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Tort/Negligence – Contribution Among Joint Tortfeasors Act – First Impression – Unnamed Tortfeasor – Plaintiff Chooses Rule

Tort/Negligence – Contribution Among Joint Tortfeasors Act – First Impression – Unnamed Tortfeasor – Plaintiff Chooses Rule

Smith v. Tiffany (Lawyers Weekly No. 010-026-17, 23 pp.) (John Kittredge, J.) (Costa Pleicones, Acting Justice, dissenting) Appealed from Saluda County Circuit Court (R. Lawton McIntosh, J.) S.C. S. Ct.

Holding: Once plaintiff settled with one of the alleged tortfeasors in an auto accident, that tortfeasor was immune from suit (pursuant to a covenant not to execute), and the named defendants could not add him as a defendant or a third-party defendant.

We affirm the circuit court’s grant of Corbett Mizzell’s motion for summary judgment.


The defendant-truck driver parked his truck near the entrance to a gas station. According to Corbett Mizzel, the truck blocked the view of oncoming traffic for anyone attempting to exit the station. Mizzell “eased forward to get a better view of oncoming traffic,” and at that point his vehicle collided with the vehicle of plaintiff, who was traveling down U.S. 178.

Plaintiff settled with Mizzell and signed a covenant not to execute.

Plaintiff filed suit against the truck driver and his employers. The employer defendants (appellants) sought to add Mizzell as a defendant or to name him as a third-party defendant. The circuit court granted summary judgment for Mizzell.


Appellants concede that Mizzell did not breach any duty of care owed to them; rather, appellants assert that they are entitled to apportionment based on an independent contribution claim against Mizzell.

Our well-established rules of statutory interpretation prevent us from accepting appellants’ invitation to look outside the text of the Contribution Among Joint Tortfeasors Act (the Act) to justify an assumption that the legislature’s use of different terms – “defendants” and “potential tortfeasors” – in S.C. Code Ann. § 15-38-15 was not deliberate or that those words mean anything other than what they say.

Achieving a more fair apportionment of damages among joint tortfeasors was one of the policy goals underlying the legislature’s enactment of the Act; however, the legislature was also attempting to strike a fair balance for all involved – plaintiffs and defendants – and to do so in a way that fosters settlements.

A critical feature of the statute is the codification of the empty chair defense – a defendant retains the right to assert that another potential tortfeasor, whether a party or not, contributed to the alleged injury or damages – which necessarily contemplates lawsuits in which an allegedly culpable person or entity is not a party to the litigation (hence the chair being “empty”).

Appellants’ proposed result would turn the Act on its head to benefit non-settling defendants at the expense of plaintiffs and those who do settle. That is not the balance the General Assembly struck in the Act. A plain reading of the words “defendant” and “defendants” in § 15-38-15(C) reveals the legislature’s intent to allow only a “defendant” or “defendants” to be listed on the jury form and included in the allocation of fault.

A non-party is subject to impleader only if there is a basis to assert he is liable to the named defendant(s) for all or part of the plaintiff’s claim. The question becomes: is Mizzell subject to liability to appellants for all or part of plaintiff’s claim against appellants? Under these circumstances, the legislature has answered this question in the negative.

The covenant not to execute included language protecting Mizzell from any further liability to plaintiff in excess of the agreed-upon settlement amount. Even though, by its terms, a covenant not to execute discharges the settling tortfeasor’s liability only as to the plaintiff, in § 15-38-50 the legislature expanded the scope of a settling tortfeasor’s immunity to include protection from liability to non-settling tortfeasors. Specifically, § 15-38-50 provides, “When a release or covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury … it discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.”

Thus, Mizzell is immune from any liability to defendants as non-settling alleged tortfeasors, by virtue of § 15-38-50. Absent any potential liability to either the plaintiff or to non-settling defendants, impleader under Rule 14, SCRCP is not proper.

For many reasons, including the “plaintiff chooses” rule, mere joint tortfeasors are not necessary or indispensable parties to an action under Rule 19, SCRCP. We find nothing in the text of the Act that evinces a clear legislative intent to abrogate two centuries of common law establishing a plaintiff’s right to choose which tortfeasors, if any, she will sue. Absent explicit and unmistakable legislative intent to abrogate this well-established right, a joint tortfeasor remains merely a permissive party and joinder under Rule 19 is not required for complete relief to be accorded.



(Pleicones, Acting Justice) The 2005 amendments to the Act require that in an action to recover damages resulting from, inter alia, personal injury or damage to property, the fact-finder must apportion 100 percent of fault between the plaintiff and “each defendant whose actions are the proximate cause of the indivisible injury….” See § 15-38-15. Further, the Act requires that, if a defendant is less than 50 percent at fault, he is only liable to the plaintiff for the percentage of the damage he individually caused; however, if the defendant is 50 percent or more at fault, he is jointly and severally liable for the total damage to the plaintiff. See § 15-38-15(A).

The General Assembly and this court have taken steps to modernize tort law, first by removing the bar to contribution among tortfeasors, then by adopting comparative negligence, and finally by abrogating pure joint and several liability. In my opinion, this evolution requires that the common law “plaintiff chooses” rule yield to the public policies expressed by the General Assembly in the Act.

Permitting a named defendant to join as a third-party defendant an alleged joint tortfeasor who is immune from contribution gives effect to the intent of the General Assembly, satisfying the literal language of the Act.

Mizzell’s absence from this lawsuit deprives the fact-finder of the ability to allocate fault rationally and subjects appellants, as well as the plaintiff, to a flawed allocation of fault, which in turn could cause unfair exposure to joint and several liability with no recourse to seek contribution.

Accordingly, in order to give effect to the public policy decisions of the General Assembly, I would hold a defendant may join other potential joint tortfeasors who are immune from contribution under Rule 19, SCRCP.

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