Mar 18, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation
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 for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Francis Ike Johnson, Respondent,
v.
Sonoco Products Company and GAB Robins, Inc., Appellants.
Appeal From Darlington County
James E. Lockemy, Circuit Court Judge
Opinion No. 26584
Heard November 19, 2008 – Filed January 20, 2009
AFFIRMED AS MODIFIED; AND REMANDED
Michael A. Farry and David A. Wilson, both of Horton, Drawdy, Ward & Jenkins, of Greenville, for Appellants.
Vernon F. Dunbar, of Turner, Padget, Graham & Laney, of Greenville, for Respondent.
PER CURIAM: Appellants Sonoco Products Company and GAB Robins, Inc. (collectively, Sonoco) argue the circuit court erred in granting Respondent Francis Ike Johnson’s motion to compel payment of his workers’ compensation benefits during the pendency of the underlying appeal. We disagree and affirm. We find that the circuit court’s award of workers’ compensation benefits in the underlying appeal was not stayed during the appeal. As a result, we conclude the circuit court retained authority to compel the payment of compensation benefits pursuant to Rule 225(a), SCACR. We further affirm Johnson’s entitlement to interest and related sanctions. We modify the order of the circuit court only insofar as the effective date of Johnson’s entitlement to relief. We remand to the circuit court to calculate Johnson’s entitlement to interest as of June 15, 2005, thirty days following entry of the circuit court order awarding Johnson benefits.
I.
The single commissioner awarded benefits to Johnson. The commission reversed, and Johnson appealed to the circuit court. The circuit court reversed the commission and awarded benefits to Johnson. Sonoco’s motion to reconsider was denied, and the circuit court order became final on May 16, 2005.
Sonoco appealed to the Court of Appeals, which affirmed the judgment of the circuit court. Johnson v. Sonoco Products Co., Op. No. 2006-UP-281 (S.C.Ct.App. filed Sept. 20, 2006). Sonoco unsuccessfully sought rehearing in the Court of Appeals. We subsequently denied Sonoco’s petition for a writ of certiorari. The remittitur was sent to the lower court on June 13, 2007.
Prior to the conclusion of the underlying appeal, Johnson filed a motion to compel payment of the compensation benefits in the circuit court, together with a subsequent motion in the circuit court for sanctions (interest and a ten percent penalty) against Sonoco. Sonoco objected to the jurisdiction of the circuit court on two grounds: (1) the award of workers’ compensation benefits was stayed during the appeal, and (2) absent a remand from the appellate court, the circuit court lacked jurisdiction to consider Johnson’s motions. The circuit court rejected Sonoco’s arguments and awarded relief, calculating Johnson’s entitlement to interest as of the date of the single commissioner’s order, May 29, 2002, and assessing a ten percent penalty. The circuit court’s initial order granting relief was filed December 20, 2006, and an amended order was filed on March 6, 2007, following Sonoco’s motion for reconsideration. Sonoco appealed. Thereafter, as noted above, the underlying appeal became final and the remittitur was sent to the lower court.
Following the circuit court order of March 6, 2007, Sonoco paid Johnson his compensation benefits, but continued with the current appeal challenging the award of interest and ten percent penalty. The appeal is before us pursuant to Rule 204(b), SCACR, certification.
II.
The first issue we must resolve is whether the appeal in the underlying case stayed Sonoco’s responsibility to make weekly compensation payments to Johnson. Rule 225(a), SCACR, provides the general rule that service of a notice of appeal in a civil matter automatically stays matters affected by the appeal. Some of the exceptions to this rule are found in Rule 225(b), which sets forth a non-exhaustive list. Rule 225 expressly provides that exceptions to the general rule extend beyond the list in subsection (b) and are found in statutes, court rules, and case law.
This Court provided such case law when it previously addressed this issue of whether an award of workers’ compensation benefits by the circuit court would be stayed by the service of the notice of appeal in Case v. Hermitage Cotton Mills, 236 S.C. 515, 534, 115 S.E.2d 57, 67-68 (1960). In Hermitage this Court stated:
[I]f the Commission should deny him compensation and upon his appeal the circuit court should reverse the Commission and hold his claim compensable, the weekly payments to be made by the employer pending determination of an appeal from that judgment to the Supreme Court should commence from the date of the circuit court’s judgment and should not be calculated retroactively from the date of the Commission’s decision.
