section 59-67-790 of the 1976 Code, as last amended by Act 215 of 1977, is further amended to read:

"Section 59-67-790. There is hereby created a fund to be administered by the Director of the Division of General Services to provide major medical benefits for bodily injuries to school bus passengers when the cost exceeds the benefits provided for in subsection (1)(a) of Section 59-67-710 of the 1976 Code. No claim shall exceed fifty thousand dollars for any one person for any one accident.

The Director of the Division of General Services shall pay into the Pupil Injury Insurance Fund that portion of the premiums charged to the State Department of Education for providing insurance covering buses he deems necessary to maintain the Pupil Injury Insurance Fund at an actuarially sound level sufficient to pay the benefits authorized by this section.

No payment from the Pupil Injury Insurance Fund shall be permitted when other insurance benefits or workers' compensation is available to pay such cost or where no charge is made for treatment. Whoever shall file a claim for payment from the Pupil Injury Insurance Fund shall at the same time file an affidavit swearing under oath that the requested claim is not covered by other insurance benefits or workers' compensation to be received for that claim; provided, this shall not apply to any injured school bus passenger who receives, for bodily injuries, an amount not exceeding three thousand dollars under Section 59-67-710(1)(b) of the 1976 Code.

Any recovery from the State or governmental entity under Chapter 78 of Title 15 of the 1976 Code shall be reduced by the sum received pursuant to this section. In any recovery from a third party, the State shall have a right of subrogation for recovery of payments pursuant to this section.

The Director of the Division of General Services, with the approval of the State Budget and Control Board, shall promulgate such rules and regulations as may be necessary to carry out the provisions of this section."

Plaintiff to be compensated

SECTION 6. If the amount of the verdict or judgment is not satisfied by reason of the monetary limitations of this chapter upon recovery from the State or political subdivision thereof, the plaintiff's insurance company, subject to the underinsured and uninsured defendant provisions of the plaintiff's insurance policy, if any, shall compensate the plaintiff for the difference between the amount of the verdict or judgment and the payment by the political subdivision. If a cause of action is barred under Section 15-78-60 of the 1976 Code, the plaintiff's insurance company must compensate him for his losses subject to the aforementioned provisions of his insurance policy.

Provisions severable

SECTION 7. If any provision of this act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.

Time effective

SECTION 8. This act shall take effect July 1, 1986, except that the provisions of subsection (c) of Section 15-78-20 of the 1976 Code shall take effect immediately upon approval by the Governor, and the provisions of subsection (b) of Section 15-78-140 of the 1976 Code shall take effect on July 1, 1987.