Poch v. Bayshore Concrete
| Decision Date | 09 September 2009 |
| Docket Number | No. 4617.,4617. |
| Citation | 686 S.E.2d 689 |
| Parties | Thelma M. POCH, as Personal Representative for the Estate of Kenneth O. Poch, Appellant, v. BAYSHORE CONCRETE PRODUCTS/SOUTH CAROLINA, INC., Bayshore Concrete Products Corporation, Tidewater Skanska Group, Inc., and Tidewater Skanska, Inc., Defendants, of whom Bayshore Concrete Products/South Carolina, Inc., and Bayshore Concrete Products Corporation are the Respondents. Kevin Key and Sandra Key, Appellants, v. Bayshore Concrete Products/South Carolina, Inc., Bayshore Concrete Products Corporation, Tidewater Skanska Group, Inc., and Tidewater Skanska, Inc., Defendants, of whom Bayshore Concrete Products/South Carolina, Inc., and Bayshore Concrete Products Corporation are the Respondents. Thelma M. Poch, as Personal Representative for the Estate of Kenneth O. Poch and Julius Poch, Appellant, v. Bayshore Concrete Products/South Carolina, Inc., Bayshore Concrete Products Corporation, Tidewater Skanska Group, Inc., and Tidewater Skanska, Inc., Defendants, of whom Bayshore Concrete Products/South Carolina, Inc., and Bayshore Concrete Products Corporation are the Respondents. |
| Court | South Carolina Court of Appeals |
Gerald E. Loftstead, III, of Wheeling, WV, for Appellants.
Samuel R. Clawson, Timothy A. Domin, and Barrett R. Brewer, all of Charleston, for Respondents.
Thelma Poch, as the Personal Representative for the Estate of Kenneth O. Poch and Kevin and Sandra Key appeal the circuit court's order of dismissal of their causes of actions against Bayshore Concrete Products South Carolina, Inc. (Bayshore SC), and Bayshore Concrete Products Corporation, Tidewater Skanska Group, Inc., and Tidewater Skanska, Inc. (Bayshore Corp) following a finding all claims were barred by the exclusivity provision of the Workers' Compensation Act. We affirm.
Bayshore Corp is a Virginia corporation which is in the business of manufacturing pre-cast concrete products for use in construction projects. Bayshore SC is a South Carolina corporation which is a wholly owned subsidiary of Bayshore Corp and is also in the business of manufacturing precast concrete products for use in construction projects. After securing a bid to supply precast concrete forms for use in the Carolina Bays Parkway project in Horry County, Bayshore Corp formed Bayshore SC, to effectively act as a remote casting yard to fulfill the bid for the Carolina Bays project locally in South Carolina. Bayshore Corp executed a lease for a South Carolina factory site and purchased equipment on behalf of Bayshore SC so that Bayshore SC could produce the concrete forms necessary to fulfill the bid. Bayshore SC paid the rent for the leased property, and Bayshore SC used the equipment to produce the concrete forms for the Carolina Bays Project. Under the terms of the lease, Bayshore SC was required to return the work site to its original condition.
While Bayshore SC was in the final stages of finishing its Carolina Bays project, it contracted with Job Place to hire workers for the site cleanup and equipment dismantling. Job Place had previously leased several employees of Personnel Resources of Georgia (Personnel Resources), and Job Place signed a contract with Personnel Resources on June 13, 2002. Job Place provided Bayshore SC with approximately ten workers to help with the project, including Kevin Key and Kenneth Poch. During the completion of the casting removal job, Poch and Key were involved in a work related accident when the trench where they were working caved in. Poch died as a result of the accident, and Key was severely injured. When the accident occurred on June 6, 2002, Key and Poch worked directly with Larry Lenart, a Bayshore SC supervisor. After the accident, Poch's Estate and Key received workers' compensation benefits through Job Place.
After receiving workers' compensation benefits, Poch's Estate and Key sued Bayshore Corp and Bayshore SC. Specifically, Thelma Poch, Kenneth's mother, filed a wrongful death and survival action, alleging negligence, gross negligence, professional negligence, breach of a professional duty, and premises liability. Kevin and Sandra Key filed a personal injury and loss of consortium action and also alleged negligence, gross negligence, professional negligence, breach of a professional duty, and premise liability. In their answer, Bayshore Corp and Bayshore SC claimed Kenneth Poch and Kevin Key were statutory employees of both the parent and the subsidiary. In an amended complaint, Thelma Poch and the Keys added a cause of action for breach of contract accompanied by fraud and negligent and/or intentional misrepresentation and/or deceit.
Bayshore Corp and Bayshore SC then moved for summary judgment and alternatively moved to dismiss for lack of subject matter jurisdiction. Specifically, Bayshore Corp and Bayshore SC requested a hearing to determine workers' compensation exclusivity jurisdiction. On April 19, 2007, the Honorable Steven H. John issued an order confirming the agreement of the parties to schedule a hearing date for the motions hearing. In his order, Judge John noted the parties agreed to a half day hearing, that the presentation of evidence would be by way of affidavits, deposition testimony, and applicable records. Further, the order allowed both parties to submit memoranda of law prior to the May 31, 2007 hearing.
Prior to the May 31 hearing, Appellants filed motions to exclude affidavits of Keith Colonna, Larry Lenart, and Vernon Dunbar. After a hearing on June 1, 2007, the circuit court addressed Bayshore's motions and included several factual findings. The circuit court determined Bayshore Corp and Bayshore SC were immune from civil suit under the workers' compensation exclusivity provisions. Specifically, the circuit court found: (1) Poch and Key were leased employees, solely performing the work of Bayshore Corp and Bayshore SC at the time of this accident; (2) Bayshore SC was a wholly owned subsidiary of Bayshore Corp formed for the purpose of filling a bid secured by Bayshore Corp to supply concrete forms to the Carolina Bays project. Bayshore SC was the special employer of Appellants and, because Bayshore SC was performing the work of Bayshore Corp both parent and subsidiary were entitled to immunity pursuant to worker's compensation exclusivity; (3) under the subcontractor analysis, both Bayshore SC and Bayshore Corp were entitled to workers' compensation exclusivity; and (4) Bayshore SC and Bayshore Corp were statutory employers of Poch and Key because Appellants were performing the work of Bayshore SC and Bayshore Corp In three separate orders the circuit court denied Appellants' motion to exclude the affidavits.
The circuit court found Appellants' reliance on section 42-5-40 of the South Carolina Code (Supp.2007) for the proposition that Bayshore SC and Bayshore Corp did not secure worker's compensation coverage and were not entitled to immunity was misplaced. Specifically, the circuit court noted section 42-5-40 only concerns the ability of an upstream employer to shift the burden of worker's compensation coverage onto the state uninsured fund and explicitly cannot be applied to prevent an employer from benefitting from worker's compensation exclusivity. Accordingly, the circuit court dismissed Bayshore SC and Bayshore Corp from this case with prejudice after finding it lacked subject matter jurisdiction to hear the action.
Thereafter, Appellants filed a Rule 59(e) motion. In their motion, Appellants asked the circuit court to reconsider several factual findings and argued the circuit court erred in finding Poch and Key were employees of both Bayshore SC and Bayshore Corp and that both parent and subsidiary had workers' compensation insurance. Poch and Key argued the circuit court erred in finding Bayshore SC and Bayshore Corp were entitled to workers' compensation exclusivity because Poch and Key were (1) special or borrowed employees; or (2) statutory employees because neither Job Place nor Bayshore SC ever transferred certain documentation per statute. Additionally, Appellants argued Bayshore SC fraudulently misrepresented the work that it required the temporary employees to perform, the elements of fraud were met, and no meeting of the minds was reached between the parties. Appellants maintained Bayshore SC and Bayshore Corp are separate entities and should be treated separately for purposes of workers' compensation coverage. Appellants argued Bayshore Corp did not own the work site where the injury occurred and thus the circuit court erred in concluding both Bayshore SC and Bayshore Corp were entitled to exclusivity under the subcontractor analysis. Appellants argued the circuit court erred in finding Bayshore Corp was Poch and Key's statutory employer. The circuit court did not specifically rule on Appellants' Rule 59(e) arguments but generally denied their motion for reconsideration. This appeal follows.
The existence of the employer-employee relationship is a jurisdictional question and one of law. Porter v. Labor Depot, 372 S.C. 560, 567, 643 S.E.2d 96, 100 (Ct.App. 2007). When deciding questions of law, this court has the power and duty to review the entire record and decide the jurisdictional facts in accord with its view of the preponderance of the evidence. Wilkinson ex rel. Wilkinson v. Palmetto State Transp. Co., 382 S.C. 295, 299, 676 S.E.2d 700, 702 (2009); Harrell v. Pineland Plantation, Ltd., 337 S.C. 313, 320, 523 S.E.2d 766, 769 (1999). It is the policy of South Carolina courts to resolve jurisdictional doubts in favor of the inclusion of employers and employees under the Workers' Compensation Act. Hill v. Eagle Motor Lines, 373 S.C. 422, 429, 645 S.E.2d 424, 427 (2007); see also Wilkinson, 382 S.C. at 300, 676 S.E.2d at 702 (...
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...court, which includes the finding of the facts which relate to jurisdiction." (citations omitted)); Poch v. Bayshore Concrete Prods./S.C., Inc., 686 S.E.2d 689, 694 (S.C. Ct. App. 2009) ("The General Assembly has vested the South Carolina Workers' Compensation Commission with exclusive orig......
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...court, which includes the finding of the facts which relate to jurisdiction." (citations omitted)); Poch v. Bayshore Concrete Prods./S.C., Inc., 686 S.E.2d 689, 694 (S.C. Ct. App. 2009) ("The General Assembly has vested the South Carolina Workers' Compensation Commission with exclusive orig......
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Vann v. Eastman Chem. Co.
...court, which includes the finding of the facts which relate to jurisdiction." (citations omitted)); Poch v. Bayshore Concrete Prods./S.C., Inc., 686 S.E.2d 689, 694 (S.C. Ct. App. 2009) ("The General Assembly has vested the South Carolina Workers' Compensation Commission with exclusive orig......
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Jackson v. Eastman Chem. Co.
...court, which includes the finding of the facts which relate to jurisdiction." (citations omitted)); Poch v. Bayshore Concrete Prods./S.C., Inc., 686 S.E.2d 689, 694 (S.C. Ct. App. 2009) ("The General Assembly has vested the South Carolina Workers' Compensation Commission with exclusive orig......