Paschal v. Price

• Citation: 670 S.E.2d 374,380 S.C. 419
• Decision Date: 04 November 2008
• Docket Number: No. 4454.,4454.
• Court: Court of Appeals of South Carolina
• Parties: Ernest Lee PASCHAL, Respondent/Appellant, v. Richard PRICE, d/b/a RAP Financial Services, Employer, and S.C. Uninsured Employer's Fund, Appellants/Respondents.

670 S.E.2d 374

380 S.C. 419

Ernest Lee PASCHAL, Respondent/Appellant, v. Richard PRICE, d/b/a RAP Financial Services, Employer, and S.C. Uninsured Employer's Fund, Appellants/Respondents.

No. 4454.

Court of Appeals of South Carolina.

Submitted June 1, 2008.

Decided November 4, 2008.

Withdrawn, Substituted and Refiled November 24, 2008.

Rehearing Denied December 19, 2008.

Clarke W. McCants, III and Amy Patterson Shumpert, both of Aiken and Stanford Ernest Lacy, of Columbia, for Appellants-Respondents.

Ann McCrowey Mickle, of Rock Hill and Thomas Roy Young, Jr., of Aiken, for Respondent-Appellant.

AFFIRMED

THOMAS, J.:

This is a cross-appeal in a workers' compensation case. The single commissioner found the claimant, Respondent-Appellant Ernest Lee Paschal, sustained injuries in an accident that arose out of and in the scope of his employment with Appellant-Respondent Richard A. Price, d/b/a RAP Financial Services (Price) and awarded him compensation at the maximum rate for the year during which the accident occurred, plus lifetime medical benefits for permanent and total disability. These rulings were affirmed by the appellate panel of the South Carolina Workers' Compensation Commission and the circuit court. Appellants-Respondents Price and the S.C. Uninsured Employer's Fund¹ appeal (1) the determination that Paschal was Price's employee rather than an independent contractor, (2) certain aspects of the benefits awarded, and (3) the denial of a new hearing before a different commissioner because of concerns that remarks by Paschal's attorney may have tainted the proceedings. In his appeal, Paschal alleges Price's appeal to the circuit court was untimely and, therefore, the court erred by allowing it to proceed. We affirm.

FACTS AND PROCEDURAL HISTORY

In 1987, Price began collection work from his residence. This work led to the formation of RAP Financial Services (RAP), a sole proprietorship specializing in the recovery of collateral, typically automobiles, for banks and other lienholders. In addition to repossessors (known as "drivers"), RAP used clerks, skip tracers, and other office personnel to work with lenders to recover their collateral. Initially, each worker was paid a salary without deductions and received a 1099 form at the end of the year.

In 1996 or 1997, Price organized his drivers into teams. Under the team concept, Price paid all the expenses of a recovery as well as designated rates to each team member.

Paschal first applied to work as a driver with RAP in April 1998, filling out a preprinted form entitled "Application for Employment." The information Paschal provided on the form indicated that he was submitting an application on his own behalf and not as a principal of a business, desired work as a "repo man," and had previously held two similar positions for which he was compensated "per car." RAP accepted Paschal's application and assigned him to a team; however, Paschal worked as a driver for only a few weeks in 1998.

In the latter part of 1998, Price was audited by the Internal Revenue Service. As a result of the audit, RAP was reorganized so that its account representatives, skip tracers, secretaries, and other clerical personnel who worked within its office were compensated as employees and had taxes withheld from their paychecks. The team concept, however, was abandoned, and drivers continued to be compensated as independent contractors.

In January 1999, after Price discontinued the team concept, Paschal again began working as a driver for RAP. According to Price and other witnesses, Paschal also signed an independent contractor agreement; however, Paschal disputed this assertion and neither an original nor a copy of that agreement could be produced. Although Price maintained Paschal signed another independent contractor agreement on January 4, 2000, only a copy of the agreement could be produced at the hearing and Paschal's position was that the duplicate was a forgery.

As they did with other drivers, RAP representatives would fax, call, or personally deliver to Paschal information identifying and locating the vehicles to be repossessed. In addition, RAP instructed Paschal as to the most expedient order in which to take possession of the vehicles that he was responsible for recovering.

Usually, RAP would assign accounts to drivers based on the geographic location of the collateral to be repossessed. Paschal, however, would also handle accounts outside South Carolina and was often referred to as the "clean-up man" because he would repossess cars that other drivers could not find in their respective locations.

