Recent Publication (and Summary of South Carolina Non-Contractual Indemnification, Contribution, and Comparative Negligence Law)

As I have stated in prior posts, my law firm is a member of the Primerus society of law firms, and I am on its Products Liability Executive Committee.  Toward the latter part of 2011, our committee decided to do a compendium in which we would provide a state-by-state summary of the law of non-contractual indemnity.  We sought out volunteers for each state, provided a form template, and requested summaries for each state.  We requested that authors be sure to include any nuances specific to products liability law in their summary.

It was quite a bit of work.  In addition to writing the submission for South Carolina, I also reviewed ten or fifteen submissions for other states in order to ensure some measure of uniformity for each summary. 

The compendium in its entirety is now online, and you can find it at this link.  Although our Products Liability Group took the lead on it (and it includes substantial products liability case law), it is also a good primer on the general law of non-contractual indemnification, contribution, and fault allocation for each state.  My submission for South Carolina can be found here.  In it, you will find a general summary of South Carolina's comparative negligence law, its Uniform Contribution Among Tortfeasors Act, joint and several liability, the law of equitable (non-contractual) indemnification, and contribution.

With regard to any nuances in South Carolina relating to products liability law, the primary one relates to the fact that there is no right of equitable indemnity between mere joint tortfeasors.  Vermeer v. Wood/Chuck Chipper Corp., 336 S.C. 53, 64, 518 S.E.2d 301, 307 (Ct. App. 1999) (citing Scott v. Fruehauf Corp., 302 S.C. 364, 396 S.E.2d 354 (1990); Stuck v. Pioneer Logging Machinery, Inc., 279 S.C. 22, 301 S.E.2d 552 (1983); Atlantic Coast Line R.R. v. Whetstone, 243 S.C. 61, 132 S.E.2d 172 (1963)).  As context, joint tortfeasors are parties who act together in committing a wrong, or whose acts (if independent of each other) unite in causing a single injury.  Stated differently, joint tortfeasors are two or more persons jointly or severally liable for the same injury to person or property.  Vermeer, 336 S.C. at 64, 518 S.E.2d at 307 (citing Black’s Law Dictionary 839 (6^th ed. 1990).  “Parties that have no legal relation to one another and who owe the same duty of care to the injured party share a common liability and are joint tortfeasors without a right of indemnity between them.”  Id.  Determining whether parties are joint tortfeasors requires a review of the factual evidence.  Id. 

This is significant in the context of products liability action.  South Carolina’s courts have held that where parties owe the same duty of care and have no legal relationship to one another, then they are joint tortfeasors and have a common liability without a right of equitable indemnity.  Scott, 302 S.C. at 371, 396 S.E.2d at 358.  For example, South Carolina’s strict liability statute makes each party in the chain of distribution (e.g., manufacturer, distributor, retailer) liable for sale of a defective product.  Vermeer, 336 S.C. at 65, 518 S.E.2d at 307-08 (citing to S.C. Code § 15-73-10 (1977)).  Therefore, if a plaintiff is injured by a product and sues a party in the chain of distribution, there is no right of indemnification between the parties in the chain of distribution.  See, e.g., Scott v. Fruehauf Corp., 302 S.C. 364, 396 S.E.2d 354 (1990) (holding there was no right of indemnity between co-defendants involved in distribution of a defective wheel assembly that exploded and injured plaintiff because both co-defendants shared common liability under South Carolina’s strict liability law).  Each party has a common duty and common liability to the ultimate consumer under the strict liability statute, making them joint tortfeasors. Conversely, if a party-defendant’s use of a product plays a role in causing injury to a plaintiff (independent of any fault of the alleged tortfeasor), then the product seller may be liable for indemnification.  See, e.g., Stuck v. Pioneer Logging Machinery, Inc., 279 S.C. 22, 301 S.E.2d 552 (1983) (holding that purchaser of mechanical harvesting machine had right of indemnity against seller in case where harvesting machine was mounted on truck, caused purchaser to lose control of truck, and ultimately caused injury to passengers in oncoming vehicle).

You can find all of the above and more in the South Carolina submission.  Enjoy.

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