Wilson v. Builders Transport, Inc.

• Decision Date: 23 February 1998
• Docket Number: No. 2796.,2796.
• Citation: 498 S.E.2d 674,330 S.C. 287
• Parties: Randy W. WILSON, Respondent, v. BUILDERS TRANSPORT, INC., Appellant. Tammy McBee WILSON, Respondent, v. BUILDERS TRANSPORT, INC., Appellant.
• Court: South Carolina Court of Appeals

330 S.C. 287

498 S.E.2d 674

Randy W. WILSON, Respondent, v. BUILDERS TRANSPORT, INC., Appellant.

Tammy McBee WILSON, Respondent, v. BUILDERS TRANSPORT, INC., Appellant.

No. 2796.

Court of Appeals of South Carolina.

Heard December 2, 1997.

Decided February 23, 1998.

Rehearing Denied April 23, 1998.

Mark S. Barrow and William R. Calhoun, Jr., Sweeny, Wingate, Murphy & Barrow, Columbia, for appellant.

J. Mark Hayes, II, of Harrison & Hayes, Spartanburg, for respondents.

HOWELL, Chief Judge:

Randy Wilson brought a negligence action and his wife, Tammy Wilson, brought a loss of consortium action against Builders Transport, Inc. (Builders), Randy's employer. Following summary judgment motions by the Wilsons and Builders, the trial court struck several of Builders's defenses. Builders appeals. We reverse and remand.

I.

On October 7, 1993, Builders instructed Randy to pick up a load of lumber in Thomasville, North Carolina, and to deliver it via the shortest practical route to Pounding Mill, Virginia, a trip measuring 172 miles. After leaving Thomasville, instead of traveling directly to Virginia, Randy drove south to Spartanburg, South Carolina, to spend the night in his own home. The next morning Randy left Spartanburg and headed to Pounding Mill, a distance of 343 miles. While en route to Virginia, Randy was involved in an accident in Tennessee. Had Wilson proceeded directly to Virginia from North Carolina, he would never have crossed the Tennessee border.

Previously, in June 1993, Builders exercised its statutory right to opt out of the Workers' Compensation scheme, and instituted its own Occupational Benefits Plan (Plan). Builders presented all its employees, including Randy, with a form entitled "ELECTION TO PARTICIPATE IN THE OCCPATIONAL BENEFITS PROGRAM OF BUILDERS TRANSPORT, INC." The election form read in pertinent part:

By execution of this document, I hereby voluntarily elect to participate in the Occupational Benefit Program of Builders Transport, Inc. (the "Plan"). AS REQUIRED BY THE TERMS OF THE PLAN, I, THE UNDERSIGNED, HEREBY, FREELY, IRREVOCABLY AND UNCONDTIONALLY RELEASE, WAIVE, AND AGREE NOT TO SUE UPON, ANY AND ALL CLAIMS AND CAUSES OF ACTION, WHETHER NOW EXISTING OR ARISING IN THE FUTURE, THAT I MAY HAVE AGAINST AGENTS AND EMPLOYEES, THAT ARISE OUT OF OR ARE RELATED TO INJURIES OR DEATH SUSTAINED BY ME IN THE COURSE AND SCOPE OF MY EMPLOMENT BY BUILDERS TRANSPORT, INC....

I UNDERSTAND THAT BY EXECUTION OF THIS DOCUMENT, I WILL LOSE THE RIGHT TO SUE BUILDERS TRANSPORT, INC. AND PEOPLE EPLOYED BY IT IN CONNECTION WITH INJURIES OR DEATH SUSTAINED IN MY EMPLOYMENT WITH BUILDERS TRANSPORT, INC. MY ONLY REMEDY WILL BE TO RECEIVE BENEFITS UNDER THE PLAN.

Randy signed the election form on June 25, 1993—three months before his accident.

Pursuant to its Plan, Builders paid all of Randy's medical bills up to December 9, 1993. On December 9, 1993, the Wilsons met with Builders's agents Hal Boiter and Donna Mason. According to Boiter and Mason, the Wilsons accepted a check for $500 as a full and final settlement and release of any claims against Builders.

The Wilsons filed suit against Builders on January 11, 1995. Builders answered by asserting fifteen defenses. After a hearing on cross motions for summary judgment, the trial court struck Builders's defenses of sole negligence, comparative negligence, assumption of the risk, sudden emergency, unavoidable accident, failure to state a claim upon which relief could be granted, accord and satisfaction, release, waiver, and estoppel. On appeal, Builders argues: (1) the trial court's reliance on S.C.Code Ann. § 42-1-510 (1976) (repealed 1996), which strikes sole negligence, comparative negligence, and assumption of the risk defenses for employers who opt out of the Workers' Compensation scheme, was misplaced and overbroad, (2) the trial court incorrectly ruled that Builders's employee coverage plan violated public policy and the Workers' Compensation Act, and (3) the trial court erroneously struck an accord and satisfaction defense when there existed disputed issues of material fact.

