Fortner v. Thomas M. Evans Constr.
| Decision Date | 16 January 2013 |
| Docket Number | No. 5073.,5073. |
| Citation | 741 S.E.2d 538,402 S.C. 421 |
| Parties | Benjamin FORTNER, Claimant, v. THOMAS M. EVANS CONSTRUCTION AND DEVELOPMENT, LLC, Employer, and Thomas Evans Custom Building and Renovations, Inc., Employer, and South Carolina Workers' Compensation Uninsured Employers' Fund, and SUA Insurance Company, Inc., Carrier, Defendants, Of Whom Benjamin Fortner and Thomas M. Evans Construction and Development, LLC, and Thomas Evans Custom Building and Renovations, Inc., Employers, and South Carolina Workers' Compensation Uninsured Employers' Fund are the Respondents, and SUA Insurance Company is the Appellant. Appellate Case No. 2011–197246. |
| Court | South Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Edwin P. Martin, Jr., of Hedrick Gardner Kencheloe & Garofalo LLP, of Columbia, for Appellant SUA Insurance Company.
John S. Rodenberg, of Rodenberg Callihan Davis Lohr & Syracuse, LLC, of North Charleston, for Respondent Benjamin Fortner, III; R. Mark Davis and Andrew Luadzers, both of McAngus Goudelock & Courie, LLC, of Mount Pleasant, for Respondent Thomas M. Evans Construction & Development LLC; F. Reid Warder, Jr. and Kathryn R. Fiehrer, both of Wood & Warder, LLC, of Charleston, for Respondent Thomas Evans Custom Building & Renovations; and Timothy Blair Killen, of the South Carolina Second Injury Fund, of Columbia, for Respondent South Carolina Workers' Compensation Uninsured Employers' Fund.
This action arose from injuries Benjamin Fortner, III, sustained while pressure washing a residential home on the Isle of Palms, South Carolina (Serenbetz property) on April 19, 2010. In this appeal from the Appellate Panel of the Workers' Compensation Commission (Appellate Panel), SUA Insurance Company (SUA) contends the Appellate Panel erred in finding Fortner was a statutory employee of Thomas M. Evans Construction & Development, LLC (Evans Construction) at the time of his injuries. We affirm.
From 2004 to 2006, Fortner worked for Evans Construction, owned by Thomas Evans, Jr. (Evans, Jr.). While Fortner was employed with Evans Construction, Thomas Evans, III (Evans, III), son of Evans, Jr., worked as an onsite supervisor for the company. Fortner left Evans Construction in 2006. In 2009, due to a downturn in the economy, Evans, III also left Evans Construction and began his own company, Thomas Evans Custom Building and Renovations, Inc. (Custom Building). Evans, Jr. owns approximately one percent in Custom Building, while Evans, III has an undetermined ownership interest in Evans Construction from which he would benefit financially.
Custom Building performs a large number of kitchen and bathroom renovations, whereas Evans Construction performs more homebuilding “from the ground up.” Initially, Evans Construction allowed Custom Building to use its credit with different accounts, i.e., building materials, because Custom Building had not yet established credit. Evans Construction'saccounting department kept a running tab of those expenses, and Custom Building paid down its tab after a job completion.
Further, Evans Construction occasionally used Custom Building's employees for a specific job, but not as permanent employees. When that occurred, the employee would continue on Custom Building's payroll, and Evans Construction credited Custom Building's tab.
While Evans, III was employed with Evans Construction, he secured a job on the Serenbetz property for the company, which consisted of a $600,000 makeover of the home. Evans Construction was paid upon job completion in July of 2009. Subsequently, in 2010, the Serenbetz property suffered a suspected power surge that caused the heating and air conditioner to malfunction and damaged the floors, walls, and cabinets. Evans, III's company, Custom Building, was then hired to repair the damage.
