Kimmer v. Murata of America, Inc.

Decision Date18 December 2006
Docket NumberNo. 4187.,4187.
Citation640 S.E.2d 507
CourtSouth Carolina Court of Appeals
PartiesRichard KIMMER, Respondent, v. MURATA OF AMERICA, INC. and Liberty Mutual Insurance Company, Appellants.

Pope D. Johnson, III, of Columbia, for Appellants.

Thomas H. Pope, of Newberry, for Respondent.

ANDERSON, J.:

In this workers' compensation action, Richard Kimmer sought benefits for an alleged work injury. Before filing his workers' compensation claim and without notifying his employer-carrier (collectively Murata), Kimmer settled a third party claim for the liability policy limit. The single commissioner concluded Kimmer elected his remedy by failing to notify Murata, and his workers' compensation claim was barred. The Appellate Panel adopted the single commissioner's conclusion. Kimmer appealed to the circuit court, which reversed the Appellate Panel and awarded Kimmer total disability benefits. We reverse.

FACTUAL/PROCEDURAL BACKGROUND

On January 29, 1999, Kimmer sustained injuries in a motor vehicle accident as he was driving to work for his employer, Murata. The driver at fault was Anthony Pendergrass. As a result of the accident, Kimmer was diagnosed with meniscal tears in both knees, a ruptured disc at L4-5, post-traumatic stress syndrome and depression. Following the accident, Kimmer had three surgeries on his right knee and one surgery on his left knee.

Pendergrass had automobile liability insurance with a policy limit of $15,000. Following the accident and without notice to Murata, Kimmer negotiated a settlement of the third party claim with Pendergrass' liability carrier for the policy limit. On June 16, 1999, Kimmer signed a release of all claims against Pendergrass.

Kimmer filed a Form 50 on June 18, 1999, and an Amended Form 50 on May 29, 2002, seeking workers' compensation benefits. On June 18, 2002, Murata filed its Form 51 denying Kimmer's claim and asserting as a defense that the third party action had been settled without consent. On December 10, 2002, a hearing was held to determine the issues set forth in the Forms 50 and 51. The single commissioner found Kimmer's injuries compensable because Murata provided him with a car allowance and mileage. However, she denied Kimmer's claim. Relying on Fisher v. S.C. Dep't of Mental Retardation-Coastal Ctr., 277 S.C. 573, 291 S.E.2d 200 (1982), the single commissioner concluded the settlement of the third party claim, without notice to Murata, constituted an election of remedies and barred the workers' compensation claim.

The Appellate Panel affirmed and adopted the order of the single commissioner. On appeal to the circuit court, the trial judge (1) reversed the order of the Appellate Panel, (2) awarded total and permanent disability to Kimmer, (3) awarded Murata an offset of $10,000 (the net amount of the third party settlement), and (4) entered judgment in favor of Kimmer in the amount of $209,235.00.

On July 25, 2005, Murata filed a Motion for Reconsideration. The circuit court issued an amended order reversing the order of the Appellate Panel and finding that (1) Murata suffered no prejudice as a result of the settlement without notice, (2) Kimmer was totally and permanently disabled, and (3) Kimmer was entitled to an award of total and permanent disability, less an offset for the third party settlement. Murata then filed a Motion to Reconsider arguing the circuit court erroneously inserted a prejudice requirement into workers' compensation cases involving election of remedies. The motion was denied on September 1, 2005.

