May 18, 2016
from Saluda County R. Lawton McIntosh, Circuit Court Judge
McRoy Shelley, III, and Steven T. Moon, both of Rogers
Townsend & Thomas, PC, of Columbia for Appellants.
P. Sloan, III, and Kristen B. Fehsenfeld, both of Pierce,
Herns, Sloan & Wilson, LLC, of Charleston, Ralph Kennedy,
of Kennedy Law Firm, LLC, of Batesburg-Leesville and Robert
T. King, of King, Love & Hupfer, LLC, of Florence, for
G. Utsey, III, of Peters Murdaugh Parker Eltzroth &
Detrick, PA, of Walterboro and John S. Nichols of Bluestein,
Nichols, Thompson & Delgado, LLC, of Columbia, for Amicus
Curiae The South Carolina Association for Justice.
appeal from a trial court order granting Respondent Corbett
Mizzell summary judgment, thereby dismissing Appellants'
third party complaint. We affirm.
underlying dispute arises from a motor vehicle accident in
December 2012 in Saluda County in which Respondent Walter
Smith was injured. Smith settled with Mizzell for the policy
limits of Mizzell's liability coverage in exchange for a
covenant not to execute. Smith then sued Appellants, claiming
Appellants' negligence was a proximate cause of the
accident. The issue before this Court stems from
Appellants' efforts to have Mizzell added as a defendant.
In the South Carolina Contribution Among Joint Tortfeasors
Act (Act), the legislature abrogated pure joint and several
liability for tortfeasors who are less than fifty percent at
fault. The Act directs the fact-finder to apportion
one-hundred percent of the fault between the plaintiff and
"each defendant whose actions are the proximate cause of
the indivisible injury." S.C. Code Ann. §
15-38-15(C)(3) (Supp. 2016).
urged the trial court to construe the Act, with a helping
hand from our rules of civil procedure, to permit the
addition of Mizzell as a defendant. The trial court rejected
Appellants' various arguments and, in granting Mizzell
summary judgment, applied the Act as written. In affirming
the trial court, we are likewise constrained by the plain
meaning of the unambiguous language in the Act. While we
appreciate the equity-driven argument of Appellants, we must
honor legislative intent as clearly expressed in the Act,
lest we run afoul of separation of powers.
case arises out of an automobile collision that occurred on
U.S. 178 in Saluda County in December 2012. Defendant Norman
Tiffany was a commercial driver employed by Brown Trucking
Co. (Brown Trucking) and Brown Integrated Logistics, Inc.
(Brown Logistics), which owned and operated Tiffany's
commercial vehicle. On the morning of the accident,
Tiffany's commercial vehicle was disabled and parked
along the shoulder of U.S. 178, adjacent to the exit of a gas
station. Mizzell had stopped at the gas station, and as he
attempted to exit the parking lot, his view of oncoming
traffic was obstructed by Tiffany's truck positioned
alongside the highway. According to Mizzell, because the
truck was obstructing his view, he "eased forward to get
a better view of oncoming traffic, " and at that point
his vehicle collided with the vehicle of Respondent Walter
Smith who was traveling down U.S. 178.
liability carrier tendered the limits of Mizzell's
liability policy to Smith. In return, Smith signed a covenant
not to execute in favor of Mizzell. Thereafter, Smith filed
suit against Tiffany, Brown Trucking, and Brown Logistics,
alleging his injuries were proximately caused by
Tiffany's negligent positioning of the commercial motor
vehicle which completely obstructed the view of vehicles
attempting to exit the gas station. Smith alleged that since
Tiffany was acting within the course and scope of his
employment at the time of the accident, Brown Trucking and
Brown Logistics were liable under the doctrine of respondeat
superior. In addition to claiming Tiffany was negligent,
Smith's complaint also alleged three other causes of
action specifically against Brown Trucking and Brown
Logistics: (1) negligent entrustment; (2) negligent hiring,
supervision, and retention; and (3) negligent maintenance.
