Carrier v. Westvaco Corp.

• Decision Date: 26 October 1992
• Docket Number: Civ. A. No. 2:90-2863-18.
• Court: U.S. District Court — District of South Carolina
• Parties: David CARRIER, Jr., v. WESTVACO CORPORATION and P.S. Charleston Corp., d/b/a Pre-Stress Concrete, Inc.

806 F. Supp. 1242

David CARRIER, Jr., v. WESTVACO CORPORATION and P.S. Charleston Corp., d/b/a Pre-Stress Concrete, Inc.

Civ. A. No. 2:90-2863-18.

United States District Court, D. South Carolina, Charleston Division.

October 26, 1992.

Andrew K. Epting, Jr., Charleston, S.C., H. Lynn Shoemaker, Kingsport, Tenn., George Kefalos, Charleston, S.C., for plaintiff.

G. Dana Sinkler, Charleston, S.C., for defendants.

ORDER

NORTON, District Judge.

This matter is before the court on defendant Westvaco Corporation's motion for summary judgment.

I. BACKGROUND

Westvaco Corporation (hereinafter "Westvaco") manufactures and distributes paper and chemicals. The majority of Westvaco's products are transported by rail with approximately 29% to 30% by trucks.¹ Westvaco, as part of its present business, does not perform trucking.² At the time of the accident bringing forth the present matter, Westvaco used various carriers depending on availability and rate competitiveness.³

On March 18, 1988, National Aluminum Consumer Products Division placed an order by telephone for eleven rolls of Westvaco Superliner paper to be delivered to its plant in Caldwell, Ohio. The Westvaco traffic department made the arrangements for the shipment.⁴

Willis Wiggins of Westvaco's traffic department arranged the transportation of the shipment through the Ken Carmen Agency, an independent agent for Independent Freight Ways (hereinafter "Inway") located in Summerville, South Carolina.⁵ Ligon Trucking Company (hereinafter "Ligon") provided drivers for Inway. David Carrier (hereinafter "Carrier"), an employee of Ligon,⁶ was the driver assigned to the Westvaco pick-up.

Carrier arrived at the Westvaco plant at approximately 4:30 p.m. on April 9, 1988 and drove to the warehouse and loading facility where he lined up behind other trucks waiting to be loaded. After checking in with the Westvaco dispatcher, Carrier went to the employee cafeteria for a cup of coffee. He thereafter went outside and decided to walk out on a pier over the water on the Cooper River. While Carrier was standing on the concrete pier, the pier collapsed causing him to sustain injuries.

II. ANALYSIS

Westvaco has moved for summary judgment on a defense asserted in its answer contending that Carrier, at the time of his injury, was a statutory employee of Westvaco under § 42-1-400 of the Code of Laws of South Carolina. S.C.Code Ann. § 42-1-400 (Law.Co-op.1976 as amended). Therefore, Westvaco contends that Carrier's exclusive remedy lies under the South Carolina Workers' Compensation Act and jurisdiction over this matter is vested solely in the South Carolina Workers' Compensation Commission.

To grant a motion for summary judgment, this court must find that "there is no genuine issue as to any material fact...." Fed.R.Civ.P. 56(c). In evaluating a motion for summary judgment, this court must view the record in the light most favorable to the nonmoving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir.1990). The judge is not to weigh the evidence himself but rather to determine if there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-248, 106 S.Ct. at 2509-2510 (emphasis in original). The moving party is entitled to judgment as a matter of law if the nonmoving party fails to make a sufficient showing on an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). If the moving party has carried its burden of establishing the absence of genuine issues of material fact, the nonmoving party "may not rest upon mere allegations or denials" of its pleading, Fed. R.Civ.P. 56(e), but must produce sufficient evidence to reasonably support a jury verdict in its favor. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510.

