JKT Co., Inc. v. Hardwick
| Decision Date | 30 May 1984 |
| Docket Number | No. 0329,0329 |
| Citation | 284 S.C. 10,325 S.E.2d 329 |
| Court | South Carolina Court of Appeals |
| Parties | JKT COMPANY, INC., Plaintiff, v. Grady HARDWICK, d/b/a Hardwick Roofing and Sheet Metal Company, Easley Lumber Company, The Celotex Corporation, John H. Alschuler and John H. Alschuler, Inc., Defendants, of whom: Grady Hardwick, d/b/a Hardwick Roofing and Sheet Metal Company is Respondent-Appellant, Easley Lumber Company is Respondent-Appellant, and The Celotex Corporation is Appellant-Respondent. . Heard |
D.W. Green of Green, Sasser & Beverly, Conway, and John Gregg McMaster of Tompkins, McMaster & Thomas, Columbia, for appellant-respondent.
Robert M. McInnis, North Myrtle Beach, M.M. Weinberg, Sumter, James P. Stevens and George M. Hearn, Loris, for respondents-appellants.
The sole question we must decide in these appeals is whether a defendant who incurs attorneys' fees and other expenses of litigation in the successful defense of a third-party's claim may seek indemnification for these expenses against a codefendant who is found liable, even though the defendant would not have been entitled to indemnification if he had been found liable. We hold that such a defendant has no right of indemnification against his codefendant for these expenses of litigation.
The underlying case was a suit for damages by the plaintiff JKT Company, Inc., for a faulty roof on its office building and warehouse. To the extent pertinent to these appeals, the defendants were The Celotex Corporation, the manufacturer and seller of the roofing material, Easley Lumber Company, the general contractor, and Grady Hardwick, the roofing subcontractor. The suit was based upon negligence and breach of express and implied warranties.
The complaint's allegations of negligence charged Celotex with supplying defective roofing materials. The allegations against Easley and Hardwick, on the other hand, centered on the actual construction of the roof. For example, the complaint charged them with negligence in (1) allowing certain materials to be exposed to weather and become unsuitable for use in the roof, (2) improperly "brooming" and "distributing" the "asphalt on the felts," (3) failing to construct the roof according to the plans and specifications of the owner, and (4) failing to construct the roof in a workmanlike manner.
Easley and Hardwick asserted cross-complaints against Celotex seeking indemnification for any liability and all damages they might incur arising out of JKT's suit. The trial judge withdrew the cross-complaints from the jury's consideration, reserving for himself the question of indemnification.
The jury returned a general verdict against Celotex and Easley in the sum of $150,000.00. On appeal, the Supreme Court affirmed the verdict against Celotex but reversed the verdict against Easley, ruling that the trial judge should have granted Easley's motion for judgment n.o.v. JKT Company, Inc. v. Hardwick, 274 S.C. 413, 265 S.E.2d 510 (1980). Thus, both Easley and Hardwick were exonerated on all possible theories, and Celotex was the only party found liable to JKT.
Following the Supreme Court's decision, Easley and Hardwick renewed their cross-claims for indemnification from Celotex and requested the trial court to award them the attorneys' fees and the expenses of litigation they incurred in defending against JKT. See Ex parte Stevens, Stevens & Thomas, P.A., 277 S.C. 150, 283 S.E.2d 444 (1981) (). After an evidentiary hearing, the trial judge awarded Easley $15,000.00 for attorneys' fees and $4,000.00 for expenses and costs. The court awarded Hardwick $10,000.00 for attorneys' fees and $903.57 for costs.
Celotex, Easley, and Hardwick each appeal from this ruling. Celotex contends Easley and Hardwick have no right of indemnity from it for attorneys' fees and other expenses of litigation. Easley's and Hardwick's separate appeals contest the sufficiency of the amounts awarded them. We sustain Celotex's appeal that Easley and Hardwick are not entitled to indemnification. We therefore need not consider Easley's and Hardwick's appeals.
The would-be indemnitees, Easley and Hardwick, incurred attorneys' fees and other expenses of litigation in defending against allegations of their own wrongful acts. A review of the complaint's allegations, stated above, shows that the charges of negligence against Easley and Hardwick are independent of the charges against Celotex. The conclusion is inescapable that had a general verdict been rendered against the three defendants, then the liability of Easley and Hardwick would have been grounded upon a finding that their personal negligence joined in causing JKT's injury. This would have been tantamount to a finding that Easley and Hardwick were joint tortfeasors with Celotex. Of course, in South Carolina there is no right of indemnity among joint tortfeasors. Stuck v. Pioneer Logging Machinery, Inc., 279 S.C. 22, 301 S.E.2d 552 (1983). Because Easley and Hardwick would not have been entitled to indemnification from Celotex if found liable to JKT, we conclude they therefore have no right to indemnification for attorneys' fees and other expenses of litigation incurred in their successful defense of JKT's claim.
Easley and Hardwick rely upon the decision of Addy v. Bolton, 257 S.C. 28, 183 S.E.2d 708 (1971), to support their claims for indemnification. Addy is the only South Carolina case involving a right of implied indemnity for attorneys' fees incurred in defending a claim for which another is held liable. In Addy, the lessees of a building sued the lessor and the general contractor hired by the lessor for damages they suffered from a fire that started while the general contractor was making repairs on the building. The lessees alleged that the joint and concurrent negligence of the lessors and the contractor caused the damage. By way of answer, the lessors alleged the fire was caused by the sole negligence of the contractor. The lessors filed a cross-action against the contractor for indemnification for any liability they would incur to the lessees, together with the costs of the action and attorneys' fees for defending the lessees' suit. The trial judge directed a verdict against the lessors on the cross-action, and the jury returned a verdict against the contractor only. On appeal, the Supreme Court reversed the trial court's direction of a verdict against the lessors on their cross-action to recover attorneys' fees and the costs incurred in resisting the lessees' claim....
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