We have the authority to hear Builders's appeal pursuant to S.C.Code Ann. § 14-3-330(2)(c) (1976), which permits appellate review for an order that "strikes out an answer or any part thereof or any pleading in any action."

II.

Builders argues that the trial court incorrectly interpreted S.C.Code Ann. § 42-1-510 (1976) (repealed 1996), in striking the defenses of sole negligence, comparative negligence, and assumption of the risk. We agree.

Builders elected to withdraw from the Workers' Compensation Act. See S.C.Code §§ 42-1-330 & 42-1-340 (1976) (both repealed 1996). Before the General Assembly repealed the sections permitting employers to opt out, employers who elected to opt out of the Workers' Compensation Act were stripped of certain common law defenses in lawsuits brought by their employees. S.C.Code Ann. § 42-1-510 (1976) (repealed 1996). Section 42-1-510 stated:

An employer who elects not to operate under this Title shall not, in any suit at law instituted by an employee subject to the Title to recover damages for personal injury or death by accident, be permitted to defend any such suit at law upon any or all of the following grounds:

(1) That the employee was negligent;

(2) That the injury was caused by the negligence of a fellow employee; or

(3) That the employee had assumed the risk of the injury. Id. (emphasis added). The term "personal injury" is defined by S.C.Code Ann. § 42-1-160 (Supp.1997) as an "injury by accident arising out of and in the course of employment." Thus, for section 42-1-510 to be applicable, the employee seeking relief must have sustained an injury while acting within the course of employment.

Builders argues that Randy's decision to return to Spartanburg effectively removed the accident in Tennessee from the course of his employment. In White v. South Carolina State Highway Dept., 226 S.C. 380, 85 S.E.2d 290 (1955), the supreme court held:

"An identifiable deviation from a business trip for personal reasons takes the employee out of the course of his employment until he returns to the route of the business trip, unless the deviation is so small as to be disregarded as insubstantial.... Taking a somewhat roundabout route, or being off the shortest line between the origin and destination, does not in itself remove the traveller from the course of employment; it must be shown in addition that the deviation was aimed at reaching some specific personal objective."

Id. at 383, 85 S.E.2d at 291 (quoting 1 Arthur Larson, Larson's Workmen's Compensation Law, §§ 19 & 19.5); see also Falconer v. Beard-Laney, Inc., 215 S.C. 321, 54 S.E.2d 904 (1949) (holding that employee's estate was barred from Workers' Compensation recovery where employee had deviated completely from his master's businesses and had gone on a personal errand). Thus, if Randy's trip to Spartanburg and subsequent journey through Tennessee were a substantial personal deviation from work, then Randy was not acting within the course of his employment. Although the issue was raised in Builders's memorandum in support of summary judgment and its Rule 59(e) motion, the trial court never ruled on whether Randy was acting within the course of his employment. Whether Randy's trip amounted to a deviation, which removed his accident from the course of his employment, is a question of fact that must be determined before the trial court could have used section 42-1-510 to strike Builders's defenses of sole negligence, comparative negligence, and assumption of the risk. If Randy's attempt to deliver the lumber, albeit not by the shortest practical route, was sufficient to place Randy's accident within the course of his employment, then section 42-1-510 would strike Builders's defenses of sole negligence, comparative negligence, and assumption of the risk. If, on the other hand, Randy's trip was a deviation, then there would be no personal injury, as defined by section 42-1-160, and section 42-1-510 would not bar Builders's defenses. Regardless of which theory holds true, it was an error for the trial court to apply section 42-1-510 and strike Builders's defense without there first being a definitive determination about whether Randy was acting within the scope of his employment.

III.

Builders asserts that even if section 42-1-510 applies to eliminate some of its defenses, it does not apply to the defenses of sudden emergency and unavoidable accident. We agree.

The trial court included sudden emergency and unavoidable accident with its discussion of section 42-1-510 and ruled:

No genuine dispute exists as to a material fact that the common law defenses raised by the Defendant are not available to any employer who elects to operate outside of the Workers' Compensation System against common law claims for damages brought by its employee for injuries that arise out of the work place.

The trial court impermissibly extended section 42-1-510 beyond its actual language. The basic rule of statutory construction is that words must be given their plain and ordinary meaning. Gilstrap v. South Carolina Budget & Control Board, 310 S.C. 210, 423 S.E.2d 101 (1992). Section 42-1-510 expressly eliminates only sole negligence of the employee, comparative negligence, and assumption of the risk, with absolutely no mention of sudden emergency or unavoidable accident. See Nuckolls v. Great Atlantic & Pacific Tea Co., 192 S.C. 156, 5 S.E.2d 862 (1939) (stating section 42-1-510 purports only to deprive the non-assenting employer of certain named defenses). By including sudden emergency and unavoidable accident under the ambit of section 42-1-510, the trial court committed a reversible error.

The Wilsons, however, argue that the trial court properly granted summary judgment as to sudden emergency and unavoidable accident because Builders presented no evidence to support these defenses. The Wilsons'...