Attorneys in South Carolina have appellate guidance on an unresolved issue for the first time since the South Carolina Legislature enacted the last round of tort reform in 2005. Both plaintiff and defense lawyers argued their interpretation was correct when it came to apportionment of fault for a non-party or for a settling defendant. The position advanced by plaintiffs was that a settling defendant no longer in the case could not be placed on the verdict form for apportionment of the fault. Plaintiffs would point to the plain language of the statute, which stated that the sum of the fault of the "defendants" and any for the plaintiff must equal 100%. Conversely, defendants would take the position that because the statute allowed the defendant to argue the "empty chair" defense, and because pure joint and several liability was abolished and available only if a defendant was found to be greater than 50% at fault, that it was necessary for a jury to apportion fault to a non-party tortfeasors.

In the case of Smith v. Tiffany, Smith was injured when he was struck by Mizzell's vehicle as Mizzell was exiting a gas station on a rural highway. Mizzell argued that a commercial vehicle parked on the shoulder of the highway obscured his view as he exited the gas station and caused him to strike Smith's vehicle. A partial settlement between Smith and Mizzell was reached when Mizzell's carrier tendered limits in exchange for a covenant not to execute judgment.

Thereafter, Smith filed a lawsuit against the trucking company and its driver ("Defendants"). Defendants answered and filed a third-party complaint against the at-fault driver (Mizzell) arguing that because Mizzell was responsible for a significant portion of Smith's injuries, Defendants were entitled to a jury determination of Mizzell's alleged fault even though he had already settled with Smith.

Mizzell filed a motion for summary judgment as to Defendants' third-party claims alleging he neither owed nor breached any duty to Defendants. He also contended that section 15-38-50 of the Uniform Contribution Among Joint Tortfeasors Act ("the Act") discharged him from liability for contribution to any other tortfeasor because he was a settling tortfeasor. The trial court granted summary judgment and dismissed all third-party claims against Mizzell.

On direct appeal to the South Carolina Supreme Court, Defendants contended the trial court erred in failing to permit Mizzell to be named as a party and to be included on the verdict form so as to enable the jury to include Mizzell in the apportionment of fault for the accident. The Court disagreed and discussed the longstanding "plaintiff chooses" rule. It applied a strict reading of the Act, specifically as it related to the terms "defendants" and "potential tortfeasors," and the Court found no reason to believe the use of these terms by the legislature was not deliberate or that those terms meant anything other than what they said.

While the Court acknowledged 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, it was not the goal. The Court further stated that reading the Act as a whole evidenced the legislature's attempt to not only protect non-settling defendants, but "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." In this regard, the Court noted that the non-settling Defendants were not left without a remedy under the Act, as Defendants were entitled to a set-off for the settlement of Mizzell by operation of law, and Defendants were afforded the opportunity to argue the empty chair defense, which was codified in the Act. The Court noted a defense verdict under the empty chair defense was a viable option as Plaintiff was still required to carry the burden of proof as to breach of duty and proximate cause.

The Court noted to have adopted the position advanced by Defendants and allowing Mizzell to be on the verdict form would create a host of concerns by requiring:

(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 non-settling defendant's right to setoff.

In sum, South Carolina Courts are going to give great deference to a plaintiff's decision about who it decides to sue. A defendant is now restricted in its ability to third-party a settling joint tortfeasor into a lawsuit because the Act discharges the liability of that settling defendant. Most importantly, non-party tortfeasors cannot be allowed on a verdict form for purposes of apportionment of fault, although the Supreme Court has reaffirmed the empty chair defense.