Although Paschal initially used his own truck for his work, RAP loaned him money for the purchase of additional trucks for his use in the repossession business. RAP also provided Paschal with a beeper, a toll-free telephone number, a business card, and keys to facilitate access to many of the cars being repossessed. Price also allowed Paschal to use vehicles belonging to RAP when Paschal's truck was not operable. Although Paschal paid for fuel and maintenance, RAP wrote off the depreciation on the vehicles as a business expense. RAP also loaned Paschal interest-free money for the purchase of other equipment such as hydraulic lifts and tow packages, paying the providers directly and subtracting the reimbursement payments from whatever was due Paschal in a given week for the vehicles he had recovered. When Paschal was working away from his home, RAP provided financial assistance for gas money and lodging. In one instance, Price paid for a bus ticket for Paschal to go to Florida to pick up a car from another repossession facility.

During 2000, the last year he worked as a driver for RAP, Paschal was assigned more than six hundred accounts and worked seven days per week, averaging two repossessions per day. On an average day, RAP would page Paschal eight to ten times to provide instructions and obtain updates from Paschal on recovery efforts, even on vehicles he had already repossessed. At times, Paschal would return home at eight o'clock in the morning after working all night, only to be called an hour later by RAP and told to get up, come to the office, get more accounts and go to work. Price would also call Paschal's mother's home in Charleston at inappropriate hours looking for Paschal. On one occasion, after Paschal returned home because he ran out of money, Price became angry and instructed Paschal that in the future he was to call RAP to have funds sent through Western Union.

The business card provided to Paschal was designed and paid for by RAP. It identified Paschal as a "field adjuster" and listed "RAP Financial Services" at the top in bold print. Moreover, RAP directed its staff not to mention to debtors that their vehicles were repossessed by independent contractors. RAP required Paschal to give this card to the debtor when repossessing a vehicle or to leave the card at the debtor's residence.

RAP ultimately remained responsible to the lienholders for the recovery of the collateral and made arrangements for its drivers to store vehicles at designated facilities. It also provided Paschal with instructions on how to mark the vehicles for identification and required him to complete a "condition report," which RAP provided, describing wear and tear on the collateral as well as an inventory of the personal items in the car for RAP to give to the debtor.

On October 25, 2000, Paschal was severely injured when the repossessed vehicle that he was towing blew a right rear tire and began to swerve. Paschal lost control of his own vehicle, which turned sideways, swerved left into the median, and overturned. Paschal was not wearing a seatbelt and was thrown from his vehicle, which landed on him and crushed his spinal cord, paralyzing him from the waist down.

On November 15, 2000, less than a month after Paschal's accident, Price applied for a workers' compensation policy with Joe B. Babb & Co., Inc. In his application, Price indicated he did not use subcontractors.

After the accident, Paschal met with a vocational rehabilitation counselor who, with Paschal's input, set up a plan for his rehabilitation. Paschal, however, did not follow through with the plan. In July 2001, Paschal worked as a skip tracer for RAP, but that employment lasted only a few weeks. On April 4, 2002, during a deposition in a lawsuit unrelated to the present litigation, Paschal acknowledged he did not bring a workers' compensation claim for his injury and stated he was self-employed at the time of the accident.

On June 5, 2002, Paschal commenced this action by filing a Form 50 with the South Carolina Workers' Compensation Commission. Price filed a Form 51 admitting Paschal was injured in an automobile accident, but denying he was an employee.

The matter came before the single commissioner in December 2003 for three days and in January 2004 for one day. On February 17, 2005, the single commissioner issued an order in which he found Paschal was an employee of RAP, had become totally disabled from the accident, and was entitled to the maximum rate of compensation. Price appealed to the appellate panel of the South Carolina Workers' Compensation Commission.

On February 1, 2006, the appellate panel issued an order affirming the single commissioner's findings. On Thursday, March 2, 2006, Price mailed his notice of appeal to Paschal and the Clerk of Court for Aiken County (Clerk). Although the notice, along with the filing fee, was timely received on March 3, the Clerk did not clock it in because a civil cover sheet was not attached as required by an administrative order issued by the South Carolina Supreme Court. On or about March 8, the Clerk returned the notice of appeal to Price by mail with a form letter indicating a cover sheet was needed. Price again submitted the notice of appeal with the cover sheet the same day. The Clerk clocked in the notice of appeal on March 10, 2006, and...