Travelers Ins. Co. v. Allstate Ins. Co.
| Decision Date | 15 June 1967 |
| Docket Number | No. 18669,18669 |
| Citation | 249 S.C. 592,155 S.E.2d 591 |
| Parties | The TRAVELERS INSURANCE COMPANY, Appellant, v. ALLSTATE INSURANCE COMPANY and E. D. Bessinger, II, Respondents. |
| Court | South Carolina Supreme Court |
R. M. Kennedy, Jr., Columbia, for appellant.
Sims & Sims, Orangeburg, Turner, Padget, Grahan & Laney, Columbia, for respondents.
The circuit judge sustained the respondents' demurrer to the complaint of the appellant, and dismissed the action. The ground of the demurrer is that the complaint does not state facts sufficient to constitute stitute a cause of action in that one tortfeasor is seeking contribution from another tort-feasor on a judgment rendered against both. This court is now asked to review and reverse the order of the lower court.
The relevant allegations of the complaint, which must be accepted as true for the purpose of the demurrer, are in essence as follows:
That Robert M. Gray procured a verdict in the amount of $25,000, representing actual damages, against Raymond Barnes, Bradley E. Pou, Reichhold Chemicals, Incorporated, James C. DeLoach, and E. D. Bessinger, II;
That the verdict and judgment entered thereon arose out of a collision which occurred between an automobile operated by the respondent E. D. Bessinger, II, in which Gray was riding as a guest passenger, and a truck operated by the defendants Barnes and Pou, and also a tractor trailer owned by Reichhold Chemicals, Incorporated, and operated by James C. DeLoach;
That judgment was entered in Bamberg County against all of the named defendants in that action and all became joint judgment debtors of Gray. Barnes and Pou are insolvent;
That Gray was a guest passenger of Bessinger at the time and the verdict against him was based on intentional acts or recklessness under Section 46--801 of the South Carolina Code, commonly called the Guest Passenger Statute, and that the verdict against Reichhold and its driver DeLoach was based on a finding of simple negligence;
That the acts of Reichhold's driver DeLoach and the acts of Bessinger were independent of and without concert, act or agreement;
That the appellant Travelers Insurance Company was the liability insurance carrier for Reichhold and DeLoach, and that the respondent Allstate Insurance Company was the liability insurance carrier for Bessinger;
That counsel for Gray, after demand by Travelers, refused to call upon Allstate and Bessinger for any payment on the judgment, and that it became necessary for Travelers Insurance Company on behalf of Reichhold and DeLoach to pay the entire judgment under threat of attachment, which payment has been made and judgment satisfied;
That such payment resulted in unjust enrichment of the respondents and that the respondents should be made to contribute to the payment of the judgment.
The prayer for relief asks that the respondents herein be required to contribute to the payment of the judgment by payment to the appellant of an amount equal to one-half of the judgment.
Upon hearing the demurrer, Judge John Grimball sustained the demurrer in a well-reasoned order, holding that under the law of this state one tort-feasor may not require contribution from another tort-feasor where both are burdened with a common judgment growing out of a single collision.
By exceptions the appellant alleges three grounds of error against the lower court: (1) that the circuit judge erred in holding that the complaint did not allege a valid cause of action on a joint judgment debt should be borne equally and that payment by the appellant alone resulted in unjust enrichment; (2) that the circuit judge erred in refusing to hold that contribution should be allowed under one of the common law exceptions to the common law rule denying right to contribution between joint tortfeasors; and (3) that the circuit judge erred in considering matters outside the complaint in reaching his decision to sustain the demurrer.
Throughout this case each insurance carrier is in the same legal position as its insured. A liability insurance carrier only contracts to pay any debt the insured is liable to pay. The motor vehicle liability policy approved by State law, Section 46--750.32, requires a liability policy to protect the insured 'against loss from the liability imposed by law for damages arising out of the ownership,' etc. The obligation of the insurance carrier is established by contract and cannot be changed by this court or even by the General Assembly since Article I, Section 8, of the South Carolina Constitution forbids the Legislature to enact any law impairing the obligation of contracts.
The Legislature could by statute change the substantive law of this State as relates to the obligations of joint tortfeasors and could provide for contribution; and this court might accomplish the same purpose by overruling its previous decisions. But the obligation of insurance carriers as established by contract may not be changed without first altering the rights and obligations of the parties they insure. The debt to Gray as established in the original trial has been paid on behalf of one joint tortfeasor and when that debt was obliterated, the other joint tort-feasor was completely released and, accordingly, he has not and cannot suffer a loss and there is no debt existing for his own insurance carrier to pay. Bessinger cannot be made to pay under the substantive law of this State and Allstate has never contracted to protect anyone else. Any other ruling would, in effect, make a new contract for the parties. Accordingly, the demurrer of Allstate is equally as strong or as weak, as that of Bessinger. Allstate cannot be directed to pay unless and until Bessinger is first liable and directed to pay. American Fidelity & Casualty Co. v. Zurich, General Acc. & Liab. Ins. Co., D.C., 70 F.Supp. 613; Hills v. Price, D.C., 79 F.Supp. 494; 60 A.L.R.2d 1388.
In passing upon the demurrer, the court is limited to a consideration of the pleading under attack. All of the factual allegations of the complaint that are properly pleaded are, for the purpose of such consideration, deemed admitted. When a fact is pleaded, whatever inferences of law of conclusions of fact may properly arise from it are to be regarded as embraced in such averment. Alderman v. Bivin, 233 S.C. 545, 106 S.E.2d 385.
The demurrer admits the facts alleged in the complaint, but does not admit the inferences drawn by plaintiff from such facts and it is for the court to determine whether such inferences are justifiable.
In the recent (1963) case of Atlantic Coast Line Railroad Company v. Whetstone 243 S.C. 61, 132 S.E.2d 172, this court adhered to the common law rule relating to contribution:
The complaint does not in words denominate Reichhold and Bessinger as joint tort-feasors, but the conclusion is inescapable from the four corners of the complaint. The averment that the action of these two judgment debtors was independent of and without concert or agreement is not inconsistent with their being joint tort-feasors, and the very gravamen of the action and the resulting judgment upon which the appellant herein relies are bottomed upon the proposition that both Bessinger and Reichhold's driver DeLoach were guilty of actionable negligence (recklessness and negligence respectively) proximately causing injury to Gray.
Under the law of this State, one injured by the actionable negligence of two or more joint tort-feasors may elect that party or parties whom he will sue and may pursue the collection of a judgment procured against any one or more of the judgment debtors.
The fact that a claim has proceeded to an actual judgment and has been paid does not alter the rights of the parties. In determining whether a joint judgment debtor may be required to contribute, the courts look to the relationship of the parties prior to entry of the judgment.
The rule is set forth in 18...
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