Ashley II of Charleston LLC v. PCS Nitrogen Inc

Filing 742

ORDER directing the parties to submit briefs setting forth their positions on certification of question to the SC Supreme Court by 8/15/2013. (Brief due by 8/15/2013.) Signed by Honorable Margaret B Seymour on 8/8/2013. (mdea )

Ashley II of Charleston LLC v. PCS Nitrogen Inc

Doc. 742

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Ashley II of Charleston, L.L.C.,

)
)
Plaintiff,
)
)
vs.
)
)
PCS Nitrogen, Inc.,
)
)
Defendant/Third-Party Plaintiff,
)
)
vs.
)
)
Ross Development Corporation;
)
Koninklijke DSM N.V.; DSM Chemicals )
of North America, Inc.; James H.
)
Holcombe; J. Holcombe Enterprises, L.P.; )
J. Henry Fair, Jr.; Allwaste Tank Cleaning, )
Inc.; Robin Hood Container Express; and )
the City of Charleston,
)
)
Third-Party Defendants.
)
____________________________________)

Civil Action No. 2:05-2782-MBS

ORDER AND OPINION

The court held a status conference on February 4, 2013, at which it requested that PCS
Nitrogen, Inc. and Ross Development Corporation submit additional briefing to assist the court in
interpreting the indemnity contract at issue. ECF No. 707. The court has reviewed the parties'
submissions. Ross argues that the indemnity contract language should not be read to mean that costs
jointly attributable to PCS' and Ross' actions are recoverable, as the indemnity contract does not
expressly indemnify PCS, the indemnitee, for losses resulting from its own negligence. Ross'
position relies on the interpretive rule that an indemnity contract will not be construed to indemnify
the indemnitee against losses resulting from its own negligent acts unless such intention is expressed
in clear and unequivocal terms. See Laurens Emergency Med. Specialists, PA v. M.S. Bailey & Sons
Bankers, 584 S.E.2d 375, 378-79 (S.C. 2003) (citing Fed. Pac. Elec. v. Carolina Prod. Enter., 378

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S.E.2d 56 (S.C. Ct. App. 1989)). However, CERCLA is a strict liability statute, and the court has
made no finding of fault in this case. Although the losses PCS incurred are partially the
consequence of its own conduct, as PCS argues, those losses are not the result of its own negligence.
The question raised here is whether the rule that courts are to construe indemnity contracts against
providing for the indemnification of negligent indemnitees applies when an entity seeks contractual
indemnification for its own strict liability conduct. The answer to this question, which is potentially
dispositive here, does not appear to be directly controlled by any precedent of the Supreme Court
of South Carolina.
The court is considering certifying that issue to the Supreme Court of South Carolina
pursuant to Rule 244 of the South Carolina Appellate Court Rules. The court orders that the parties
each submit a brief (no longer than five pages) setting forth its position on certification, as well as
proposed language for a certified question. Furthermore, if the parties are in agreement that the
question requires certification and are able to propose a consent certification order to the court, they
should do so. The deadline for submission is August 15, 2013.
IT IS SO ORDERED.

s/ Margaret B. Seymour
Margaret B. Seymour
Senior United States District Judge
Columbia, South Carolina
August 8, 2013

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