Jump To

Top Caption Syllabus Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 20, 2026 Get Citation Alerts Download PDF Add Note

Wanda Whetstone v. Office of the Governor

Court of Appeals of South Carolina

• Citations: None known

• Docket Number: 2023-001424

• Opinion

• Authorities (5)

• Cited By (0)

• Summaries (0)

• Similar Cases (3.8K)

• PDF

Syllabus

Appellant Wanda Whetstone was injured in a car accident and filed a claim against the alleged at-fault driver, Karen Campbell. After settling with Campbell individually, Appellant filed a lawsuit against Campbell's employer, the Respondent, under the South Carolina Tort Claims Act. The trial court granted summary judgment in favor of Respondent, finding Appellant was prohibited from bringing an action under the Tort Claims Act against Campbell's employer after settling with Campbell individually. This appeal followed.

Combined Opinion

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Wanda Whetstone, Appellant,

v.

State of South Carolina, Office of the Governor,
Respondent.

Appellate Case No. 2023-001424

Appeal From Richland County
William A. McKinnon, Circuit Court Judge

Opinion No. 6133
Heard October 7, 2025 – Filed January 21, 2026
Withdrawn, Substituted, and Refiled March 20, 2026

REVERSED

Mark D. Chappell and Mark Dale Chappell, Jr., and
William S. Detwiler, of Chappell, Chappell & Newman,
Attorneys, LLC, of Columbia, all for Appellant.

David Allen Anderson, Carmen Vaughn Ganjehsani, and
Hunter Weston Adams, all of Richardson Plowden &
Robinson, PA, of Columbia; Thomas Ashley Limehouse,
Jr., of Limehouse LLC, of Charleston; and William
Grayson Lambert and Erica Wells Shedd, of Columbia,
all for Respondent.

CURTIS, J.: This case concerns whether section 15-78-70(d) of the South
Carolina Tort Claims Act (TCA) bars a plaintiff from settling with a government
employee in her individual capacity and then filing a separate negligence lawsuit
against her employer, the State of South Carolina, Office of the Governor
(Respondent) under the TCA. Appellant argues the South Carolina Supreme Court
unequivocally answered this question in the negative in Wade v. Berkeley County,
348 S.C. 224, 559 S.E.2d 586 (2002), and the circuit court erred in relying on
common law principles of derivative liability, rather than the court's holding in
Wade. We agree and reverse.

I. BACKGROUND

Appellant Wanda Whetstone was injured in a motor vehicle accident and sued
Karen Campbell, who she alleged was the at-fault driver. Appellant filed claims
against Campbell's personal liability and underinsured motorist policies and
recovered the policy limits. As part of the settlements, Appellant signed a
Settlement Agreement and a Covenant Not to Execute which specifically preserved
her right to pursue claims against "any other parties."

After settling with Campbell individually, Appellant filed a lawsuit against
Respondent, alleging that Campbell was acting within the scope of her
employment at the time of the accident and that Respondent "should be called to
answer for its agent and servant's actions under the doctrine of respondeat superior
and pursuant to the [TCA]." Appellant's complaint alleged Respondent was
negligent through the actions of its employee, Campbell, and made no additional
claims against Respondent (such as negligent hiring, supervision, and training).

Respondent initially moved for summary judgment on the basis that Campbell was
not acting within the scope of her employment at the time of the accident. The
circuit court denied the motion, citing the parties' conflicting affidavits concerning
the nature of Campbell's excursion at the time of the accident.

Respondent then moved for summary judgment a second time, arguing that
Appellant's claims against Respondent under the TCA were extinguished as a
matter of law when Appellant settled with Campbell. The court granted the
motion, citing this court's holding in Andrade v. Johnson, that settlement of a claim
against an employee "operates as an acquittal of the employer who is only
derivatively liable." 345 S.C. 216, 226, 546 S.E.2d 665, 670 (Ct. App. 2001). This
appeal followed.
II. STANDARD OF REVIEW

"In reviewing the grant of summary judgment, this [c]ourt applies the same
standard as the circuit court." Braden's Folly, LLC v. City of Folly Beach, 439 S.C.
171, 190, 886 S.E.2d 674, 684 (2023). "Summary judgment is appropriate 'if the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law." Id.
(quoting Rule 56(c), SCRCP).

