South Carolina Recognizes Dual Persona Doctrine in Workers’ Comp

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.

SC Court of Appeals: Work for Room and Board; No Workers’ Comp Eligibility

The South Carolina Workers’ Compensation system provides only for those injured while employees under the Workers’ Compensation statute.  In Simmons v. SC STRONG, the South Carolina Court of Appeals found that Simmons was not a statutory employee, but rather a volunteer.  South Carolina STRONG is a non-profit organization that seeks to rehabilitate those who have been convicted of crimes or suffered substance-abuse through a  two-year program of structured work and job-training.  SC STRONG is paid for the work the participants do, but the participants agree to not be paid for their work.  SC STRONG gives the participants room, board, clothing, and job training.

Whether an individual is a statutory employee is a jurisdictional question determined by fact, and the standard of review for an appeals court is de novo.  The Court of Appeals takes its own view of the preponderance of the evidence.  Shuler v. Tri-County Elec. Co-op., Inc., 374 S.C. 516, 520, 649 S.E.2d 98, 100 (Ct. App. 2007), aff’d, 385 S.C. 470, 472, 684 S.E.2d 765, 767 (2009).

The Appellate Panel of the Workers’ Compensation Commission relied on three cases finding volunteers not to be statutory employees:

Kirksey v. Assurance Tire Co., 314 S.C. 43, 45, 443 S.E.2d 803, 804 (1994) (finding unpaid daughter of store owner not an employee)… Doe v. Greenville Hosp. Sys., 323 S.C. 33, 39-40, 448 S.E.2d 564, 567-68 (Ct. App. 1994) (holding an unpaid volunteer candy striper was not the employee of a hospital);
McCreery v. Covenant Presbyterian, 299 S.C. 218, 223-24, 383 S.E.2d 264, 267 (1989) (finding an unpaid church volunteer not an employee of the church for workers’ compensation purposes), rev’d on other grounds, 303 S.C. 271, 400 S.E.2d 130 (1990).

Simmons counted by citing Wilson v. Georgetown County, 316 S.C. 92, 447 S.E.2d 841 (1994), for the proposition that statutory employees need not be paid in cash.  In Wilson, the South Carolina Supreme Court disregarded the usual rule that jurors are not workers’ compensation employees, instead emphasizing that Wilson had worked at the direction of the clerk of court for the benefit of the county.  The Court of Appeals distinguished Wilson from the Simmons case, reasoning:

The circuit court required Wilson to perform janitorial services in lieu of jury service. Simmons was an admitted volunteer who chose to participate in the SC STRONG program in lieu of serving his prison sentence.

It seems that the court is emphasizing the choice to volunteer, over the compulsion by the court, although it is not clear.  In both cases, a person is working under the supervision of the court without cash pay.  However, Wilson received nothing in exchange for his janitorial work, except excuse from jury duty (It is not clear how Wilson comes out ahead hear.).  Simmons on the 0therhand received room and board, which unlike excuse from jury duty is available on the open market.  Oddly, had Simmons been injured while working in prison, he would have been entitled to workers’ compensation.

The court does not consider whether Simmons was an apprentice, noting that Simmons waived the issue by raising it for the first time in his reply brief before the Court of Appeals and not raising it at all before the appellate panel.  The case law generally provides that statutory employees must have some entitlement to pay, but the statute does specifically mention apprentices.

Simmons might have a separate remedy.  Since Simmons is not a statutory employee of SC STRONG, it is possible that he could sue SC STRONG outside of workers’ compensation in ordinary negligence, or some other cause of action.  However, outside of workers’ compensation, a plaintiff has to prove liability (e.g., the employers’ negligence), while being injured on the job is enough in workers’ compensation.

4 Teens Charged with Underage Drinking at Rock Hill Party

 Four Rock Hill teenagers were arrested on Sunday morning after officers stumbled upon an underage drinking party with guns and empty bottle of liquor.

All four were charged with minor in possession of alcohol and one was charged with discharging a firearm in city limits.  According to a police report, officers were called to Baylor Drive off Mount Gallant Road after someone called in to complain about a loud party on the top of a hill.  When officers approached the house, they heard a gunshot from behind the residence along with chatter coming from the garage at the residence.

When police walked around the back of the house, they found one teenager who dropped a shotgun and had alcohol on his breath.  Officers also found another teenager walking around the back of the house and a 15-year old girl hiding in the shed.  After officers had knocked on the front door for a while, they arrested another teenager who came outside claiming he was asleep during the whole fiasco. 

Contact the law offices of Reeves, Aiken, and Hightower to consult with one of our criminal attorneys about any type of drug charges.  Our criminal attorneys also handle many different types of criminal cases in addition to drug charges in North and South Carolina.  We are licensed in both North Carolina and South Carolina, where you can contact us at 704-499-9000 or 877-374-5999 toll-free.


Rock Hill Man Arrested at Tech Class while Intoxicated

A Rock Hill man became bored and went to a college class.  Rock Hill Police stated that the man showed up to a class at York Technical College on Monday drunk.

According to a police report, the man was not a student at the school.  The report stated the man entered a class and was told to leave by a teacher, which he refused to do.  An officer arrived and spoke with the man and the officer noticed he smelled like alcohol, had slurred speech, and difficulty answering simple questions.

The man said he drove to the school after drinking that morning, but stated he couldn’t remember why he drove to the school.  The man was arrested for public intoxication and was released Monday on a $250 bond.

If you or someone you know has been charged with a serious crime, contact the law offices of Reeves, Aiken, and Hightower to consult with one of our criminal attorneys about any criminal charges.  Our criminal attorneys handle many types of criminal cases in North and South Carolina and want to help you with your criminal charges.  We are licensed in both North and South Carolina, where you can contact us at 704-499-9000 or 877-374-5999 toll-free.

Rock Hill Woman Assaulted With Bleach

A Rock Hill woman had her relationship turn sour the other night.  The woman claims her boyfriend dumped bleach on her and then left the home, according to a Rock Hill Police report.

The woman claimed her boyfriend was upset after another man was looking at her at the club.  Officers stated that the woman said he dumped bleach all over her clothes and hair at around 2:45 a.m. Saturday.  Officers stated that the woman had noticeable bleach spots on her clothing and an empty bottle of bleach was recovered from the room where the alleged incident occurred.

The man was not arrested as he fled the scene and took the victims cell phone with him.  Contact the law offices of Reeves, Aiken, and Hightower to consult with one of our criminal attorneys.  Our criminal attorneys handle many types of criminal cases in North and South Carolina.  We are licensed in both North and South Carolina, where you can contact us at 704-499-9000 or 877-374-5999 toll-free.