SC Large Truck Accident – Logging Truck – “Private Carrier” or “Motor Carrier”

Mar 10, 2012 | Car Accidents, Personal Injury, Uncategorized, Wrongful Death

This SC Supreme Court case deals with the issue of trying to reform an insurance policy after a serious injury or death occurs. Here, a commercial logging truck pulled out in front of oncoming cars, and a female driver died in a horrible collision and resulting fire. The tractor-trailer was insured for the minimum limits as a “private carrier.” Given the wrongful death action that resulted, the attorneys sought to reform the policy for substantially higher insurance limits. To do so, they had to prove that the truck driver should be considered a “motor carrier” for hire. Fortunately, for the family, the serious injury lawyers were successful in having the Court recharacterize the nature of the logger’s business purpose and reformed the policy limits to $750,000. Better make sure your attorney knows and understands these complicated insurance questions. In this case, the difference was $710,000. As former insuracne defense attorneys, Art Aiken and Robert Reeves appreciate the critical language distinctions in insurance policies that can make such a difference in the ultimate outcome of a case.

At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today at 803-548-4444 or 704-499-9000 for a private consultation. Or visit our firm’s website at www.rjrlaw.com

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Raymond Bovain, Jr., as Personal Representative of the Estate of Willor Dean Bovain, Appellant,

Canal Insurance, Roy R. Greene d/b/a Rusty Greene Tree Service, and John R. Frazier, Inc., Defendants,

Of Whom Canal Insurance is the Respondent.

Appeal From Richland County
G. Thomas Cooper, Jr., Circuit Court Judge

Opinion No. 26664
Heard March 5, 2009 – Filed June 8, 2009

REVERSED AND REMANDED

Carl B. Grant, of Orangeburg; and Richard A. Harpootlian and Graham L. Newman, both of Columbia, for Appellant.

Brian Dumas, of Peake Fowler & Associates, of Columbia, and Robert D. Moseley, Jr., of Smith, Moore, Leatherwood, of Greenville, for Respondent.

JUSTICE BEATTY: Raymond Bovain, Jr. brought this declaratory judgment action as the Personal Representative of the Estate of Willor Dean Bovain, his late wife, after she died in a collision with a logging truck that was insured by Canal Insurance. Bovain asserted the truck driver was a “motor carrier” and sought reformation of the insurance policy to increase its limit of coverage to $750,000 pursuant to 23A S.C. Code Ann. Regs. 38-414 (Supp. 2008) (requiring heightened insurance coverage for “motor carriers”). Canal Insurance opposed the request and sought a declaration that the $40,000 of combined limits coverage carried on the truck was sufficient under South Carolina law. Both parties moved for summary judgment.[1] The circuit court granted summary judgment to Canal Insurance, finding the truck driver was not a “motor carrier” under state law and was not subject to the insurance requirement of Regulation 38-414. Bovain appeals. We reverse and remand for entry of summary judgment in favor of Bovain.

FACTS

On September 9, 2004, Bovain’s wife died after she collided with a logging truck driven by Roy R. Greene. Greene was pulling onto Interstate 26 from the side of the road when Bovain’s wife struck him from behind. Her car burst into flames and she died at the scene.

Greene, who does business as Rusty Greene Tree Service, is in the business of hauling cut trees to various pulpwood and paper companies. At the time of the accident, Greene was picking up logs from a worksite beside Interstate 26 and planned to take them to a paper mill in Eastover, South Carolina. Greene had insurance coverage on the logging truck with Canal Insurance in a combined single liability limit of $40,000. The truck was a ten-wheeler weighing approximately 26,000 pounds that Greene had purchased used. It had an attachment on the front for moving logs.

On November 4, 2005, Bovain filed this declaratory judgment action against Canal Insurance asserting Greene was a “motor carrier” and seeking to reform the insurance policy to increase the coverage to $750,000 pursuant to 23A S.C. Code Ann. Regs. 38-414. Under Regulation 38-414, which is applicable to “motor carriers,” trucks weighing 10,000 or more pounds (GVWR)[2] that carry non-hazardous material must be insured under a policy carrying at least $750,000 of coverage. Bovain argued Greene was a motor carrier and thus was subject to the increased level of coverage required by Regulation 38-414.

Canal Insurance asserted Greene transported his own property and thus was not a motor carrier. Canal Insurance further argued that, even if Greene was a motor carrier, he was exempt from Regulation 38-414 because he was using his truck to haul cut trees. See S.C. Code Ann. Regs. 38-407(4) (Supp. 2008) (providing an exemption for “[l]umber haulers engaged in transporting lumber and logs from the forest to the shipping points in this State”).

The circuit court granted summary judgment to Canal Insurance. Bovain appeals, alleging the circuit court erred (1) in ruling the insurance policy at issue cannot be reformed to increase the limit of coverage to $750,000 pursuant to 23A S.C. Code Ann. Regs. 38-414, (2) in finding Greene was not a “motor carrier” within the purview of Regulation 38-414, and (3) in finding that, even if Greene qualified as a “motor carrier,” he fell within the “lumber hauler” exception contained in 23A S.C. Code Ann. Regs. 38-407(4) and thus was exempt from Regulation 38-414’s coverage requirement.

LAW/ANALYSIS

Rule 56(c) of the South Carolina Rules of Civil Procedure provides that a trial court may grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c), SCRCP.

“In determining whether any triable issues of fact exist, the court must view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the non-moving party.” Brockbank v. Best Capital Corp., 341 S.C. 372, 378-79, 378, 534 S.E.2d 688, 692 (2000). An appellate court reviews the granting of summary judgment under the same standard applied by the trial court under Rule 56(c), SCRCP. Id. at 379, 534 S.E.2d at 692.

(A) Insurance for Motor Carriers Under Regulation 38-414

Bovain first asserts the circuit court erred in finding Greene was not a “motor carrier” subject to the increased minimum insurance requirements of Regulation 38-414. We agree.

South Carolina law contains both statutes and regulations governing “motor carriers.” At issue in this case is Regulation 38-414, which provides for heightened insurance requirements for certain “motor carriers” for hire as part of a group of Economic Regulations.

Specifically, Regulation 38-414 provides that “[i]nsurance policies and surety bonds for bodily injury and property damage will have limits of liability not less than” $750,000 per incident for trucks weighing 10,0000 or more pounds GVWR that carry non-hazardous freight. 23A S.C. Code Ann. Regs. 38-414 (Supp. 2008). This regulation applies “to any person . . . or corporation which is . . . engaged as a motor carrier for hire within the State of South Carolina” unless they are otherwise exempted. 23A S.C. Code Ann. Regs. 38-401 (Supp. 2008).

A “carrier,” in the legal sense, refers to one who undertakes to transport persons or property from place to place. Huckabee Transp. Corp. v. W. Assurance Co., 238 S.C. 565, 121 S.E.2d 105 (1961); Windham v. Pace, 192 S.C. 271, 6 S.E.2d 270 (1939). The term “motor carrier” includes “both a common carrier by motor vehicle and a contract carrier by motor vehicle.” 23A S.C. Code Ann. Regs. 38-402(8) (Supp. 2008).

Statutory law also controls motor carriers. Section 58-23-20 provides: “No corporation or person . . . may operate a motor vehicle for the transportation of persons or property for compensation on an improved public highway in this State” without complying with the applicable statutory provisions and the regulations and authority of the Public Service Commission. S.C. Code Ann. § 58-23-20 (Supp. 2008) (emphasis added).

“The term ‘motor vehicle carrier’ [as used in the portion of the Code concerning the regulation of motor vehicles for compensation] means every corporation or person . . . owning, controlling, operating or managing any motor propelled vehicle . . . used in the business of transporting persons or property for compensation over any improved public highway in this State[.]” S.C. Code Ann. § 58-23-10(4) (1977) (emphasis added).

The phrase “for compensation” as used in section 58-23-20 “means a return in money or property for transportation of persons or property by motor vehicle over public highways, whether paid, received or realized, and shall specifically include any profit realized on the delivered price of cargo where title or ownership is temporarily vested during transit in the carrier as a subterfuge for the purpose of avoiding regulation under this chapter.” S.C. Code Ann. § 58-23-30 (1977).

In the case before us, the circuit court found Greene was a private carrier, not a motor carrier, so he was not subject to the insurance requirements in Regulation 38-41uit court found “Greene is not a motor carrier for hire because he does not transport the property of others for compensation.” The circuit court stated: “Greene cuts trees, picks up trees that have been cut and abandoned to him by other tree services, and hauls and sells those trees to pulpwood and paper companies. When he sells the trees, he receives their market value, not a fee for handling them as cargo. Greene is transporting and selling his own property and is not subject to regulation as a motor carrier for hire.”

The circuit court stated because Greene is a private carrier, “he is not required to carry a certificate of authority issued by the Public Service Commission (PSC) . . . . Instead, as a private carrier, Greene is governed by the general South Carolina Financial Responsibility Act, which, at the time of the collision, only required him to maintain minimum liability limits of $15,000/$30,000/$10,000 or, in this case, combined single limits of $40,000,” citing S.C. Code Ann. § 38-77-140. The circuit court concluded that reformation of the policy issued by Canal Insurance to provide the minimum coverage for a motor carrier of $750,000 was not appropriate as “Greene complied with the law as it applies to private carriers.”

On appeal, Bovain contends the circuit court erred in finding that Greene is not a motor carrier subject to the increased limits of coverage in Regulation 38-414. Bovain asserts the temporary transfer of ownership of the logs to Greene may not be used to avoid application of the limits of coverage in Regulation 38-414.

Canal Insurance, in contrast, maintains Greene is not compensated for transporting the wood; rather, Greene owns the trees and takes them to the mills of his choice. Canal Insurance asserts “[t]he fact that Greene is paid by a timber broker [John Frazier] for providing logs to various mills and pulpwood producers does not contradict the fact that he is selling the wood as his own property . . . .”

During his deposition testimony, Greene testified that, on the date of the accident with Bovain’s wife, he had responded to a call from a tree cutting service that was removing trees under a contract with the highway department near Interstate 26. Greene testified that he was asked to pick up the wood, which he was told “was on I-26 in between the Lexington hospital and no. 1 exit going toward Charleston.” Greene had loaded his truck with cut wood on the side of Interstate 26 and then was pulling onto Interstate 26 to take it to a mill in Eastover when the collision occurred.

Greene stated he had worked with John Frazier for approximately ten years. Greene testified that he picks up wood at various locations for himself, but stated, “I just sell it through Frazier. That’s how I get rid of it.” Greene does not charge anything for picking up the wood because he plans to sell it. Greene conceded that when he took the lumber to the mills, he would not be paid at that time. Instead, Frazier would pay him based on the amount of wood procured. Greene acknowledged that Frazier “tells me where I can go with it.” Greene stated he did not talk directly to the mills, but did so only “[t]hrough Frazier.”

Greene stated he was under Frazier’s workers’ compensation coverage. In addition, Frazier loaned him money to purchase his logging trucks, including the one that was involved in this accident. Greene stated he purchased the insurance policy with a combined single limit of $40,000 as that was the absolute minimum level he could acquire based on the truck’s weight.[3]

John Frazier, a self-identified broker and timber dealer, testified in his deposition that Greene would take the wood to the mill, which would then issue a ticket, and Greene would bring the ticket to him. Frazier would then take out a percentage of the amount for “handling” and give Greene the remainder.

Frazier acknowledged that when Greene brought logs to a mill, the sale price would be credited to his [Frazier’s] account, and Greene would bring him the ticket. Frazier stated he has contracts with the paper companies and they pay him, not Greene. Frazier frequently gave “advances” to Greene, and usually kept about ten to twenty percent of the proceeds for being the “middle man” and then gave Greene the remainder. Frazier stated he usually paid Greene and others, including loggers (those he subcontracted with to cut the wood) and vendors, every Friday. Frazier stated Greene procured virtually all of the wood on his own. When asked why Greene did not just sell the wood himself, i.e., why did he need him [Frazier], Frazier conceded: “He doesn’t.” However, Frazier explained that the mills like to work with people they know, and he had a reputable company with sixty years of experience in the business so they liked doing business with him.

We find the evidence in the record indicates that Greene sold the logs in the name of John Frazier for at least ten years, that the mills paid John Frazier, not Greene, and that Frazier directed him as to which mills to sell to. Under these circumstances, Frazier is the true seller, and Greene is merely transporting the logs for the convenience of Frazier.

The fact that Greene temporarily held title to the logs does not preclude the finding that he was being paid to transport materials. See S.C. Code Ann. § 58-23-30 (1977) (The phrase “for compensation” as used in section 58-23-20 “means a return in money or property for transportation of persons or property by motor vehicle over public highways, whether paid, received or realized, and shall specifically include any profit realized on the delivered price of cargo where title or ownership is temporarily vested during transit in the carrier as a subterfuge for the purpose of avoiding regulation under this chapter.”).

Since Greene knew when he was picking up the logs that he would promptly sell them in the name of John Frazier, Greene was merely holding title temporarily until he took the logs to the mill. Thus, we conclude Greene was transporting the wood for Frazier and hold that he qualifies as a motor carrier under South Carolina law. See 13 Am. Jur. 2d Carriers § 5 (2000) (“The nature of a carrier is determined by its method of operation. Thus, it has been said that a carrier’s status is determined by what it does rather than by what it says it does.” (footnote omitted)).

(B) Exemption for Lumber Haulers in Regulation 38-407(4)

Bovain next argues the circuit court erred in determining that, “[e]ven assuming . . . Greene is a ‘motor vehicle carrier’ for hire, Greene would be exempt from the insurance requirements in Title 58 and under the regulations because he is a lumber hauler.” [R 7] Bovain asserts Canal Insurance failed to establish that the lumber hauler exemption was applicable here. We agree.

Regulation 38-407 provides for exemptions from the Economic Regulations for certain motor carriers. In particular, Regulation 38-407(4) provides an exemption for qualifying “[l]umber haulers engaged in transporting lumber and logs from the forest to the shipping points in this State.” 23A S.C. Code Ann. Regs. 38-407(4) (Supp. 2008) (emphasis added). The phrase “from the forest” is not defined in the regulation.

Bovain argued the exemption did not apply because Greene was not transporting logs “from the forest,” but was, instead, picking up logs left by a tree cutting operation that was working in an area along Interstate 26. The circuit court found Bovain was “reading the exemption in an overly-restrictive manner” and that “[t]his exemption is a ‘farm to market’ exemption and applies when an individual hauls an agricultural product from the point of production to the point of sale.”

On appeal, Bovain contends the circuit court interpreted this exemption in a manner that is inconsistent with the plain language of the regulation. Bovain asserts Greene was not a hauler engaged in transporting logs “from the forest,” and carriers such as Greene who regularly utilize the State’s highways to carry on their business are not entitled to the protection of the “farm-to-market” exemption, which was intended to exempt the infrequent transportation of agricultural products to the market, not the almost daily transportation of items for profit as done by Greene.

The burden of proving the entitlement to an exemption is on the party asserting the exemption. See Ga. Cas. & Sur. Co. v. Jernigan, 305 S.E.2d 611, 614 (Ga. Ct. App. 1983) (finding a truck owner and its insurer failed to meet their burden of showing a pulpwood truck came within the terms of an exemption from the general statutory definition of “motor contract carrier” where they did not prove the truck was engaged exclusively in the transportation of agricultural products from the forest to the mill or other place of manufacture). In this case, the burden was on Canal Insurance to prove the exemption was applicable, and there was no burden on Bovain in this regard. See id. (stating there is no burden on the opposing party).

In general, exemptions are an act of legislative grace and, as such, they are to be strictly and reasonably construed. See State v. Life Ins. Co., 254 S.C. 286, 293-94, 175 S.E.2d 203, 206-07 (1970) (noting exemptions are provided as an act of legislative grace and are to be construed strictly; a party must meet the specified conditions to obtain the benefit conferred by the exemption); see also Village of Lannon v. Wood-Land Contractors, Inc., 672 N.W.2d 275, 278 (Wis. 2003) (applying a “strict but reasonable construction” in interpreting the application of a personal property tax exemption specifically established for logging equipment).

The words used in legislation “must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand [their] operation.” Hitachi Data Sys. Corp. v. Leatherman, 309 S.C. 174, 178, 420 S.E.2d 843, 846 (1992); see Owen Indus. Prods., Inc. v. Sharpe, 274 S.C. 193, 195, 262 S.E.2d 33, 34 (1980) (stating the general rule that a statutory exemption “must be given its plain, ordinary meaning and must be construed strictly against the claimed exemption”); State v. Hood, 49 S.C.L. (15 Rich.) 177, 185 (1868) (“Every exemption must be couched in such plain and unambiguous language as to satisfy the Court beyond doubt that the Legislature intended to create the exemption. Such a right can never arise by mere implication, and all laws granting the exemption are to be most strictly construed.” (citation omitted)).

As noted by one treatise, “forest” is synonymous with “woods,” and in its commonly understood sense, refers to an extensive area of land covered by trees:

The term “wood” is often used in the plural, with the same force as in the singular, as indicating a large and thick collection of trees. It is synonymous with “forest,” and has been so defined, although the latter term is sometimes said to imply a wood of considerable extent. Both terms are broad enough to include not only the trees but the land on which they stand. When referring to land, the term “woods” means forest lands in their natural state, as distinguished from lands cleared and enclosed for cultivation, and “forest” means a tract of land covered with trees, or a tract of woodland with or without enclosed intervals of open and uncultivated ground. 98 C.J.S. Woods and Forests § 1 (2002) (footnotes omitted).

