Keene v. CNA Holdings, LLC

Decision Date13 February 2019
Docket NumberOpinion No. 5625,Appellate Case No. 2016-000227
Citation426 S.C. 357,827 S.E.2d 183
CourtSouth Carolina Court of Appeals
Parties Angela D. KEENE, Individually and as Personal Representative of the Estate of Dennis Seay, Deceased, and Linda Seay, Respondents, v. CNA HOLDINGS, LLC, Appellant.

C. Mitchell Brown, Allen Mattison Bogan, and Blake Terence Williams, all of Nelson Mullins Riley & Scarborough LLP, of Columbia, for Appellant.

John D. Kassel and Theile Branham McVey, both of Kassel McVey, and Blake Hewitt, of Bluestein Thompson Sullivan LLC, all of Columbia; and Chris Panatier and Kevin W. Paul, both of Simon Greenstone Panatier Bartlett PC, of Dallas, Texas, for Respondents.


In this wrongful death action, Appellant CNA Holdings, LLC challenges the circuit court's denial of its motions for a judgment notwithstanding the verdict (JNOV), new trial absolute, and new trial nisi remittitur. Appellant argues the circuit court erred by concluding that Dennis Seay was not a statutory employee of Appellant's predecessor in interest, Hoechst Celanese Corporation (Celanese), pursuant to section 42-1-400 of the South Carolina Code (2015). Appellant also argues the circuit court erred by (1) declining to grant a mistrial on the ground of jury misconduct; (2) admitting into evidence a video of Seay crying out in pain; and (3) upholding the amount of the jury's verdict. We affirm.


From 1971 to 1980, Seay performed maintenance work at the Celanese polyester plant in Spartanburg. Celanese had contracted with Daniel Construction Company, Seay's employer, to handle all maintenance work at its Spartanburg plant, and Daniel assigned Seay to work at this plant. Seay's duties included maintaining and repairing pumps, valves, condensers, and other equipment. In performing this work, Seay came into contact with asbestos gaskets, packing, and insulation materials. Tragically, in August 2013, Seay was diagnosed with mesothelioma

, a type of lung cancer.

On September 25, 2013, Seay and his wife, Linda Seay, filed this action against Appellant and several other defendants, alleging negligence by failure to warn Seay of the dangers of asbestos, failure to provide adequate safety measures against asbestos dust, and failure to provide safe environmental conditions in the Spartanburg plant. Seay died from advanced mesothelioma

on December 29, 2014. Subsequently, Seay's daughter, Respondent Angie Keene, amended the complaint to add causes of action for wrongful death and survival. Appellant then filed a motion to dismiss pursuant to Rule 12(b)(6), SCRCP, or, in the alternative, for summary judgment pursuant to Rule 56, SCRCP. The basis for this motion was that Seay was a statutory employee of Celanese and, therefore, his exclusive remedy was under the South Carolina Workers' Compensation Act, S.C. Code Ann. §§ 42-1-10 to 42-19-50.1

The circuit court denied the motion and conducted a trial from September 28 through October 2, 2015, and from October 6 through 8, 2015. At the conclusion of the trial, the jury found that the negligence of Celanese caused Seay's mesothelioma

and awarded $2 million in actual damages to Seay's estate for its survival claim; $5 million in actual damages to Seay's estate for its wrongful death claim; and $5 million in actual damages to Linda Seay for her loss of consortium claim.

The jury also found Celanese was willful, wanton, and reckless and awarded $2 million in punitive damages. Appellant filed motions for a JNOV, new trial absolute, and new trial nisi remittitur, which the circuit court denied. This appeal followed.


1. Did the circuit court err by declining to grant a JNOV on the ground that Seay was a statutory employee of Celanese?

2. Did the circuit court err by declining to grant a mistrial on the ground of jury misconduct?

3. Did the circuit court err by admitting into evidence a video showing Seay crying out in pain?

4. Did the circuit court err by upholding the amount of the jury's verdict?

Statutory Employee

"[D]etermination of the employer-employee relationship for workers' compensation purposes is jurisdictional. Consequently, this [c]ourt has the power and duty to review the entire record and decide the jurisdictional facts in accord with the preponderance of the evidence." Poch v. Bayshore Concrete Prod./S.C., Inc. , 405 S.C. 359, 367, 747 S.E.2d 757, 761 (2013) (quoting Glass v. Dow Chem. Co. , 325 S.C. 198, 201–02, 482 S.E.2d 49, 51 (1997) ).


"The granting or denying of a motion for mistrial is within the sound discretion of the trial [court]. Absent an abuse of discretion, the decision of the trial [court] will not be overturned on appeal." Mishoe v. QHG of Lake City, Inc. , 366 S.C. 195, 202, 621 S.E.2d 363, 366 (Ct. App. 2005) (citation omitted). "An abuse of discretion occurs [when] the trial court is controlled by an error of law or [when] the [c]ourt's order is based on factual conclusions without evidentiary support." City of Columbia v. Pic-A-Flick Video, Inc. , 340 S.C. 278, 282, 531 S.E.2d 518, 521 (2000).


