Lightner v. Duke Power Co.

• Decision Date: 20 July 1989
• Docket Number: Civ. A. No. 3:89-422-16.
• Citation: 719 F. Supp. 1310
• Court: U.S. District Court — District of South Carolina
• Parties: Moses LIGHTNER, Plaintiff, v. DUKE POWER COMPANY, Defendant and Third Party Plaintiff, v. FORD NEW HOLLAND, INC., Third Party Defendant.

719 F. Supp. 1310

Moses LIGHTNER, Plaintiff, v. DUKE POWER COMPANY, Defendant and Third Party Plaintiff, v. FORD NEW HOLLAND, INC., Third Party Defendant.

Civ. A. No. 3:89-422-16.

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

July 20, 1989.

William R. Sims, Strickland Short & Keels, P.A., Chester, S.C., for plaintiff.

Stanley T. Case, Butler, Means, Evins & Browne, Spartanburg, S.C., for Duke Power Co.

Robert A. Bernstein, Turner, Padget, Graham & Laney, Columbia, S.C., for Ford New Holland, Inc.

ORDER

HENDERSON, District Judge.

This matter is before the Court on motion of third party defendant Ford New Holland, Inc.¹ ("Ford") to dismiss the third party complaint brought by defendant and third party plaintiff Duke Power Company ("Duke") under Fed.R.Civ.P. 12(b)(6) or in the alternative for summary judgment pursuant to Fed.R.Civ.P. 56. The third-party complaint arises out of the primary action in which plaintiff Moses Lightner ("Lightner") sued Duke for negligence. Lightner alleges that Duke by its agents left a metal bolt on the grounds of a school in Chester County where Lightner was employed as a maintenance man. Lightner alleges that he and another employee were cutting the grass at the school when the other mower operator ran over the bolt and propelled it at a high speed into Lightner's back, causing him permanent injury. Lightner claims that Duke was negligent in the following particulars:

(a) In permitting debris to accumulate at or near where its agents and/or servants had been working;

(b) In failing to inspect for such debris both during and after performing its work;

(c) In failing to warn the Plaintiff of such by signs, personnel, or barricades.

Complaint, at 6.

In its third party complaint Duke seeks indemnification and, in the alternative, contribution from Ford, the manufacturer of the lawnmower. Duke claims that Ford is solely liable for any injury to Lightner under theories of strict liability, breach of warranty and negligence. The third-party complaint also seems to allege that Ford is directly liable to Duke for strict liability, breach of warranty and negligence.

Ford moves to dismiss the third party complaint on several grounds. First, Ford alleges that a third party action under Fed. R.Civ.P. 14(a) is improper if it merely states that the third party defendant is or may be liable to the original plaintiff without stating a claim in favor of the third party plaintiff. Second, Ford claims that indemnity is not proper where, as here, a defendant is sued for its own negligence and is not forced to defend solely against allegations of another's wrongful conduct. Ford also argues in response to the indemnification claim that Duke and it, if liable, are joint tortfeasors and indemnification is therefore barred. Furthermore, Ford claims that Duke may not maintain a direct action against it for strict liability, breach of warranty or negligence for reasons specific to each of those causes of action. Last, Ford claims that, because Lightner's injury occurred before enactment of the South Carolina Contribution Among Joint Tortfeasors Act, S.C.Code Ann. §§ 15-38-10 et seq., the common-law rule denying contribution among joint tortfeasors applies to this action.

In addition, Duke has moved to dismiss the plaintiff as a party because he is not the real party in interest under Fed.R. Civ.P. 17(a) or, in the alternative, to join the South Carolina School Board Insurance Trust as a party pursuant to Fed.R.Civ.P. 19(a).

I.

Ford resists Duke's indemnity claim based on Ford's alleged negligent manufacture of the lawnmower because Duke is not required by Lightner's negligence claims to defend solely the acts of Ford. According to the allegations of Lightner's complaint, Duke must defend its own alleged negligence in failing to remove the metal bolt after its agents had completed work on a power transformer on the school property. Duke contends that the sole proximate cause of the accident was the defective lawnmower and that Duke's alleged negligence was at most an indirect cause of the accident. Duke further argues that its alleged negligence is entirely separate from Ford's negligence and that the parties are not joint tortfeasors.

If the parties are joint tortfeasors, contribution may be allowed under S.C. Code Ann. § 15-38-20 (Law.Co-op.Supp. 1988), but indemnity is not allowed. Atlantic Coast Line Railroad Company v. Whetstone, 243 S.C. 61, 132 S.E.2d 172 (1963). In Whetstone, the court noted:

"Ordinarily, if one person is compelled to pay damages because of negligence imputed to him as the result of a tort committed by another, he may maintain an action over for indemnity against the person whose wrong has thus been imputed to him; but this is subject to the proviso that no personal negligence of his own has joined in causing the injury."

