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2011-UP-260 - McGonigal's Flamingo v. RJG Construction Company

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

McGonigal's Flamingo, Inc., Plaintiff,

v.

RJG Construction Company, Formerly Known as R.J. Griffin & Company, Formerly known as Sebrell/Griffin & Company, Defendants.

RJG Construction Company, Formerly known as R.J. Griffin & Company, Formerly known as Sebrell/Griffin & Company, Third-Party Plaintiff,

     v.

Pegram Associates, Inc., Bonsal American, Inc., B&R Painting Contractors, Inc., Carnell Construction, Inc., Carolina Dee, Cayce Mechanical, Coastal Glass Company, Inc., Ely Wall & Ceilings Corporation, Tim Swanger Company, Spann Roofing and Sheet Metal, Inc., United Electric of Myrtle Beach, Inc., and Atlantic Coast Fire Protection, Third-Party Defendants

Costal Glass Company, Inc., Third-Party Plaintiff,

v.

Acorn Window Systems, Inc., and YKK AP America, Inc., Third-Party Defendants.

of whom RJG Construction Company, Formerly Known as R.J. Griffin & Company, Formerly known as Sebrell/Griffin & Company is the Respondent,

and

Coastal Glass Company, Inc. is the Appellant.


Appeal From Horry County
J. Michael Baxley, Circuit Court Judge


Unpublished Opinion No. 2011-UP-260 
Heard January 11, 2011 – Filed June 7, 2011


AFFIRMED IN PART, REVERSED IN PART


Jonathan J. Anderson, Eric M. Johnsen, all of Charleston, for Appellant.

H. Brewton Hagood, James A. Bruorton, IV, R. Britton Kelly, all of Charleston, for Respondent.

PER CURIAM: This appeal stems from a construction defect suit filed by McGonigal's Flamingo, Inc. (McGonigal), against RJG Construction Co., (RJG) for construction of the Ocean Sands II (the hotel) in North Myrtle Beach, South Carolina.  RJG filed a third-party action against several subcontractors, which included Coastal Glass Company (Coastal).  RJG and many of the subcontractors settled with McGonigal; however, Coastal did not.  RJG filed a contribution claim against Coastal and filed a motion for summary judgment on the basis that Coastal's work was one of the proximate causes of the water intrusion in the hotel.  The circuit court concluded Coastal was a joint tortfeasor under the South Carolina Contribution Among Tortfeasors Act (the Act) and awarded RJG $211,700 plus $8,170.75 in pre-judgment interest. 

On appeal, Coastal argues the circuit court erred in (1) granting summary judgment in favor of RJG's contribution claim because genuine issues of material fact exist as to whether Coastal's work contributed to the water intrusion damage of the hotel; (2) determining the number of tortfeasors for purposes of calculating the pro rata share of liability; (3) determining the common liability amounted to $1,058,500 and concluding Coastal's pro rata share of that liability amounted to $211,700; and (4) awarding RJG $8,170.75 in pre-judgment interest.  We affirm in part and reverse in part.

1. Coastal argues genuine issues of material fact exist as to whether its work contributed to the water intrusion of the hotel because a jury could find the water intrusion resulted from alternative sources such as: (1) McGonigal's failure to properly maintain sealants; (2) the architect's failure to include flashing on the architectural plans; and (3) hotel guests sitting on the Packaged Terminal Air Conditioner (PTAC) units, resulting in the failure of the units' sealants. 

In concluding Coastal was a joint tortfeasor, the circuit court noted the testimony of Mike Adams, Coastal's Rule 30(b)(6), SCRCP witness, and Coastal's expert witness, George Barbour.  During the deposition, Adams was asked, "So to the extent those fasteners [window fasteners that attached the window sill to the concrete slab] provided an avenue for water intrusion into the building [,] that would be attributed to Coastal Glass' scope of work?"  In response, Adams stated, "Yes."  Moreover, Barbour admitted in his deposition that Coastal's work was a source of water intrusion in the hotel.  Based on the testimony of Adams and Barbour, we affirm the circuit court's grant of summary judgment in favor of RJG on the basis that Coastal was a joint tortfeasor.  See Rule 56(c), SCRCP (stating summary judgment is appropriate when there is no genuine issue of material fact such that the moving party must prevail as a matter of law).

