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Equitable Indemnity Only Available to One Without Fault\\n\\nIn Martha M. Fountain and Curtis Fountain v. Fred\'s, Inc. and Wildevco, \\nLLC v. Tippins-Polk Construction, Inc. and Rhoad\'s Excavating Services, \\nLLC, of whom Tippins-Polk Construction, Inc. is the Petitioner, \\nAppellate Case No. 2020-000651, Opinion No. 28086, 436 S.C. 40, 871 \\nS.E.2d 166, Supreme Court of South Carolina (Filed March 2, 2022) \\nestablished the requirements for obtaining equitable indemnity.\\n\\nFACTS\\n\\nRespondent Fred\'s was a Tennessee corporation that operated a chain of \\ndiscount general merchandise stores in several states, including South \\nCarolina.\\n\\nIn April 2005, Wildevco entered into a contract with general contractor \\nTippins-Polk for the construction of the Fred\'s store and adjoining \\nstrip center. The construction contract between Wildevco and \\nTippins-Polk included drawings prepared by an architect, as well as site\\n plans prepared by an engineer. The contract specifically stated that \\nTippins-Polk was responsible for "All Site Work," including "[g]rading, \\nconcrete curbing, utilities & paving [p]er site plans."\\n\\nWildevco provided Tippins-Polk with two sets of construction \\ndrawings\\u2014the architectural drawings, which established the design \\nelements including the sidewalk surrounding the store, and the site \\nplans, which controlled the grading, elevations, pavement, and \\nunderground utilities. \\nIf an inspection had taken place, it would have been visible to the \\nnaked eye that an elevation change in the sidewalk existed and was not \\npainted yellow.\\n\\nFive years after the Fred\'s store opened, Ms. Fountain hit her head and \\nhand on the glass door and fell to her knees. I \\n\\nThe case was set for a date certain trial in March 2016. On the eve of \\ntrial, Wildevco and Fred\'s settled with the Fountains for $290,000, with\\n Wildevco paying $250,000 and Fred\'s paying $40,000.\\n\\nThe general theory of the third-party claim was that Tippins-Polk \\ndeviated from the site plans and improperly constructed the entrance \\ncurbing, which was the sole proximate cause of Ms. Fountain\'s injuries. \\nAs to the relevant elements of equitable indemnification, the trial \\ncourt found a special relationship existed between Fred\'s and \\nTippins-Polk.\\n\\nEQUITABLE INDEMNIFICATION\\n\\nSouth Carolina has long recognized the principle of equitable \\nindemnification. \\xa0Indemnity is that form of compensation in which a \\nfirst party is liable to pay a second party for a loss or damage the \\nsecond party incurs to a third party.\\n\\nTippins-Polk argued that it was error to affirm the finding that \\nWildevco and Fred\'s were without fault.\\n\\nSpecial Relationship\\n\\nAs a matter of equity, a party is entitled to indemnity if the relation \\nbetween the parties is such that either in law or in equity there is an \\nobligation on one party to indemnify the other, as where one person is \\nexposed to liability by the wrongful act of another in which he does not\\n join. The trial court and court of appeals found the connection between\\n\\nWithout Fault\\n\\nSince there was no evidence in the record that either Fred\'s or Wildevco\\n warned of or attempted to remedy the trip hazard identified by their \\nown safety expert, despite the condition existing for almost five years \\nbefore the accident occurred. In sum, Fred\'s and Wildevco failed to \\nestablish they were without fault in the Fountains\\u2019 premises liability \\naction.\\n\\nBecause the Supreme Court found Respondents failed to establish they \\nwere without fault in the underlying action, the trial court verdict was\\n reversed.\\n\\nZALMA OPINION\\n\\n(c) 2023 Barry Zalma & ClaimSchool, Inc.\\n\\n\\nGo to the Insurance Claims Library \\u2013 \\nhttp://zalma.com/blog/insurance-claims-library.