Raines v. Gould, Inc.

• Decision Date: 19 February 1986
• Docket Number: No. 0692,0692
• Citation: 343 S.E.2d 655,288 S.C. 541
• Parties: George B. RAINES, Respondent, v. GOULD, INC.; South Carolina Electric and Gas Co.; and Underwriters Laboratories, Inc., of whom Gould, Inc. is Appellant, and South Carolina Electric and Gas Co. is Respondent. 1 Appeal of GOULD, INC. . Heard
• Court: South Carolina Court of Appeals

Page 655

343 S.E.2d 655

288 S.C. 541

George B. RAINES, Respondent, v. GOULD, INC.; South Carolina Electric and Gas Co.; and Underwriters Laboratories, Inc of whom Gould, Inc. is Appellant and South Carolina Electric and Gas Co. is Respondent.¹ Appeal of GOULD, INC.

No. 0692.

Court of Appeals of South Carolina.

Heard Feb. 19, 1986.

Decided April 28, 1986.

Charles E. Carpenter, Jr., and F. Barron Grier, III, of Richardson, Plowden, Grier & Howser, Columbia, for appellant.

Jonathan R. Hendrix, of Hendrix & Steigner, Lexington, and John C.B. Smith, Jr., of Nexsen, Pruet, Jacobs & Pollard, Columbia, for respondents.

SANDERS, Chief Judge:

This is an appeal from an order of the Circuit Court holding respondent George B. Raines was not a "statutory employee" of appellant Gould, Inc. pursuant to the South Carolina Workers' Compensation Act so as to bar his right to sue for damages arising out of a personal injury. We affirm.

Raines was injured while employed by a subcontractor to install an electrical system at a plant being constructed for Gould by a general contractor. Raines received workers' compensation benefits for his injury from the subcontractor and then brought this action seeking to recover damages. Gould objected to the jurisdiction of the Circuit Court and moved for an order of dismissal on the ground that, under certain provisions of the Workers' Compensation Act, Raines was its statutory employee at the time of his injury, and for this reason, his exclusive remedy is for workers' compensation benefits before the South Carolina Industrial Commission. ² Raines moved for partial summary judgment on the ground that he was not a statutory employee of Gould when he was injured. The parties agreed for the Circuit Court to decide the single issue presented by both motions on its merits and "that the facts, largely undisputed, would be determined by the Court from the statements, arguments and documents submitted to the Court." ³

The resolution of the issue presented depends upon whether the work being performed by Raines was a part of the trade or business of Gould. See Bigham v. Nassau Recycle Corp., 285 S.C. 200, 328 S.E.2d 663 (Ct.App.1985). If the work was a part of the trade or business of Gould, Raines cannot maintain his suit for damages. If not, Raines can maintain his suit.