The Supreme Court of Illinois has also found that “[a] forest is defined as a tract of land covered with trees; a wood, usually of considerable extent.” Forest Preserve Dist. v. Jirsa, 168 N.E. 690, 691 (Ill. 1929) (alteration in original); see also People v. Long Island R.R. Co., 110 N.Y.S. 512, 512 (N.Y. App. Div. 1908) (stating “[a] forest is defined as being ‘a tract of land covered with trees; a wood, usually one of considerable extent; a tract of woodland with or without [e]nclosed intervals of open and uncultivated ground’” (citation omitted)).

We find the definitions above persuasive, and believe that the plain meaning of “forest” is that it commonly refers to an area of land covered with trees, usually of considerable extent. The express language of Regulation 38-407(4) exempts those hauling lumber from a forest as the point of production. We see no reason to deviate from the plain language of the regulation.

Canal Insurance submitted an affidavit from David Findlay, the Administrator of the Motor Carrier Services Division (MCS) of the South Carolina Department of Motor Vehicles, who stated that “MCS interprets this regulation broadly as applying to persons like Greene who haul cut trees to lumber processors. These exemptions are generally referred to as farm-to-market exemptions.” (Emphasis added.) Similarly, Findlay stated that MCS interprets a statute governing the transporting of “forest products from the farm to the first market” to be applicable “to lumber haulers that haul cut trees to sell to pulpwood processors regardless of whether the trees are actually obtained from a ‘forest.’” (Emphasis added.)

MCS applies the wrong standard of construction as exemptions are to be construed narrowly, not broadly. Further, MCS is not responsible for overseeing the Economic Regulations. Consequently, its interpretation is not determinative.

Because Regulation 38-407 is meant to be a farm-to-market exception, it should apply to areas of usual harvesting, not just small areas where trees can be cut. See generally 17 Words and Phrases Forestation 43 (Supp. 2008) (citing Cascade Floral Prods., Inc. v. Dep’t of Labor & Indus., 177 P.3d 124 (Wash. Ct. App. 2006), which found that Washington’s farm labor contractor act did not apply to the brush picking industry as it was not “forestation” within the meaning of the act because the statutory definition of “forestation” required cultivation or commercial planting).

A broad interpretation of “forest” as pertaining to any site where trees are cut would eviscerate the language that the exemption applies to those hauling logs “from the forest to the shipping points in this State.” We do not believe that is a reasonable and strict construction of all of the pertinent terms of the exemption. The legislature could have easily used broader language and stated that anyone hauling lumber or logs is exempted if that were its intent. Cf. State v. Alls, 330 S.C. 528, 531, 500 S.E.2d 781, 782 (1998) (stating legislative provisions must be read as a whole and sections which are part of the same law should be construed together and each given effect, if it can be done by any reasonable construction). In this case, we conclude Canal Insurance did not meet its burden of establishing that the exemption applied here as there was no evidence that Greene was transporting lumber and logs “from the forest to the shipping points in this State.”

Having found Greene qualified as a motor carrier, and that he did not meet the requirements for exemption as a lumber hauler, we hold the policy issued by Canal Insurance should be reformed because it does not conform to the legal requirements for coverage as mandated by Regulation 38-414. See Hamrick v. State Farm Mut. Auto. Ins. Co., 270 S.C. 176, 179, 241 S.E.2d 548, 549 (1978) (“A policy of insurance issued pursuant to statutory law must at a minimum give the protection therein described. It may give more protection but not less, and a policy issued pursuant to the law which gives less protection will be interpreted by the court as supplying the protection which the legislature intended.”); Jordan v. Aetna Cas. & Sur. Co., 264 S.C. 294, 297, 214 S.E.2d 818, 820 (1975) (stating while parties are generally permitted to contract as they desire, this freedom is not absolute and insurance coverage required by law may not be omitted because statutory provisions relating to an insurance contract are part of the contract).

Although Canal Insurance argues that reformation is appropriate only for automobile insurance policies issued under the South Carolina Financial Responsibility Act, we find no reason to impose this arbitrary distinction.

Regulation 38-414 provides: “Insurance policies and surety bonds for bodily injury and property damage will have limits of liabilitynot less than” $750,000 per incident for trucks weighing 10,0000 or more pounds GVWR that carry non-hazardous freight. S.C. Code Ann. Regs. 38-414 (emphasis added). The South Carolina Legislature has mandated a level of coverage for larger vehicles in order to protect the public from the increased dangers inherent with their operation on our state’s highways. It would be unreasonable to interpret the language of Regulation 38-414 differently from the mandated coverage under the Financial Responsibility Act, as the potential for catastrophic damage is much greater with these larger vehicles. We find insurance carriers have a duty to issue policies in accordance with the mandated minimum levels of coverage and that reformation of the Canal Insurance policy to provide the mandated minimum level of coverage is appropriate.

CONCLUSION

Based on the foregoing, we hold Greene is a motor carrier as defined in the South Carolina Code and that the exemption from the Economic Regulations for lumber haulers is not applicable here. We find insurers have a duty to issue insurance in accordance with the mandate of Regulation 38-414 and conclude Bovain is entitled to reformation of the Canal Insurance policy to conform to the $750,000 minimum level of coverage required by Regulation 38-414. Accordingly, we reverse and remand for entry of summary judgment in favor of Bovain.

REVERSED AND REMANDED.

TOAL, C.J., WALLER, J. and Acting Justice James E. Moore, concur. KITTREDGE, J., concurring in part, dissenting in part in a separate opinion.

JUSTICE KITTREDGE: I concur with the majority’s holding that Roy R. Greene was, as a matter of law, a motor carrier under South Carolina law on the accident date of September 9, 2004. I respectfully dissent, however, from the legal determination that Greene may not avail himself of the exemption contained in Regulation 38-407(4). 23A S.C. Code Ann. Regs. 38-407(4) (Supp. 2008) (providing an exemption for “[l]umber haulers engaged in transporting lumber and logs from the forest to the shipping points in this State”). I do not believe the applicability or inapplicability of the exemption may be determined on the current record to the exacting summary judgment standard. I would reverse the grant of summary judgment in favor of Greene and remand to the trial court for further consideration of the claimed exemption.

[1] The remaining defendants are not parties to this appeal, so all references are solely to Canal Insurance.

[2] “GVWR” stands for Gross Vehicle Weight Rating, i.e., the maximum total weight of a vehicle and its cargo.

[3] In his affidavit, Greene stated he explained the nature of his business to his insurance agent and requested the minimum liability limits allowed by law.

SC Workers’ Compensation – Third Party Lawsuit – When Fault Matters

Mar 9, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

This SC Supreme Court case does not mention workers’ compensation, but it is clear from the facts that this plaintiff was initially injured on the job and then later sued the third party in civil court. When hurt at work, you sometimes have a second lawsuit against an entity other than your employer if their negligence causes your injuries. Here, the workers’ compensation claim would have been against the injured worker’s hospital employer. When that case was concluded, he then brought suit against the general building contractor doing renovation work at the hospital facility. In workers’ compensation claims, negligence is not an issue absent certain situations not present in this case. However, in a third party case, you have to deal with all legal issues, including who was at fault and in what degree as well as potential defenses that may come into play. As you can see, these cases are aggressively defended and ultimately remanded for a new trial because the jury verdict was clearly insufficient in light of the overall medical expenses. Cases where you have both a workers’ compensation claim and then a separate third party case can be extremely complicated. Better make sure your attorney is experienced in both areas and knows how to effectively prosecute both claims so that you get maximum recovery. This is not the time to risk an inexperienced lawyer.

At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys. Robert J. Reeves is a former intensive care unit Registered Nurse (RN) who has actually treated patients with the same type of serious injuries he now represents in workers’ compensation cases. Both Robert J. Reeves and Arthur K. Aiken are former insurance defense attorneys who know what to anticipate and how to prepare for trial and insurance company tactics. During our twenty-two (22) years each of practicing law, we have handled virtually every type of workers’ compensation injury, including neck, back, shoulder, knee accidents, closed head / brain injury, herniated disks, bulging disks, diskectomy surgery, fusion procedures, arthroscopy, automobile accidents on the job, psychological / post traumatic stress, permanent and total disability claims, and wrongful death. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us today at 803-548-4444 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Ronnie Lane, Respondent,

Gilbert Construction Company, LTD., Appellant.

Appeal from Florence County
Thomas A. Russo, Circuit Court Judge

Opinion No. 26701
Heard May 12, 2009 – Filed August 17, 2009

AFFIRMED

Everett A. Kendall, II, of Sweeny, Wingate & Barrow, of Columbia, for Appellant.

D. Kenneth Baker, of Darlington, James H. Moss and

H. Fred Kuhn, Jr., both of Moss, Kuhn & Fleming, of Beaufort, for Respondent.

JUSTICE PLEICONES: In this premises liability action, a jury found for Respondent Ronnie Lane (Lane) in the amount of $75,000. The trial court then granted Lane’s motion for a new trial absolute, which ruling Gilbert now challenges on appeal. We affirm.

FACTS

Appellant Gilbert Construction Company LTD (Gilbert) entered into an agreement to renovate McLeod Regional Medical Center (Hospital). The renovation included work on a courtyard, accessible by an emergency exit from the building. The superintendent of Gilbert testified that during the demolition/foundation phase of the project six holes for footings were created on the site, including one in the courtyard. A number of the holes were covered, but Gilbert decided not to cover the hole in the courtyard. The superintendent explained that he believed that the area was cordoned off.

Sometime between 2:30 and 3:30 a.m. Lane, an HVAC mechanic at the Hospital working the “graveyard shift,” responded to the latest in a series of false fire alarms. Lane testified that each time the alarm was activated the alarm system automatically alerted the fire department. Since the fire department had previously responded to false alarms twice during Lane’s shift that night, he decided to walk down to tell the switchboard operator to put the system in “test mode” so that it would not automatically alert the fire department.

Lane knocked on the door to the switchboard room and, receiving no answer, chose to walk out of the emergency exit and into the courtyard in order to reach another door to the security and switchboard area. The emergency exit door was slightly ajar and when Lane opened it he saw “caution tape” hanging down on the side of the door. He then stepped out into what he described as “pitch black dark” and fell into the hole, breaking his ankle.

Lane underwent a number of surgeries to repair his ankle and missed weeks of work. All told, Lane’s medical care related to the ankle injury totaled $73,754. On cross examination, Lane admitted that he returned to work in his previous capacity as an HVAC mechanic in between his surgeries, though in sedentary work. Following his last surgery, he was assigned to a new job as a computer operator. In his new job, Lane works at a desk in shifts from 7:00 a.m. until 3:30 p.m., rather than the “graveyard” shift he worked as an HVAC mechanic.

An expert for Lane conducted a vocational assessment and determined that Lane was not capable of performing the job that he had prior to the injury. She further opined that Lane would only be eligible for minimum wage positions if he were to lose the position he currently has.

The jury found Lane 45% at fault and Gilbert 55% at fault and awarded $75,000 in actual damages. Lane moved for a new trial absolute which the court granted.

ISSUES

I. Did the trial court err in denying Gilbert’s motion for a directed verdict?

II. Did the trial court err in granting a new trial?

III. Did the trial court’s order granting a new trial deprive Gilbert of its right to trial by jury?

DISCUSSION

I. Did the trial court err in denying Gilbert’s motion for directed verdict?

Gilbert contends that the evidence does not support classification of Lane as an invitee and instead only supports classification as a licensee or trespasser. Furthermore, Gilbert argues that there is no evidence to show a breach of the landowner’s duty to a licensee or trespasser and therefore, Gilbert is entitled to a directed verdict. We disagree.

“A motion for directed verdict goes to the entire case and may be granted only when the evidence raises no issue for the jury as to liability.” Ecclesiastes Production Ministries v. Outparcel Assoc., LLC, 374 S.C. 483, 490, 649 S.E.2d 494, 497 (Ct. App. 2007),citing Carolina Home Builders, Inc. v. Armstrong Furnace Co., 259 S.C. 346, 358, 191 S.E.2d 774, 779 (1972).

“Under a premises liability theory, a contractor generally equates to an invitor and assumes the same duties that the landowner has, including the duty to warn of dangers or defects known to him but unknown to others.” Larimore v. Carolina Power & Light, 340 S.C. 438, 448, 531 S.E.2d 535, 540 (Ct. App. 2000).

The trial court classified Lane as an “invitee.” An invitee is a person “who enters onto the property of another by express or implied invitation, his entry is connected with the owner’s business or with an activity the owner conducts or permits to be conducted on his land, and there is a mutuality of benefit or a benefit to the owner.” Singleton v. Sherer, 377 S.C. 185, 199, 659 S.E.2d 196, 204 (Ct. App. 2008), quoting Sims v. Giles, 343 S.C. 708, 716-17, 541 S.E.2d 857, 862 (Ct. App. 2001).

Gilbert contends that Lane was not an invitee because he had no consent, either express or implied, to be in the courtyard and because his presence in the courtyard was not to the interest or advantage of Gilbert. We find that there was at least implied consent to use the area since it was immediately outside of an emergency exit. Moreover, Lane was at least partly benefiting Gilbert by attempting to have the switchboard disable the automatic alert to the fire department. Lane testified that the fire alarm repeatedly sounded during his shift. Each time the alarm sounded, the alarm system automatically notified the fire department. By instructing the switchboard to place the system in “test” mode, Lane could ensure that the business of both the Hospital and Gilbert would not be repeatedly interrupted by the sounding of the alarm, unnecessary evacuations, and arrival of fire department personnel.

Moreover, even if Lane did not provide a benefit to Gilbert, Gilbert would not be entitled to a directed verdict if Lane were classified as a licensee.

“A licensee is a person who is privileged to enter upon land by virtue of the possessor’s consent.” Neil v. Byrum, 288 S.C. 472, 473, 343 S.E.2d 615, 616 (1986). “When a licensee enters onto the property of another, the primary benefit is to the licensee, not the property owner.” Singleton, 377 S.C. at 198, 659 S.E.2d at 203.

“A landowner owes a licensee a duty to use reasonable care to discover the licensee, to conduct activities on the land so as not to harm the licensee, and to warn the licensee of any concealed dangerous conditions or activities.” Singleton, 377 S.C. at 201, 659 S.E.2d at 204. In our view, the evidence presented at trial raised a jury question as to whether or not Gilbert met the duty owed to Lane as a licensee. Therefore, even assuming Lane was a licensee, the trial judge did not err in denying the motion for a directed verdict. See Ecclesiastes Production Ministries, supra.

We find that the trial court properly classified Lane as an invitee. Moreover, even assuming Lane is not an invitee, Gilbert would not be entitled to a directed verdict. Consequently, the trial judge did not err in denying Gilbert’s motion for a directed verdict.

II. Did the trial court err in granting a new trial?

Gilbert argues that the trial court erred in granting Lane a new trial. We disagree.

In South Carolina, a trial judge may grant a new trial following a jury verdict under the Thirteenth Juror Doctrine. The doctrine “entitles the judge to sit, in essence, as the thirteenth juror when he finds ‘the evidence does not justify the verdict,’ and then to grant a new trial based solely ‘upon the facts.’” Norton v. Norfolk Southern Railway Co., 350 S.C. 473, 478, 567 S.E.2d 851, 854 (2002),citing Folkens v. Hunt, 300 S.C. 251, 387 S.E.2d 265 (1990). As the thirteenth juror, the trial judge can hang the jury by refusing to agree to the jury’s otherwise unanimous verdict. Id.

Upon review, a trial judge’s order granting or denying a new trial will be upheld unless the order is wholly unsupported by the evidence, or the conclusion reached was controlled by an error of law. Norton, 350 S.C. at 478, 567 S.E.2d at 854. This Court’s review is limited to consideration of whether evidence exists to support the trial court’s order. Id. at 478-79, 567 S.E.2d at 854. As long as there is conflicting evidence, this Court has held the trial judge’s grant of a new trial will not be disturbed. Id.

The judge is not required to explain the reasons for his decision. Id. In this case, however, the trial judge provided an explanation in the order granting the motion for a new trial. The court noted that Lane presented evidence at trial, which was “uncontested by the defendant,” of actual medical costs of $73,754, lost wages from the date of injury up until the time of trial of $17,248, and a 21% permanent impairment rating. The court also noted that the jury heard testimony from two experts opining that Lane suffered a loss of personal services to his family equivalent to $19,381, such as household chores, and is unable to perform the duties required by his prior job as an HVAC mechanic. The court concluded:

[A]fter careful review of all of the facts and circumstances of this case and other cases in the state of South Carolina, this Court believes that an amount of Seventy Five Thousand and no/100 ($75,000.00) Dollars can only be explained on the basis of passion, prejudice or caprice on the part of the jury. The jury’s verdict in this case shocks the conscience of this Court, as an award of damages, particularly the considerations, or lack thereof, of the uncontested damages presented by the Plaintiff, including a Twenty-One (21%) percent permanent impairment to health. As such, this Court finds that the jury’s verdict in this matter is grossly inadequate in light of the evidence presented.

The trial judge then granted Lane’s motion for a new trial absolute.

A. Did the trial court commit legal error in viewing certain damages as “unconstested?”

Gilbert first argues that it was legal error for the trial judge to base his order on the idea that certain damages were “uncontested.” Gilbert contends that it “did contest those damages, denying them in its Answer, by not stipulating as to damages and by questioning Lane’s claims in cross-examining various witnesses about them.” In Gilbert’s view, the trial court’s Order implied that Gilbert was required to put up witnesses to contest the claim of damages and thereby shifted the burden of proof from the plaintiff to the defendant. We disagree.

In considering a motion for a new trial, the trial judge must look to see if the evidence justifies the jury verdict. See Norton, 350 S.C. at 478, 567 S.E.2d at 854. The court, in making such an inquiry, is perfectly justified in noting whether the evidence presented to the jury was or was not challenged in front of the jury.

Moreover, the trial judge’s statement that certain evidence was “uncontested” was not factually incorrect, since the evidence in question was not challenged by Gilbert at trial, even on cross-examination. Gilbert’s counsel told the jury in his opening statement:

We are not contesting that he was injured. We are not going to challenge those areas about his life. He was injured. He has undergone a lot of medical treatment. But, there is one part of his damages that we are going to talk about. We do take exception to the future los[t] wages that you are going to hear.

As promised, Gilbert did not challenge the medical costs, lost wages prior to trial, or physical impairment rating. Instead, Gilbert chose to focus on disputing Lane’s claims for future lost wages, and succeeded as the jury awarded $0 for that particular claim.

The trial court committed no error in noting that certain damages were “uncontested” in its order granting a new trial.

B. Is there evidence to support the trial court’s order?

Gilbert contends that the trial court erred in granting a new trial because there is no evidence to support the order. We disagree.

On a special verdict form, the jury awarded $75,000 in actual damages of which it attributed $0 to future diminished earning capacity. Gilbert argues that the jury properly declined to award earning capacity since, at the time of trial, Lane was employed in a job that paid better than his previous job. Gilbert also posits reasons why the jury might choose to reduce the awards for pre-trial personal services, pain and suffering, and medical bills.[1]

Gilbert’s points are not entirely without merit. However, the question before this Court on appeal is whether the trial court’s decision to grant a new trial is wholly unsupported by the evidence. See Norton, 350 S.C. at 478, 567 S.E.2d at 854. In the instant case, Lane presented evidence of $73,754 in medical bills and $17,248 in lost wages up to the time of trial, neither of which was challenged by Gilbert. Lane also presented evidence that Lane has a 21% physical impairment, experienced pain and suffering related to the accident, and suffered a loss of personal services to his family of $19,381. We find the trial court’s decision order granting a new trial is supported by the evidence.

III. Was Gilbert denied its right to a trial by jury?

Gilbert contends that to grant a new trial after the jury verdict was “de facto to deny Gilbert its constitutional right to trial by jury.” In short, Gilbert contends that the Thirteenth Juror Doctrine is unconstitutional under the South Carolina constitution. We disagree.

The Thirteenth Juror Doctrine is a well-established in South Carolina as the standard for granting a new trial. See Norton, 350 S.C. 477, 567 S.E.2d at 854. This Court has reviewed the doctrine on several occasions and has refused to abolish it. Id. at 478, 567 S.E.2d at 854.

The right to trial by jury is a fundamental right. See Wright v. Colleton County School Dist., 301 S.C. 282, 291, 391 S.E.2d 564, 570 (1990). As such, any abridgement of that right is subject to strict scrutiny. See City of Beaufort v. Holcombe, 369 S.C. 643, 632 S.E.2d 894 (Ct. App. 2006). To meet strict scrutiny, a law or policy must meet a compelling state interest and be narrowly tailored to effectuate that interest. See In re Treatment and Care of Luckabaugh, 351 S.C. 122, 140-41, 568 S.E.2d 338, 347 (2002).

The Thirteenth Juror Doctrine does not abridge the right to a trial by jury since the effect of a trial judge’s decision to grant a new trial is to allow another jury trial. Therefore, the parties are not deprived of a trial by jury.

We affirm the trial court’s exercise of power under the Thirteenth Juror Doctrine.

CONCLUSION

The trial court did not err in declining to grant a directed verdict for Gilbert based on Lane’s status for purposes of premises liability. Furthermore, the trial court did not err in granting a new trial under the Thirteenth Juror Doctrine, nor is the doctrine unconstitutional. Therefore, the decision of the trial court is

AFFIRMED.

WALLER, BEATTY, KITTREDGE, JJ., and Acting Justice James E. Moore, concur.

[1] Gilbert contends that the jury may have reduced the amount of damages based on medical bills because (1) though the bills were introduced, there was no testimony that they had been paid, and (2) the jury could have reasonably concluded from Lane’s answer that the summary of medical expenses was correct “to my knowledge” that Lane did not know how much he had been billed, or actually paid for medical expenses.

SC Workers’ Compensation – Heart Attack Claims – Different Proof Required

Mar 7, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation, Wrongful Death

This SC Supreme Court case dealt with a legal issue of whether there was “substantial evidence” to support the Full Commission findings. However, there is a great illustration of how complex heart attack cases are analyzed in workers’ compensation. Heart attack cases are treated differently than other on the job injuries. To be compensable as a worker’s compensation accident, a claimant must prove that it is induced by unexpected strain or overexertion in the performance of the duties or by unusual and extraordinary conditions of employment. These cases are always serious, sometimes fatal. As a result, they are aggressively defended by insurance carriers. As a former intensive care unit Registered Nurse (RN), Robert Reeves has actually worked in “open heart recovery” and understands the medical issues involved. And, as a workers’ compensation attorney, he has handled heart attack cases and knows what has to be proven in order to win. Better make sure your attorney understands these complicated workers’ compensation standards and is willing to fight for you and your family. There is too much at stake to risk an inexperienced lawyer.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Thomas D. Jordan, Petitioner,

Kelly Company, Inc., Employer, and Zenith Insurance Company, Carrier, Respondents.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Horry County
B. Hicks Harwell, Jr., Circuit Court Judge

Opinion No. 26611
Heard January 6, 2009 – Filed March 9, 2009

AFFIRMED

David James Canty, of Myrtle Beach, and James L. Hills, of Hills & Hills, of Myrtle Beach, for Petitioner.

Christian Stegmaier and Peter H. Dworjanyn, both of Collins & Lacy, of Columbia, for Respondents.

CHIEF JUSTICE TOAL: In this workers’ compensation case, the single commissioner found Petitioner’s injury compensable and awarded benefits, but the full commission reversed. The circuit court reversed the full commission and reinstated the single commissioner’s decision awarding benefits. The court of appeals reversed the circuit court, finding that substantial evidence in the record supported the full commission’s decision. Jordan v. Kelly Co. Inc., Op. No. 2007-UP-010 (S.C. Ct. App. filed January 11, 2007). We granted a writ of certiorari to review the court of appeals’ decision. We affirm

Factual/Procedural Background

Petitioner Thomas Jordan was employed as a driver by Respondent Kelly Company, Inc., a hauling company specializing in transporting heavy equipment. On January 11, 2003, following the completion of a long haul route from Virginia to Texas, Petitioner suffered a heart attack. Petitioner filed a claim for workers’ compensation benefits and alleged that the heart attack was proximately caused by unusual and extraordinary duties during this haul.

At the hearing, Petitioner testified that on Wednesday, January 8, 2003, Kelly Company sent him to pick up a large piece of equipment in Virginia and transport it to Texas by Friday, January 10, 2003. Because the equipment had not been loaded, Petitioner departed seven hours past schedule, leaving him only two hours of travel time on Wednesday.[1] Additionally, Petitioner testified that the required permits were not ready for him when he left Virginia and he therefore had to drive without the permits until he could pick up copies at a truck stop. On Thursday, Petitioner drove from North Carolina to Alabama, and on Friday he drove from Alabama to Louisiana. Petitioner informed a dispatcher that he would not be able to deliver the equipment to Texas by the Friday deadline, but the dispatcher informed Petitioner that the deadline was extended to 12:00 p.m. Saturday. When Petitioner arrived in Texas on Saturday morning, he was unable to take the exit that his permit required him to take because the exit was under construction. As a result, he had to deviate from his route through downtown Houston. Petitioner made the delivery at 11:57.

Petitioner testified that he began experiencing symptoms associated with a heart attack during the haul and on Saturday night. He further testified that the haul was extremely stressful because he was forced to leave Virginia and travel without the required permits and to drive illegally through downtown Houston without a special permit or police escort.

The single commissioner found that Petitioner’s heart attack was precipitated by unusual and extraordinary conditions of his employment on the trip. The full commission reversed and found that Petitioner was performing his job duties as a long haul driver in the ordinary and usual manner. The circuit court reversed the full commission’s decision and reinstated the award of benefits. The court of appeals reversed the circuit court and held that that substantial evidence in the record supported the full commission’s decision denying benefits.

We granted Petitioner’s request for a writ of certiorari to review the court of appeals’ decision, and Petitioner presents the following issue for review:

Did the court of appeals err in finding substantial evidence in the record exists to support the full commission’s findings?

Standard of Review

In workers’ compensation cases, the full commission is the ultimate fact finder. Shealy v. Aiken County, 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000). This Court must affirm the findings of fact made by the full commission if they are supported by substantial evidence. Lark v. Bi-Lo, Inc., 276 S.C. 130, 136, 276 S.E.2d 304, 307 (1981). Substantial evidence is not a mere scintilla of evidence, but evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the agency reached. Tiller v. Nat’l Health Care Ctr., 334 S.C. 333, 338, 513 S.E.2d 843, 845 (1999).

Law/Analysis

Petitioner argues that the court of appeals erred in holding that substantial evidence in the record exists to support the full commission’s findings. We disagree.

A claimant may recover workers’ compensation benefits if he sustains an “injury by accident arising out of and in the course of the employment.” S.C. Code Ann. § 42-1-160 (2006). The general rule is that a heart attack is compensable as a worker’s compensation accident if it is induced by unexpected strain or overexertion in the performance of the duties of a claimant’s employment or by unusual and extraordinary conditions of employment. Hoxit v. Michelin Tire Corp., 304 S.C. 461, 464, 405 S.E.2d 407, 409 (1991).

In our view, the court of appeals correctly held that substantial evidence in the record supported the full commission’s finding that Petitioner was not performing his job duties under unusual or extraordinary conditions of his employment. Although Petitioner testified that the haul was extremely stressful, Petitioner’s boss and co-worker testified that the Kelly Company did not impose deadlines and that it was not unusual for employees to deviate from their routes due to construction. Petitioner admitted that he had left without permits on prior deliveries and that when this would happen, he would pick up a faxed copy of the permits at the nearest truck stop. Furthermore, evidence in the record showed that Petitioner smoked cigarettes, had abused alcohol, suffered from high blood pressure, and had a family history of heart disease.

Although the record contains conflicting evidence, this Court is not in a position to weigh the evidence presented in workers’ compensation hearing. See Shealy, 341 S.C. at 455, 535 S.E.2d at 442 (holding that the final determination of witness credibility and the weight to be accorded evidence is reserved to the full commission, and it is not the task of an appellate court to weigh the evidence as found by the full commission). Accordingly, we hold that substantial evidence in the record supports the full commission’s finding that Petitioner’s heart attack was not induced by unexpected strain or overexertion in the performance of the duties of his employment or by unusual and extraordinary conditions of employment.

Conclusion

For the foregoing reasons, we affirm the court of appeals’ decision denying benefits.

WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur.

[1] Petitioner testified that drivers are only allowed to transport heavy equipment during daylight hours.

SC Workers’ Compensation – Employment Application – Honest Mistake or Fraud

Mar 5, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

This SC Supreme Court case addresses the distinction between errors made when completing employment applications and outright fraud which can deny workers’ compensation benefits. In these difficult economic times, it may be tempting to “hedge” on questions. Other questions may be badly worded and hard to understand. Nevertheless, it is important to your own safety not to apply for a job that puts your health at risk. If you do get a job and get hurt, the answers on the intitial employment application may come back to challenge your claim. But remember, your employer has to prove three (3) elements to defeat your claim. Better make sure your workers’ compensation attorney understands these complex issues and is willing to fight for you in court. There is too much at stake to risk an inexperienced lawyer.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Lawrence Brayboy, Employee, Respondent,

WorkForce, Employer and American Home Assurance, Carrier, Defendants,

Of Whom WorkForce, Employer, is the Appellant.

Appeal From Charleston County
R. Markley Dennis, Jr., Circuit Court Judge

Opinion No. 26675
Heard April 9, 2009 – Filed June 22, 2009

REVERSED

Kirsten L. Barr, of Mt. Pleasant, for Appellant.

John S. Nichols, of Columbia and Matthew Jackson, of North Charleston, for Respondent.

JUSTICE KITTREDGE: In this workers’ compensation case, claimant Lawrence Brayboy made material misrepresentations on his employment application. Subsequently, Brayboy claimed workers’ compensation benefits, which the Workers’ Compensation Commission awarded. The circuit court upheld the award on the basis of the substantial evidence standard of review. Because the issue of Brayboy’s employment status is jurisdictional, the Court makes findings based on its view of the preponderance of the evidence. We find the employer, WorkForce, established the three-factor test in Cooper v. McDevitt & Street Co., 260 S.C. 463, 468, 196 S.E.2d 833, 835 (1973), and reverse.

On April 18, 2003, Brayboy sustained a back injury, which required lumbar fusion surgery. On the day of the injury, Brayboy moved a lot of lumber and while removing a chain link fence, he felt a terrible pull in his back. Brayboy worked the entire day, which was a Friday, and reported the injury on Monday. Subsequently, Brayboy filed a workers’ compensation claim against his putative employer, WorkForce.

Brayboy’s employment application included the following disclaimers:

If I do not give accurate and truthful information on this Medical History Questionnaire, which forms the second and final part of my employment agreement, the entire employment agreement shall be considered null and void.

MISREPRESENTATIONS AS TO PREEXISTING PHYSICAL OR MENTAL CONDITIONS MAY CAUSE FORFEITURE OF YOUR WORKERS’ COMPENSATION BENEFITS.

(emphasis in original). Notably, Brayboy signed his name under these cautionary statements. Despite these warnings, Brayboy responded in the negative to all questions inquiring if Brayboy had prior back injuries, physical defects, medical conditions, or previous workers’ compensation claims. However, at the workers’ compensation hearing, Brayboy testified about multiple prior physical problems. These conditions included a back injury while in the Navy, a back injury in 1996 resulting in a workers’ compensation claim, and a pinched nerve in 1996.

Specifically, during his service in the Navy in the early 1970s, Brayboy fell, slid on the ship’s deck, and hit a rail. According to Brayboy, the Navy x-rayed his back and gave him medicine for treatment. The Navy also diagnosed Brayboy with a back deformity he had since birth — a missing piece of bone. Brayboy further stated he was honorably discharged in 1973 due to his back defect.

Notably, since the 1970s, Brayboy has received benefits from the Department of Veterans’ Administration (VA). The impairment rating increased from ten to twenty percent due to a pinched nerve. Following the 2003 injury, the VA raised Brayboy’s disability rating from twenty to forty percent as the “service connected condition(s) has/have worsened.”

Brayboy further testified he filed a workers’ compensation claim in 1996 while working for McCrory Construction. The claim arose from an accident when Brayboy was in a hole thirty to forty feet deep taking measurements while other workers poured concrete for a parking garage. Brayboy stated a backhoe was too close to the edge of the hole, and “[the hole] collapsed, and I was pulled out by several of my workers.” This accident injured Brayboy’s middle to low back and right ankle.

Brayboy filed a workers’ compensation claim for this injury, received a settlement for this claim, and was given a five percent impairment rating for his back as well as five percent for his ankle. Brayboy testified in deposition that his current back pain was “primarily in the same area” as the cave-in injury; however, at the hearing, he disputed the similarity of the injuries. Additionally, Brayboy testified he suffered a pinched nerve in his right hip in 1996. This was unrelated to the cave-in and was due to wearing a heavy tool belt.

Brayboy testified he did not report any of his prior injuries to WorkForce as he did not feel the injuries were relevant to a construction job. Also, Brayboy stated he did not include the cave-in injury as it had “cleared up very quickly.”

The single commissioner found a compensable injury and Brayboy credible when testifying he filled out the employment application in adherence to his belief he was neither permanently impaired nor disabled. The Workers’ Compensation Commission upheld the award of the single commissioner. The circuit court affirmed.

WorkForce appealed and the court of appeals issued an unpublished opinion reversing. Following a petition for rehearing, the court of appeals withdrew its opinion and requested certification under Rule 204(b), SCACR. We granted certification.

II.

The existence of an employment relationship is a jurisdictional issue for purposes of workers’ compensation benefits reviewable under the preponderance of the evidence standard of review. Glass v. Dow Chem. Co., 325 S.C. 198, 201-02, 482 S.E.2d 49, 51 (1997); Vines v. Champion Bldg. Prods., 315 S.C. 13, 16, 431 S.E.2d 585, 586 (1993); Givens v. Steel Structures, Inc., 279 S.C. 12, 13, 301 S.E.2d 545, 546 (1983); Cooper v. McDevitt & St. Co., 260 S.C. 463, 466, 196 S.E.2d 833, 834 (1973); Chavis v. Watkins,256 S.C. 30, 32, 180 S.E.2d 648, 649 (1971); Hon. Jean Hoefer Toal et al., Appellate Practice in South Carolina 170 (2d ed. 2002).

We must determine if Brayboy was an employee at the time of his injury and thus eligible for workers’ compensation benefits. Alewine v. Tobin Quarries, Inc., 206 S.C. 103, 109, 33 S.E.2d 81, 83 (1945) (“No award under the [Workers’ Compensation] Act is authorized unless the employer-employee relationship existed at the time of the alleged injury for which claim is made. This relation is contractual in character . . . .”). An employee is statutorily defined in section 42-1-130 of the South Carolina Code (Supp. 2008) as “every person engaged in an employment under any appointment, contract of hire, or apprenticeship, expressed or implied, oral or written . . . .” Brayboy asserts his status as an employee as a result of the contract for hire with WorkForce. WorkForce relies on the principle that an employment relationship may be vitiated when there is a material misrepresentation in the employment contract. Givens, 279 S.C. at 13, 301 S.E.2d at 546.

In Cooper, this Court set forth three necessary factors for a material misrepresentation in the employment application to vitiate the employment relationship:

(1) The employee must have knowingly and wilfully made a false representation as to his physical condition.
(2) The employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring.
[and]
(3) There must have been a causal connection between the false representation and the injury.

260 S.C. at 468, 196 S.E.2d at 835.

We are firmly convinced that WorkForce has established all three factors. First, Brayboy failed to report a host of prior back problems, as well as a prior workers’ compensation claim for an injury to his back. The willful nature of Brayboy’s false responses pervades the record. Brayboy admits he provided false information on the employment application. The suggestion that Brayboy could make material misrepresentations on his employment application because he believed he was fit for construction work is a specious position.

Turning to part two of the test, WorkForce presented credible evidence it relies heavily on the employment application. In this regard, WorkForce’s reliance is twofold: the employment application is important in the hiring and placement decisions. Clearly, the questionnaire portion of the application protects the employer and employee. Had Brayboy given truthful information, WorkForce would have been able to give him suitable job assignments, which would not have included heavy lifting. Even Brayboy at one point conceded the importance of providing truthful information on the employment application when he stated, “[WorkForce] wouldn’t want to put a person with impairments or disabilities on a construction job that [he] couldn’t handle.” We find WorkForce detrimentally relied on Brayboy’s fraudulent application.[1] Small v. Oneita Indus., 318 S.C. 553, 554-55, 459 S.E.2d 306, 306-07 (1995) (noting an agent of the employer testified Small’s prior injury would affect job placement decisions, not hiring decisions, and affirming the denial of workers’ compensation benefits due to a false representation on an employment application).

Concerning the third factor, we find irrefutable evidence of a causal connection between the false information and the aggravation of his pre-existing back injury. Brayboy conceded that the April 2003 injury was in “primarily in the same area” as the 1996 cave-in injury. The April 2003 injury is also directly linked to his military disability, as evidenced by the VA raising Brayboy’s disability rating from twenty to forty percent as the “service connected condition(s) has/have worsened.”

Pursuant to Cooper, we hold Brayboy’s fraudulent responses on his employment application vitiated his employment relationship and barred his recovery of workers’ compensation benefits.

REVERSED.

[1] WorkForce provides temporary employment and, therefore, a WorkForce employee may be assigned to various jobs during their employment. On the day of his alleged injury, Brayboy was assigned to heavy labor, the very type of assignment WorkForce claims it would not have given Brayboy had he been truthful in his employment application.

SC Automobile Accident – Road Defects – SCDOT

Mar 4, 2012 | Car Accidents, Personal Injury, Uncategorized, Wrongful Death

This SC Supreme Court case addresses “natural” v. “artificial” hazards associated with roadway defects. Dangerous roadside conditions, such as “ruts,” occur as part of the normal “wear and tear” of public use. Sadly, a moment of inattention by a driver can result in a tire going off of the road. When the driver attempts to steer back onto the road, an “over correction” can occur and cause that vehicle to cross the center line and hit oncoming traffic “head on.” That is what happened in this case. Serious injury and wrongful death occurred. In an attempt to locate additional insurance coverage, the plaintiff’s lawyers tried to hold a landowner liable because their driveway “abutted” with the public highway. The Court held that without some “actionable negligence” on the landowner’s part, there was no liability, not even a duty owed to drivers. Other cases where liability is present is where contractors engage in some type of road repair or addition and create a dangerous road condition. The SC Department of Transportation is also responsible for public roadway maintenance but only after they are notified of a defective condition or become aware of same through its routine inspection process. We have prosecuted serious automobile and motorcyle accident cases where we alleged negligence against the SCDOT. Sadly, SC has some very dangerous roads as a result of poor initial construction and/or abnormal “wear and tear” over the years. These cases are always aggressively defended and the State is protected by a “statutory cap” on damages. Better make sure your personal injury lawyer knows what is required to pursue such a claim. There is too much at stake in a serious injury case to risk an inexperienced attorney.

At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, we understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us at 803-548-4444 today for a private consultation. Or visit our firm’s website at www.rjrlaw.com

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Ronald Earl Skinner, Appellant,

South Carolina Department of Transportation, Linda Drake, as Personal Representative for the Estate of Kimberly Cook, Richard S. Henson and Debra Henson, individually and d/b/a Mateeba Oaks Stables, Mateeba Oaks Stables, LLC, Peter J. and Dena Sellers, Jo-Jahn and Hiott Barry-Mier, Estate of Clara Harleston, Mella Holcombe, and Calvert C. and Frances S. Alpert, Defendants,

of whom South Carolina Department of Transportation, Richard S. Henson and Debra Henson, individually and d/b/a Mateeba Oaks Stables, Mateeba Oaks Stables, LLC are the Respondents,

and

Linda Drake, as Personal Representative of the Estate of Kimberly Cook is the Appellant.

_____________________

Autumn S., a minor under the age of 14 years, by her Guardian ad litem Wendy Skinner, Appellant,

Richard S. Henson and Debra B. Henson, individually and d/b/a Mateeba Oaks Stables; Mateeba Oaks Stables, LLC; Peter J. and Dena Sellers; Jo-Jahn and Hiott Barry-Mier; the Estate of Clara Harleston; Mella Holcomb; and Calvert C. and Frances S. Alpert, Defendants,

of whom Richard S. Henson and Debra B. Henson, individually and d/b/a Mateeba Oaks Stables; Mateeba Oaks Stables, LLC are Respondents.

Appeal from Dorchester County
James C. Williams, Jr., Circuit Court Judge

Opinion No. 26690
Heard March 17, 2009 – Filed July 27, 2009

AFFIRMED

Caroline M. West and Gedney M. Howe, III, both of Charleston, David W. Whittington, of Knight Law Firm, of Summerville, George J. Kefalos, Gregory Daulton Keith, of Uricchio, Howe, Krell, Jacobson, Toporek, Theos & Keith, and Jack D. Cordray, of Cordray Law Firm, all of Charleston, for Appellants.

Bonum S. Wilson, III, of Wilson & Heyward, Jonathan J. Anderson and Lisa A. Reynolds, both of Anderson & Reynolds, Samuel R. Clawson and Margaret M. Urbanic, both of Clawson & Staubes, all of Charleston, for Respondents.

JUSTICE PLEICONES: This is an appeal from an order granting summary judgment to the respondents, finding they owed no duty to appellants, and also holding that appellants’ negligence claim failed for lack of proximate cause. We affirm, finding that appellants have not shown the existence of a duty and therefore do not reach the proximate cause issue.

FACTS

Appellant Skinners were injured when their automobile was struck head on by a car driven by appellant Drake’s decedent (Cook) after Cook’s car crossed the center line of Highway 61. Cook apparently lost control when she veered onto the highway’s shoulder near a driveway leading to a stable and subdivision. Appellants sued the highway department and defendants.[1] The defendants include the owners of the stable and driveway, persons who own land in the subdivision accessed by the driveway, and other persons who own land adjoining Highway 61 near the driveway. Only the defendants who own the driveway and stable are respondents in the appeal.

ISSUE

Whether the circuit court erred in finding respondents did not owe a duty to appellants?

ANALYSIS

Appellants contend the circuit court erred in failing to find respondents owed a common law duty to travelers on the highway. Alternatively, appellants contend the source of respondents’ duty is found in statutes or in regulatory enactments. We agree with the circuit court that respondents did not owe appellants a duty here.

Whether a duty exists is a question of law for the Court. Doe v. Greenville County Sch. Dist., 375 S.C. 63, 651 S.E.2d 305 (2007). Here, appellants posit a duty owed by landowners whose property adjoins a public highway to travelers. Specifically, appellants contend that ruts in the highway’s shoulder near the driveway entrance to respondents’ property were the result of horse trailer traffic, and that respondents have a duty to warn travelers of this dangerous condition or to protect them from encountering it. We find no such duty.

Appellants rely on several statutes and a Department of Transportation (DOT) Handbook[2] as the source of a duty owed by respondents to travelers on the highway.

The DOT regulations to which appellants point regulates the construction of private roads which intersect with a public highway, and allow a landowner to seek an encroachment permit to use a highway right-of-way. Here, respondents did not construct a private road, and therefore did not need to seek such a permit. In addition, DOT did not exercise its authority and require them to obtain one. These regulations are inapplicable to respondents and are not a source of any duty. Moreover, they specifically impose the responsibility for maintaining rights-of-way, such as highway shoulders, on the Department.

Appellants also maintain that respondents have a duty arising from statute. Specifically, they rely on three statutes:

1. S.C. Code Ann. § 57-7-10 “Negligent, Willful or Wanton Damage to Highways”;

2. § 57-7-260 “Liability for Corporations for Obstructions by their Agent”; and

3. § 57-7-50 “Cutting Trenches or Laying Pipes or Tracks in State Highways or Bridges.”

Section 57-7-10 imposes criminal liability on a person who willfully, wantonly, or negligently damages a highway. Appellants do not allege, much less prove, that this statute was intended to create a private cause of action. E.g., Adkins v. South Carolina Dep’t of Corrections, 360 S.C. 413, 602 S.E.2d 51 (2006) (when criminal statute implies private duty). As for § 57-7-260, there is no evidence respondents obstructed the highway, nor any evidence they laid a pipe, tracks, or trenches as contemplated by § 57-7-50. We affirm the trial court’s ruling that neither the regulations nor the statutes cited by appellants create a duty owed by respondents to travelers to warn of or to protect them from shoulder ruts. Adkins, supra.

The circuit court held that respondents owed no common law duty to travelers on the highway as respondents neither possessed nor had control over the highway’s shoulder.[3] Miller v. City of Camden, 329 S.C. 310, 494 S.E.2d 813 (1997) (“one who has no control [over property] owes no duty”). The court held a duty could arise to travelers where the defendant “actually created something to cause a defect on the highway.” We agree that South Carolina common law only imposes a duty for highway conditions where an individual or business has undertaken an activity that creates an artificial condition on the highway which is dangerous to travelers.

Appellants rely heavily on this Court’s decision in Dorrell v. South Carolina Dep’t of Trans., 361 S.C. 312, 605 S.E.2d 12 (2004). InDorrell, the Court held a contractor who had repaved a highway in a manner that elevated the roadway approximately one foot above the shoulder breached its common law duty of care to the traveling public. Appellants also cite Sessions v. Dickerson, Inc., 265 S.C. 579, 220 S.E.2d 876 (1975), where the Court found there was evidence of “actionable negligence,” but not specifically a duty to travelers, on the part of a contractor repairing a highway. We agree with the trial court that a contractor performing highway alterations owes a duty to travelers, but we find no analogous duty on the part of an owner of property abutting a highway who neither possesses nor controls the highway.

Appellants also contend that since respondents own the driveway, and since allegedly it is the utilization of this driveway which led to the ruts on the highway shoulder, respondents “created” a defect on the highway and thus owed a duty to travelers. We disagree.

Appellants cite a number of cases where liability has been imposed on an abutting landowner where the conduct of the landowner’s business has created an artificial hazard on the highway. Clark v. Blue Circle, Inc., 514 S.E.2d 473 (Ga. Ct. App. 1999) (material spilled on roadway); Miller v. APAC-Ga., 399 S.E.2d 534 (Ga. Ct. App. 1990) (same); and Whitaker v. Honegger, 674 N.E.2d 1274 (Ill. App. Ct. 1996). In addition, a landowner whose plant emits smoke that drifts over the highway, or one who creates a traffic jam on the highway during plant shift changes, may be liable to a traveler. Holiday Rambler Corp. v. Gessinger, 541 N.E.2d 559 (Ind. Ct. App. 3 1989); distinguished in Sheley v. Cross, 680 N.E.2d 10 (Ind. App. 1997). Both smoke and a traffic jam are artificial conditions.

Here, the only evidence is that shoulder ruts are the natural consequences of highway use, and that they exist all along the shoulders of a highway, especially a curving scenic road such as Highway 61. We hold that the owner of land which abuts a highway is not liable to the traveler for conditions occurring on that highway which are normal and natural, and not the result of artificial conditions. We therefore affirm the order granting respondents summary judgment, and do not reach the issue of cause in fact.

CONCLUSION

The order granting respondents summary judgment is

AFFIRMED.

TOAL, C.J., WALLER, BEATTY and KITTREDGE, JJ., concur.

[1] It appears that appellants’ liability theory vis-à-vis DOT is that Cook lost control when trying to reenter the roadbed due to a low shoulder, while liability was sought to be imposed on respondents on the theory Cook could not regain control due to deep shoulder ruts caused by those using the driveway.

[2] “ACCESS AND ROADSIDE MANAGEMENT STANDARDS.”

[3] It is undisputed that the shoulder is part of the highway.

SC NC Head Injury – Severe Brain Injury – New Hope For Recovery

Mar 1, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

The trial attorneys at Reeves, Aiken & Hightower, LLP, are experienced serious injury lawyers who handle brain injury cases. As a former intensive care unit Registered Nurse (RN), Robert Reeves has actually treated patients with life-threatening head injuries just like the clients he now fights for in court. Sadly, closed head or traumatic brain injury (TBI) occurs more often than earlier realized and can result from even relatively minor trauma during automobile accidents, large truck accidents, motorcycle accidents (even with a helmet), and work-related accidents (workers’ compensation injuries). Fortnuately, medical science continues to make significant advances in the treatment of these injuries and offers hope to those persons and their families who have been involved in serious accidents. The article below shows just such a new tool and may be a treatment option for your loved one. We would welcome an opportunity to sit down and personally discuss your particular case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com

Flu drug Amantadine may boost recovery from severe brain injuries

(CBS/AP) Medicines generally have side effects, but once in awhile the side effects may treat other conditions. Viagra after all, was originally a blood pressure medicine. Amantadine, an old flu medicine approved in the 1960s, was found a few years later to improve symptoms of Parkinson’s disease. Now a new study shows the drug may also speed recovery from severe brain injuries.

The study, published Mar. 1 in the New England Journal of Medicine, involved 184 patients who had severe brain injuries caused by falls and car crashes. About a third were in a vegetative state (unconscious but with periods of wakefulness) and the rest were minimally conscious.

The patients were randomly assigned to receive amantadine or a placebo daily for four weeks. They were treated within one to four months after getting injuried – a period when a lot of patients get better on their own, according to study author Joseph Giacino, a neurologist at Boston’s Spaulding Rehabilitation Hospital.

The researchers found both groups made small but significant improvements, but the rate of recovery was faster in the group getting amantadine. Changes included the ability to give yes-and-no answers, follow commands or use a spoon or hairbrush. Of the patients who received amantadine, only 17 percent remained in a vegetative state, versus 32 percent of those who received the dummy drug.

When treatment stopped, recovery in the amantadine group slowed and two weeks later, the level of recovery in the two groups was about the same.

The study was short, and the effect on long-term outcome is unknown. But Giacino said the drug still has value even if it only hastens recovery. The study also didn’t include those with penetrating head injuries, like the gunshot wound former Rep. Gabrielle Giffords suffered, but Giacino said the drug should have similar effects in those patients. Whether it would work in patients with brain injuries not caused by trauma, such as a stroke, isn’t known.

“This drug moved the needle in terms of speeding patient recovery, and that’s not been shown before,” Giacino said. “It really does provide hope for a population that is viewed in many places as hopeless.”

Many doctors began using amantadine for brain injuries years ago, but until now there’s never been a big study to show that it works.

Doctors first had an inkling that the inexpensive generic amantadine might have other uses a few years after its approval when it appeared to improve Parkinson’s symptoms in nursing home patients. It was found to have an effect on the brain’s dopamine system, whose many functions include movement and alertness, and it was eventually approved for Parkinson’s.

It’s now commonly used for brain injuries, and the researchers felt it was important to find out “whether we’re treating patients with a useful drug, a harmful drug or a useless drug,” said study author Dr. John Whyte, director of the Moss Rehabilitation Research Institute in suburban Philadelphia.

Each year, an estimated 1.7 million Americans suffer a traumatic brain injury. Falls, car crashes, colliding with or getting hit by an object, and assaults are the leading causes. About three-quarters are concussions or other mild forms that heal over time. But about 52,000 people with brain injuries die each year and 275,000 are hospitalized, many with persistent, debilitating injuries, according to government figures.

The study didn’t include those with penetrating head injuries, such as gunshot wounds, but Giacino said the drug should have similar effects in those patients. Whether it would work in patients with brain injuries not caused by trauma, such as a stroke, isn’t known.

A neurologist who wasn’t involved in the research called it an important step. But many questions remain, including whether people less severely injured would benefit, and whether amantadine actually improves patients’ long-term outcome or just speeds up their recovery.

Dr. Ramon Diaz-Arrastia said the results were welcome news in a field that has seen many failed efforts. He is director of clinical research at the government’s Center for Neuroscience and Regenerative Medicine, which works with the military and government scientists on brain injury research.

“It’s an important step toward developing better therapies,” he said.

“Hope is critical and false hope is cruel for families dealing with this,” Susan Connors, president and chief executive of the Brain Injury Association of America, in Vienna, Va, told the New York Times. The new findings are “a little piece of hope, the real kind,” she said.

Since amantadine is commonly used, Diaz-Arrastia said U.S. troops with severe brain injuries in Iraq or Afghanistan probably get it, or should get it now. Since 2000, some 233,000 troops have suffered traumatic brain injuries, including about 6,100 serious cases, many of them from bomb blasts or shrapnel.

« Older Entries

Next Entries »

Customer Inquiry

Email

SC Large Truck Accident – Logging Truck – “Private Carrier” or “Motor Carrier”

SC Workers’ Compensation – Third Party Lawsuit – When Fault Matters

SC Workers’ Compensation – Heart Attack Claims – Different Proof Required

SC Workers’ Compensation – Employment Application – Honest Mistake or Fraud

SC Automobile Accident – Road Defects – SCDOT

SC NC Head Injury – Severe Brain Injury – New Hope For Recovery

Flu drug Amantadine may boost recovery from severe brain injuries

Recent Posts

Archives

Categories