Essentially, Smith alleged Brown Trucking and Brown Logistics
were negligent in entrusting Tiffany with a commercial motor
vehicle despite knowing Tiffany lacked proper training,
experience, and knowledge of state and federal laws governing
the parking and standing of commercial motor vehicles and
that Brown Trucking and Brown Logistics were negligent in
failing to ensure the commercial motor vehicle Tiffany drove
was properly inspected and maintained to ensure the
vehicle's hazard equipment functioned appropriately.
their answer, Brown Trucking and Brown Logistics
(collectively "Appellants") raised, in a shotgun
approach, numerous affirmative defenses seeking to have
Mizzell added as a defendant, including "Fault of
Others" and "Failure to Join Indispensable
Party/Rule 19 SCRCP." Appellants also asserted a
third-party complaint under Rule 14, SCRCP, naming Mizzell as
a third-party defendant. The gist of Appellants'
third-party claims was that Mizzell was responsible for a
significant portion of the plaintiff's injuries and that
Appellants were therefore entitled to a determination of
Mizzell's proportion of the fault, even though Mizzell
had already settled with the plaintiff and was immune from
further liability. Appellants' third-party complaint
offered several alternative theories to justify apportioning
fault to Mizzell: (1) a declaratory judgment cause of action
seeking a determination as to Mizzell's portion of
liability; (2) a standalone cause of action under section
15-38-15 of the Act seeking apportionment of fault to
Mizzell; (3) joinder of Mizzell as an indispensable party
under Rule 19, SCRCP; (4) third-party negligence under Rule
14, SCRCP; and (5) the due process clauses of the United
States and South Carolina constitutions. Appellants concede
Mizzell did not breach any duty of care owed to them; rather,
Appellants assert they are entitled to apportionment based on
an independent contribution claim against Mizzell.
filed a motion for summary judgment as to Appellants'
third-party claims. Specifically, Mizzell contended he was
entitled to judgment as a matter of law on Appellants'
third-party claims because he neither owed nor breached any
duty to Appellants as third-party plaintiffs. Mizzell further
contended that section 15-38-50 of the Act discharged him a
settling tortfeasor from liability for contribution to any
trial court granted summary judgment and dismissed the
third-party claims against Mizzell. As to the third-party
negligence claim, the trial court found Mizzell was entitled
to judgment as a matter of law because there was no evidence
that Mizzell breached any duty owed to Appellants or that
Appellants suffered any damages purportedly caused by
Mizzell. The trial court further found there was no basis for
adding Mizzell as a party, reasoning that Mizzell's
inclusion in the action was not necessary for the just
adjudication of Smith's claims under Rule 19, SCRCP, that
the third-party complaint was not proper under Rule 14,
SCRCP, and that Appellants' due process rights were not
violated by the inability to join Mizzell or include him on
the verdict form for purposes of allocation. This direct
appeal, Appellants contend the trial court erred in failing
to permit Mizzell to be named as a party and included on the
verdict form so as to enable the jury to include Mizzell in
the apportionment of fault for the accident. Appellants
contend their claim derives from the statutory language added
to the Act in 2005. At the outset, we note Appellants do not
contend that any provision of the Act is ambiguous.
axiomatic that statutory interpretation begins (and often
ends) with the text of the statute in question. See
Timmons v. S.C. Tricentennial Comm'n, 254 S.C. 378,
401, 175 S.E.2d 805, 817 (1970) ("If a statute is clear
and explicit in its language, then there is no need to resort
to statutory interpretation or legislative intent to
determine its meaning."); see also Transp. Ins. Co.
v. S.C. Second Injury Fund, 389 S.C. 422, 429, 699
S.E.2d 687, 690 (2010) ("The text of a statute as
drafted by the legislature is considered the best evidence of
the legislative intent or will." (citing Hodges v.
Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000))).
Absent an ambiguity, there is nothing for a court to
construe, that is, a court should not look beyond the
statutory text to discern its meaning. "[T]here is no
occasion for employing rules of statutory interpretation and
the court has no right to look for or impose another
meaning" unless a statutory provision is ambiguous.
Paschal v. State Election Comm'n, 317 S.C. 434,
436, 454 S.E.2d 890, 892 (1995) (citing Miller v.
Doe, 312 S.C. 444, 441 S.E.2d 319 (1994)); see also
Tilley v. Pacesetter Corp., 355 S.C. 361, 373, 585
S.E.2d 292, 298 (2003) (observing that unless a statute is
ambiguous, "the application of standard rules of
statutory interpretation is unwarranted"). Only
"[w]here the language of an act gives rise to doubt or
uncertainty as to legislative intent" may the construing
court "search for that intent beyond the borders of the
act itself." Kennedy v. S.C. Ret. Sys., 345
S.C. 339, 348, 549 S.E.2d 243, 247 (2001) (citing Lite
House, Inc. v. J.C. Roy Co., 309 S.C. 50, 53, 419 S.E.2d
817, 819 (Ct. App. 1992)).
light of these well-established rules of statutory
interpretation, we are unwilling to accept Appellants'
invitation to look outside the text of the Act to justify the
assumption that the legislature's use of differing
terms-"defendants" and "potential
tortfeasors"-in section 15-38-15 was not deliberate or
that those words mean anything other than what they say.
