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Unpublished Opinion No. 2011-UP-260 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.