"The admission or exclusion of evidence is a matter within the trial court's sound discretion, and an appellate court may only disturb a ruling admitting or excluding evidence upon a showing of a ‘manifest abuse of discretion accompanied by probable prejudice.’ " Burke v. Republic Parking Sys., Inc. , 421 S.C. 553, 558, 808 S.E.2d 626, 628 (Ct. App. 2017) (quoting State v. Commander , 396 S.C. 254, 262–63, 721 S.E.2d 413, 417 (2011) ). "Determining whether prejudice exists ‘depends on the circumstances[,] and ‘the materiality and prejudicial character of the error must be determined from its relationship to the entire case.’ " Id. (quoting State v. Taylor , 333 S.C. 159, 172, 508 S.E.2d 870, 876 (1998) ). "Prejudice in this context means ‘there is a reasonable probability the jury's verdict was influenced by the wrongly admitted or excluded evidence.’ " Id. (quoting Vaught v. A.O. Hardee & Sons, Inc. , 366 S.C. 475, 480, 623 S.E.2d 373, 375 (2005) ).

New Trial/Excessive Damages

"[I]f a verdict is so grossly excessive and shockingly disproportionate that it indicates the jury was motivated by passion, caprice, prejudice, or other consideration not founded on the evidence[,] then it is the duty of the trial court and the appellate court to set aside the verdict absolutely." Caldwell v. K-Mart Corp. , 306 S.C. 27, 33, 410 S.E.2d 21, 25 (Ct. App. 1991). Nonetheless, "the jury's determination of damages is entitled to substantial deference[,]" and the circuit court's decision on whether to grant a new trial based on the amount of the verdict "will not be disturbed on appeal unless it clearly appears the exercise of discretion was controlled by a manifest error of law." Welch v. Epstein , 342 S.C. 279, 303, 536 S.E.2d 408, 420 (Ct. App. 2000).

I. Statutory Employee

Appellant asserts the circuit court erred by declining to grant a JNOV on the ground that Seay was a statutory employee of Celanese. Appellant argues that Seay's maintenance and repair work on plant equipment was a part of the business of Celanese, which was manufacturing polyester fiber, because the plant would not have been able to properly function without the maintenance and repair work performed by Seay and other Daniel employees.

"The statutory employee doctrine converts conceded non-employees into employees for purposes of the Workers' Compensation Act." Glass , 325 S.C. at 201 n.1, 482 S.E.2d at 50 n.1. "The rationale is to prevent owners and contractors from subcontracting out their work to avoid liability for injuries incurred in the course of employment." Id. Section 42-1-400 created the concept of a statutory employee:

When any person, in this section and [s]ections 42-1-420 and 42-1-430 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 and Sections 42-1-420 to 42-1-450 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 [that] he would have been liable to pay if the workman had been immediately employed by him.

S.C. Code Ann. § 42-1-400 (2015) (emphasis added). Pursuant to section 42-1-540, the exclusive remedy for an injured statutory employee is the Workers' Compensation Act. Therefore, even if a business organization does not have a direct employment relationship with a worker, the Workers' Compensation Act limits the worker to its provisions as the exclusive remedy for injuries he received while engaged in activity considered part of the organization's trade, business, or occupation.

Here, in its order denying Appellant's JNOV motion, the circuit court found that the "trade, business[,] or occupation" of Celanese was the manufacture of polyester fibers, and all Celanese employees were engaged in making these fibers. The circuit court also found the maintenance and repair work performed by Seay and other Daniel employees was "significantly different" from the work performed by Celanese employees and, therefore, concluded that Seay was not a statutory employee of Celanese. The court explained, "Although maintenance of the equipment in the plant may have been important to Celanese's operation, it does not follow that such maintenance was a ‘part or process’ of its synthetic fiber manufacturing business."

Our courts have traditionally applied three tests in determining whether a worker is engaged in activity that is part of the organization's trade, business, or occupation: (1) the activity is an important part of the organization's business or trade; (2) the activity is a necessary, essential, and integral part of the organization's business;...

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4 cases
  • Keene v. CNA Holdings, LLC
    • United States
    • South Carolina Supreme Court
    • August 11, 2021
    ...the verdict, again finding Seay was not a statutory employee. The court of appeals affirmed. Keene v. CNA Holdings, LLC , 426 S.C. 357, 376, 827 S.E.2d 183, 193 (Ct. App. 2019).2 II. AnalysisWhen our General Assembly enacted the original "Workmen's Compensation Act" in 19363 —now officially......
  • Zeigler v. Eastman Chem. Co.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • November 23, 2022
    ...after the district court dismissed the plaintiffs' actions – the South Carolina Court of Appeals decided Keene v. CNA Holdings, LLC , 426 S.C. 357, 827 S.E.2d 183 (Ct. App. 2019). Applying Olmstead , the Court of Appeals concluded that maintenance contractors are not , as a general matter, ......
  • S.C. Dep't of Soc. Servs. v. Taylor
    • United States
    • South Carolina Court of Appeals
    • August 23, 2023
    ... ... questions; therefore, this issue is not preserved for appeal ... See Keene v. CNA Holdings, LLC, 426 S.C. 357, 381, ... 827 S.E.2d 183, 196 (Ct. App. 2019) (stating if a party fails ... to make a timely ... ...
  • Antoine v. Holcim (U.S.), Inc.
    • United States
    • U.S. District Court — District of South Carolina
    • May 7, 2020
    ...was not a statutory employee of the entity that operated the manufacturing plant where he performed maintenance. Keene v. CAN Holdings, LLC, 827 S.E.2d 183 (S.C. Ct. App. 2019), cert. granted (Nov. 1, 2019). There, the putative statutory employer argued the "maintenance and repair work on p......

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