See Hodges, 341 S.C. at 87, 533 S.E.2d at 582
("If the legislature's intent is clearly apparent
from the statutory language, a court may not embark upon a
search for it outside the statute." (citing Abell v.
Bell, 229 S.C. 1, 91 S.E.2d 548 (1956))); see also
CFRE, LLC v. Greenville Cty. Assessor, 395 S.C. 67, 74,
716 S.E.2d 877, 881 (2011) ("[T]he words found in the
statute [must be given] their 'plain and ordinary meaning
'" and "if the words are unambiguous, we must
apply their literal meaning." (quoting Sloan v.
Hardee, 371 S.C. 495, 498, 640 S.E.2d 457, 459 (2007))).
acknowledge that achieving a more fair apportionment of
damages among joint tortfeasors was one of the policy goals
underlying the legislature's enactment of the Act. We
disagree that fair apportionment was the only
underlying policy goal. Indeed, when the Act is read as a
whole, with each section and subsection given effect, it is
apparent that the legislature was not solely attempting to
protect nonsettling defendants. Rather, the legislature was
attempting to strike a fair balance for all
involved-plaintiffs and defendants-and to do so in a way that
promotes and fosters settlements. See Riley v. Ford Motor
Co., 414 S.C. 185, 196, 777 S.E.2d 824, 830 (2015)
("[T]he Act represents the Legislature's
determination of the proper balance between preventing
double-recovery and South Carolina's 'strong public
policy favoring the settlement of disputes.'"
(quoting Chester v. S.C. Dep't of Pub. Safety,
388 S.C. 343, 346, 698 S.E.2d 559, 560 (2010))); Centex
Int'l, Inc. v. S.C. Dep't of Revenue, 406 S.C.
132, 139, 750 S.E.2d 65, 69 (2013) ("'[T]he statute
must be read as a whole and sections which are a part of the
same general statutory law must be construed together and
each one given effect.'" (quoting S.C. State
Ports Auth. v. Jasper County, 368 S.C. 388, 398, 629
S.E.2d 624, 629 (2006))); see also S.C. Code Ann.
§ 15-38-50(2) (2005 & Supp. 2016) (providing that a
settling tortfeasor, by virtue of his good-faith settlement
with the claimant, is not liable for contribution to any
the Act sets forth in section 15-38-15(B) and (C) a detailed
method for apportioning fault "among defendants."
Further, and perhaps in recognition of the perceived inequity
complained of by Appellants, the General Assembly took steps
to protect nonsettling defendants by codifying a nonsettling
defendant's right to argue the so-called empty chair
defense in subsection (D) and, in subsection (E), the right
to offset the value of any settlement received prior to the
verdict-a right which arises by operation of law and is not
within the discretion of the courts. See Smith v.
Widener, 397 S.C. 468, 472, 724 S.E.2d 188, 190 (Ct.
App. 2012) (holding a nonsettling defendant's right to
setoff arises by operation of law, and it is not within the
discretion of the trial court to apply setoff). Thus, a
critical feature of the statute is the codification of the
empty chair defense-a defendant "retain[s] the right to
assert 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 in question being
the statutory provisions are construed as a whole-the
legislature's use of the differing terms
"defendants" in subsections (B) and (C) and
"potential tortfeasor, whether or not a party" in
subsection (D) with the mandatory offset in subsection
(E)-the clear intent of the General Assembly is not ambiguous
and does not allow for the result sought by Appellants.
Rather, were we to accept Appellants' argument, and vary
from the provisions of the Act in this case to
purportedly enhance the propsects of a more equitable result
in this case, we would create a host of concerns,
for Appellant's desired result would require (1) a
plaintiff to maintain a suit against someone with whom he has
already settled; (2) a settling defendant to defend a lawsuit
he has already settled; (3) this Court to ignore the
legislature's express acknowledgement in section
15-38-15(D) that not all potential tortfeasors will
necessarily be parties to the suit; and (4) would create a
conflict with other provisions of the Act, including sections
15-38-15(E) and 15-30-50(1), which address a nonsettling
defendant's right to setoff. The most prominent obstacle
to Appellants' approach is separation of powers, for we
must defer to the will of the legislature as expressed in the
Act. If the policy balance struck by the legislature in Act
is to be changed, that prerogative lies exclusively within
the province of the Legislative Branch.
we have not had occasion to address the precise question
prior to today, today's result is dictated by the Act.
