Lovell v. C. A. Timbes, Inc.

• Court: South Carolina Supreme Court
• Writing for the Court: NESS; MOSS
• Citation: Lovell v. C. A. Timbes, Inc., 210 S.E.2d 610, 263 S.C. 384 (S.C. 1974)
• Decision Date: 17 December 1974
• Docket Number: No. 19932,19932
• Parties: Willie C. LOVELL, Respondent, v. C. A. TIMBES, INC., and Fireman's Fund Insurance Company, Appellants.

Page 610

210 S.E.2d 610

263 S.C. 384

Willie C. LOVELL, Respondent, v. C. A. TIMBES, INC., and Fireman's Fund Insurance Company, Appellants.

No. 19932.

Supreme Court of South Carolina.

Dec. 17, 1974.

Wright, Scott, Blackwell & Powers, Florence, for appellants.

Suggs, McCutcheon & Ray, Conway, for respondent.

NESS, Acting Associate Justice:

This is a workmen's compensation case and involves the question of whether or not the defendant-appellant is estopped from invoking the provisions of Section 72--303 of the 1962 Code of Laws of South Carolina.

The claimant, Willie C. Lovell, sustained an injury on June 23, 1971, while in the employment of the appellant, but he did not file claim with the South Carolina Industrial Commission for compensation under the Workmen's Compensation Act until November 30, 1972, more than one year after the accident.

The defendant-appellant denied liability upon the basis that claimant was barred to file for compensation by his failure to file his claim with the South Carolina Industrial Commission within the time prescribed by statute, which provides, '_ _ shall be forever barred unless a claim is filed with the Commission within one year after the accident.'

The Hearing Commissioner held that there was no estoppel, but the majority of the Full Commission reversed, finding that appellant had waived or was estopped to assert that defense of the one year statute of limitations, the Circuit Court affirmed the decision and findings of the Full Commission.

The claimant, a driver-salesman, suffered a back injury while allegedly lifting boxes for his employer, for whom he had worked for twenty-five years prior to date of accident.

The facts largely undisputed, will be given in chronological order:

June 23, 1971: Injury occurred.

June 23, 1971: Employee informed employer about injury.

June 24, 1971: Employee's wife, sister of President of Company for whom employee worked, told the firm's President that employee would not be to work due to injury.

June 28, 1971: Employee operated on spine in Charleston Hospital where he remained twelve to thirteen days. Never returned to work.

September 27, 1971: C. A. Timbes, Sr., President of Company was killed in auto accident.

May, 1972: (Exact date uncertain) Lovell, claimant talked to C. A. Timbes, Jr., now President of appellant corporation, who was at this time in charge of the firm; Timbes stated he was unaware of the procedures for filing a claim with the Industrial Commission, at his father had always attended to this, and told Lovell to see their insurance agent and get forms, which Timbes would fill out.

May, 1972: (Exact date uncertain) Lovell, claimant talks to Thompson, the insurance agent, about the matter and gets some forms. (Which were forms for employer's first report).

May 19, 1972: Employer's first report-of-accident form filed with Commission. (Forms which Lovell had obtained from insurance agent).

June 6, 1972: Partridge, an independent adjuster acting for the insurer, came to see Lovell, examined him, and took his statement.

June 16, 1972: Lovell called Partridge and the latter expressed surprise that claimant had not heard from the insurer; promised to be in touch within several weeks, but never called back.

June 23, 1972: Limitation period denied.

July 19, 1972: Lovell received letter from insurer summarily denying claim, this was the first denial.

August 14, 1972: Lovell's counsel informs Commission that a Form 50 claim will be filed.

November 30, 1972: Form 50 claim filed.

The sole question at issue is whether there was any competent evidence to sustain the finding of fact by the majority of the Industrial Commission, concurred in by the Circuit Judge, relative to claimant's plea of estoppel. For, under well settled principles, if there was any competent evidence to support this factual finding, such is binding on this Court on appeal.

There is no controversy as to the applicable legal principles. We held in the case of Clements v. Greenville County, 246 S.C. 20, 23, 142 S.E.2d 212, 213, 'The rule is now firmly established that Section 72--303 is a statute of limitation and that compliance with its provisions may be waived by the employer or its insurance carrier or they may become estopped by their conduct from asserting the statute as a defense. The claim here is that the employer and carrier were estopped under the circumstances from asserting as a defense the failure of the claimant to timely file his claim. We have held that estoppel in such cases will arise from conduct on the part of the employer or carrier from which it may be reasonably inferred that the claimant was misled or deceived, whether intentionally or not, to believe that the claim is compensable and will be taken care of without its being filed with the Commission within the period limited.'

Also we held in Chapman v. Foremost Dairies, 249 S.C. 438, 451, 154 S.E.2d 845, that the purpose of section 72--303 of the Code is to protect employers and their insurance carriers against long delayed demands and that since this provision is not jurisdictional that such section should be given a liberal construction.

The facts of this case involves unusual circumstances in that the parties were related, claimant had worked at same employment for twenty-five years, had never...