Supreme Court Seal
Supreme Court Seal
South Carolina
Judicial Department
2003-UP-689 - Burrowa v. Poston's Auto Service

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Perry H. Burrows, Employee, Claimant,        Respondent,

v.

Poston’s Auto Service, Employer,        Respondent,

and

SC Uninsured Employers Fund, Carrier,        Appellant.


Appeal From Florence County
J. Michael Baxley, Circuit Court Judge


Unpublished Opinion No. 2003-UP-689
Heard June 10, 2003- Filed December 2, 2003
Withdrawn, Substituted and Refiled January 28, 2004


AFFIRMED


Robert M. Cook II, of Batesburg-Leesville; for Appellant.

Laverne Poston, of Pamplico, and Steven Eric Goldberg, of Charleston; for Respondents.

PER CURIAM:  Perry Burrows filed a workers’ compensation claim against Poston’s Auto Service (Employer) and served both Employer and the South Carolina Workers’ Compensation Uninsured Employers’ Fund.  The single commissioner and a divided appellate panel of the full commission denied the claim on the basis that Employer was not subject to the Workers’ Compensation Act because he did not employ four or more workers.  The circuit court reversed, and the fund appeals.  We affirm.

FACTS

Burrows suffered burns while performing duties within the course and scope of his employment.  Employer was a small sole proprietorship engaged in the automobile repair business and had no workers’ compensation insurance.  The sole issue before both the single commissioner and the full commission focused on the number of workers employed. 

After the single commissioner found that the claim was not compensable, Burrows appealed to the full commission, but served only the fund.  The full commission affirmed and found the fund had no liability. 

Burrows appealed to the circuit court and once again did not serve notice of the appeal directly on Employer.  His failure to serve notices of appeal on Employer did not surface until after the circuit court held its initial hearing on the merits.  After the lack of service was brought to the court’s attention, the court ruled that Employer should be dismissed because of lack of proper notice.  On the merits of the case, the court reversed the commission’s finding that Employer was not subject to the Act and remanded the case to the full commission for appropriate action. 

ISSUES

I.       Did the circuit court err in failing to dismiss the fund because of Burrows’ failure to serve notice of the appeal to the circuit court on Employer? 

II.      Did the circuit court err in finding Employer was subject to the Workers’ Compensation Act because there were four or more employees? 

LAW/ANALYSIS

I.

The fund first contends the circuit court erred in entertaining the appeal because Burrows’ failure to serve notice of appeal to the circuit court on Employer deprived the court of either subject matter jurisdiction or, alternatively, of jurisdiction over a necessary party to the appeal.  The linchpin of this argument is the fund’s contention that it is only derivatively liable and as such cannot be held responsible after the employer has been dismissed as a party. 

Timely service of the notice of appeal is a jurisdictional requirement.  See Conner v. City of Forest Acres, 348 S.C. 454, 461, 560 S.E.2d 606, 609 (2002) (finding service of the notice of appeal is a jurisdictional requirement).  Therefore, if the fund’s contention that it is only derivatively liable is correct, its argument that it is discharged from liability if Employer is dismissed has much appeal.  See generally Andrade v. Johnson, 345 S.C. 216, 227, 546 S.E.2d 665, 670 (Ct. App. 2001) (holding covenant not to sue agent released vicariously liable principal), rev’d in part on other grounds, Op. No. 25738 (S.C. Sup. Ct. filed Oct. 27, 2003) (Shearouse Adv. Sh. No. 39 at 15).  To determine whether the general rule is applicable in this circumstance, we must resort to the statutory scheme governing the fund.  However, the statute creating the fund does not specifically state whether the fund is principally or only derivatively or vicariously liable.  S.C. Code Ann. § 42-7-200 (Supp. 2002).

The cardinal rule of statutory construction is that a court must ascertain and give effect to the legislature’s intent.  Charleston County Sch. Dist. v. State Budget and Control Bd., 313 S.C. 1, 5, 437 S.E.2d 6, 8 (1993).  If a statute’s language is plain, unambiguous, and conveys a clear meaning “the rules of statutory interpretation are not needed and the court has no right to impose another meaning.”  Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000).  “[W]ords used therein must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand [the statute’s] operation.”  Hitachi Data Sys. Corp. v. Leatherman, 309 S.C. 174, 178, 420 S.E.2d 843, 846 (1992). 

It is uncontroverted that Burrows, in filing his initial claim, served both Employer and the fund.  Indeed, the commission acknowledged that all parties had timely and proper notice of the proceeding, and it had jurisdiction of both the subject matter and the parties.  Once the fund was thereby appropriately notified of a claim against an uninsured employer, the statute vested it with both the discretion and duty to either “pay or defend the claim as it considers necessary.”  § 42-7-200(A) (emphasis added).  In this case, the fund chose to defend the claim, a task normally the responsibility of either the employer or the employer’s carrier. 

Although it did not address this particular statutory scheme, the decision of our supreme court in Bell v. Senn Trucking Co. of Newberry, 308 S.C. 364, 418 S.E.2d 310 (1992), is instructive.  In Bell, a trucking company headquartered in Georgia but with operations in South Carolina had workers’ compensation insurance with a Georgia insurer.  The Georgia insurer became insolvent and the Georgia Pool, an organization created for the purpose of providing benefits owed to insureds by insolvent Georgia insurers, challenged the jurisdiction of the courts of South Carolina that was asserted under our state’s long arm statute.  Id. at 365-67, 418 S.E.2d at 311.  The court determined that the insolvent company would be subject to in personam jurisdiction in South Carolina because it contracted with the trucking company to insure a risk in South Carolina.  Id. at 367, 418 S.E.2d at 312.  The court then reasoned that the statutory scheme made the Georgia Pool the alter ego of the insolvent company and, as such, amenable to suit in South Carolina.  In the instant case, the workers’ compensation commission found it had personal jurisdiction over Employer, a finding that has not been challenged on appeal and is the law of the case.  See ML-Lee Acquisition Fund, L.P. v. Deloitte & Touche, 327 S.C. 238, 241, 489 S.E.2d 470, 472 (1997) (holding an unappealed ruling becomes the law of the case and precludes further consideration of the issue on appeal). 

The language utilized by the legislature in the statute in question does not indicate that the fund would become merely the legal representative of the employer.  Rather, the wording indicates that the fund is placed in the position that an insured employer would normally occupy, thereby making it an uninsured employer’s alter ego, in a fashion similar to the way the court determined the relationship of the Georgia Pool was to insolvent insurers in Bell.

Timely service of the notice of appeal was in all instances made on the fund, and clearly the circuit court had subject matter jurisdiction over the appeal from the commission.  Conner, 348 S.C. at 461, 560 S.E.2d at 609.  Therefore, the order dismissing Employer was irrelevant to the question before the circuit court. [1]   Cf. Bardoon Props. v. Eidolon Corp., 326 S.C. 166, 169, 485 S.E.2d 371, 373-74 (1997) (since subject matter jurisdiction refers to court’s power to hear and determine cases of general class to which proceedings in question belong, whether or not party is “real party in interest” simply does not involve court’s power to hear case or subject matter jurisdiction). 

II.  Four or More Employees

The fund argues the circuit court erred in finding Employer had at least four employees and was therefore subject to the Workers’ Compensation Act.  We disagree.

The employee relationship is a jurisdictional issue for the purposes of workers’ compensation benefits.  Vines v. Champion Bldg. Prods., 315 S.C. 13, 16, 431 S.E.2d 585, 586 (1993).  Questions of jurisdiction are reviewed by this court de novo, and we may find facts in accordance with our own view of the preponderance of the evidence.  Kirksey v. Assurance Tire Co., 314 S.C. 43, 45, 443 S.E.2d 803, 804 (1994).  The single commissioner and full commission relied to a great extent on the investigator’s report and Employment Security Commission records in determining that Employer had less than four employees and was not subject to the Act. [2]   The investigator in turn relied only on official records and conducted an onsite visit only after Employer had ceased doing business.  We find such reliance misplaced. 

It is undisputed that Burrows and John Farmer qualified as employees within the meaning of the Act at the time Burrows was injured.  There are three remaining individuals whose relationship with the business must be examined to determine if a sufficient number of workers was employed for the company to come under the panoply of the Act. 

The first, Tony Cannon, had previously been an employee and had left for another job.  He was back working with Employer full time and had been working there for approximately four weeks at the time of the accident.  He was paid on a weekly basis, but acknowledged there were no withholdings from his salary. 

The fund asserts that Cannon was not regularly employed.  The fact that Cannon was working on a short-term basis and was paid differently than other employees does not remove him from the category of an employee under the Act.  Cannon worked with Burrows and Farmer at the shop every day for several months, even after the accident, was paid regularly and, as such, meets the definition of “regularly employed.”  See Harding v. Plumley, 329 S.C. 580, 586-87, 496 S.E.2d 29, 32-33 (Ct. App. 1998) (approving North Carolina’s definition of “regularly employed” as connoting employing the same number of persons throughout the period with some constancy).  Here, Cannon worked for Employer for several months until he could find something permanent.  While his employment may have been temporary, he worked regularly in the course of the business and was doing so at the time of the accident.  We conclude, based on our view of the preponderance of the evidence, that Cannon was an employee within the meaning of the Act. 

The second, the proprietor’s son, Stevie Poston, was a Baptist missionary in Mexico and had taken a sabbatical to help his father run the business in view of his parents’ declining health.  The undisputed evidence is that Stevie was not paid but was instead a gratuitous worker.  South Carolina law is settled that a gratuitous worker is not an employee within the meaning of the Act.  See Kirksey, 314 S.C. at 45, 443 S.E.2d at 804. 

The third, Herman Cain, was an 86-year-old man who had formerly been a customer and frequented the shop on a more or less regular basis.  According to Employer, if he needed a part, he would sometimes ask Cain to go get it, but Cain was not asked to do anything else.  Cain was paid for retrieving parts for Employer. 

S.C. Code Annotated § 42-1-130 provides the definition for an employee, and says in part: 

The term “employee” means every person engaged in an employment under any appointment, contract of hire, or apprenticeship, expressed or implied, oral or written, . . . whether lawfully or unlawfully employed, but excludes a person whose employment is both casual and not in the course of the trade . . . . 

S.C. Code Ann. § 42-1-130 (Supp. 2002). 

Employer admitted that Cain’s position is casual; nevertheless, the work he performed was definitely in the course of the trade and therefore the code section does not specifically exclude him, since to be excluded the employment would have to be both casual and not in the course of the trade.  Riden v. Kemet Elecs. Corp., 313 S.C. 261, 265, 437 S.E.2d 156, 158 (Ct. App. 1993) (test to determine exclusion from coverage is two-pronged and must be both (1) casual and (2) not in the course of employer’s business).

After a close examination of the record, we find that at the time of the accident Employer had at least four individuals who met the statutory definition of employee for purposes of determining whether Employer is subject to the Workers’ Compensation Act.  Moreover, any doubts about jurisdiction should be resolved in favor of coverage under the Act.  See, e.g. Nelson v. Yellow Cab Co., 349 S.C. 589, 599, 564 S.E.2d 110, 115 (2002).

AFFIRMED.

HEARN, C.J., CONNOR and STILWELL, JJ., concur.


[1]         The fund also argues that the commission’s Regulation 67-210 requires service directly upon the employer when it is uninsured.  As noted, Employer was appropriately served to initiate the claim and, in view of our holding the fund thereafter became Employer’s alter ego, this argument lacks merit.

[2]        S.C. Code Ann. § 42-1-360(2) (1985) (Provides that the workers’ compensation title shall not apply to:  “[a]ny person who has regularly employed in service less than four employees in the same business within the State.”).