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


THE STATE OF SOUTH CAROLINA

In The Supreme Court

Myrtle Beach Hospital,

Inc., d/b/a Grand Strand

Regional Medical Center, Petitioner,

v.

City of Myrtle Beach and

Myrtle Beach Police

Department, Respondents.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Horry County

J. Stanton Cross, Jr., Special Circuit Judge

opinion No. 25140

Heard April 18, 2000 - Filed June 5, 2000

AFFIRMED AS MODIFIED

Fred B. Newby and Michael H. Sartip, both

of Newby, Pridgen & Sartip, of Myrtle Beach, for

petitioner.


James B. Van Osdell and Charles B. Jordan, Jr.,

both of Van Osdell, Lester, Howe & Jordan, P.A., of

Myrtle Beach, for respondents.

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Myrtle Beach Hospital v. City of Myrtle Beach

JUSTICE PLEICONES: We granted certiorari to decide

whether the Court of Appeals was correct in holding that a city is not

obligated to pay a hospital for medical care rendered to the city's pretrial

detainees: Myrtle Beach Hospital v. City of Myrtle Beach, 330 S.C. 590, 510

S.E.2d 439 (Ct. App. 1998). We affirm the Court of Appeals holding that the

Hospital cannot recover under any of the theories it advances, but modify the

quantum meruit test used by the Court of Appeals.



FACTS

Respondents (the City) operate a lock-up facility to house pre-trial

detainees. Pursuant to the City's policy, if a detainee needs medical

attention, the facility contacts the Horry County Emergency Medical

Services (EMS) to evaluate and treat the detainee. If EMS determines

further treatment is required, it transports the detainee to petitioner

Hospital, which operates the only hospital emergency room in Myrtle Beach.

As a result of this policy, the Hospital has accrued approximately $300,000

in unpaid medical bills. 1 When the City refused to pay these bills, the

Hospital brought this action.



The parties filed cross-motions for summary judgment, and the circuit

court granted the City's motion, finding no theory under which it was

responsible for these bills. On appeal, the Court of Appeals affirmed. Myrtle

Beach Hospital, supra.



The parties agree that the City is required by the Federal Constitution

to ensure that a detainee receives necessary medical care. City of Revere v.

Mass. Gen. Hosp., 463 U.S. 239, 103 S.Ct. 2979, 77 L. Ed.2d 605 (1983)(due

process requires that detainees be provided medical care). 2 Whether the


1 The City's policy is to pay the bills if the treatment is required because

of an injury occurring during the arrest or as the 'direct result' of the

incarceration.



2 Although City of Revere involved the specific question of the duty

owed to an individual injured by municipal police officers in the performance (2 cont'd...)



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Myrtle Beach Hospital v. City of Myrtle Beach

governmental entity holding the detainee or the medical provider should

bear the cost of medical care rendered to the detainee is a matter of state

law. City of Revere, 463 U.S. at 245. Whether South Carolina law requires

the City to pay for the medical care received by its detainees is the issue

here.



Summary judgment is proper when there is no genuine issue as to any

material fact and the moving party is entitled to a judgment as a matter of

law. Quality Towing, Inc., v. City of Myrtle Beach, Op. No. 25103 (S.C, Sup.

Ct. filed April 3, 2000)(Shearouse Advance Sheet #13 at 7). There are no

contested facts here.



ISSUES

(1) Is the City obligated to pay the medical bills of its detainees because

this duty should be implied from statutes or regulations?;



(2) Do public policy considerations impose a duty upon the City to pay the

bills?;

(3) Is there an obligation to pay on the part of the City, arising from an

implied-by-law contract or from quantum meruit?



ANALYSIS

A. Legislative Intent

The Hospital acknowledges, as it must, that no state statute requires

the City to bear the medical expenses of the pretrial detainees. It relies

instead on "legislative intent," gleaned from several statutes imposing duties

upon the Department of Corrections (DOC) regarding inmates or upon

counties with regard to chain gangs, and from a "regulation" promulgated by

the DOC. We will discuss the regulation first.


