Campbell v. Bi-Lo, Inc.

• Decision Date: 19 February 1990
• Docket Number: INC,No. 1491,BI-L,1491
• Citation: 301 S.C. 448,392 S.E.2d 477
• Court: South Carolina Court of Appeals
• Parties: , 117 Lab.Cas. P 56,475, 5 IER Cases 639 Viola CAMPBELL, Respondent-Appellant, v., Appellant-Respondent. . Heard

Page 477

392 S.E.2d 477

301 S.C. 448, 117 Lab.Cas. P 56,475,

5 IER Cases 639

Viola CAMPBELL, Respondent-Appellant, v. BI-LO, INC., Appellant-Respondent.

No. 1491.

Court of Appeals of South Carolina.

Heard Feb. 19, 1990.

Decided April 16, 1990.

Certiorari Denied Aug. 15, 1990.

Thomas L. Stephenson and James L. Rogers, Jr. both of Leatherwood, Walker, Todd & Mann, Greenville, for appellant, cross-respondent.

Preston F. McDaniel, and Thomas K. Fowler, Jr., Columbia, for respondent, cross-appellant.

BELL, Judge:

This is a suit for retaliatory discharge from employment in violation of Section 41-1-80, Code of Laws of South Carolina, 1976, as amended. The statute prohibits an employer from discharging an employee because the latter has instituted a workers' compensation proceeding. A jury found the employer, Bi-Lo, Inc., guilty of retaliatory discharge and awarded the employee Viola Campbell, $24,120.00 in damages. Bi-Lo appeals. Campbell cross appeals. We affirm.

The facts material to these appeals are not in dispute. Bi-Lo employed Campbell as a meat wrapper at its store in Moncks Corner, South Carolina. On September 19, 1984, Campbell injured her ankle while on the job. She filed a workers' compensation claim alleging she suffered disability as a result of her injury. She returned to work after a time. In April, 1986, Campbell requested and received a transfer to a Bi-Lo store in Columbia, South Carolina. In the summer of 1986, she complained that she was unable to continue work as a result of her previous injury. On August 1, 1986, Bi-Lo placed her on a leave of absence. She underwent treatment from a doctor, who cleared her for return to light duty on September 29, 1986.

In the meantime, Bi-Lo took Campbell's deposition in the workers' compensation proceeding on August 29, 1986. During the deposition, Campbell testified to a number of physical problems, unrelated to the ankle injury, which she had before she went to work for Bi-Lo. On September 19, 1986, Bi-Lo discharged Campbell on the stated ground that she had falsified her employment application by misrepresenting the state of her health.

Campbell commenced this action on September 17, 1987, while her workers' compensation claim was still pending. On January 12, 1988, she and Bi-Lo settled the workers' compensation claim by executing a Final Lump Sum Agreement and Release. The Agreement and Release was approved by the Workers' Compensation Commission shortly thereafter. Bi-Lo then moved in circuit court to amend its answer to raise the Release as a defense to Campbell's retaliatory discharge claim. The court denied the motion and the jury was not allowed to consider the Release.

I.

Bi-Lo appeals on the ground that the Release forecloses Campbell's suit for retaliatory discharge.

The construction of a written instrument is, in the first instance, a question of law for the court. Bishop Realty and Rentals, Inc. v. Perk, Inc., 292 S.C. 182, 355 S.E.2d 298 (Ct.App.1987), cert. denied, 293 S.C. 538, 362 S.E.2d 26 (1987). In construing a written agreement, the court seeks to ascertain and give effect to the intention of the parties. Rentco, a Division of Fruehauf Corporation v. Tamway Corporation, 283 S.C. 265, 321 S.E.2d 199 (Ct.App.1984). In determining the nature of the Release, we look first to the instrument itself. See Pee Dee State Bank v. National Fiber Corporation, 287 S.C. 640, 340 S.E.2d 569 (Ct.App.1986).

In this case, the import of the Release is plain. It recites that Campbell sustained injury to her ankle in an accident arising out of and in the course of her employment; that she has been paid $9410.43 for temporary total disability and $4,934.11 for medical expenses by Bi-Lo's workers' compensation carrier; and that disputes exist between the parties concerning her entitlement to further compensation. It then goes on to state:

Under the proposed settlement, the Defendants have agreed to pay, and the Claimant has agreed to accept, the additional sum of Fifteen thousand and no/100 ($15,000.00) Dollars in full settlement and satisfaction of every liability under the Act and otherwise growing out of or in any way connected with said injury by accident occurring on or about September 19, 1984 as well as any other injury by accident sustained by the Claimant while she was an employee of Bi-Lo, Inc.

* * * * * *

The Claimant ... recognizes that her consent to, and the approval of, this settlement is a final determination and adjudication of all benefits under the South Carolina Workers' Compensation Act, growing out of, or in any way connected with, the aforesaid injury by accident occurring on or about September 19, 1984 or any other injury by accident at any other time while the Claimant was an employee of Bi-Lo, Inc.

Finally, the Release states that Campbell releases and discharges Bi-Lo

from any and all debts, claims, demands, causes of action, rights of action, and liabilities whatsoever of any injury sustained by the Claimant while in the employer's employ on September 19, 1984 or at any other time and including, but not limited to, any right which the Claimant might otherwise have to demand employment or benefits for disability, disfigurement, bodily impairment, medical treatment, medicine or drugs, lost time or death, under the Act or at Common Law and specifically including any right which Claimant might otherwise have to demand further benefits by way of compensation or medical care under the Act because of a change in condition hereinafter ... whether or not arising out of ... Claimant's injury by accident aforesaid or any other injury while in the employ of Bi-Lo, Inc. and each and every consequence thereof, whether known or unknown.

Reading the Release as a whole, ¹ it is plainly limited to claims Campbell may have at common law or under the Workers' Compensation Act. A claim for retaliatory discharge fits neither category. Moreover, there is no mention of her retaliatory discharge claim, although it was pending at the time and could easily have been included in the Release if the parties so intended. We hold, as a matter of law, that the Release does not bar Campbell's retaliatory discharge action. Accordingly, the circuit court correctly denied Bi-Lo's motion to amend its answer to plead the Release as a defense to retaliatory discharge.

II.

As an additional ground for appeal, Bi-Lo argues that Campbell failed to prove any lost wages. According to Bi-Lo, the evidence shows Campbell could not continue her employment as a meat wrapper because of her disability. Since she could not perform the job, Bi-Lo reasons, she had no right to be continued in employment and lost no wages for purposes of Section 41-1-80.

The short answer to this argument is that the evidence was conflicting on Campbell's ability to return to her former duties. Campbell herself testified:

Q. ... [I]f you had not been terminated, on...