Ex parte Amerisure Mutual Ins., Co. Carrier
| Decision Date | 10 March 2011 |
| Docket Number | 2011-UP-093 |
| Court | South Carolina Court of Appeals |
| Parties | Ex Parte: Amerisure Mutual Insurance Company, Carrier, Appellant, v. Dooley & Mack Construction Company, Employer, Appellant. and The S.C. Uninsured Employer's Fund, Respondent. In Re: Salome Diaz-Cortez, Claimant, |
Unpublished Opinion
Submitted January 4, 2011
Appeal From Pickens County D. Garrison Hill, Circuit Court Judge.
Ryan S. Montgomery, of Greenville, for Appellant.
Robert Merrell Cook, II, of Batesburg-Leesville, for Respondent.
Amerisure Mutual Insurance and its insured, Dooley & Mack Construction Company (collectively Appellants), appeal the circuit court's ruling that liability for a Dooley & Mack statutory employee's injuries could not be transferred to the South Carolina Uninsured Employer's Fund (the Fund). We affirm. [1]
Dooley & Mack was serving as general contractor at a job site in The Cliffs at Keowee, an upscale residential community in Greenville County, South Carolina. Dooley & Mack hired Smeller Construction to perform work at the job site, and Smeller in turn hired Huberto Escoto to perform framing work. One of Escoto's employees, Salome Diaz-Cortez, was seriously injured on the job when he fell from a ladder. Escoto did not have workers' compensation insurance, so Diaz-Cortez's workers' compensation claim moved upstream to Smeller. At the time of the contract between Dooley & Mack and Smeller, Smeller provided a certificate of insurance upon Dooley & Mack's request. The certificate was sent via facsimile to Dooley & Mack's Florida office and listed Dooley & Mack with its Florida address as the certificate holder. The certificate was sent from the listed producer, Spivey Insurance Agency in Austin Texas. The listed insured was Steve Smeller based out of Kemp, Texas, and the "description of the operation" was listed as "the Cliffs." The certificate was unsigned.
Smeller did not in fact have a valid workers' compensation policy in South Carolina and so liability for Cortez-Diaz's claim moved upstream yet again to Dooley & Mack. After several hearings, it was determined that Cortez-Diaz's claim was compensable and that Dooley & Mack was the responsible party as the statutory employer. Appellants then sought reimbursement from the Fund, and the single commissioner denied the request because Amerisure did not "pay in the first instance" as required by section 42-1-415 of the South Carolina Code (Supp. 2010) and because Smeller's certificate of insurance failed to demonstrate coverage in South Carolina. [2]
An Appellate Panel of the South Carolina Workers' Compensation Commission (Appellate Panel), however, reversed the single commissioner finding Dooley & Mack had presented an acceptable certificate of insurance and that the lack of signature did not render the certificate insufficient pursuant to Barton v. Higgs, 372 S.C. 109, 641 S.E.2d 39 (Ct. App. 2007). [3] Additionally, the Appellate Panel found that although Amerisure "did not initially pay this claim in the first instance" as required by section 42-1-415, the transfer of liability to the Fund was proper. [4]
The Fund appealed the Appellate Panel's order to the circuit court. The circuit court reversed the findings of the Appellate Panel relying largely on Hopper v. Terry Hunt Construction, 373 S.C. 475, 646 S.E.2d 162 (Ct. App. 2007) aff'd, 383 S.C. 310, 680 S.E.2d 1 (2009) [5] an opinion released during the pendency of the appeal from the Appellate Panel's order. The circuit court concluded Smeller's certificate of insurance was "facially insufficient" to indicate coverage in South Carolina and further held Amerisure failed to pay in the first instance under section 42-1-415 thereby barring the transfer of liability to the Fund. The circuit court did not render its findings based on the lack of signature on the certificate of insurance, but noted the South Carolina Supreme Court had granted a writ of certiorari to review Barton. This appeal followed.
The South Carolina Administrative Procedures Act (APA) governs judicial review of a decision of the South Carolina Workers' Compensation Commission. Lark v. Bi-Lo Inc., 276 S.C. 130, 134, 276 S.E.2d 304, 306 (1981); Bass v. Isochem, 365 S.C. 454, 467, 617 S.E.2d 369, 376 (Ct. App. 2005). Pursuant to the APA, an appellate court's review is limited to deciding whether the full commission's decision is unsupported by substantial evidence or is controlled by some error of law. Grant v. Grant Textiles, 372 S.C. 196, 200-01, 641 S.E.2d 869, 871 (2007).
The Fund maintains the circuit court's decision should be affirmed on the additional sustaining ground that Smeller's certificate of insurance was unsigned. We agree.
In finding the certificate of insurance in this case met the requirements of section 42-1-415 of the South Carolina Code (Supp. 2010), the Appellate Panel relied in part on Barton v. Higgs, which held that documentation of workers' compensation coverage could be sufficient even without a signature provided the documentation was on a "standard form acceptable to the commission." 387 S.C. 109, 117, 641 S.E.2d 39, 44. However, that ruling was reversed by the South Carolina Supreme Court. See Barton v. Higgs, 381 S.C. 367, 371, 674 S.E.2d 145 147 (2009) (). [6] In this case, the certificate of insurance presented by Smeller was unsigned. Therefore, it was insufficient to transfer liability to the Fund under section 42-1-415, and we affirm the circuit court's ruling on that basis. See I'On L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 420 526 S.E.2d 716, 723 (2000) (); see also Rule...
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