Bailey v. Owen Elec. Steel Co. of South Carolina, Inc., 1292

• Decision Date: 23 January 1989
• Docket Number: No. 1292,1292
• Citation: 378 S.E.2d 63,298 S.C. 36
• Court: South Carolina Court of Appeals
• Parties: Drayton King BAILEY, Appellant, v. OWEN ELECTRIC STEEL COMPANY OF SOUTH CAROLINA, INC., Respondent. . Heard

Page 63

378 S.E.2d 63

298 S.C. 36

Drayton King BAILEY, Appellant, v. OWEN ELECTRIC STEEL COMPANY OF SOUTH CAROLINA, INC., Respondent.

No. 1292.

Court of Appeals of South Carolina.

Heard Jan. 23, 1989.

Decided Feb. 21, 1989.

J. Robin Turner of Gaines & Turner, Columbia, for appellant.

Charles E. Carpenter, Jr., Donald V. Richardson, III, and Leslie A. Cotter, Jr. of Richardson, Plowden, Grier & Howser, Columbia, for respondent.

SHAW, Judge:

Appellant, Drayton King Bailey, sued respondent, Owen Electric Steel Company of South Carolina, Inc., for work related injuries. From an order of the trial judge granting summary judgment to Owen, Bailey appeals. We affirm.

Owen is in the business of manufacturing steel. The company acquires scrap metal and melts it to produce the steel. In February, 1984, Ironworkers, Inc. was under contract with Owen to assist Owen in various jobs. On February 13, 1984, Bailey, an employee of Ironworkers, Inc., was injured while connecting an exhaust system to a furnace at Owen's plant. Bailey sued Owen seeking damages for his personal injury alleging negligence and recklessness on the part of Owen. Owen raised the defense of lack of subject matter jurisdiction asserting that Bailey was a statutory employee and, hence, having received certain workers' compensation benefits, was prohibited from bringing an action in tort against Owen.

During discovery, Bailey filed a motion to compel discovery. Owen filed a motion for summary judgment based on the jurisdictional issue. The two motions were heard together. The hearing judge denied summary judgment, but ordered a full evidentiary hearing on the jurisdictional issue. He further denied the discovery motion pending the outcome of the jurisdiction hearing. Following the evidentiary hearing, the court dismissed the action on jurisdictional grounds.

Bailey contends the lower court erred in finding he was a statutory employee of Owen at the time of the accident and the court thus lacked jurisdiction to entertain the action. We disagree.

The issue of jurisdiction is basically one of law involving the determination by the court of its right to proceed with litigation. Bridges v. Wyandotte Worsted Company, 243 S.C. 1, 132 S.E.2d 18 (1963). In determining whether the court is without jurisdiction because the plaintiff's claim is within the exclusive jurisdiction of the Workers' Compensation Laws, the basic test is whether or not the work being done is a part of the general trade, business or occupation of the owner. Id. at 22, 132 S.E.2d 18. This is true even though the subcontractor might occupy the status of independent contractor. Id. Due to the many different factual situations which arise, no easily applied formula can be laid down for the determination of whether or not the work in a given case is part of the general trade, business or occupation of the owner and, thus, each case must be determined on its own facts. Id. at 23, 132 S.E.2d 18.

In the recent case of Ost v. Integrated Products, Inc., 296 S.C. 241, 371 S.E.2d 796 (1988) our Supreme Court analyzed three leading cases in determining the statutory employee issue. There the court noted the tests set forth in Marchbanks v. Duke Power Company, 190 S.C. 336, 2 S.E.2d 825 (1939), Boseman v. Pacific Mills, 193 S.C. 479, 8 S.E.2d 878 (...