South Carolina Workers' Compensation Com'n v. Ray Covington Realtors, Inc.

Decision Date03 November 1994
Docket NumberNo. 24265,24265
CourtSouth Carolina Supreme Court
PartiesSOUTH CAROLINA WORKERS' COMPENSATION COMMISSION and Ray Chewning, Jr., Respondents, v. RAY COVINGTON REALTORS, INC. and South Carolina Uninsured Employers' Fund, Defendants. Of whom Ray Covington Realtors, Inc., is Appellant. . Heard

Benjamin C. Wofford, Columbia, for appellant.

Robert J. Sheheen and John W. Rabb, Jr., both of Savage, Royall & Sheheen, Camden, for respondent Ray Chewning, Jr.

Kelly J. Golden, of South Carolina Workers' Compensation Com'n, Columbia, for respondent South Carolina Workers' Compensation Com'n.

FINNEY, Justice:

This is a workers' compensation appeal. Respondent Chewning was a real estate salesman with appellant Ray Covington Realtors when he was seriously injured in a car accident. The two issues before the Court are whether Chewning was appellant's employee or an independent contractor, and whether the accident occurred within the scope of Chewning's employment. The single commissioner, full commission, and circuit court all found for Chewning on both issues. We hold that Chewning was an independent contractor and reverse.

The novel issue presented by this case is whether a real estate salesperson is his broker's employee or an independent contractor. 1 This is a fact-specific determination reached by applying certain general principles. Young v. Warr, 252 S.C. 179, 165 S.E.2d 797 (1969). The general test is whether the alleged employer has "the right and authority to control and direct the particular work or undertaking, as to the manner or means of its accomplishment." Id. Since this is a jurisdictional question, this Court can take its own view of the preponderance of the evidence. Wilson v. Georgetown County, 316 S.C. 92, 447 S.E.2d 841 (1994); Kirksey v. Assurance Tire Co., 314 S.C. 43, 443 S.E.2d 803 (1994).

The facts surrounding appellant and Chewning's relationship are undisputed. Appellant supplied Chewning with a desk and business forms, but Chewning did not need appellant's approval for listing agreements. Chewning had to pay for his own advertising, for his multiple listing books, and for his own errors and omissions insurance. All proceeds from any sale Chewning made were given to appellant, who then gave Chewning his commission. On most Wednesdays, Chewning was required to attend a staff meeting, and on some weekends he was asked to host an open house. Other than that, he made his own schedule, and did not need approval to take time off. He received neither paid vacation days nor paid sick leave. Chewning was not paid unless he earned a commission, and nothing was withheld from his check. At the end of the year, Chewning received a form 1099 rather than a W-2 from appellant. With appellant's knowledge, Chewning sold car phones on the side. Chewning testified that appellant could fire him if he wanted to.

In determining the control issue, this Court has looked at four factors: (1) direct evidence of the right or exercise of control; (2) method of payment; (3) furnishing of equipment; and (4) right to fire. S.C. Industrial Comm'n v. Progressive Life Ins. Co., 242 S.C. 547, 131 S.E.2d 694 (1963). Two South Carolina cases have determined that insurance agents were employees, not independent contractors, and provide the closest analogy to this case. Progressive Life, supra; and Carter's Dependents v. Palmetto State Life Ins. Co., 209 S.C. 67, 38 S.E.2d 905 (1946). The facts of these cases are distinguishable, and support our conclusion that Chewning was not appellant's employee but rather an independent contractor.

Unlike Chewning, the insurance agents in Progressive Life and Carter's Dependents...

To continue reading

Request your trial
28 cases
  • In Re Fedex Ground Package System Inc.
    • United States
    • U.S. District Court — Northern District of Indiana
    • 14 Diciembre 2010
    ...v. Palmetto State Transp. Co., 676 S.E.2d at 702 (citing SouthPage 145 Carolina Workers' Comp. Comm'n v. Ray Covington Realtors, Inc., 459 S.E.2d 302, 303 (S.C. 1995)). South Carolina courts look to four factors to analyze the right to control: (1) direct evidence of the right or exercise o......
  • In re Fedex Ground Package System Inc.
    • United States
    • U.S. District Court — Northern District of Indiana
    • 13 Diciembre 2010
    ...of the work. Wilkinson v. Palmetto State Transp. Co., 676 S.E.2d at 702 ( citing South Carolina Workers' Comp. Comm'n v. Ray Covington Realtors, Inc., 318 S.C. 546, 459 S.E.2d 302, 303 (1995)). South Carolina courts look to four factors to analyze the right to control: (1) direct evidence o......
  • Gray v. Club Group, Ltd.
    • United States
    • South Carolina Court of Appeals
    • 22 Febrero 2000
    ...a jurisdictional question. Glass v. Dow Chem. Co., 325 S.C. 198, 482 S.E.2d 49 (1997); South Carolina Workers' Compensation Comm'n v. Ray Covington Realtors, Inc., 318 S.C. 546, 459 S.E.2d 302 (1995); Wilson, supra; Vines, supra; Givens v. Steel Structures, Inc., 279 S.C. 12, 301 S.E.2d 545......
  • In re Fedex Ground Package Sys., Inc., Employment Practices Litig.
    • United States
    • U.S. District Court — Middle District of Florida
    • 25 Marzo 2008
    ...of control; (2) method of payment; (3) furnishing of equipment; and (4) right to fire." South Carolina Workers' Comp. Comm'n v. Ray Covington Realtors, Inc., 459 S.E.2d 302, 303 (S.C. 1995). FedEx Ground says the parties' intent is the primary test of whether a contract forms an independent......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT