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 

injuries suffered by the employees.1

 

 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 

 

 1Home also paid Green Thumb $4,210 for property damage and 

towing charges. Recovery of these amounts is not involved in 

this appeal. 
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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 

 2Home 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.