McCreery v. Covenant Presbyterian Church

• Decision Date: 12 June 1989
• Docket Number: No. 1387,1387
• Court: South Carolina Court of Appeals
• Parties: James E. McCREERY, Claimant, Respondent, v. COVENANT PRESBYTERIAN CHURCH and Auto-Owners Insurance Company; or ABC Enterprises, Inc. and U.S. Fire Insurance Company; or Grace Presbyterian Chapel; Defendants, Of Whom Covenant Presbyterian Church and Auto-Owners Insurance Company, are Appellants, and ABC Enterprises, Inc. and U.S. Fire Insurance Company are Respondents. . Heard

Page 264

383 S.E.2d 264

299 S.C. 218

James E. McCREERY, Claimant, Respondent, v. COVENANT PRESBYTERIAN CHURCH and Auto-Owners Insurance

Company; or ABC Enterprises, Inc. and U.S. Fire

Insurance Company; or Grace

Presbyterian Chapel; Defendants,

Of Whom

Covenant Presbyterian Church and Auto-Owners Insurance

Company, are Appellants,

and ABC Enterprises, Inc. and U.S. Fire Insurance Company

are Respondents.

No. 1387.

Court of Appeals of South Carolina.

Heard June 12, 1989.

Decided Aug. 14, 1989.

Samuel F. Painter, of Nexsen, Pruet, Jacobs & Pollard, Columbia, for appellants.

Willard D. Hanna, Jr., of Harris, Hanna & Smith, Surfside Beach, and Lana H. Sims, Jr., of Nauful & Ellis, Columbia, for respondents.

CURETON, Judge:

This is a workers' compensation case. The primary issue is whether James McCreery was an employee of Covenant Presbyterian Church at the time of his injury. The Single Commissioner, Full Commission, and circuit court held he was an employee. Covenant and its workers' compensation insurer, Auto-Owners Insurance Company, appeal. We reverse.

In 1984, Covenant Presbyterian Church in Columbia decided to assist in the development of a new church in Murrells Inlet. The new church was to be known as Grace Presbyterian Chapel. Covenant purchased land for the new church and selected Rev. Vaughn Shoemaker as an assistant minister with the responsibility to organize and build the new church. Rev. Shoemaker entered into a contract on behalf of Grace Presbyterian Chapel with A.B.C. Enterprises Inc. to build the church. James McCreery was the president of A.B.C. Enterprises. The company obtained the construction materials and the labor was supplied by volunteers. Mr. McCreery was one of the volunteers. On September 18, 1985, he was injured in a fall at the site. The accident was reported to the agency which supplied insurance coverage to Covenant. Apparently, the accident was reported on a Form 12-A to Auto-Owners Insurance Company and an adjuster was assigned to the file in November. The record does not disclose fully the investigation which took place but the adjuster received a recorded statement from Mr. McCreery and obtained copies of his tax returns for wage verification.

In January of 1986, Mr. McCreery and Auto-Owners entered into an agreement for compensation. This agreement was submitted to the Workers' Compensation Commission which approved the agreement in a form order. The notice of award indicated McCreery was entitled to temporary total disability as well as medical benefits. The notice also stated "the Commission will revise the above award upon a showing of mistake of fact, fraud, or change of condition."

In July 1986, after having stopped payment of compensation to McCreery, Covenant and Auto-Owners petitioned the Workers' Compensation Commission to set aside the award. They asserted McCreery was not an employee of Covenant and the Commission was without jurisdiction to enter the award of compensation.

The Single Commissioner held there had been no showing of misrepresentation on the part of McCreery. He held the mistake of fact as to McCreery's status could not serve as a basis for setting aside the award because Auto-Owners had two months to investigate the claim and complete access to all information concerning the facts of the case. He further held the award of the Commission was not subject to collateral attack and that McCreery was an employee of Covenant and entitled to compensation. The Single Commissioner's findings and conclusions were affirmed by the Full Commission. The circuit court on appeal held the agreement for compensation between McCreery and Auto-Owners was the law of the case and not subject to collateral attack. The court also held McCreery was an employee of Covenant.

I.

The first matter this Court must address is the agreement for compensation between McCreery and Auto-Owners. The Workers' Compensation Commission has subject matter jurisdiction only where the relationship of employer and employee exists at the time of the alleged injury for which the claim is made. Crim v. Decorator's Supply, 291 S.C. 193, 352 S.E.2d 520 (Ct.App.1987). Auto-Owners contends the relationship does not exist and lack of subject matter jurisdiction can be raised on appeal. McCreery argues Auto-Owners had the opportunity to investigate and jurisdiction was present when the agreement for compensation was executed; therefore, it is bound by its agreement.

Lack of subject matter jurisdiction cannot be waived and an appellate court may raise it ex mero motu. Harden v. S.C. State Highway Dept., 266 S.C. 119, 221 S.E.2d 851 (1976). Parties cannot by consent confer jurisdiction upon a court. Cox v. Lunsford, 272 S.C. 527, 252 S.E.2d 918 (1979); Petroleum Transportation Inc. v. Public Service Comm., 255 S.C. 419, 179 S.E.2d 326 (1971). This principle also applies to the Workers' Compensation Commission. Carter v. Associated Petroleum Carriers, 235 S.C. 80, 110 S.E.2d 8 (1959) (Industrial Commission cannot acquire jurisdiction by estoppel, agreement, waiver, or conduct). Contrary to the argument of McCreery, we do not believe this case is controlled by Allen v. Benson Outdoor Advertising Co. In Allen the parties entered into an agreement for compensation which was approved by the Industrial Commission. The employee later asserted his condition had changed for the worse and he was entitled to a review of the award. One of the issues raised by the employer in response was that the employee did not suffer an injury by accident. The South Carolina Supreme Court held the question of whether the claimant suffered an injury by accident was finally adjudicated by the agreement as to compensation and the employer could not retry the issue. Allen v. Benson Outdoor Advertising Co., 236 S.C. 22, 112 S.E.2d 722 (1960). There is a distinction between the existence of an employer-employee relationship and whether an employee suffered an injury by accident. The first issue is directed to subject matter jurisdiction and the appellate courts in resolving the issue may take their own view of the preponderance of the evidence. The second question does not involve subject matter jurisdiction and the appellate courts review the commission's findings of fact pursuant to the Administrative Procedures Act. Cline v. Nosredna Corp. Inc., 291 S.C. 75, 352 S.E.2d 291 (Ct.App.1986). The Allen case does not address subject matter jurisdiction. We also note this is not a case where the issue of subject matter jurisdiction was actually...