Watkins v. M & M Tank Lines, Inc., Civ. A. No. 80-1803-1.

• Decision Date: 07 December 1981
• Docket Number: Civ. A. No. 80-1803-1.
• Citation: 527 F. Supp. 290
• Court: U.S. District Court — District of South Carolina
• Parties: Robert George WATKINS, Plaintiff, v. M & M TANK LINES, INC., Defendant.

527 F. Supp. 290

Robert George WATKINS, Plaintiff, v. M & M TANK LINES, INC., Defendant.

Civ. A. No. 80-1803-1.

United States District Court, D. South Carolina, Charleston Division.

December 7, 1981.

J. Robert Peters, Jr., Peters, Murdaugh, Parker, Eltzroth & Detrick, P. A., Hampton, S. C., for plaintiff.

Raymond S. Baumil and Cody W. Smith, Jr., Solomon, Kahn, Smith & Baumil, Charleston, S. C., for defendant.

ORDER

HAWKINS, District Judge.

This case arises out of an automobile-truck collision which occurred in Allendale County, South Carolina, on April 3, 1975. Plaintiff Robert George Watkins was driving an automobile owned by his mother, Marie L. Cadle; the truck was being driven by an employee of defendant M & M Tank Lines, Inc. who was admittedly acting within the course and scope of his employment.

The court feels it would be helpful to set forth prior developments arising out of the collision in question before it considers the issues involved. An initial law suit was filed against the within defendant in the Court of Common Pleas for Hampton County, South Carolina, by Marie L. Cadle, to recover for damages to her automobile. That suit was subsequently settled before trial. Thereafter, the within plaintiff brought an action against this defendant in the Court of Common Pleas for Hampton County. Defendant removed the case to this court, and on February 22, 1980, the case was voluntarily dismissed without prejudice by order of the Honorable Sol Blatt, Jr. The present action was then filed on September 26, 1980. Discovery was completed and a jury was drawn in February 1981, but the case was not reached for trial. Thereafter, plaintiff's ex-wife, Barbara Watkins, in March 1981, filed a suit for loss of consortium against defendant M & M Tank Lines, Inc. in the Court of Common Pleas for Hampton County. Barbara Watkins was legally married and living with this plaintiff at the time of the collision in April 1975; however, the parties separated in 1979 and were later divorced. The loss of consortium action was tried on September 29, 1981, resulting in a verdict for the plaintiff of five thousand dollars actual damages. All post-trial motions in that case were denied, and no notice of intention to appeal was filed.

Plaintiff's motion for summary judgment only as to liability is now before this court. The motion was heard on November 2, 1981, at which time this court orally granted plaintiff's motion. The purpose of this order is to set forth the considerations of the court in granting this motion.

Plaintiff argued that his motion should be granted pursuant to the doctrine of offensive collateral estoppel. Specifically, he argued that defendant M & M Tank Lines, Inc. should be barred from raising a defense as to liability in the instant case inasmuch as the prior loss of consortium action involved the same issues of negligence and contributory negligence which were joined, litigated and concluded adversely to the defendant.

Because of the fact that the loss of consortium action was tried prior to the establishment of the defendant's liability and not contemporaneously with or subsequent to the establishment of liability, this case presents the rather unique issue of whether a finding of liability in the loss of consortium case is dispositive of the liability issue in subsequent cases arising from the same facts.

This is a diversity action; therefore, this court is governed by the substantive law of the State of South Carolina. See, Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Graves v. Associated Transport, Inc., 344 F.2d 894, 896 (4th Cir. 1965); Birnbaum v. Hall, 101 F.Supp. 605, 607 (E.D.S.C.1951). Defendant M & M Tank Lines, Inc. would have this court look to three South Carolina Supreme Court cases, Hiott v. Contracting Services, 281 S.E.2d 224 (S.C.1981); Gillespie v. Ford, 225 S.C. 104, 81 S.E.2d 44 (1954); and Priester v. Southern Ry. Co., 151 S.C. 433, 149 S.E. 226 (1929), for the proposition that South Carolina has clearly established that a suit for personal injuries by an injured spouse and an action for loss of consortium by the husband or wife of an injured spouse are two separate causes of action involving different parties, and that neither the doctrines of res judicata nor collateral estoppel would bar a subsequent action by either spouse regardless of the outcome of the earlier action. In light of the fact that the Hiott and Gillespie opinions merely quote pertinent language from the Priester opinion without further analysis of the legal issues, the review of South Carolina law by this court will focus on the Priester opinion.

The Priester case involved an action brought in state court by a husband for damages resulting from the loss of service and companionship and expenses suffered by him as a result of injuries suffered by his wife in an automobile-train collision. The defendant appealed a jury verdict for the husband and on appeal argued that it should have been granted a directed verdict by the trial judge because the wife had been unsuccessful in a prior federal court action brought by her and her husband against the same defendant for damages incurred as a result of her injuries. Priester at 435-436, 149 S.E. at 226-227. The South Carolina Supreme Court affirmed the circuit court stating that "the causes of action in the two cases are entirely different and distinct, and the judgment in favor of the defendants in an action on one is not a bar to an action on the other." Id. at 436, 149 S.E. at 227.

This court is of the opinion that the Priester case is not wholly dispositive of the situation now before this court. The Priester court had before it the wife's suit for personal injuries and a suit brought by the husband at common law for damages incurred as a result of "loss of services and companionship and expenses" suffered by him as a result of the injuries to his wife. Id. This court now has before it the wife's suit pursuant to South Carolina Code section 15-75-20, passed in 1969, which allowed her a cause of action for damages incurred as a result of her loss of "companionship, aid, society and services" of her husband. S.C.Code Ann. § 15-75-20 (1976). The Priester court was faced with having to bar the husband's action in its entirety pursuant to the res judicata issue before it. In this case presently before the court, the issue is one of collateral estoppel, that is, whether to bar the relitigation of the issue of defendant's liability.¹

In considering the assertion of offensive collateral estoppel raised by plaintiff Robert George Watkins, this court has found no reported South Carolina Supreme Court cases of assistance. However, this court finds guidance in the United States Supreme Court case of Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979).

In Parklane, the Supreme Court considered the offensive use of collateral estoppel and concluded the following:

We have concluded that the preferable approach ... in the federal courts is not to preclude the use of offensive collateral estoppel, but to grant trial courts broad discretion to determine when it should be applied. The general rule should be that in cases where a plaintiff could easily have joined in the earlier action or where ... the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel.

Id. 439 U.S. at 331, 99 S.Ct. at 651-52 (footnote omitted).

Obviously, Robert George Watkins, plaintiff herein, could not have joined his wife, Barbara, as a co-plaintiff in her prior action for the loss of his consortium. The only proper party to bring such an action was Barbara Watkins....