III. LAW/ANALYSIS

"The South Carolina Tort Claims Act is the exclusive and sole remedy for any tort
committed by an employee of a governmental entity while acting within the scope
of his official duty." S.C. Code Ann. § 15-38-65 (2005). "An employee of a
governmental entity who commits a tort while acting within the scope of his
official duty is not liable therefor[e] except as expressly provided for in subsection
(b)." S.C. Code Ann. § 15-78-70 (a) (2005). Subsection (b) states that the TCA
does not cover circumstances where "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." S.C. Code Ann. § 15-78-70 (b)
(2005). This case concerns the meaning of section 15-78-70(d), which states: "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." S.C. Code
Ann. § 15-78-70 (d) (2005).

Appellant argues the controlling authority applicable to this case is Wade v.
Berkeley County, 348 S.C. 224, 559 S.E.2d 586 (2002). We agree. The plaintiff in
Wade was injured in an automobile accident and filed a lawsuit against the at-fault
driver, Pierce, in his individual capacity. Id. at 226, 559 S.E.2d at 586–87.
During the discovery period, Wade settled with Pierce's personal liability insurer
and executed a Covenant Not to Execute Judgment. Id. Wade subsequently
amended his complaint, dismissing Pierce and naming Berkeley County as a
defendant, alleging the county was liable under the TCA as Pierce's employer. Id.
at 226, 559 S.E.2d at 587. The trial court granted summary judgment in favor of
Berkeley County, finding that once Wade settled with Pierce, he was barred from
bringing any further action against the County pursuant to section 15-78-70(d). Id.
The Court of Appeals reversed, finding the Covenant Not to Execute was not a
settlement as contemplated by the TCA, and Wade was therefore not barred from
bringing a subsequent action against the county.1 Id. at 227–28, 230, 559 S.E.2d at
586.

Our supreme court reversed this court's holding that the Covenant was not a
settlement agreement within the meaning of section 15-78-70. Id. at 228, 559
S.E.2d at 588. However, the court affirmed the Court of Appeals’ holding that the
previous settlement did not bar Wade from pursuing a separate action against the
county. Id. at 230, 559 S.E.2d at 589. The court examined the statute's legislative
history and held that there must be a settlement or judgment in an action or claim
under the TCA before a government defendant may invoke the bar against further
action. Id. at 230, 559 S.E.2d at 588–89. At the time Wade executed the covenant,
no TCA action had been initiated against Berkeley County, nor had any claim been
filed against it. Id. at 230, 559 S.E.2d at 589. The court therefore found that there
were no actions pending "under [the TCA]," and that the settlement with Pierce did
not bar subsequent action against his employer. Id. The court noted:

As illustrated by the facts of this case, § 15-78-70(d)
permits a plaintiff to maintain an action against a
governmental employee in his individual capacity, settle,
and then pursue an action against the governmental
employer for the tort of his employee allegedly
committed while in the scope of employment. This result
circumvents that policy of the Act which is to protect
employees from personal liability for torts committed
while acting within the scope of employment.
Nevertheless, our construction of the statute is limited by
its legislative history.

Id. at 230–31, 559 S.E.2d at 589 (citation omitted).

We find Wade is factually on all fours with the present case. See Wade III, 339
S.C. at 516–18, 529 S.E.2d at 745–46 (describing the factual and procedural
history). As in this case, Wade's claim was a derivative liability claim in that there

1
This court heard Wade twice. During the first hearing, this court reversed the
trial judge's ruling granting the County's motion for summary judgment. Wade v.
Berkeley County, 339 S.C. 495, 529 S.E.2d 734 (Ct. App. 1999) ("Wade II"). This
court then affirmed the previous panel's decision on a rehearing en banc. Wade v.
Berkeley County, 339 S.C. 513, 529 S.E.2d 743 (Ct. App. 2000) ("Wade III").
were no allegations of tortious conduct by the government entity outside of its
employee's actions. Id.