(2 continued...) of their duties, we agree with the parties and other courts considering the

issue that the reasoning in City of Revere applies with equal force to the

duty owed to pretrial detainees.

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Myrtle Beach Hospital v. City of Myrtle Beach



Pursuant to S.C. Code Ann. § 24-9-20 (Supp. 1999), every municipal

lock-up facility such as the one operated by the City is subject to an annual

inspection by a division of the DOC. The inspection "shall be based on

standards established by the South Carolina Association of Counties and

adopted by the [DOC] . . . ." Id.



Pursuant to this mandate, the DOC promulgated a document entitled

"Minimum Standards for Local Detention Facilities - Type I Facilities -

Overnight Lockup" (the Minimum Standards). The Hospital refers to certain

of the provisions of the Minimum Standards and especially relies on Section

2054:

2054 EMERGENCIES. Each facility shall provide

twenty-four (24) hour emergency medical and dental

care availability, as outlined in a written plan which

includes arrangements for:

(a) Emergency evacuation of inmates from the

facility

(b) Use of an emergency medical vehicle

(c) Use of one (1) or more designated hospital

emergency rooms or other appropriate health

facilities

(d) Emergency on-call physician and dentist

services when the emergency health facility is not

located in a nearby community.



According to the Hospital, this "regulation" evinces a legislative intent that

the City bear the cost of medical services rendered to the detainees. We

disagree.



These Minimum Standards have never been subject to the legislative

scrutiny afforded regulations under the Administrative Procedures Act. 3

Instead, they are merely the product of the County Association, adopted by


3 Cf. Stuckey v. State Budget and Control Bd, Op No. 25090 (S.C. Sup.

Ct. filed March 20, 2000)(Shearouse Adv. Sheet # 11 at 10)(Toal, J.,

dissenting)(would not bind affected person to regulation not promulgated

pursuant to APA).

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Myrtle Beach Hospital v. City of Myrtle Beach

the DOC, an executive agency. They cannot validly be viewed as expressing

anything about legislative intent. 4





Looking at the actual legislative intent expressed in our statutes, we

find that it undermines rather than supports the Hospital's position. The

Hospital points to statutes expressing the State's policy to render "humane

treatment" to persons serving a term in the State Penitentiary, S.C. Code

Ann. § 24-1-20 (1989); to one instructing that the DOC director is responsible

"for the proper care, treatment, feeding, clothing, and management of the

prisoners confined therein", S.C. Code Ann. § 24-1-130 (Supp. 1999); a statute

requiring certain entities using state convicts to reimburse the DOC for

"moneys expended . . . for medical attention . . . ." S.C. Code Ann. § 24-1-160

(Supp. 1999); and, to provisions made for the comfort and treatment of

prisoners in county jail [§ 24-5-80 and § 24-7-70 (1985)] and of convicts

working on chain gangs. §§ 24-7-60; 24-7-80; 24-7-110 (1985).



In our view, these statutes express the legislative intent that jailers

(whether county or state) are to bear the expenses, including those incurred

in rendering health care, for persons incarcerated following their convictions.

Applying the maxim of statutory interpretation expressio unius est exclusio

alterius, the absolute silence of the Legislature on the subject of expense

allocation, or even minimal living standards, for the pretrial detainees held

in municipal facilities defeats any "legislative intent" claim. 5



We agree with the Court of Appeals that Hospital cannot prevail on its

"legislative intent" theory.


4 This is not to suggest that the DOC could not be held to its duty to

adopt standards, or to conduct inspections of local facilities pursuant to § 24-

9-20; or that the City would not be subject to sanctions for failure to abide by

these regulations. See S.C. Code Ann. § 24-9-30 (Supp. 1999) "Enforcement

of minimum standards."