2. Coastal asserts the circuit court erred in determining the total number of tortfeasors when it calculated the pro rata share of Coastal's liability.  Specifically, Coastal asserts Pegram Associates, Inc. (Pegram), the architect of the hotel, is a tortfeasor for purposes of calculating the pro rata share of liability because the architectural plans did not require flashing at the heads and sills of the windows and sliding glass doors.  As a result, Coastal contends Pegram's failure to include flashing in the architectural plans constitutes a design defect that resulted in water intrusion of the hotel.

The circuit court's order noted Pegram "did not manufacture or install any exterior component of the building and any issues related to deficiencies in the exterior waterproofing design of the Ocean Sands II was taken into consideration in the discounted settlement amount."  We agree that any design deficiencies relating to Pegram's failure to include flashing on the windows and sliding glass doors were taken into consideration in discounting the settlement amount.  Particularly, Paragraph 3 of the settlement agreement provides,

[McGonigals'] alleged damages in this case, including loss of use, were in excess of $2,800,000 and [McGonigal] has significantly discounted its alleged damages taking into consideration design deficiency issues, owner material selection issues, and a variable business market to compromise on a reasonable settlement of $1,200,000.00.  (emphasis added).

Additionally, Coastal contends McGonigal should be considered a tortfeasor for purposes of determining the pro rata share of liability because McGonigal failed to properly maintain the sealant joints and perform routine maintenance of the hotel.  We conclude Coastal's argument is without merit because a plaintiff cannot be a tortfeasor for its own injuries.  See G&P Trucking v. Parks Auto Sales Serv. & Salvage, Inc., 357 S.C. 82, 90, 591 S.E.2d 42, 46 (Ct. App. 2003) (stating an injured party cannot be a tortfeasor, let alone a joint tortfeasor, as to its own injury).

3. Coastal further contends the circuit court erred in interpreting common liability pursuant to the Act and argues common liability is the "amount representing the total damages caused by the negligence of all defendants."  Based on this definition, Coastal claims the total settlement agreement amount of $1,200,000 represents the common liability and that this amount should be divided by (1) the ten settling tortfeasors or (2) the ten settling tortfeasors plus Coastal.  In addition, Coastal argues the circuit court's calculation of Coastal's pro rata share of liability in the amount of $211,700 was improper.  We disagree. 

In determining common liability, the circuit court noted the settlement agreement allocated $1,058,500 to water intrusion damage of the hotel.  The circuit court then divided the common liability of $1,058,500 by the five tortfeasors who settled for water intrusion damage.  We conclude the circuit court did not err in finding the $1,058,500 represents the appropriate amount of common liability, and Coastal's pro rata share of the common liability amounted to $211,700.  The circuit court properly considered equitable principles in calculating the common liability in determining the pro rata share.[1]  See S.C. Code Ann. § 15-38-30 (2005) (stating in pertinent part, if equity requires, the collective liability of some as a group shall constitute a single share).

4. Finally, Coastal argues RJG is barred from recovering pre-judgment interest because South Carolina case law requires a party to plead pre-judgment interest.  The record reveals RJG failed to plead pre-judgment interest.  Therefore, the circuit court's award of pre-judgment interest constitutes reversible error.  See Tilley v. Pacesetter Corp., 355 S.C. 361, 375-76, 585 S.E.2d 292, 299 (2003) (holding pre-judgment interest was not recoverable when the party claiming entitlement to pre-judgment interest did not plead pre-judgment interest).

Accordingly, the circuit court's decision is

AFFIRMED IN PART and REVERSED IN PART.

FEW, C.J., SHORT and WILLIAMS, JJ., concur.


[1] Coastal argues the allocation of damages of the building envelope is "not based upon any discernable factual basis when it is noted that within that group are the tub/shower enclosures, which do not make up a portion of the exterior envelope and those excluded from the group include those responsible for the roof, the exterior balconies and walkways, and the designer of the exterior envelope and its waterproofing, the architect."   However, Coastal did not dispute the reasonableness of the settlement agreement at the summary judgment hearing.