Plaintiffs are not required to name all co-tortfeasors under the Tort Claims Act

by Manton Grier, Jr.

In Chester v. South Carolina Dept. of Public Safety, Op. No. 26833 (S.C. July 12, 2010), the Supreme Court of South Carolina held that a plaintiff is not required to join other co-tortfeasors for purposes of determining proportionate liability under Section 15-78-100(c) of the Tort Claims Act.

In that case, the plaintiff’s estate sued three state agencies after the decedent died in a multiple-vehicle accident on I-95 allegedly caused by heavy smoke from a controlled fire conducted by the Forestry Commission. The state agencies argued that Section 15-78-100(c) of the Tort Claims Act required the plaintiff’s estate to name all potential co-tortfeasors, even those that previously settled with the plaintiff’s estate. In actions under the Tort Claims Act, Section 15-78-100(c) provides that “when an alleged joint tortfeasor is named as a party defendant, the trier of fact must return a special verdict specifying the proportion of monetary liability of each defendant against whom liability is determined.”

The trial court read this statute as requiring the plaintiff to name all co-tortfeasors in order to determine proportional liability. It then dismissed the action under Rule 19 because the necessary parties had already settled. The Supreme Court reversed. It stated that “a plaintiff has the sole right to determine which co-tortfeasor(s) she will sue.” Requiring a plaintiff to name co-tortfeasors at the request of a defendant agency violates this principle. The statute does not “force the plaintiff to choose between settling with some parties and thereby forego her right to sue a [Tort Claims Act] defendant, or going to trial against all co-tortfeasors.” The Court also noted that the defendants still have a remedy, as any party liable will be entitled to an equitable set-off against the settlements the plaintiff has already received.