Collins v. Charlotte
| Decision Date | 18 October 2012 |
| Docket Number | No. 5022.,5022. |
| Court | South Carolina Court of Appeals |
| Parties | Gregory A. COLLINS (Deceased), Employee, Claimant, Respondent, v. Seko CHARLOTTE and Nationwide Mutual Insurance Co., Respondents, v. West Expedited & Delivery Service, Inc., Defendant, v. Seko Worldwide and Federal Insurance Co., Defendants, v. South Carolina Workers' Compensation Uninsured Employers' Fund, Appellant. Appellate Case No. 2011–184326. |
OPINION TEXT STARTS HERE
Timothy B. Killen, of Columbia, for Appellant.
Weston Adams, III, and Helen F. Hiser, both of McAngus Goudelock & Courie, LLC, of Columbia, for Respondents Seko Charlotte and Nationwide Mutual Insurance Co.
Linda Byars McKenzie, of Bowen McKenzie & Bowen, LLP, of Greenville, for Respondent Gregory Collins.
The dependents of Gregory Collins (deceased) filed this workers' compensation claim against West Expedited & Delivery Service, Inc. (West), Seko Worldwide, Federal Insurance Co., Seko Charlotte (Seko), Nationwide Mutual Insurance Co., and the South Carolina Workers' Compensation Uninsured Employers' Fund (the Fund). The Fund appeals the order of the Appellate Panel of the South Carolina Workers' Compensation Commission (the Commission), arguing it erred in: (1) finding Collins was not Seko's statutory employee; (2) finding the “going and coming rule” barred Collins' recovery as to West, but not as to Seko; (3) finding Collins was a “traveling employee” as to West, but not as to Seko; (4) finding the method of payment was dispositive in determining the statutory employment relationship; (5) applying Georgia law; and (6) finding Collins would have been a gratuitous worker if considered a statutory employee of Seko at the time of his accident. We reverse.
Collins, a South Carolina resident, was hired by West, a South Carolina expedited delivery company, to drive a delivery van. Seko Charlotte (Seko) contracted with West for a delivery of parts from Ina Bearing Company in Spartanburg, South Carolina, to Wauwatosa and Menomonee Falls, Wisconsin. On September 7, 2007, Collins picked up the parts and delivered them to Seko's customers in Wisconsin. While driving back to South Carolina on September 8, Collins was killed in an automobile accident. This claim was filed. At the time of the accident, West's workers' compensation coverage had lapsed, and the Fund participated in the case.
Ronald Burks, Seko's general manager, testified that Seko is a transportation logistics company providing regional, national, and international transportation services. Seko employed three drivers among its sixteen employees. These drivers made deliveries within a hundred miles of Charlotte. Seko subcontracted longer trips to companies such as West.
Burks testified West provided “express hot deliver[y]” services, which are required when a customer needs immediate delivery and cannot wait for a full truck load to deliver in their area. As he explained, West provided services for cargo that “needs to get ... somewhere faster than an LTL [less than a truck load] truck would” be able to deliver.
Burks testified Seko did not have a written contract with West. Seko paid West $1.20 per loaded mile, one way. Seko utilized West's services approximately two to three times per month and contracted with four or five companies comparable to West, similarly paying them per mile, one way. Seko's contention was that once a delivery was made, its agreement with West ceased. In this case, Collins had no cargo in the van during the return trip to South Carolina, and Seko accordingly maintained he was no longer its statutory employee.
Burks admitted that if Collins had been Seko's employee at the time of the injury, he would have a valid workers' compensation claim against Seko. He conceded that the Seko drivers were covered by Seko's workers' compensation insurance on their entire trips, rather than just on the way to the delivery site. Burks admitted he knew West's drivers would return to South Carolina because they were based here, but insisted Seko's relationship with Collins ceased after he made his deliveries in Wisconsin. Burks conceded such deliveries were an important and necessary part of Seko's business.
West's president, Morris West, testified the drivers generally do not have cargo on their return trips to South Carolina, and in Collins' case, he did not have cargo on his return trip. Morris also testified West was free to contract with another company for return loads, and Seko had no relationship with his drivers once a delivery was made.
