Dickert v. Metropolitan Life Ins. Co.

• Decision Date: 17 April 1991
• Docket Number: No. 1704,1704
• Citation: 411 S.E.2d 672,306 S.C. 311
• Court: South Carolina Court of Appeals
• Parties: Holly L. DICKERT, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY and Bruce Smalley, Respondents. . Heard

Page 672

411 S.E.2d 672

306 S.C. 311

Holly L. DICKERT, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY and Bruce Smalley, Respondents.

No. 1704.

Court of Appeals of South Carolina.

Heard April 17, 1991.

Decided Oct. 7, 1991.

Amended and Refiled Nov. 7, 1991.

Wilmot B. Irvin, of Glenn, Irvin, Murphy, Gray & Stepp, Columbia, for appellant.

James M. Brailsford, III, and Jacquelyn L. Bartley, both of Robinson, McFadden & Moore, Columbia, for respondents.

PER CURIAM:

This action arises out of Holly L. Dickert's former employment as a sales representative for Metropolitan Life Insurance Company. Dickert sued the Company and Bruce Smalley, a Company sales manager and her immediate supervisor, for on the job harassment by Smalley. Against the Company she alleged negligence, breach of contract, assault and battery, intentional infliction of emotional distress, and invasion of privacy. Against Smalley she alleged assault and battery, intentional infliction of emotional distress, and invasion of privacy. The circuit court granted the Company and Smalley summary judgment, holding the exclusive remedy provision of the Workers' Compensation Law ¹ barred Dickert's action. Dickert appeals. We affirm.

The sole issue on appeal is whether, as a matter of law, Dickert's claims are covered by workers' compensation.

In our judgment, the circuit court correctly decided this issue. Accordingly, we affirm and direct the circuit court's order to be printed, with minor deletions, as the opinion of this Court. In addition, we include a brief analysis distinguishing the Supreme Court's decision in McSwain v. Shei, 304 S.C. 25, 402 S.E.2d 890 (1991), which was handed down during the pendency of this appeal.

I. ORDER OF THE CIRCUIT COURT

The Defendants move for Summary Judgment pursuant to Rule 56, SCRCP, on the grounds that the Plaintiff's action is barred by the exclusive remedy provisions of the South Carolina Workers' Compensation Act.

In deciding a Rule 56 motion, the Court must view the facts and inferences therefrom in the light most favorable to the nonmoving party. United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). Summary judgment is appropriate only when the pleadings, depositions, interrogatory answers, admissions, and affidavits show that there is no genuine issue of material fact. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994. A party opposing a properly supported motion for summary judgment, however, may not rest on the mere allegations or denials of his pleading, but must set forth or point to specific facts showing that there is a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Thus, the existence of a mere scintilla of evidence in support of the nonmoving party's position is not sufficient to overcome a motion for summary judgment. Anderson, 477 U.S. 242, 252, 106 S.Ct. 2505, 2512. A party's response to the motion must set forth specific facts, admissible in evidence, showing there is a genuine issue for trial. If he does not so respond, summary judgment should be entered against him. Moody v. McLellan, 295 S.C. 157, 367 S.E.2d 449 (Ct.App.1988), (citing Rule 56(e), SCRCP).

The underlying facts are hotly contested. However, for the purposes of this motion, the facts contained in the Complaint and the Plaintiff's deposition will be accepted as true. Based on those facts, the motion raises only a question of law--whether the Plaintiff's common law causes of action seeking damages for her work related emotional injury are barred by the exclusive remedy provisions of the South Carolina Workers' Compensation Act. For the reasons set forth below, I find that the Plaintiff's claims are indeed so barred, and the Defendants' Motion for Summary Judgment will be granted.

This case arises out of the Plaintiff's employment as a sales representative with the Defendant Metropolitan Life Insurance Company from August, 1987, until she resigned in December, 1988. While employed by Metropolitan she worked under the direct supervision of the Defendant Bruce Smalley, her branch manager. She alleges that she was subjected to a pattern of verbal, physical, and emotional harassment and abuse by Smalley at the place of her employment while performing their duties as employees of Metropolitan and while Smalley was acting as Plaintiff's manager and supervisor. The Plaintiff further alleges that the verbal, physical, and emotional harassment put her in fear of bodily harm and included loud and threatening criticism of her performance, criticism of her personal appearance, pounding and kicking her desk, shaking his fist at her in a threatening manner, throwing pens at her, and hitting her with a rate book. The Plaintiff alleges that this conduct on the part of the Defendant Smalley, while acting within the course of his employment and the scope of his authority as a branch manager of the Defendant Metropolitan, caused her severe emotional distress which, in turn, caused her to resign her job with Metropolitan and to suffer the loss of income which she otherwise would have been able to continue to earn as an employee of Metropolitan. These allegations of misconduct and injury form the basis of five separate causes of action: assault and battery, intentional infliction of emotional distress (outrage), negligence, breach of contract, and invasion of privacy.

