VERMEER CAROLINA'S v. Wood/Chuck Chipper, No. 3005.

• Court: Court of Appeals of South Carolina
• Writing for the Court: ANDERSON.
• Citation: 518 S.E.2d 301,336 S.C. 53
• Parties: VERMEER CAROLINA'S, INC., Appellant, v. WOOD/CHUCK CHIPPER CORPORATION, Respondent.
• Docket Number: No. 3005.
• Decision Date: 01 June 1999

336 S.C. 53
518 S.E.2d 301

VERMEER CAROLINA'S, INC., Appellant,
v.
WOOD/CHUCK CHIPPER CORPORATION, Respondent

No. 3005.

Court of Appeals of South Carolina.

Heard May 11, 1999.

Decided June 1, 1999.

336 S.C. 57

Michael J. Ferri, of Grimball & Cabaniss, of Charleston, for Appellant

Hoover C. Blanton, of McCutcheon, Blanton, Rhodes & Johnson, of Columbia, for Respondent.

ANDERSON, Judge:

Vermeer Carolina's, Inc., filed this action against Wood/ Chuck Chipper Corporation for indemnity or, alternatively, contribution for monies paid as a personal injury settlement with Elbert Causey. The trial court granted Wood/Chuck's motion for summary judgment. Vermeer appeals. We affirm.

FACTS/PROCEDURAL BACKGROUND

Wood/Chuck manufactured a machine called a Model Series V Heavy Duty Chipper. On January 31, 1991, Causey purchased a used chipper from Vermeer. Causey was using the machine to chip logs and branches on August 21, 1992. At some point, Causey turned the machine off, but the rotor blade continued to turn. As Causey brushed away the wood chips that were concealing the rotor, the rotor amputated his right hand.

336 S.C. 58

In his complaint, Causey alleged against Vermeer causes of action for breach of express and implied warranties, strict liability, and negligence. Causey pleaded strict liability and negligent design against Wood/Chuck

On June 26, 1995, the day the trial was to begin, Causey requested a "nonsuit with prejudice for all claims contained in the complaint against Wood/Chuck Chipper Corporation." Over Vermeer's objection, the court issued an order granting Causey's motion. Vermeer did not appeal this order.

Instead of proceeding with the trial, Vermeer and Causey settled the case. Under the terms of the settlement, Vermeer made a lump sum payment to Causey of $200,000 and agreed to make monthly payments of $926 to Causey for the next five years. The settlement check, which was dated July 5, 1995, was posted to Causey's attorney's account on August 19, 1995. Yet, the agreement was not fully executed until September 5, 1995. The settlement agreement provided: "This Agreement and Release shall be come [sic] effective following execution by all parties." Causey, his wife, and his attorney signed the agreement on August 14, 1995. Vermeer's counsel signed it on August 21, 1995. A representative of Vermeer's insurance carrier signed the agreement on September 5, 1995.

Vermeer instituted this action seeking either indemnification or contribution from Wood/Chuck for the monies paid under the Causey settlement agreement. Wood/Chuck answered averring a general denial, various defenses, and a counterclaim under the South Carolina Frivolous Civil Proceedings Sanctions Act. Wood/Chuck filed a motion for summary judgment, which the trial court granted.

ISSUES

I. Did the trial court err in finding Vermeer was not entitled to indemnification from Wood/Chuck?

II. Did the trial court err in holding Causey's dismissal of Wood/Chuck with prejudice extinguished any right of contribution Vermeer may have had against Wood/Chuck?

III. Did the trial court err in ruling Vermeer was not entitled to seek contribution or indemnification for its settlement of the claim of Mrs. Causey?

336 S.C. 59

IV. Did the trial court err in finding Vermeer's action was barred by the statute of limitations?

STANDARD OF REVIEW

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. Baird v. Charleston County, 333 S.C. 519, 511 S.E.2d 69 (1999); Young v. South Carolina Dep't of Corrections, 333 S.C. 714, 511 S.E.2d 413 (Ct.App.1999); Rule 56(c), SCRCP. See also Wells v. City of Lynchburg, 331 S.C. 296, 501 S.E.2d 746 (Ct.App.1998) (trial court should grant motion for summary judgment when pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and moving party is entitled to judgment as matter of law). In determining whether any triable issue of fact exists, as will preclude summary judgment, the evidence and all inferences which can be reasonably drawn therefrom must be viewed in the light most favorable to the nonmoving party. Strother v. Lexington County Recreation Comm'n, 332 S.C. 54, 504 S.E.2d 117 (1998); Pye v. Aycock, 325 S.C. 426, 480 S.E.2d 455 (Ct.App. 1997). If triable issues exist, those issues must go to the jury. Rothrock v. Copeland, 305 S.C. 402, 409 S.E.2d 366 (1991); Young, supra.

Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law. Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997); Moriarty v. Garden Sanctuary Church of God, 334 S.C. 150, 511 S.E.2d 699 (Ct.App.1999). All ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the moving party. Young, supra; Truck South, Inc. v. Patel, 332 S.C. 222, 503 S.E.2d 774 (Ct.App.1998). Even when there is no dispute as to evidentiary facts, but only as to the conclusions or inferences to be drawn from them, summary judgment should be denied. Young, supra; Moriarty, supra. However, when plain, palpable, and indisputable facts exist on which reasonable minds cannot differ, summary judgment should be granted. Young, supra; Pye, supra.

336 S.C. 60

LAW/ANALYSIS

I. Equitable Indemnification

Vermeer contends the trial court erred in finding Vermeer was not entitled to indemnification from Wood/Chuck. We disagree.

South Carolina has long recognized the principle of equitable indemnification. See Stuck v. Pioneer Logging Machinery, Inc., 279 S.C. 22, 301 S.E.2d 552 (1983); Addy v. Bolton, 257 S.C. 28, 183 S.E.2d 708 (1971). "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." Town of Winnsboro v. Wiedeman-Singleton, Inc. (Winnsboro I), 303 S.C. 52, 56, 398 S.E.2d 500, 502 (Ct.App.1990), aff'd, 307 S.C. 128, 414 S.E.2d 118 (1992) ((Winnsboro II) (citation omitted).

Traditionally, courts have allowed equitable indemnity in cases of imputed fault or where some special relationship exists between the first and second parties. See Winnsboro I; First General Servs. v. Miller, 314 S.C. 439, 445 S.E.2d 446 (1994). 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. Atlantic Coast Line R.R. v. Whetstone, 243 S.C. 61, 132 S.E.2d 172 (1963). This is subject to the proviso that no personal negligence of his own has joined in causing the injury. Id. In Stuck v. Pioneer Logging Machinery, Inc., 279 S.C. 22, 301 S.E.2d 552 (1983), our Supreme Court explained:

We note that the modern trend concerning the right to indemnity is to look to principles of equity. According to equitable principles, a right of indemnity 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

336 S.C. 61

the other, as where one person is exposed to liability by the wrongful act of another in which he does not join.

Stuck, 279 S.C. at 24, 301 S.E.2d at 553.

The law of equitable indemnification allows recovery of expenses when the act of the wrongdoer involves the innocent defendant in litigation or places him in such relation with others as makes it necessary to incur expenses to protect his interest. See Addy v. Bolton, 257 S.C. 28, 183 S.E.2d 708 (1971). "Expenses" under the Addy rule include any costs which are reasonably necessary to defend litigation or otherwise protect the innocent party's interest. This Court, in Griffin v. Van Norman, 302 S.C. 520, 397 S.E.2d 378 (Ct.App. 1990), determined settlement costs were recoverable in a cause of action for indemnity. In Griffin, Van Norman (home seller) employed an exterminator to provide a Wood Infestation Report required by the Griffins (home buyers) before the sale of the house could be complete. After the sale was consummated, the Griffins discovered the report was false. The Griffins initiated an action alleging fraudulent representation against Van Norman and the exterminating company. Van Norman filed a cross-claim averring "`any damage suffered by the Plaintiffs in this matter is due to the negligence or misrepresentation of the [exterminator].'" Each defendant separately settled with the Griffins. The cross-claim proceeded to a trial before the judge without a jury. The judge ruled in favor of Van Norman against the exterminator, awarding judgment in the amount paid to the Griffins as settlement. This Court, in affirming the trial court's award of indemnification to Van Norman, instructed:

It was the contention of the Exterminator in the court below and here that the Exterminator and the Home Seller were joint tortfeasors. The trial judge found that the Home Seller "does not base her claim against [the Exterminator] upon an alleged right of indemnification from joint tortfeasors. Rather, she claims that any damages suffered by the Griffins were the result of [the Exterminator's] sole negligence or misrepresentation." The judge further found "that the loss suffered by the Griffins [Home Buyers] was occasioned solely by the wrong of the defendant [Exterminator]." Furthermore, he found "there is no evidence that Van Norman [Home Seller] took an active role in the

336 S.C. 62

alleged fraud perpetuated [sic] upon the Griffins." The evidence proves conclusively that she had no knowledge that the certification was false. The Exterminator submits no proof to the contrary. The findings and

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