5 The absence of specific legislation does not, however, mean that

municipalities may treat pretrial detainees inhumanely or with deliberate

indifference, or consciously disregard their rights.



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Myrtle Beach Hospital v. City of Myrtle Beach

B. Public Policy

The Hospital contends that "public policy" requires that the City pay

the medical bills incurred by the detainees. As discussed above, the

Legislature has chosen not to impose a duty upon the City under these

circumstances. Further, the only indirect evidence we can find regarding a

South Carolina municipality's duty to pay is a 1960 opinion by the Attorney

General determining that there is no such obligation. 1960 Op. Atty. Gen.

293. 6



The Hospital relies heavily on opinions from other jurisdictions to

support its argument that we should find a duty to pay arising from public

policy. All these cases, except those decided by Arkansas 7 and Nebraska, 8

involve the construction of state statutes or regulations imposing certain

duties upon jailers. 9 Our review of these decisions convinces us that whether

to reallocate the financial burden of indigent predetainee medical care, and

the method of any such reallocation, is one best left to the legislative process

which is better equipped to allow input from all interested parties. We


6 Compare 1899 Op. Atty. Gen. 204, stating that a county would be

liable for the medical treatment afforded a prisoner wounded while being

arrested, if the prisoner were in custody.



7 Union County v. Warner Brown Hosp., 297 Ark. 460, 762 S.W.2d 798

(1989).



8 Lutheran Medical Center v. City of Omaha, 229 Neb. 802, 429 N.W.

2d 347 (1988).



9 Although the Court of Appeals concluded that North Carolina

represented a minority view, we disagree. North Carolina imposes a duty on

the governmental entity to pay medical expenses incurred by persons in its

custody. Spicer v. Williamson, 132 S.E. 291 (N.C. 1926). This duty arises

from a state statute requiring the county to provide medical attention to

persons confined in the county jail. In Craven County Hospital v. Lenoir

County, 331 S.E. 2d 690 (N.C. App. 1985), relied upon by the Court of

Appeals, the issue was whether the governmental entity owed a duty to pay

medical bills incurred by a person who was not in custody at the time of the

injury.

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Myrtle Beach Hospital v. City of Myrtle Beach

therefore affirm the Court of Appeals' conclusion that public policy does not

compel the City to reimburse the Hospital for these costs.



C. Implied by law contract or quantum meruit



The Hospital argues that the Court of Appeals should have required

respondents to pay the bills under either a theory of quantum meruit or

contract implied by law. We disagree.



First, we correct a misstatement of law which first appeared in 1981.

Prior to our decision in Piedmont Premium Service. Inc. v. South Carolina

Ins. Co., 277 S.C. 99, 283 S.E.2d 828 (1981), we used the terms quantum

meruit, quasi-contract, and contract implied by law as equivalent terms, to

distinguish those situations where equity would aid recovery from those

where law provided the remedy, that is, express contracts or contracts

implied in fact. 10 See,e.g., United States Rubber Products Inc. v. Town of

Batesburg , 183 S.C. 49, 190 S.E. 120 (1937); Rainwater v. Hobeika, 208 S.C.

433, 38 S.E.2d. 495 (1946). In a law action, the measure of damages is

determined by the parties' agreement, while in equity, "the measure of the

recovery is the extent of the duty or obligation imposed by law, and is

expressed by the amount which the court considers the defendant has been

unjustly enriched at the expense of the plaintiff." Town of Batesburg , 190

S.E. at 126.



In Piedmont Premium, supra, we erroneously defined a contract

implied by law as resting on "a duty imposed by law and treated as a

contract for purposes of remedy only." Id., 283 S.E.2d at 829. Piedmont

Premium directly quoted 17 C.J.S. Contracts § 4(b) as the source of this

definition of a contract implied by law (equitable). In fact, § 4(b) 11 is a

discussion of implied in fact ( legal) contracts. We overrule Piedmont


10 See Stanley Smith & Sons v. Limestone College, 283 S.C. 430 322

S.E.2d 474 fn.l (Ct. App. 1984)("The unfortunate use of "implied contract" to

connote both true ("implied in fact") and quasi ("implied in law") contracts

has led to much confusion").