The General Assembly in the Act struck the balance among
competing policy concerns it deemed appropriate. We defer to
the policy decisions of the General Assembly. For example, in
Riley v. Ford Motor Co., we noted that a nonsettling
defendant may not "fashion and ultimately extract a
benefit from the decisions of those who do [settle]."
414 S.C. at 197, 777 S.E.2d at 831 (explaining "[i]f the
position of a nonsettling defendant is worsened by the terms
of a settlement, this is the consequence of a refusal to
mission were simply to achieve equity on a case by case
basis, we would not necessarily disagree with Appellants and
the dissent. But wherever the balance is struck, one can
easily imagine scenarios where the result may be inequitable.
The point remains-absent a constitutional prohibition, where
the General Assembly has spoken and established policy,
separation of powers demands that courts honor the
legislative policy determination. Moreover, Appellants'
proposed result, advanced by the dissent, would turn the Act
on its head to benefit nonsettling defendants at the expense
of plaintiffs and those who do settle. That is not the
balance the General Assembly struck in the Act. In honoring
separation of powers, we adhere to the principle that a court
must not reject the legislature's policy determinations
merely because the court may prefer what it believes is a
more equitable result.
explained by this Court in Machin v. Carus Corp.,
___ S.C. ___, ___ S.E.2d ___(2017), a plain reading of the
words "defendant" and "defendants" in
section 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." Id. at
___, ___S.E.2d at ___. In reaching this conclusion, we
examined the recent decision of Walker v. Tensor
Machinery Ltd., 779 S.E.2d 651 (Ga. 2015), in which the
Supreme Court of Georgia held that a jury may assess a
percentage of fault to an immune nonparty. Critical to the
Walker analysis was the language in the relevant
Georgia statute, which provides "[i]n assessing
percentages of fault, the trier of fact shall consider the
fault of all persons or entities who contributed to
the alleged injury or damages, regardless of whether the
person or entity was, or could have been, named as a party to
the suit." Georgia Code Ann. § 51-12-33(c)
(emphasis added). In light of this language, as we observed
in Machin, the result in Walker is
understandable based on the Georgia statute. However, in
stark contrast to the Georgia statute, our legislature
determined that fault may be allocated only to "the
plaintiff and to the defendants" and requires that
"the total of the percentages of fault attributed to the
plaintiff and to the defendants must be one hundred
percent." S.C. Code Ann. § 15-38-15(C)(3). Thus,
guided by the language of the Act and with respect for the
legislature's prerogative, this Court held that fault may
not be apportioned to an immune nonparty under the Act.
Machin, ___ S.C. at ___, ___S.E.2d at ___.
finally, we reject the implication that a rule of civil
procedure somehow trumps the Act. Appellants rely on Rules 14
and 19, SCRCP, to support the addition of Mizzell to the
underlying litigation and inclusion on the verdict form.
provides "a defending party, as a third-party plaintiff,
may cause a summons and complaint to be served upon a person
not a party to the action who is or may be liable to
him for all or part of the plaintiff's claim against
him." Rule 14(a), SCRCP (emphasis added). Consequently,
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
Smith's claim against Appellants? Under these
circumstances, the legislature has answered the question in
analysis is straightforward. Mizzell is not subject to
liability for any part of Smith's claims based on the
covenant not to execute he obtained from Smith. The covenant
not to execute included language protecting Mizzell from any
further liability to Smith 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 section 15-38-50 the legislature
expanded the scope of a settling tortfeasor's immunity to
include protection from liability to nonsettling tortfeasors.
Specifically, section 15-38-50 provides that "[w]hen 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" (emphasis
added). Thus, by the terms of the covenant not to execute,
Mizzell has no additional liability to Smith, and Mizzell is
also immune from any liability to non-settling alleged
tortfeasors Tiffany, Brown Trucking, and Brown Logistics by
virtue of section 15-38-50. Absent any potential liability to
either the plaintiff or to nonsettling defendants, impleader