A. Jurisdictional Determination

The determination of whether or not Carrier is a statutory employee of Westvaco is a question of subject matter jurisdiction. Carter v. Florentine Corp., 423 S.E.2d 112, n. 1 (1992); McSwain v. Shei, 304 S.C. 25, 402 S.E.2d 890, 892 (1991). Every court has the power and duty to determine whether or not it has jurisdiction of a cause presented to it for determination, including the power to decide all questions, whether of law or fact, which are necessary to determining jurisdiction. See Bridges v. Wyandotte Worsted Co., 243 S.C. 1, 132 S.E.2d 18, 21-22 (1963). "It is recognized that in federal court the question of a company's trade, business or occupation is often one of fact for the jury." Singleton v. J.P. Stevens & Co., 533 F.Supp. 887, 888 (D.S.C.1982), aff'd, 726 F.2d 1011 (4th Cir.1984), citing Byrd v. Blue Ridge Rural Electric Coop., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958). Byrd, however, "does not stand for the proposition that if there is no issue genuinely in dispute, the question of employment status must be nevertheless submitted to a jury." Id. Jurisdictional questions present issues for the determination of the court and not a jury. Bargesser v. Coleman Co., 230 S.C. 562, 96 S.E.2d 825, 827 (1957). The Fourth Circuit Court of Appeals in Walker v. United States Gypsum Co., 270 F.2d 857 (4th Cir.1959), cert. denied, 363 U.S. 805, 80 S.Ct. 1240, 4 L.Ed.2d 1148 (1960), stated that the matter of employment status, and whether jurisdiction lies with the Workers' Compensation Commission⁷ or the courts is a question peculiarly appropriate for summary judgment when there is no disputed genuine issue of fact. Id. at 860-61.

B. Statutory Employee Determination

"Where an employer is covered by Workers' Compensation, the Act is the exclusive remedy of an employee injured in the course and scope of employment." Carter v. Florentine Corp., 423 S.E.2d 112 (1992), citing S.C.Code Ann. § 42-1-540 (Law.Co-op.1976 as amended). The exclusivity provision applies both to "direct" employees, and to "statutory employees" as defined in S.C.Code Ann. § 42-1-400 (Law. Co-op.1976 as amended). Section 42-1-400 is directly applicable to the present case and provides:

When any person ... referred to as `owner,' undertakes to perform or execute any work which is a part of his trade, business or occupation and contracts with any other person ... (referred to as `subcontractor') for the execution or performance by or under such subcontractor of the whole or any part of the work undertaken by such owner, the owner shall be liable to pay to any workman employed in the work any compensation under this Title which he would have been liable to pay if the workman had been immediately employed by him.

S.C.Code Ann. § 42-1-400 (Law.Co-op.1976 as amended).

1. Statutory Employee Tests

South Carolina has employed three tests in determining whether an employee of a subcontractor is a statutory employee of the owner:

(1) is the activity an important part of the owner's business;

(2) is the activity a necessary, essential, integral part of the business; and

(3) has the identical activity been performed by employees of the principal employer?

Carter, 423 S.E.2d 112 (1992). South Carolina courts have given a broad construction to the Act, stating that where there are doubts about whether a worker is a statutory employee, these doubts must be resolved in favor of inclusion of employees and employers under the Workers' Compensation Act. See Gentry v. Milliken & Co., 414 S.E.2d 180 (S.C.Ct.App.1992); Revels v. Hoechst Celanese Corp., 301 S.C. 316, 391 S.E.2d 731 (S.C.Ct.App.1990); Brittingham v. Williams Sign Erectors, Inc., 299 S.C. 259, 384 S.E.2d 319 (S.C.Ct. App.1989).

Westvaco has satisfied the first two tests listed above.⁸ The trucking of goods from its plant to its customers is an essential and important part of Westvaco's trade and a necessary and integral part of its business. See Revels, 391 S.E.2d at 732.⁹ Carrier, as a driver for Ligon, was involved in the transportation of goods from the Westvaco plant to a Westvaco customer. This alone is enough to find that Carrier is a statutory employee of Westvaco. Carter, 423 S.E.2d 112 (1992). Furthermore, Westvaco has in the past equipped, managed, maintained and run its own trucking division. Thus, Westvaco may even have satisfied the third test.¹⁰ This court has no hesitation in finding Carrier to be the statutory employee of Westvaco.

2. Course of Employment

Carrier argues, however, that at the moment of his injury he was not engaged in work essential to Westvaco's trade or business and thus he cannot be found to be a statutory employee of Westvaco. Carrier reasons that standing on the pier cast him outside the course of employment. South Carolina has interpreted "course of employment" in the context of workers' compensation as follows:

An employee, to be entitled to compensation, need not be in the actual performance of the duties for which he was expressly employed in order for his injury or death to be in the `course of employment' and thus compensable. It is sufficient if the employee is engaged in a pursuit or undertaking consistent with his contract of hire and which in some logical manner pertains to or is incidental to his employment.

Merritt v. Smith, 269 S.C. 301, 237 S.E.2d 366, 369 (1977). Carrier was injured while waiting to have his truck loaded. His waiting was consistent with his contract of hire and was incidental to his employment as a truck driver. Thus, this court finds that Carrier was acting in the course of his employment while he stood on the pier waiting to have his truck loaded.

3. Casual Employee

Carrier further argues that even if he is considered Westvaco's employee, he was only a casual employee and thus outside the coverage of workers' compensation. This court is also unpersuaded by this argument. An employee is defined as:

The

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