Posey v. Proper Mold & Engineering, Inc.

Decision Date29 April 2008
Docket NumberNo. 4381.,4381.
Citation661 S.E.2d 395
CourtSouth Carolina Court of Appeals
PartiesEddie J. POSEY and Belinda Posey, Appellants, v. PROPER MOLD & ENGINEERING, INC., Autegra, Inc., and Tyge Dremann, Respondents.

ANDERSON, J.

Eddie and Belinda Posey appeal the circuit court's order granting Proper Mold & Engineering, Inc., Autegra, Inc. (PME/Autegra), and Tyge Dremann's motion to dismiss. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Tiger Transport Service, Inc. (Tiger) employed Eddie Posey (Eddie) as a truck driver. Eddie owned his own tractor and trailer, which he leased to Tiger. PME/Autegra is a manufacturer of plastic injection products for the automotive industry. Additionally, PME/Autegra offers serial production molding and mold services, including mold repair.

At the time this action was filed, PME/Autegra owned a commercial tractor, a twenty-eight foot flat-bed trailer, and a fifty-three foot dry van. Two truck drivers holding South Carolina Commercial Drivers Licenses were employed by PME/Autegra. The tractor and trailers were used to deliver plastic injection molds and parts to customers and to pick up and return plastic molds needing repair. When PME/Autegra's own employees are unavailable for pick up or delivery, PME/Autegra contracts with common carriers to provide supplemental transportation services.

On January 16, 2004, PME/Autegra contracted with Tiger to provide supplemental transportation, and Tiger dispatched the request to Eddie. This particular job required him to make two trips to pick up different molds and deliver them to PME/Autegra for repair. Previously, Eddie had made deliveries to PME/Autegra and had assisted PME/Autegra in the unloading process. According to PME/Autegra, a truck driver making a delivery must assist in unloading the injection molds. Upon Eddie's arrival to PME/Autegra, an employee of PME/Autegra, Tyge Dremann, began the process of unloading the mold. Eddie and Dremann worked together to screw eyebolts into the mold and attach hooks to the mold in preparation for lifting and unloading the mold. As Dremann began operating the crane to move the mold, a hook attached to the crane came loose and struck Eddie in the head.

Eddie was granted workers' compensation benefits by Tiger. Subsequently, the Poseys filed a negligence action against PME/Autegra and Dremann. The circuit court, finding Eddie was a statutory employee of PME/Autegra, granted PME/Autegra and Dremann's motion to dismiss. In dismissing the Poseys' claims, the circuit court found that Eddie was a statutory employee of PME/Autegra and his exclusive remedy was in Workers' Compensation.

STANDARD OF REVIEW

Coverage under the Workers' Compensation Act depends on the existence of an employment relationship. Edens v. Bellini, 359 S.C. 433, 439, 597 S.E.2d 863, 866 (Ct. App.2004). Gray v. Club Group, Ltd., 339 S.C. 173, 184, 528 S.E.2d 435, 441 (Ct.App. 2000), explicates: "Before provisions of the Workers' Compensation Act can apply, an employer-employee relationship must exist; this is an initial fact to be established." Workers' Compensation awards are authorized only if an employer-employee relationship exists at the time of the injury. Edens, 359 S.C. at 440, 597 S.E.2d at 867; Dawkins v. Jordan, 341 S.C. 434, 438, 534 S.E.2d 700, 703 (2000).

Whether or not an employer-employee relationship exists is a jurisdictional question. Nelson v. Yellow Cab Co., 349 S.C. 589, 594, 564 S.E.2d 110, 113 (2002); S.C. Workers' Comp. Comm'n v. Ray Covington Realtors, Inc., 318 S.C. 546, 548, 459 S.E.2d 302, 303 (1995); see also Lake v. Reeder Constr. Co., 330 S.C. 242, 247-48, 498 S.E.2d 650, 653 (Ct.App.1998) (stating the existence of an employer-employee relationship is a jurisdictional question; an injured worker's employment status, as it affects jurisdiction, is matter of law for decision by the court and includes findings of fact which relate to jurisdiction).

The determination of whether a worker is a statutory employee is jurisdictional and, therefore, the question on appeal is one of law. Harrell v. Pineland Plantation, Ltd., 337 S.C. 313, 320, 523 S.E.2d 766, 769 (1999); Glass v. Dow Chem. Co., 325 S.C 198, 201-02, 482 S.E.2d 49, 51 (1997). As a result, 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. Harrell, 337 S.C. at 320, 523 S.E.2d at 769; Glass, 325 S.C. at 202, 482 S.E.2d at 51; see also Bridges v. Wyandotte Worsted Co., 243 S.C. 1, 132 S.E.2d 18 (1963), overruled in part on other grounds, Sabb v. S.C. State Univ., 350 S.C. 416, 567 S.E.2d 231 (2002) (holding the existence or absence of an employment relationship is a jurisdictional fact which the court must determine based on its review of all the evidence in the record). Where the issue involves jurisdiction, the appellate court can take its own view of the preponderance of the evidence. Nelson, 349 S.C. at 594, 564 S.E.2d at 112. 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. Dawkins, 341 S.C. at 439, 534 S.E.2d at 703.