Thus, at least in the absence of a contractual or legal relation between the parties, one who is himself negligent cannot maintain an action for indemnity. See McCain Manufacturing Corp. v. Rockwell International Corp., 695 F.2d 803 (4th Cir.1982). Moreover, in JKT Co. v. Hardwick, 284 S.C. 10, 325 S.E.2d 329 (Ct.App.1984), the state court of appeals disallowed indemnification for the costs of a successful defense because the party seeking indemnity was sued for its own acts of negligence. The court noted:

The parties seeking indemnity were defending against their own alleged wrongful acts, which if proven, would have barred them from seeking indemnification over against Celotex. Their liability upon the allegations of the complaint would not have been constructive, vicarious, derivative, or technical, but rather on account of the `active participation in the wrong.' Because they would not have been entitled to indemnification if found liable on the claim, neither are they entitled to indemnification for expenses of litigation incurred in successfully defending against the claim.

Id. at 16, 325 S.E.2d at 333 (citation omitted).

The Court first notes that Lightner has alleged against Duke no cause of action arising from the allegedly defective condition of the lawnmower; instead Lightner has asserted only the negligence of Duke's own employees. Applying the principles set forth above to Duke's indemnity claim based on negligence, the Court concludes that, if it is determined Duke's negligence proximately caused Lightner's injury, whether solely or in conjunction with Ford, Duke would not be entitled to indemnification for it would itself be negligent; moreover, it has alleged no contractual or legal relationship with Ford. Whetstone, 243 S.C. 61, 132 S.E.2d 172. Alternatively, if Duke establishes Ford is the sole cause of the injury, Duke would not be entitled to indemnification for its liability because it would have none; it also could not be indemnified for expenses incurred in successfully defending the action because it would have defended only against acts of its own negligence. JKT, 284 S.C. 10, 325 S.E.2d 329. It would not have defended against negligence imputed to it as the result of a tort committed by Ford, but instead would have defended against its own conduct using Ford's negligence as a defense to causation. Duke's claim for indemnification based on Ford's alleged negligence, therefore, is dismissed.

Likewise, Duke cannot maintain an action against Ford for negligently causing Duke to be sued. To the extent, if any, Duke's third-party complaint alleges that Ford's negligent manufacture of the lawnmower caused Duke to be sued by Lightner, it is dismissed for the same reasons the indemnification claim based on negligence is dismissed. Moreover, Duke does not allege and the Court does not discern any duty flowing from Ford to Duke to produce a lawnmower free from defects. Furthermore, Duke, if liable to plaintiff, will have suffered only intangible economic loss which is not recoverable in a negligence action. 2000 Watermark Association, Inc. v. The Celotex Corp., 784 F.2d 1183 (4th Cir.1986).

Duke also claims that Ford is liable for indemnification based on strict liability and breach of warranty. Duke relies primarily on Stuck v. Pioneer Logging Machinery Co., 279 S.C. 22, 301 S.E.2d 552 (1983). In Stuck the South Carolina Supreme Court held that "a right of indemnity exists whenever the relation between the parties is such that either in law or equity there is an obligation on one party to indemnify the other, as where one person is exposed to liability by the wrongful act of another in which he does not join." Id. at 24, 301 S.E.2d at 553. In Stuck, the indemnitee ("buyer") bought a used and modified truck from the indemnitor ("seller") on the seller's assurance that the truck was suitable for hauling logs. During the first attempt to so use the truck, the buyer's employee depressed the brakes, lost control of the vehicle and had a serious accident. After settling the claim brought by a man killed in the accident, the buyer sought indemnity from the seller. The Supreme Court upheld the lower court's indemnity award. It concluded:

Buyer's action is not based on negligence. He asserts that seller is liable on grounds separate from any purported fault of his: seller sold a defective product in an unreasonably dangerous condition, and it breached its warranty that the truck was roadworthy. This action is not based upon any claimed right of indemnity from a joint tortfeasor. Rather, it is an action to recover damages sustained by the buyer from the seller's failure to ensure the safe condition of the equipment it sold the buyer. Under the facts of this case, the buyer's failure to discover and correct the latent defects and correct the seller's breach of warranties cannot excuse the breach and defeat the buyer's claim.

Id., 301 S.E.2d at 553. Duke claims that under Stuck it has a claim for indemnity based on strict liability and breach of warranty because the allegedly defective lawnmower was the sole cause...