Id. In making this determination, this Court interpreted section 72-356 of the South Carolina Code (1952). Hermitage, 236 S.C. at 534, 115 S.E.2d at 67. This section is substantially similar to section 42-17-60 of the South Carolina Code (Supp. 2007). We hold that the rule in Hermitage is on point. Therefore, when the commission’s denial of benefits is reversed and the award is made by the circuit court, the weekly payments are not stayed by the appeal.[1]
We further note that we have already made such a ruling in this case. In an order issued by this Court on November 14, 2006, this Court granted Sonoco’s motion for an extension of time to file its petition for certiorari, and we specifically stated that the award of benefits to Johnson “is not stayed by the pendency of this matter.” This Court went on to cite section 42-17-60; Rule 225, SCACR;Hermitage, 236 S.C. 515, 115 S.E.2d 57; and McLeod v. Piggly Wiggly Carolina Co., 280 S.C. 466, 313 S.E.2d 38 (Ct. App. 1984).
We next turn to the authority of the circuit court to compel, in the absence of a remand order, the weekly payments during the pendency of the appeal. The answer is unambiguously provided in Rule 225(a), SCACR, which states, “[t]he lower court . . . retains jurisdiction over matters not affected by the appeal including the authority to enforce matters not stayed by the appeal.” (emphasis added). The circuit court retained authority to compel the payment of weekly benefits, and Sonoco’s arguments to the contrary are without merit. No remand from the appellate court was necessary. Moreover, because the awards of interest and penalty are inextricably linked to Sonoco’s nonpayment of benefits, we follow the rationale of Hermitage and hold that the matters of interest and penalty were not stayed by the appeal.
Sonoco further challenges the authority of the circuit court to award interest and assess the ten percent penalty under section 42-9-90 of the South Carolina Code (1976). Sonoco contends such an award rests exclusively in the Workers’ Compensation Commission. We find this issue is not preserved. The issue first appears in Sonoco’s motion seeking reconsideration of the circuit court’s December 20, 2006 order. An issue may not be raised for the first time in a motion to reconsider. Commercial Credit Loans, Inc. v. Riddle, 334 S.C. 176, 186, 512 S.E.2d 123, 129 (Ct. App. 1999) (“Further, because the transcript of the proceedings below is omitted from the record, it appears the first time Commercial Credit made this argument was in its Rule 59(e) motion for reconsideration. Accordingly, this issue is not properly preserved for our review.”). The matters of interest and the ten percent penalty were squarely before the circuit court, and Sonoco’s pre-hearing written responses to Johnson’s motions did not raise the section 42-9-90 challenge. Moreover, the transcript of the hearing in the circuit court is not included in the record on appeal. Medlock v. One 1985 Jeep Cherokee VIN 1JCWB7828FT129001, 322 S.C. 127, 132, 470 S.E.2d 373, 376 (1996) (“The appellant has the burden of providing this court with a sufficient record upon which to make a decision.”); Smith v. Ridgeway Chemicals, Inc., 302 S.C. 303, 306, 395 S.E.2d 742, 744 (Ct. App. 1990) (“It is incumbent upon an appellant to present a record sufficient to permit a review of a trial judge’s rulings.”). We therefore affirm the awards of interest and ten percent penalty. Johnson is additionally entitled to interest on the ten percent penalty.
We do agree with Sonoco’s final assignment of error that Johnson is not entitled to interest from the date of the single commissioner’s order. We are guided by the reasoning of Hermitage. 236 S.C. at 534, 115 S.E.2d at 67-68 (“[U]pon his appeal [if] the circuit court should reverse the Commission and hold his claim compensable, the weekly payments to be made by the employer pending determination of an appeal from that judgment to the Supreme Court should commence from the date of the circuit court’s judgment and should not be calculated retroactively from the date of the Commission’s decision.”). This Court in Hermitage cited to section 72-356 of the South Carolina Code (1952) in referencing a thirty-day supersedeas on appeals from an award of benefits. Id.