Ordinarily construction work, such as building a factory structure or making electrical installations, is considered outside the trade or business of a manufacturer. 1C A. Larson, The Law of Workmen's Compensation § 49.12, at 9-25 (1982); see Penton v. Crown Zellerbach Corp., 699 F.2d 737, 744 (5th Cir.1983) (notwithstanding the fact that employees of a paper company had performed 177 projects of repair and modification during a previous four-year period, court held a modernization project was not a part of the company's trade or business "with any degree of certitude"); Murphy v. Georgia-Pacific Corp., 628 F.2d 862 (5th Cir.1980) (not-withstanding the fact that employees of a wood products company had previously constructed a project involving 100 workers, court held a much larger construction project involving 1500 workers which was too large for the capabilities of the company was not a part of its trade or business); ⁴ Wilson v. Duke Power Co., 273 S.C. 610, 258 S.E.2d 101 (1979) (notwithstanding the fact that an owner of a building had abandoned his stock brokerage business to develop his property, court held construction work being performed on his building was not a part of his trade, business or occupation); Vandergrift v. United States, 500 F.Supp. 237, 242 (E.D.Va.1979), aff'd, 634 F.2d 628 (4th Cir.1980) (court held the construction and installation work performed by an employee of a subcontractor was not a part of the trade or business of the National Aeronautics and Space Administration because NASA maintained no separate construction division and was in "the space business," not "the building business"); Bassett Furniture Industries, Inc. v. McReynolds, 216 Va. 897, 224 S.E.2d 323 (1976) (notwithstanding the fact that a furniture manufacturer had spent about $1,000,000 per year for four years on construction and employed some construction workers but did not maintain a separate construction division and contracted out construction work involving in excess of $25,000, court held construction project costing about $174,000 was not a part of the company's trade or business); Duplechin v. Pittsburgh Plate Glass Co., 265 So.2d 787 (La.App.1972) (court held construction of a new facility or complete reconstruction of an existing facility for a glass company was not a part of the company's regular business or trade); Hataway v. Proctor & Gamble Manufacturing Co., 195 Kan. 335, 405 P.2d 350 (1965) (where construction of a building for a soap company was not work ordinarily done through its employees, court held the business of the contractor was to construct the building and the business of the soap company was to operate the building after construction); Ball v. Kaiser Aluminum & Chemical Corp., 112 So.2d 741 (La.App.1959) (notwithstanding the fact that an aluminum company employed electricians capable of performing the same work being performed by an electrician employed by a subcontractor engaged in constructing a plant for the company, court held the work was not a part of the company's trade or business); Szofran v. Century Electric Co., 255 S.W.2d 443 (Mo.App.1953) (court held a program of an electric company to expand its sand handling capacity by means of erecting iron beams and girders, while essential to the operation of the company's usual business, was not an operation of its usual business of manufacturing electric motors, generators and castings); Bogoratt v. Pratt & Whitney Aircraft Co., 114 Conn. 126, 157 A. 860 (1932) (court held the construction of factory buildings for an aircraft company was not "a part or process in [its] trade or business"); Packett v. Moretown Creamery Co., 91 Vt. 97, 99 A. 638 (1917) (court held construction of a new creamery building by an independent contractor for a creamery company was not a part of the company's trade or business). ⁵

If however a business by its size and nature is accustomed to carrying on a more or less ongoing program of construction, perhaps having a construction division, or has handled its own construction in the past, construction work delegated to a contractor may be considered a part of its trade or business. 1C A. Larson, supra, § 49.12, at 9-29; see Marchbanks v. Duke Power Co., 190 S.C. 336, 2 S.E.2d 825 (1939) (in an action against a power company for injuries sustained by an employee of an independent contractor while painting a pole, court held the work was a part of the trade or business of the company because the maintenance of the transmission lines was important and essential to the company's trade or business and was work ordinarily performed by the company's regular employees); Brown v. Ebasco Services, Inc., 461 So.2d 443 (La.App.1984) (where a public utility was authorized by its articles of incorporation to construct plants and was mandated to provide electrical services to the public, court held an employee of a subcontractor involved in the construction of a power plant was a statutory employee of the utility); Zehring v. Wickham, 232 Kan. 704, 658 P.2d 1004 (1983) (where a glass company did not normally construct buildings and was not a general contractor, but had constructed an original building and an addition, court held an injured employee of a subcontractor hired to construct another addition was a statutory employee of the glass company) ; Parker v. Williams and Madjanik, Inc., 275 S.C. 65, 267 S.E.2d 524 (1980) (where a partnership was authorized by its partnership agreement to construct, alter and repair real property, court held an employee of a subcontractor involved in the construction of a mini-warehouse facility was a statutory employee of the partnership); MacMullen v. South Carolina Electric & Gas Co., 312 F.2d 662 (4th Cir.1963), cert. denied, 373 U.S. 912, 83 S.Ct. 1302, 10 L.Ed.2d 413 (1963) (where a power company was authorized by its corporate charter to construct plants and where its employees were engaged more or less continuously since 1949 in the construction of power plants, court held an injured employee of subcontractor involved in the construction of a power plant was a statutory employee of the company).

Moreover, we have recently held that even work which a business might never perform with its own employees may be considered a part of its trade or business if the work...