Present: All the Justices
TINA MARIE CARR
v. Record No. 950005 OPINION BY JUSTICE ELIZABETH B. LACY
November 3, 1995
THE HOME INSURANCE COMPANY,
AS SUBROGEE FOR ITS INSURED,
GREEN THUMB ENTERPRISES
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
In this case we consider whether an uninsured motorist
insurance carrier can assert a claim for equitable
indemnification from the uninsured motorist based on the
carrier's payment of its insured's damage claim.
On December 4, 1991, an automobile accident occurred
between two vehicles, one driven by Tina Marie Carr and the
other driven by an employee of Green Thumb Enterprises (Green
Thumb). As a result of the accident, the Green Thumb vehicle
was damaged and its driver and a passenger, also an employee of
Green Thumb, were injured. Carr's liability insurance carrier
denied coverage. Green Thumb sought uninsured motorist
coverage from its insurer, The Home Insurance Company (Home).
Home settled with Green Thumb paying it $29,500 for personal
1
injuries suffered by the employees.
Two years and six days after the accident, Home filed a
motion for judgment against Carr alleging that Carr's
negligence caused the accident. Home, as Green Thumb's
1
Home also paid Green Thumb $4,210 for property damage and
towing charges. Recovery of these amounts is not involved in
this appeal.
subrogee, sought recovery of the "amount paid by them on behalf
of their insured as a result of [Carr's] negligence." Carr
filed a plea of the statute of limitations asserting that the
action was untimely because, as Green Thumb's subrogee, Home
was required to bring the action within the two-year period
prescribed for personal injury actions in Code § 8.01-243(A).
Prior to consideration of Carr's plea, Home was allowed to
file an amended motion for judgment seeking recovery against
Carr based on "contribution and/or implied or equitable
indemnification." Thereafter, the trial court denied Carr's
plea, finding that Home's motion for judgment was timely filed
because actions for contribution or indemnification accrue at
the time "the contributee or the indemnitee has paid or
discharged the obligation." Code § 8.01-249(5). The trial
court subsequently granted Home's motion for summary judgment
and entered judgment against Carr. We awarded Carr an appeal.
Carr asserts here, as she did below, that the facts of the
case did not support Home's claim for equitable indemnification
and that Home's sole cause of action against her was a personal
injury action as Green Thumb's subrogee. 2 We agree. Equitable
indemnification arises when a party without personal fault, is
nevertheless legally liable for damages caused by the
2
Home abandoned its claim based on contribution. Although
Home refers to implied indemnification, it uses that term
interchangeably with equitable indemnification and does not
argue that there was an implied contract of indemnification
between Carr and Home.
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negligence of another. Equitable principles allow the innocent
party to recover from the negligent actor for the amounts paid
to discharge the liability. Maryland Casualty Co. v. Aetna
Casualty & Surety Co., 191 Va. 225, 232, 60 S.E.2d 876, 879
(1950); McLaughlin v. Siegel, 166 Va. 374, 377, 185 S.E. 873,
874 (1936).
A prerequisite to recovery based on equitable
indemnification is the initial determination that the
negligence of another person caused the damage. Without that
determination, neither the negligent actor nor the innocent
party can be held liable for the damages claimed. In this
case, at the time Home filed its motion for judgment, there had
been no determination that Carr's actions were negligent or
that her negligence caused the damages claimed by Green Thumb.
Consequently, the elements necessary to support equitable
indemnification in favor of Home were not met.
Under the circumstances of this case, the only cognizable
cause of action available to Home was that of subrogation as
provided in Code § 38.2-2206(G). See United Servs. Auto. Ass'n
v. Nationwide Mut. Ins. Co., 218 Va. 861, 867, 241 S.E.2d 784,
788 (1978). Home did not bring its action seeking recovery
from Carr within the two year limitation period for personal
injury actions. Therefore, the trial court erred in denying
Carr's plea of the statute of limitations.
Accordingly, the judgment of the trial court will be
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reversed and final judgment entered dismissing Home's claim for
amounts paid for personal injuries sustained by Green Thumb's
employees.
Reversed and
final judgment.
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