Section 72-356 is the predecessor to section 42-17-60 of the South Carolina Code (Supp. 2007). The thirty-day time period for appeals remains a part of section 42-17-60, with the provision that “after that time, the employer is required to make weekly payments of compensation and to provide medical treatment ordered . . . .” Because the commission denied Johnson’s claim and the circuit court awarded benefits, we apply this statutory thirty-day supersedeas following the entry of the circuit court order, after which the compensation payments should have been made. There was no legitimate reason to justify or excuse Sonoco’s failure to pay compensation benefits to Johnson during the pendency of the underlying appeal. Johnson is therefore entitled to an award of interest calculated from June 15, 2005, which is thirty days from the award of benefits in the circuit court. We remand to the circuit court for the sole purpose of calculating the interest due Johnson.
III.
The award of workers’ compensation benefits by the circuit court was not stayed by the appeal. Pursuant to Rule 225(a), the circuit court had jurisdiction to compel the payment of benefits, as well as interest and penalty, during the pendency of the appeal. We affirm the circuit court in its entirety, save the effective date of the award of interest. The matter is remanded to the circuit court to calculate the award of interest calculated from June 15, 2005.[2]
AFFIRMED AS MODIFIED; AND REMANDED.
TOAL, C.J., WALLER, BEATTY, KITTREDGE, JJ., and Acting Justice James E. Moore, concur.
[1] We recognize the procedure followed in this case has been statutorily modified. For injuries occurring on or after July 1, 2007, appeals from the Workers’ Compensation Commission go directly from the commission to the Court of Appeals. See Act 111, 2007 S.C. Acts 111.
[2] The principle payment of the ten percent penalty ($20,513) should be made promptly. Moreover, the parties can compute the amount of interest due Johnson, and we urge the parties, through counsel, to do so and bring this unreasonably protracted litigation to an end. The circuit court should not be further burdened with this unnecessary litigation.
Mar 17, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation
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 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
Marsha Tennant, Petitioner,
v.
Beaufort County School District, Employer, and S.C. School Board Insurance Trust, Carrier, of whom Beaufort County School District is Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Beaufort County
Curtis L. Coltrane, Circuit Court Judge
Opinion No. 26616
Heard January 7, 2009 – Filed March 16, 2009
AFFIRMED
James H. Moss, Esquire and H. Fred Kuhn, both of Moss, Kuhn & Fleming, of Beaufort, for Petitioner.
Kirsten L. Barr, Jamie C. Guerrero, and Kathryn C. Thompson, all of Trask and Howell, of Mt. Pleasant, for Respondent.
CHIEF JUSTICE TOAL: In this workers’ compensation case, the single commissioner denied benefits, and the full commission, the circuit court, and the court of appeals affirmed. Tennant v. Beaufort County Sch. Dist. Op. No. 2007-UP-056 (S.C. Ct. App. filed February 8, 2007). This Court granted a writ of certiorari to review the court of appeals’ decision. We affirm.
FACTUAL/PROCEDURAL BACKGROUND
Petitioner Marsha Tennant worked as a special education teacher for thirty years prior to working for Respondent in that same role. In the fall of 2001, after being employed for approximately one year with Respondent, two new aides were assigned to assist Petitioner with her students in the classroom. As the year progressed, Petitioner was concerned that the aides were not performing their job in violation of federal Individualized Education Programs regulations and worried that the aides’ performances would jeopardize the education program. Both Petitioner and the aides complained to the supervisor.
On October 18, 2001, after an argument with the aides, Tennant felt faint and went to the nurse’s office, where the nurse recorded Petitioner’s blood pressure as elevated. Petitioner later returned to the nurse’s office complaining of chest pains and dizziness. The nurse recorded a higher blood pressure and called an ambulance. The emergency room doctor diagnosed Petitioner with a stress reaction.
At the hearing, Petitioner’s family doctor (“Family Doctor”) testified that Petitioner suffered a panic attack that was caused by work conditions and diagnosed Petitioner with “situational depression and panic disorder.” Additionally, Petitioner submitted the deposition testimony of a licensed social worker (“Sociologist”) who began treating Petitioner at her psychotherapy practice after the anxiety attack. Sociologist diagnosed Petitioner with post traumatic stress disorder and continued panic attacks and concluded that Petitioner should not return to work as a special education teacher. Respondent submitted a letter from a psychiatrist (“Psychiatrist”) who evaluated Petitioner. She concluded that Petitioner suffered a single anxiety attack, but that Petitioner did not require additional medical treatment and could return to work.