The exclusive remedy provision of the Act is embodied in S.C.Code Ann. § 42-1-540 (1985), which provides in pertinent part that:

The rights and remedies granted by this Title to an employee when he and his employer have accepted the provisions of this Title, respectively, to pay and accept compensation on account of personal injury or death by accident, shall exclude all other rights and remedies of such employee ... as against his employer, at common law or otherwise, on account of such injury, loss of service or death ...

This provision bars all actions against an employer where a personal injury to an employee comes within the Act. It thus makes the Act the exclusive means of settling all such claims. Lowery v. Wade Hampton Co., 270 S.C. 194, 241 S.E.2d 556 (1978). As was noted in Cook v. Mack's Transfer and Storage, 291 S.C. 84, 352 S.E.2d 296 (Ct.App.1986), in some situations the amount of compensation available under the Act may be substantially less than could be recovered in a successful common law action; however, the employee is more likely to receive benefits that he otherwise would not have received because of the difficulty in establishing employer liability. As the Cook court explained, "[t]his is the balance struck by the Legislature in order to afford the widest practical coverage for work related injuries." Cook v. Mack's Transfer and Storage, 352 S.E.2d at 298. Any expansion of the right of an employee to pursue common law damage suits against the employer automatically restricts the rights of all other employees to workers' compensation.

An injury is compensable pursuant to S.C.Code Ann. § 42-1-160 (1985) if it is an "injury by accident arising out of and in the course of employment ..." The "arising out of" element requires some causal connection between the employment and the resulting injury. Carter v. Penney Tire and Recapping Co., 261 S.C. 341, 200 S.E.2d 64 (1973). The phrase "in the course of employment" requires that the injury occur within the period of employment, at a place where the employee reasonably may be in the performance of his duties, and while fulfilling those duties or engaged in something incidental thereto. Bickley v. South Carolina Electric & Gas Co., 259 S.C. 463, 192 S.E.2d 866 (1972). In applying these elements to determine whether a work related injury comes within the Act, the Workers' Compensation Act should be liberally construed toward the end of providing coverage rather than non-coverage in order to further the beneficial purposes for which it was designed. Lanford v. Clinton Cotton Mills, 204 S.C. 423, 30 S.E.2d 36 (1944); Carter v. Penney Tire and Recapping Co., supra; and Cokeley v. Robert Lee, Inc., 197 S.C. 157, 14 S.E.2d 889 (1941).

South Carolina case law holds that injury resulting from an assault and battery by a co-employee or manager at the workplace and involving the performance of the employer's business is an injury by accident arising out of and in the course of employment. Such injury is therefore covered by the Act and is not cognizable at common law. In the case of Thompson v. J.A. Jones Construction Co., 199 S.C. 304, 19 S.E.2d 226 (1942), the plaintiff brought a civil action for damages for assault and battery, alleging physical and mental injury resulting from an assault by the plaintiff's supervisor. The court held that "although an employee be willfully assaulted by another, whether fellow servant, foreman or outsider, the resulting injury will be deemed accidental and within the terms of the Compensation Law when it can be said that the assault proximately resulted from the prosecution of the employer's business,--in the terms of the Act[:] arose out of and in the course of the employment." Thompson, 19 S.E.2d at 228 (citations omitted). The court reversed the lower court which had erroneously held that the Act was not a bar to the civil action.

The case of Skipper v. Southern Bell Telephone and Telegraph Company, 271 S.C. 152, 246 S.E.2d 94 (1978), was another assault and battery case in which, as here, the injury was emotional in nature. The plaintiff alleged that her supervisor, Gloria Thompson, subjected her to unwarranted harassment culminating in a physical assault and emotional injury. The Industrial Commission, the Circuit Court, and the Supreme Court agreed that the emotional injury was accidental and that it, having occurred at work, was in the course of employment. In addressing the "arising out of" requirement of S.C.Code Ann. § 42-1-160, the court held:

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