dissenting:
I respectfully dissent.
I would hold that as two buses are involved, Toney is entitled to collect the no fault benefit provided to an “occupant” of Bus “A” and may also pursue benefits under the separate coverage provided for persons injured by the negligent operation of Bus “B.”
Keysha Toney, a second grade student, was a passenger on a school bus (Bus “A”). Soon after she debarked, a second school bus (Bus “B”) passed Bus “A” striking and killing the child. Respondent has already received no fault death benefits from appellant under subsection (l)(a). This action involves a second suit seeking negligent death benefits under subsection (l)(b).
When one school bus injures or kills a school child, benefits are available under subsection (l)(a) or subsection (l)(b), whichever is applicable, but not both. No school child can be an occupant and a non-occupant of a single school bus at the same time. Coats v. Insurance Company of North America, 262 S. C. 331, 204 S. E. (2d) 436 (1974); Weston v. Nationwide Mutual Insurance Company, 237 S. C. 464, 118 S. E. (2d) 67 (1961); Collins v. National Surety Corporation, 225 S. C. 405, 82 S. E. (2d) 511 (1954); Farmer v. National Surety Corporation, 223 S. C. 143, 74 S. E. (2d) 580 (1953).
In the instant case two school buses were involved.
The statute provides two types of insurance coverage on state-owned school buses which are clearly articulated — one is to benefit the school bus occupant, the other is to benefit the non-occupant, a member of the general public. Subsection *407(l)(a) provides benefits for death or bodily injury suffered by an occupant of a school bus without regard to fault or negligence. Decedent was an occupant of Bus “A” departing when the accident occurred. Respondent properly recovered death benefits from the insurance policy on Bus “A” under this section.
Subsection (l)(b) provides benefits for death or bodily injury because of negligent operation of a school bus for a person other than a person riding on the school bus or a person qualified for benefits under subsection (l)(a). Decedent was not riding on Bus “B”. Nor did she qualify for benefits under subsection (l)(a) of Bus “B’s” insurance coverage. Had the second bus been a Greyhound rather than a school bus, respondent would have unquestionably been allowed to recover under the first school bus’s no fault coverage and under Greyhound’s liability coverage if negligence were proven.
I interpret § 59-67-710 of the 1976 Code as providing under paragraph (l)(a) a no fault right to collect the death benefit and (l)(b) a claim based on negligence for the death benefit, each not to exceed $15,000 actual damages.
I would hold respondent is entitled to recover under subsection (l)(b) of Bus “B’s” insurance policy provided negligence is established.
Chandler, J., concurs with the dissent.