The single commissioner found that Petitioner failed to prove that the conditions of her employment were either extraordinary or unusual. Additionally, the single commissioner gave greater weight to the testimony of Psychiatrist than to the testimonies of Family Doctor and Sociologist and ruled that Sociologist was not qualified to render an opinion on causation under South Carolina case law. The full commission ruled that Sociologist’s testimony should be made a part of the record, but affirmed the denial of benefits. The circuit court and the court of appeals found that substantial evidence in the record supported a finding that Petitioner did not suffer a compensable injury, and therefore, affirmed the full commission’s decision.
We granted 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 affirming the order denying benefits because the full commission’s decision is not support by substantial evidence?
STANDARD OF REVIEW
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 affirming the full commission’s finding that she did not suffer a compensable injury. We disagree.
In order to recover for mental injuries caused solely by emotional stress, or “mental-mental” injuries, the claimant must show that she was exposed to unusual and extraordinary conditions in her employment and that these unusual and extraordinary conditions were the proximate cause of the mental disorder. Powell v. Vulcan Materials Co., 299 S.C. 325, 384 S.E.2d 725 (1989). This standard, also known as the “heart attack standard,” balances the employee’s interests with the employer’s interests and provides a framework which ensures that the claimant shows that she suffered a work-related injury. Requiring a claimant to prove exposure to “unusual or extraordinary” circumstances in a mental-mental injury claim is consistent with the heightened burden required to prove a claim for intentional infliction of emotional distress claims, a cause of action that also allows recovery for mental injuries in the absence of physical injury. See Hasson v. Scalise Builders of South Carolina, 374 S.C. 352, 356, 650 S.E.2d 68, 71 (2007), quoting Ford v. Hutson, 276 S.C. 157, 166, 276 S.E.2d 776, 780 (1981) (recognizing that “where physical harm is lacking, the courts should look initially for more in the way of extreme outrage as an assurance that the mental disturbance claimed is not fictitious”).
In the instant case, Petitioner alleges that the aides’ insubordination created the unusual and extraordinary conditions, which caused her panic attack. Petitioner testified that the aides would walk out of the classroom and refused to escort the children to the bathroom and that several of her students regressed in their progress as a result of the aides’ actions. She also testified that she reported her concerns to her supervisor, but the supervisor sided with the aides and would not help her.
We find substantial evidence in the record supports the full commission’s findings. Although the conflict may have been stressful, it was not an unusual or extraordinary circumstance of Petitioner’s employment. Neither the aides nor Petitioner’s supervisor threatened her, and the conflict never involved physical contact. Petitioner admits that a special education teacher is an inherently stressful job, and Social Worker conceded that a panic attack may be triggered absent unusual or extraordinary circumstances. Additionally, Petitioner’s supervisor testified that conflicts like the one between Petitioner and the aides were not unusual. In our view, cases in which the Court has found unusual and extraordinary circumstances that resulted in a mental injury involve much more extreme and severe facts. See Shealy v. Aiken County, 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000) (finding the combination of death threats, gun incidents with violent drug dealers, high tension confrontations, fear of being uncovered, and loss of security as a police officer constituted unusual or extraordinary conditions of employment when they occur over several months);Stokes v. First Nat. Bank, 306 S.C. 46, 50, 410 S.E.2d 248, 250 (1991) (concluding that the extreme prolonged increase in employee’s work hours, combined with additional job responsibilities, constituted unusual and extraordinary conditions of employment); Powell, 299 S.C. at 328, 384 S.E.2d at 727 (holding that an intense verbal exchange between the employee and the supervisor constituted unusual and extraordinary condition of employee’s work).
Accordingly, we hold that substantial evidence in the record exists to support the commission’s decision that Petitioner failed to meet her burden that she suffered a compensable injury.
CONCLUSION
For the foregoing reasons, we affirm the court of appeals’ decision upholding the denial of benefits.
WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur.
Mar 17, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation
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 for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
David H. Barton, Employee, Claimant,
v.