The court may consider affidavits on a question of law in a jurisdictional motion without converting the motion into one for summary judgment. Baird v. Charleston County, 333 S.C. 519, 528, 511 S.E.2d 69, 74 (1999). The proper procedure for raising lack of subject matter jurisdiction prior to trial is to file a motion to dismiss pursuant to Rule 12(b)(1), SCRCP, rather than a motion for summary judgment pursuant to Rule 56, SCRCP. Woodard v. Westvaco Corp., 319 S.C. 240, 242, 460 S.E.2d 392, 393 (1995), overruled on other grounds, Sabb, 350 S.C. 416, 567 S.E.2d 231. If a party files a Rule 56 motion for summary judgment on the ground of lack of subject matter jurisdiction, the trial court should treat the motion as if it were a Rule 12(b)(1) motion to dismiss. Edens, 359 S.C. at 439, 597 S.E.2d at 866.

LAW/ANALYSIS
I. Statutory Employee

The Poseys maintains the circuit court erred in concluding Eddie was a statutory employee of PME/Autegra. We disagree.

Coverage under the Workers' Compensation Act is generally dependent on the existence of an employer-employee relationship. Edens v. Bellini, 359 S.C. 433, 442-43, 597 S.E.2d 863, 868 (Ct.App.2004); Tillotson v. Keith Smith Builders, 357 S.C. 554, 557, 593 S.E.2d 621, 623 (Ct.App.2004). There are certain statutory exceptions to this general rule. Edens, 359 S.C. at 442-43, 597 S.E.2d at 868. One of these exceptions is found in section 42-1-410 of the Workers' Compensation Act which, under some circumstances, imposes liability on an employer or contractor for the payment of compensation benefits to a worker not directly employed by the contractor. Id. The Workers' Compensation Act specifically provides statutory employees are included within the scope of the Act:

When any person, in this section and §§ 42-1-420 to 42-1-450 referred to as "contractor," contracts to perform or execute any work which is not a part of the trade, business or occupation of such other person and contracts with any other person (in this section and §§ 42-1-420 to 42-1-450 referred to as "subcontractor") for the execution or performance by or under the subcontractor of the whole or any part of the work undertaken by such contractor, the contractor shall be liable to pay to any workman employed in the work any compensation under this Title which he would have been liable to pay if the workman had been immediately employed by him.

S.C.Code Ann. § 42-1-410 (1985).

Three tests are applied to determine whether the activity of an employee of a subcontractor is sufficient to make him a statutory employee of the contractor within the meaning of section 42-1-410:(1) Is the activity an important part of the contractor's business or trade? (2) Is the activity a necessary, essential, and integral part of the contractor's trade, business, or occupation? or (3) Has the identical activity previously been performed by the contractor's employees? Edens, 359 S.C. at 443, 597 S.E.2d at 868; Olmstead v. Shakespeare, 354 S.C. 421, 425, 581 S.E.2d 483, 486 (2003); Boone v. Huntington and Guerry Elec. Co., 311 S.C. 550, 553, 430 S.E.2d 507, 509 (1993); Riden v Kemet Elec. Corp., 313 S.C. 261, 263-64, 437 S.E.2d 156, 157-58 (Ct.App.1993); see also Meyer v. Piggly Wiggly No. 24, Inc., 338 S.C. 471, 473, 527 S.E.2d 761, 763 (2000) (holding there are three tests used to determine whether an employee was "engaged in an activity that is part of the owner's trade, business, or occupation"); Smith v. T.H. Snipes & Sons, Inc., 306 S.C. 289, 292, 411 S.E.2d 439, 441 (1991) (listing the three factors of the statutory employee test); Revels v. Hoechst Celanese Corp., 301 S.C. 316, 318, 391 S.E.2d 731, 732 (Ct.App.1990) (finding the test used to determine if one is a statutory employee is "whether or not [the work] being done is or is not a part of the general trade, business or occupation of the owner"). If the activity at issue meets even one of these three criteria, the worker qualifies as the statutory employee of the owner. Edens, 359 S.C. at 443, 597 S.E.2d at 868; Olmstead, 354 S.C. at 421, 581 S.E.2d at 483. Any doubts as to a worker's status should be resolved in favor of including him or her under the Workers' Compensation Act. Edens, 359 S.C. at 443, 597 S.E.2d at 868; Riden, 313 S.C. at 263, 437 S.E.2d at 158.

The Poseys argue that PME/Autegra is a mere recipient of goods delivered by a common carrier, and their primary business is not transportation. Our supreme court in Abbott v. The Limited, Inc., 338 S.C. 161, 526 S.E.2d 513 (2000), and Olmstead v. Shakespeare, 354 S.C. 421, 581 S.E.2d 483 (2003), addressed statutory employment in the common...

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