In this case, the trial court found the holding in Wade was limited to the threshold
issue of whether a plaintiff may file a lawsuit against a government entity under
these circumstances but did not explicitly address whether the common law
principles of respondeat superior apply in a TCA case. The trial court relied on
this court's holding in Andrade, that settlement of a claim against an employee
"operates as an acquittal of the employer who is only derivatively liable." 345 S.C.
at 226, 546 S.E.2d at 670. Andrade, however, involved common law negligence
between private actors and was not a TCA case. Id. at 219–20, 546 S.E.2d at 667.
The portions of Andrade cited by the circuit court were based on the court's
analysis of the Uniform Contribution Among Tortfeasors Act, which is expressly
inapplicable to government entities. See S.C. Code Ann. § 15-38-65 (2005) ("The
[UCATA] shall not apply to governmental entities."). The TCA's language makes
no distinction between derivative liability claims and claims against both employer
and employee as joint tortfeasors. It is the exclusive remedy for all claims against
an employee of a governmental entity. We are persuaded by the South Carolina
District Court's holding in Newkirk v. Enzor, that the TCA replaces the common
law doctrine of respondeat superior, which does not apply to TCA cases. 240 F.
Supp. 3d 426, 436 (D.S.C. 2017) ("The doctrine of respondeat superior therefore
is inapplicable to claims against South Carolina governmental entities or their
employees. Governmental entities are vicariously liable for their employees' torts
only as provided by the statute; governmental entities are not additionally or
alternatively liable under common-law vicarious liability doctrines.").2

We recognize, as our supreme court noted in Wade, that allowing Appellant to
settle with Campbell individually (knowing that she was potentially acting within

2
We note that the dissent in Wade III criticized the majority opinion on the same
grounds Respondent raises here. Wade III, 339 S.C. at 533, 529 S.E.2d at 753–54
(Goolsby, J., dissenting). Specifically, the dissent argued that the majority
wrongly treated the employer and employee as joint tortfeasors, when at common
law, the employer would only be vicariously liable under the doctrine of
respondeat superior. Id. Our supreme court nevertheless affirmed this part of the
majority's opinion without addressing the dissent's interpretation. Wade, 348 S.C.
at 230-31, 559 S.E.2d at 589.
the scope of her employment) and then pursue a separate claim against Respondent
appears contrary to the TCA's purpose, "which is to protect employees from
personal liability for torts committed while acting within the scope of
employment." Wade, 348 S.C. at 230–31, 559 S.E.2d at 589. The Wade court
acknowledged this discrepancy but nonetheless found the express language of
section 15-78-70(d), combined with the legislative history, demanded this result.
Id. We find ourselves in the same position here.3

IV. CONCLUSION

The TCA allows a plaintiff to settle with a government employee in his or her
individual capacity and subsequently bring an action against the employer. Wade,
348 S.C. at 230, 559 S.E.2d at 589. The TCA does not distinguish between joint
and vicarious liability, only whether the employee was acting within the scope of
her employment. Thus, we find the common law bar to employer liability
discussed in Andrade is not applicable in this case.

REVERSED.

WILLIAMS, C.J., and THOMAS, JJ., concur.

3
In settling with Plaintiff, Campbell did, however, receive the benefit of limiting
any potential individual liability she would have been exposed to if the jury
ultimately found she was not acting within the scope of her employment at the time
of the accident. See Wade III, 339 S.C. at 529, 529 S.E.2d at 752 (Hearn, J.,
concurring) ("The dissent would place [Driver] in the unenviable position of
having to gamble on liability exposure. If the jury found he was not acting in his
official duties at the time of the accident and awarded substantial damages to
[Plaintiff], [Driver] and his insurance carrier would be exposed to a judgment
which they otherwise could have avoided by a reasonable settlement. [Driver] and
his insurance carrier are placed in a worse position than an ordinary tortfeasor
simply by virtue of [his] employment with the County.").