STANDARD OF REVIEW

The South Carolina Administrative Procedures Act (APA) establishes the standard for judicial review of workers' compensation commission decisions. Lark v. Bi-Lo, Inc., 276 S.C. 130, 134-35, 276 S.E.2d 304, 306 (1981); Bass v. Isochem, 365 S.C. 454, 467, 617 S.E.2d 369, 376 (Ct.App.2005) cert. granted, November 2, 2006; Hargrove v. Titan Textile Co., 360 S.C. 276, 288, 599 S.E.2d 604, 610 (Ct.App.2004). A reviewing court may reverse or modify an agency decision if the findings, inferences, conclusions, or decisions of that agency are "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record." Bass v. Kenco Group, 366 S.C. 450, 457, 622 S.E.2d 577, 580 (Ct.App.2005); Bursey v. S.C. Dep't of Health & Envtl. Control, 360 S.C. 135, 141, 600 S.E.2d 80, 84 (Ct.App.2004); S.C.Code Ann. § 1-23-380(A)(5) (Act No. 387, 2006 S.C. Acts 387, eff. July 1, 2006). Under the scope of review established in the APA, this court may not substitute its judgment for that of the Appellate Panel as to the weight of the evidence on questions of fact, but may reverse where the decision is affected by an error of law. Liberty Mut. Ins. Co. v. S.C. Second Injury Fund, 363 S.C. 612, 619, 611 S.E.2d 297, 300 (Ct.App.2005); Frame v. Resort Servs., Inc., 357 S.C. 520, 527, 593 S.E.2d 491, 495 (Ct.App.2004); Stephen v. Avins Constr. Co., 324 S.C. 334, 337, 478 S.E.2d 74, 76 (Ct.App.1996); S.C.Code Ann. § 1-23-380(A)(5) (Act No. 387, 2006 S.C. Acts 387, eff. July 1, 2006).

An administrative agency's findings are presumed correct and will be set aside only if unsupported by substantial evidence. Anderson v. Baptist Med. Ctr., 343 S.C. 487, 492, 541 S.E.2d 526, 528 (2001); Hicks v. Piedmont Cold Storage, Inc., 335 S.C. 46, 48, 515 S.E.2d 532, 533 (1999); Gadson v. Mikasa Corp., 368 S.C. 214, 222, 628 S.E.2d 262, 266 (Ct.App.2006). Accordingly, a reviewing court may not substitute its judgment for that of the Appellate Panel as to the weight of the evidence on questions of fact. Stephen, 324 S.C. at 337, 478 S.E.2d at 76. It is not within our province to reverse findings of the Appellate Panel which are supported by substantial evidence. Broughton v. South of the Border, 336 S.C. 488, 496, 520 S.E.2d 634, 637 (Ct.App.1999). Instead, review of issues of fact is limited to determining whether the findings are supported by substantial evidence in the record. Hargrove, 360 S.C. at 289, 599 S.E.2d at 610-11. "On appeal, this court must affirm an award of the Workers' Compensation Commission in which the circuit court concurred if substantial evidence supports the findings." Solomon v. W.B. Easton, Inc., 307 S.C. 518, 520, 415 S.E.2d 841, 843 (Ct.App.1992). Substantial evidence is not a mere scintilla of evidence, nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the administrative agency reached in order to justify its action. Pratt v. Morris Roofing, Inc., 357 S.C. 619, 622, 594 S.E.2d 272, 274 (2004); Jones v. Georgia-Pacific Corp., 355 S.C. 413, 417, 586 S.E.2d 111, 113 (2003).

LAW/ANALYSIS

The circuit court held Kimmer's workers' compensation action was not barred by his third party settlement, but only subject to an offset for the third party settlement he received. Murata contends this holding was error because Kimmer settled his third party claim without notice to Murata, thereby electing his remedy. We agree.

The South Carolina Workers' Compensation Act provides claimants with three remedies for job-related injuries:

(1) Pursuant to section 42-1-560(c) of the South Carolina Code (Supp.2005) a claimant may proceed solely against the employer, thereby allowing the employer-carrier the opportunity to pursue reimbursement against the third party for its obligated payments:

If, prior to the expiration of the one-year period referred to in subsection (b), or within thirty days prior to the expiration of the time in which such action may be brought, the injured employee . . . shall not have commenced action against or settled with the third party, the right of action of the injured employee . . . shall pass by assignment to the carrier; provided, that the assignment shall not occur less than twenty days after the carrier has notified the injured employee . . . in writing, by personal service or by registered or certified mail that failure to commence such action will operate as an assignment of the cause of action to the carrier.

