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McCoy v. Greenwave Enterprises, Inc.

Supreme Court of South Carolina

June 11, 2014

Michael T. McCoy and Arcada J. McCoy, Plaintiffs,
v.
Greenwave Enterprises, Inc., d/b/a Greenwave Amoco I; Al C. Browder, Jr., a/k/a Al C. Browder, Kelly J. Browder, Douglas M. Miles and South Carolina Department of Health and Environmental Control, Defendants, of whom Greenwave Enterprises, Inc., d/b/a Greenwave Amoco I, Al C. Browder, Jr., a/k/a Al C. Browder and Kelly J. Browder are, Appellants, and Douglas M. Miles, is Respondent

Heard February 4, 2014

Appeal from Dorchester County. Appellate Case No. 2012-212498. Doyet A. Early, III, Circuit Court Judge.

Lee W. Zimmerman and Amber B. Carter, of McNair Law Firm, PA, of Columbia, and Robert C. Lenhardt, Jr., of Lenhardt Law Firm, LLC, of Charleston, for Appellants.

Andrew T. Shepherd and Katherine H. Hyland, of Hart Hyland Shepherd, LLC, of Summerville, for Respondent.

JUSTICE KITTREDGE. TOAL, C.J., PLEICONES, BEATTY and HEARN, JJ., concur.

OPINION

Page 137

[408 S.C. 357] KITTREDGE JUSTICE

This case involves a claim for equitable indemnification, which was denied by the trial court. Appellants were sued by adjacent property owners regarding environmental contamination. Appellants denied responsibility for the contamination and cross-claimed against the previous property owner, who was responsible for the damage. Because Appellants were not responsible for the ground contamination, the trial court granted summary judgment in favor of Appellants but declined [408 S.C. 358] to award Appellants the attorney's fees and costs incurred in defending the lawsuit. We reverse and remand.

I.

In 1981, Respondent Douglas M. Miles purchased a parcel of property (Property) in Dorchester County, South Carolina, and began operating a service station. In July 1989, Miles discovered a petroleum leak from the underground storage tanks on the property. Shortly thereafter, the Department of Health and Environmental Control (DHEC) confirmed the release, for which it determined Miles was responsible, and began remediation activities. Subsequently, DHEC continued to monitor the site through periodic groundwater sampling. In 2003, DHEC discovered that several groundwater monitoring wells were destroyed and demanded that Miles replace them.[1]

In May 2004, Miles entered into a purchase agreement to sell the Property and service station to Appellants. Despite his knowledge of the groundwater and environmental contamination of the Property, as well as DHEC's monitoring of the situation, Miles failed to disclose this information to the Appellants. Miles represented in the purchase agreement that no claim, litigation, proceeding, or investigation was pending or threatened that would materially and adversely affect the Property.

II.

In 2007, adjacent property owners (the McCoys) filed an action against DHEC and Appellants alleging that their property was damaged by the petroleum release. Appellants cross-claimed against Miles for breach of the purchase agreement and equitable indemnification for the attorney's fees and costs they incurred defending the McCoys' lawsuit. After discovery concluded, the trial court granted summary judgment in favor of Appellants as to the McCoys' claims and as to Appellants' cross-claim against Miles. Specifically, the trial court found that Miles breached the purchase agreement by failing to disclose the petroleum release and destruction of the [408 S.C. 359] monitoring wells.[2] The trial court found Miles was liable for " all costs and expenses incurred by the ...


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