Deskins v. Boltin

• Decision Date: 08 December 1994
• Docket Number: No. 2283,2283
• Citation: 317 S.C. 310,454 S.E.2d 322
• Court: South Carolina Court of Appeals
• Parties: Billy DESKINS, Respondent, v. Wallace BOLTIN and MSI Construction Co., Inc., Appellants. . Heard

Page 322

454 S.E.2d 322

317 S.C. 310

Billy DESKINS, Respondent, v. Wallace BOLTIN and MSI Construction Co., Inc., Appellants.

No. 2283.

Court of Appeals of South Carolina.

Heard Dec. 8, 1994.

Decided Dec. 28, 1994.

Rehearing Denied Feb. 7, 1995.

Heyward E. McDonald and Robert M. Cook, II, of McDonald, McKenzie, Fuller, Rubin & Miller, Columbia, for appellants.

D. Michael Kelly, of Suggs & Kelly, Columbia, for respondent.

PER CURIAM:

Wallace Boltin and MSI Construction Co., Inc. appeal the denial of their motion to dismiss the negligence action brought against them by Billy Deskins. Boltin and MSI moved pursuant to Rule 12(b)(1), SCRCP, asserting the circuit court lacked subject matter jurisdiction over Deskins's claim because the workers' compensation act provided Deskins with an exclusive remedy. We affirm.

We entertain some doubt that Boltin and MSI can immediately appeal the denial of their motion to dismiss. See Ballenger v. Bowen, --- S.C. ----, 443 S.E.2d 379 (1994) (overruling Carter v. Florentine Corp., --- S.C. ----, 423 S.E.2d 112 (1992), to the extent Carter is inconsistent with the holding that an order denying a motion for summary judgment is not appealable because it does not finally decide anything about the merits of a case and does not have the effect of striking any defense because that defense may be raised again later in the proceedings); McLendon v. South Carolina Dep't of Highways and Pub. Transp., --- S.C. ----, 443 S.E.2d 539 (1994) (the denial of a motion to dismiss does not establish law of the case and is not directly appealable for the same reasons given in Ballenger regarding a motion for summary judgment). Nonetheless, we choose to address the merits of their appeal, primarily because our precise holding in Woodard v. Westvaco Corp., --- S.C. ----, 433 S.E.2d 890 (Ct.App.1993), cert. granted, (S.C.Sup.Ct. filed April 23, 1994) (Davis Adv.Sh. No. 9), a case in which we held an interlocutory order in a workers' compensation case denying a motion for summary judgment, which we treated as a motion to dismiss for lack of subject matter jurisdiction, was immediately appealable, has not been overruled to date.

The facts here are rather straightforward.

Deskins worked for Kennecott-Ridgeway Mining Company. The latter entered into a contract with MSI under which MSI agreed to provide maintenance and repair services at Kennecott-Ridgeway's facility in Ridgeway, South Carolina. While fulfilling this contract, Boltin, an MSI employee, attempted to unload steel pipe from a truck. One of the pipes caught the corner of the truck, causing other pipes to strike Deskins and injure his legs. Deskins later collected workers' compensation benefits from Kennecott-Ridgeway.

Boltin and MSI contend that, because they were employees of Kennecott-Ridgeway and thus were co-employees of Deskins, they were immune from suit under S.C.Code Ann. § 42-5-10 (1985). Parker v. Williams & Madjanik, Inc., 269 S.C. 662, 239 S.E.2d 487 (1977); Boykin v. Prioleau, 255 S.C. 437, 179 S.E.2d 599 (1971). This argument raises the question of whether Deskins's claim was limited to the workers' compensation act.

The protection afforded by section 42-5-10, while available to co-employees, is not available to an independent contractor that performs work pursuant to a contract with the injured person's employer. Boone v. Huntington and Guerry Elec. Co., --- S.C. ----, 430 S.E.2d 507 (1993). In Boone, the supreme court held it is the contractual nature of the relationship and not the nature of the activity that determines whether a party is entitled to share immunity under section 42-5-10. Our inquiry here, then, is whether MSI, Boltin's employer, was an independent contractor or was Kennecott-Ridgeway's employee.

At the hearing on the motion to dismiss, counsel for Boltin and MSI noted the contract between Kennecott-Ridgeway and MSI "is not going to be introduced into evidence." He went on to state he did not want "to waive any right to object to arguments based on [the contract] because it is not in evidence." Even so, counsel for Boltin and MSI acknowledged the contract, which the trial court never received in evidence, contained "language that MSI was an independent contractor."

As the hearing on the motion to dismiss neared its conclusion, the trial court expressed concern "that the contract itself is not in evidence and it isn't evidence." Later, however, the trial court in its written order pointed to the admission by Boltin and MSI "in their Memorandum in Support of Its [sic] Motion that the maintenance and repair contract designated MSI as an independent contractor." Based on this admission, the trial court held MSI was an independent contractor and not an employee and Deskins, therefore, could...