The single commissioner found Seko was Collins' statutory employer. Seko appealed to the Commission. At the hearing before the Commission, Seko conceded it was Collins' statutory employer for the trip from South Carolina to Wisconsin. It maintained Collins was West's employee during the return trip.
Seko argued it no longer had control over Collins after his delivery in Wisconsin, and its status as a statutory employer thus ceased upon delivery. The Fund argued the issue of control was not relevant to a determination of statutory employment.
The Commission found Collins was Seko's statutory employee during his trip to Wisconsin, but Seko did not maintain the degree of control over Collins during the return trip to continue the employment relationship. Furthermore, the Commission found Collins was no longer Seko's employee within the “going and coming rule.” Finding this a case of first impression in South Carolina, the Commission relied on Georgia and North Carolina law to conclude Collins was no longer Seko's statutory employee at the time of the accident. Therefore, the Commission found the Fund was liable for the claim. The Fund appealed.
Coverage under the Workers' Compensation Act (the Act) depends on the existence of an employment relationship. Posey v. Proper Mold & Eng'g, Inc., 378 S.C. 210, 216, 661 S.E.2d 395, 398 (Ct.App.2008). “Whether or not an employer-employee relationship exists is a jurisdictional question.” Id. Where the issue involves jurisdiction, the appellate court can take its own view of the preponderance of the evidence. Id. at 216–17, 661 S.E.2d at 399. “It is the policy of South Carolina courts to resolve jurisdictional doubts in favor of the inclusion of employers and employees under the Workers' Compensation Act.” Id. at 217, 661 S.E.2d at 399;see Wilkinson ex rel. Wilkinson v. Palmetto State Transp. Co., 382 S.C. 295, 300, 676 S.E.2d 700, 702 (2009) ().
The Fund argues the Commission erred in finding Collins was no longer Seko's statutory employee at the time of his accident. We agree.
Statutory employment is an exception to the general rule that coverage under the Act requires the existence of an employer-employee relationship. Posey v. Proper Mold & Eng'g, Inc., 378 S.C. 210, 217, 661 S.E.2d 395, 399 (Ct.App.2008). Glass v. Dow Chem. Co., 325 S.C. 198, 201 n. 1, 482 S.E.2d 49, 50 n. 1 (1997). “The effect of these [statutory employment] provisions when brought into operation is to impose the absolute liability of an immediate employer upon the owner and/or general contractor although it was not in law the immediate employer of the injured workman.” Parker v. Williams & Madjanik, Inc., 275 S.C. 65, 72, 267 S.E.2d 524, 527–28 (1980).
The statutory employment section of the Act provides:
When any person, in this section ... 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 (in this section ... 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 (1985).
The Commission found Collins was not Seko's statutory employee based primarily on Seko's lack of control over Collins at the time of his accident. See Wilkinson, 382 S.C. at 299, 676 S.E.2d at 702 ().1 The Commission also relied on case law from Georgia and North Carolina to find no statutory employment relationship. In Farmer v. Ryder Truck Lines, Inc., 245 Ga. 734, 266 S.E.2d 922 (1980), the Georgia Supreme Court began its analysis of control stating the statutory employment statute was inapplicablein that case. Farmer, 266 S.E.2d at 924. In Lewis v. Barnhill, 267 N.C. 457, 148 S.E.2d 536 (1966), the North Carolina Supreme Court employed the borrowed servant doctrine 2 without mentioning a statutory employmentstatute in Lewis' tort action. Lewis, 148 S.E.2d at 543.
We find the Commission erroneously utilized the “employee/independent contractor” test to determine whether Collins was Seko's statutory employee. We also find neither the Georgia nor North Carolina case relied on by the Commission is dispositive.
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Collins v. Charlotte
...BEATTY.This matter is before the Court on a writ of certiorari to the Court of Appeals to review the decision in Collins v. Charlotte, 400 S.C. 50, 732 S.E.2d 630 (Ct.App.2012). The Court of Appeals reversed the Workers' Compensation Commission's (Commission) decision which found that Grego......