In March of 2010, Fortner took a position with Custom Building as a painting supervisor on the Serenbetz property. Two weeks into Fortner's employment with Custom Building and the Friday before the accident, Evans, III asked Fortner to pressure wash the Serenbetz property because the owners were returning to town, and the home “needed ... to look immaculate for when the owners got back.” Evans, III further requested that Fortner locate a pressure washer for the task. On Sunday, Fortner called and told Evans, III he could not find a pressure washer, and Evans, III asked Fortner to call him on Monday morning to remedy the situation. On Monday morning, Evans, III told Fortner to meet him at a pressure washer rental store. While at the store, Evans, III rented the pressure washer with Custom Building's credit card, and then helped Fortner load it onto a truck to carry back to the Serenbetz property. Fortner testified they unloaded the pressure washer once they reached the Serenbetz property, and then Evans, III walked him through the home to explain everything that needed to be fixed once he finished pressure washing. Evans, III disputed this fact and stated he never took Fortner inside to show him what needed to be fixed. However, they both agree Evans, III showed Fortner that the air conditioner cover needed a coat of paint and impressed upon Fortner the importance of “making sure that the house was clean the best that [he] could get it clean.” After the walk-through, Evans, III left the Serenbetz property, and Fortner began pressure washing on the roof. While pressure washing, Fortner lost his balance and fell, sustaining injuries. A fellow worker called Evans, III to inform him of the accident and then called 911.
Evans, Jr. testified he spoke with Evans, III on either a Saturday or Sunday about hiring Fortner as a replacement supervisor because Evans Construction's supervisor had suffered a heart attack. Evans, Jr. claimed a change in employment occurred the morning of April 19, 2010. Evans, Jr. admitted the decision had not been discussed with Fortner before his accident occurred. Evans, Jr. further asserted that it was he, on behalf of Evans Construction, who asked Evans, III to power wash the Serenbetz property as a gesture of goodwill because Mr. Serenbetz was coming to town, and Evans, Jr. wanted to “look good.” Evans Jr. explained it was more convenient for Evans, III to take care of the task because Evans, III was working at the Serenbetz property. Kelly Gabel, Evans Construction's office manager, confirmed that Evans Construction's employees maintained properties through pressure washing them and performing lawn care services.
On the morning of the accident, Evans, Jr. spoke with Evans, III several times, and he alleged that at least one call was to confirm the pressure washing. Telephone records established that Evans, Jr. received calls from his son at 8:36 a.m. lasting about ten minutes, at 9 a.m. lasting about seven minutes, at 9:30 a.m. lasting about two minutes, at 9:32 a.m. lasting about one minute, and 9:48 lasting about five minutes. Evans, Jr. asserted he was not aware of Fortner's accident until around 10 a.m., when Evans, III called to inform him of what had occurred. Additionally, Evans, Jr. claimed he did not know Evans, III was not carrying workers' compensation insurance until a few days after Fortner's accident. Evans, III was unclearas to which phone call might have been the one informing Evans, Jr. of Fortner's accident. However, Evans, III testified Fortner normally started work around 8 a.m., and his fall probably occurred around 8:10 a.m.
Fortner believed he was working for Evans, III until two days after his accident when his wife informed him that Evans, III told her at the hospital Fortner had been switched to Evans Construction's payroll on the morning of his accident. Neither Evans, Jr. nor Evans, III personally spoke with Fortner to tell him about the change in employment. Fortner admitted Evans, III had spoken with him once before the accident regarding the possibility of working for both Custom Building and Evans Construction because the painting supervisor for Evans Construction had suffered a heart attack. Fortner was told his services might be necessary to “keep things going for both companies until they get someone to fill in for [the other supervisor].” However, Fortner claimed that was the only notification he received regarding a potential change in his employment status. Fortner also stated he would not have had any objections to working between the companies if that had been necessary. He testified it was common for workers in the construction industry to “bounce back and forth between companies” because they go where the work is located.
After Fortner's injuries, Evans, III, on behalf of Custom Building, issued two checks to assist Fortner during his unemployment. Evans, Jr. and Gabel claimed Evans Construction credited Custom Building's tab for the checks, explaining that because Evans, III knew how to contact Fortner, it was more convenient for Evans, III to give him the check.
At the hearing, the parties stipulated Fortner was entitled to workers' compensation benefits as a result of his injury. Fortner and SUA contended Fortner was employed by Custom Building at the time of his injury. Evans Construction, Workers' Compensation Uninsured Employers' Fund (UEF), and Custom Building all maintained Fortner was either employed directly by Evans Construction, or alternatively, Evans Construction was the statutory employer of Fortner at the time of his injury. The single commissioner found Fortner to be the most credible of the witnesses that testified, while Evans, Jr. and Benjamin Fortner, Jr., Fortner's father, were marginally credible. The commissioner found Evans, III was not credible at all. The commissioner concluded that unless Fortner “knew of and agreed to a new employer-employee relationship with [Evans Construction], replacing the one theretofore existing with [Custom Building], his rights under the Workers' Compensation Act [WCA] against his regular employer were unabridged.” Thus, he ruled that...
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