Toomer v. Norfolk Southern Ry. Co.

• Court: Court of Appeals of South Carolina
• Citation: 544 S.E.2d 634,344 S.C. 486
• Decision Date: 20 February 2001
• Docket Number: No. 3303.,3303.
• Parties: Linda TOOMER, Laura M. Simpson, and Tammy Taylor, Personal Representatives of the Estate of Lamont Leon Livingston, Deceased, Plaintiffs, v. NORFOLK SOUTHERN RAILWAY COMPANY, South Carolina Department of Transportation, Orangeburg County, and Frankie Lee Tyler, Defendants, Of whom Norfolk Southern Railway Company, is, Appellant, and Frankie Lee Tyler is Respondent.

344 S.C. 486
544 S.E.2d 634

Linda TOOMER, Laura M. Simpson, and Tammy Taylor, Personal Representatives of the Estate of Lamont Leon Livingston, Deceased, Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, South Carolina Department of Transportation, Orangeburg County, and Frankie Lee Tyler, Defendants, Of whom Norfolk Southern Railway Company, is, Appellant, and
Frankie Lee Tyler is Respondent

No. 3303.

Court of Appeals of South Carolina.

Heard January 9, 2001.

Decided February 20, 2001.

Rehearing Denied April 23, 2001.

344 S.C. 488

Robert L. Widener, Robert W. Dibble and Robert A. Muckenfuss, all of McNair Law Firm, of Columbia, for appellant

William P. Davis and Kirby D. Shealy, III, both of Baker, Barwick, Ravenel & Bender, of Columbia, for respondent.

GOOLSBY, Judge:

Norfolk Southern Railway Company appeals the grant of summary judgment in favor of Frankie Lee Tyler on its cross-claim for equitable indemnity. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

On May 18, 1995, Lamont Leon Livingston was riding as a passenger in a vehicle driven by Frankie Lee Tyler on South Carolina highway S-38-1029 in Orangeburg, South Carolina. As the vehicle attempted to cross a train track owned by the

344 S.C. 489

Norfolk Southern Railway Company ("Norfolk Southern"), a Norfolk Southern train struck the vehicle, resulting in fatal injuries to Livingston

On May 14, 1997, in their capacities as personal representatives of the Estate of Livingston, plaintiffs Linda Toomer, Laura M. Simpson, and Tammy Taylor commenced a survival action and a suit for wrongful death against Norfolk Southern, the South Carolina Department of Transportation, Orangeburg County, and Tyler, alleging negligence and joint and several liability. In its answer Norfolk Southern asserted cross-claims for contractual and equitable indemnity against Tyler.

Tyler moved for summary judgment on the cross-claims in both actions. In response to the motion, Norfolk Southern acknowledged that no contract existed between itself and Tyler and dropped its cross-claims for contractual indemnity. On the remaining claim for equitable indemnity, the trial court granted summary judgment, finding: (1) "the requirement of a special relationship remains the law in South Carolina"; and (2) since "[t]here was no contractual, master/servant, contractor/subcontractor or other relationship between Defendant Tyler and Norfolk Southern at the time of the collision ... no cause of action for equitable indemnity lies between Tyler and Norfolk Southern." Norfolk Southern appeals.

LAW/ANALYSIS

Norfolk Southern argues a special relationship between the parties is not a prerequisite for recovery under a claim for equitable indemnity and, therefore, summary judgment was improper. We disagree.

I.

Summary judgment is appropriate when it is clear there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.¹ It is not appropriate,

344 S.C. 490

however, where further inquiry into the facts of the case is desirable to clarify the application of the law.²

A party opposing a summary judgment motion on an indemnification claim, even though the motion is based primarily upon the complaint, has the two-fold burden of demonstrating a genuine issue of material fact regarding the opposing party's lack of liability and a genuine issue of material fact regarding the moving party's liability. The failure to meet this two-fold burden is fatal to the indemnification claim.³

All ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the moving party.⁴

II.

South Carolina has long recognized the principle of equitable indemnification.⁵

Indemnity is that form of compensation in which a first party is liable to pay a second party for a loss or damage the second party incurs to a third party. A right to indemnity may arise by contract (express or implied) or by operation of law as a matter of equity between the first and second party.⁶

Courts have traditionally allowed equitable indemnity in cases of imputed fault or where some special relationship

344 S.C. 491

exists between the first and second parties.⁷ According to the principles of equity, the right exists "whenever the relation between the parties is such that either in law or in 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."⁸

In Winnsboro I,⁹ this court was asked to determine the indemnification issues between a contractor and subcontractor named as codefendants in a suit alleging breach of contract, negligence, and fraud. The general contractor,...