11 Now found at 17 C.J.S. Contracts § 6(b)(1999) following a 1999

revision. See section conversion chart at p. 398 of volume 17.

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Myrtle Beach Hospital v. City of Myrtle Beach

Premium to the extent it erroneously defines a contract implied by law and

return to our original view: quantum meruit, quasi-contract, and implied by

law contract are equivalent terms for an equitable remedy.



Further, we note this Court's current test for quantum meruit differs

from that used by the Court of Appeals, and further note a discrepancy

between the two courts' implied by law tests. Interestingly, the Court of

Appeals' implied by law test is the same as this Court's quantum meruit

analysis:

(1) benefit conferred by plaintiff upon the defendant;

(2) realization of that benefit by the defendant; and

(3) retention of the benefit by the defendant under

circumstances that make it inequitable for him to retain it

without paying its value.



Compare, e.g., Columbia Wholesale Co. v. Scudder May, N.V., 321 S.C. 259,

440 S.E.2d 129 (1994)(quantum rneruit test) with Webb v. First Fed. Sav. &

Loan Ass'n, 300 S.C. 507, 388 S.E.2d 823 (Ct. App. 1989)(implied by law

test).



We adopt the Scudder May test as the sole test for a quantum

meruit /quasi-contract/implied by law claim. We therefore overrule the

following cases to the extent they rely on this different quantum meruit test

first announced by the Court of Appeals in Webb v. First Fed. Savings &

Loan Ass'n, supra:

(1) valuable services or materials were furnished;

(2) to the defendant;

(3) who accepted, used and enjoyed them;

(4) under such circumstances as reasonably notified the

defendant that the plaintiff was expecting to be paid

by the defendant.



Bonaparte v. Bonaparte, 317 S.C. 256, 452 S.E.2d 836 (1995); Myrtle Beach

Hosp. v. City of Myrtle Beach, 330 S.C. 590, 510 S.E.2d 439 (Ct. App. 1998);

Wade v. Brooks, 306 S.C. 553, 413 S.E.2d 333 (Ct. App. 1992); Muller v.

Myrtle Beach Golf & Yacht Club, 303 S.C. 137, 399 S.E.2d 430 (Ct. App.

1990) cert. dismissed 305 S.C. 330, 408 S.E.2d 242 (1991); and Webb v. First

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Myrtle Beach Hospital v. City of Myrtle Beach

Fed. Savings & Loan Ass'n, 299 S.C. 1, 382 S.E.2d 4 refiled 300 S.C. 507, 388

S.E.2d 823 (Ct. App: 1989).



Applying the Scudder May quantum meruit test in this case, we hold

that the Hospital cannot prevail on this equitable theory. The first two

elements are that the City received and retained a benefit. Here, it is the

detainee rather than the City that receives and retains the benefits conferred

by the Hospital. 12 Further, since the only duty on the City is that imposed by

the Due Process Clause of the federal constitution, and since that duty is

fulfilled "by seeing that [the detainees are] taken promptly to a hospital that

provide [s] the treatment necessary for his injury," City of Revere, 463 U.S. at

245, we do not perceive any inequity in not requiring the City to reimburse

the Hospital. 13



For the reasons given above, the decision of the Court of Appeals is



AFFIRMED AS MODIFIED.

TOAL, C.J., MOORE, WALLER, and BURNETT, JJ., concur.




12 To be sure, the City receives an incidental benefit in the sense that

the existence of the Hospital facilitates the City's constitutional duty to

ensure the detainee receives necessary medical care.



13 The Hospital may seek to recover, as it now does, its expenses from

the detainee, his private insurance, or from federal or state indigent medical

care funds if available. We simply decide that, as between the City and the

Hospital, equity does not require the City to bear these costs.



p.173