(2) Alternatively, a claimant may proceed solely against the third party tortfeasor under section 42-1-550 of the South Carolina Code (Supp.2005) by instituting and prosecuting an action at law:

When an employee, his personal representative or other person may have a right to recover damages for injury, loss of service or death from any person other than the employer, he may institute an action at law against such third person before an award is made under this Title [Workers' Compensation Act] and prosecute it to its final determination.

(3) Or a claimant may proceed against both the employer-carrier and the third party tortfeasor by complying with section 42-1-560(b) of the South Carolina Code (Supp.2005):

The injured employee . . . shall be entitled to receive the compensation and other benefits provided by this Title [Workers' Compensation Act] and to enforce by appropriate proceedings his or their rights against the third party. . . . In such case the carrier shall have a lien on the proceeds of any recovery from the third party whether by judgment, settlement or otherwise, to the extent of the total amount of compensation, including medical and other expenses, paid, or to be paid by such carrier, less the reasonable and necessary expenses, including attorney fees, incurred in effecting the recovery, and to the extent the recovery shall be deemed to be for the benefit of the carrier . . . . Notice of the commencement of the action shall be given within thirty days thereafter to the Industrial Commission, the employer and carrier upon a form prescribed by the Industrial Commission.

See Fisher v. S.C. Dep't of Mental Retardation, 277 S.C. 573, 575, 291 S.E.2d 200, 201 (1982) (emphasis added).

I. Notice

The imperative nature of the statutory language mandating notice of a third party claim...

To continue reading

Request your trial
11 cases
  • Coastal Conservation v. Dept. of Health
    • United States
    • Court of Appeals of South Carolina
    • October 23, 2008
    ......235, 242, 647 S.E.2d 691, 694 (Ct.App.2007); Hall v. United Rentals, Inc., 371 S.C. 69, 78-79, 636 S.E.2d 876, 881 (Ct. App.2006) (citing Lark v. ...Dist. No. 1, 270 S.C. 492, 495-496, 243 S.E.2d 192, 193 (1978); Kimmer v. Murata of America, Inc., 372 S.C. 39, 44, 640 S.E.2d 507, 509 ......
  • Kimmer v. Wright
    • United States
    • Court of Appeals of South Carolina
    • December 19, 2011
    ......, Kimmer was injured in a motor vehicle accident as he was driving to work for his employer, Murata. He hired         [719 S.E.2d 267] attorney Philip Wright to represent him. Without ... statute ran from client's knowledge of improperly indexed judgment); Holy Loch Distribs., Inc. v. Hitchcock, 332 S.C. 247, 254, 503 S.E.2d 787, 791 (Ct.App.1998) (holding statute began to run ......
  • Kimmer v. Wright
    • United States
    • Court of Appeals of South Carolina
    • November 2, 2011
    ......, Kimmer was injured in a motor vehicle accident as he was driving to work for his employer, Murata.  He hired attorney Philip Wright to represent him.  Without notice to Murata, Wright settled ... statute ran from client's knowledge of improperly indexed judgment); Holy Loch Distribs., Inc. v. Hitchcock , 332 S.C. 247, 254, 503 S.E.2d 787, 791 (Ct. App. 1998) (holding statute began to ......
  • Levi v. N. Anderson Cnty. Ems, & Berkshire Hathaway Homestate Ins. Co.
    • United States
    • Court of Appeals of South Carolina
    • August 25, 2014
    ......Bondex, Inc., 406 S.C. 97, 103, 749 S.E.2d 155, 158 (Ct.App.2013).         ... to the employer and carrier bars a workers' compensation action.” Kimmer v. Murata of Am., Inc., 372 S.C. 39, 52, 640 S.E.2d 507, 513–14 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT