The South Carolina Supreme Court has just adopted for the first time the dual persona doctrine in workers’ compensation in Mendenall v. Anderson Hardwood Floors. The Court did so in answering the following question certified to it by the Federal District Court for the District of South Carolina:
Does the “dual persona” doctrine allow an injured employee to bring an action in tort against his employer as a successor in interest who, through a corporate merger, received all liabilities of a predecessor corporation that never employed the injured person but allegedly performed the negligent acts that later caused the employee’s injuries, or is such action barred by the exclusivity provision of the South Carolina Workers’ Compensation Act?
While the SC Workers’ Compensation statute provides immunity for statutory employers under § 42-1-540 when an employee is injured in the course of their employment, it is well settled that employees can recovery against third-parties (i.e., anyone who caused their on-the-job injury other than their employer). Analogizing this principle to cases where the employer and employee may have separate relationships and obligations independent of the employer-employee relationship, some courts have adopted either or both the dual capacity doctrine and dual persona doctrine. The dual capacity doctrine allows an employee to sue an employer in tort when the employer has an obligation independent of those owed as an employer. South Carolina had rejected the dual capacity doctrine, Johnson v. Rental Uniform Serv. of Greenville, 316 S.C. 70, 70, 447 S.E.2d 184, 185 (1994), but had only discussed and not adopted the dual capacity doctrine. Tatum v. Med. Univ. of S.C., 346 S.C. 194, 205, 552 S.E.2d 18, 24 (2001).
The dual persona doctrine applies when:
[a]n employer may become a third person, vulnerable to tort suit by an employee, if—and only if—it possesses a second persona so completely independent from and unrelated to its status as employer that by established standards the law recognizes that persona as a separate legal person.
Since the SC Supreme Court was answering a question certified to it by the federal district court on the motion of the plaintiff’s attorney, the Court left it to the District Court to apply the law to the facts, this case does provide a good of example of a case where the dual persona doctrine would apply. In this case, Mr. Mendenall was hired by Anderson Hardwood Floors to work in their Colleton County wood product manufacturing plant. The original owner of that Colleton County plant, Walterboro Veneer, had designed and built a cement vat for the purpose of soaking hardwood logs in a high-temperature solution. Years later all of the assets and liabilities of Walterboro Veneer ended up with Anderson Hardwood Floors. After four months of working with Anderson, Mr. Mendenall while attempting to access a pipe to repair a steam leak fell into the 190º F vat. Suffering serious burns on over 90% of his body, Mr. Mendenall soon died.
The dual persona doctrine should apply here because a separate legal entity from Anderson, that never employed Mr. Mendenall, built and designed the vat. If the vat had been built for Anderson by a contractor, the plaintiff would have been able to recover. To satisfy the doctrine, the second persona need only be so different that the law would treat them differently. In this case, they were actually separate legal persons, although Anderson was the successor to the third party.