William Ian Higgs d/b/a Iyanel Enterprises and Total Home Exteriors, Inc., Employers, and Key Risk Insurance and SC Uninsured Employers Fund, Carrier, Defendants,
Of Whom Total Home Exteriors, Inc., Employers, and Key Risk Insurance are the Respondents,
and SC Uninsured Employers Fund is the Petitioner.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Greenville County
D. Garrison Hill, Circuit Court Judge
Opinion No. 26594
Heard November 18, 2008 – Filed February 9, 2009
REVERSED
Amy V. Cofield, of Lexington, and Latonya Dilligard Edwards, of Columbia, for Petitioner.
David A. Wilson and Michael A. Farry, both of Horton, Drawdy, Ward & Jenkins, of Greenville, for Respondents.
CHIEF JUSTICE TOAL: In this workers’ compensation case, the court of appeals held that Petitioner South Carolina Uninsured Employers’ Fund (the Fund) was responsible for paying benefits to an injured employee. Barton v. Higgs, 372 S.C. 109, 641 S.E.2d 39 (Ct. App. 2007). We granted a writ of certiorari to review that decision and now reverse.
Factual/Procedural Background
David Barton (Claimant) was employed by William Higgs d/b/a Iyanel Enterprises (Iyanel), which served as the roofing subcontractor for Respondent Total Home Exteriors (Total Home). On November 22, 2003, Claimant sustained a compensable injury when he fell from a roof. At the time of the accident, Iyanel did not have workers’ compensation insurance, and thus, as the higher-tier contractor, Total Home remained liable to pay Claimant benefits. Total Home sought to transfer liability to the Fund pursuant to S.C. Code Ann. § 42-1-415 (Supp. 2007).
At the hearing before the single commissioner, the president of Total Home testified that he received a Certificate of Insurance from Higgs showing that Iyanel had a workers compensation policy in effect from September 13, 2003 through September 13, 2004. The Certificate listed Total Home as the certificate holder and Jackie Perry Insurance Agency (Insurance Company) as the producer, but the Certificate was not signed in the blank listed for “Authorized Representative.” Higgs testified that he paid for the workers’ compensation insurance and that an employee of the Insurance Company issued the Certificate of Insurance. Nonetheless, coverage was never bound, resulting in Iyanel not being insured on the date of the accident.
The single commissioner found that Iyanel had attempted in good faith to obtain workers’ compensation insurance and presented the Certificate of Insurance to Total Home, upon which Total Home relied in good faith. Accordingly, the single commissioner ruled that liability should be transferred to the Fund. The full commission, the circuit court, and the court of appeals affirmed the single commissioner’s decision to transfer liability.
We granted a writ of certiorari and the Fund presents the following issue for review:
Did the court of appeals err in affirming the decision to transfer liability to the Fund pursuant to § 42-1-415?
Standard of Review
When reviewing an appeal from the workers’ compensation commission, the appellate court may not weigh the evidence or substitute its judgment for that of the full commission as to the weight of evidence on questions of fact. Therrell v. Jerry’s Inc., 370 S.C. 22, 26, 633 S.E.2d 893, 894-95 (2006). However, the appellate court may reverse the full commission’s decision if it is based on an error of law. Id. The issue of interpretation of a statute is a question of law for the Court. Catawba Indian Tribe of South Carolina v. State, 372 S.C. 519, 524, 642 S.E.2d 751, 753 (2007).
Law/Analysis
The Fund argues that the court of appeals erred in affirming the decision to transfer liability because the Certificate of Insurance was unsigned. We agree.
Under the Workers’ Compensation Act, a general contractor is considered the “statutory employer” of a subcontractor’s employees and is liable to pay workers’ compensation benefits to the subcontractor’s employee injured on the job. See S.C. Code Ann. § 42-1-410 (2006). Thus, “[t]he employee of the sub-contractor may look to the prime contractor for workers’ compensation benefits without regard to whether the sub-contractor is covered by a workers’ compensation insurance policy.” Freeman Mechanical, Inc. v. J.W. Bateson Co., Inc., 316 S.C. 95, 97, 447 S.E.2d 197, 198 (1994). The purpose of this statute is to protect the employee and assure coverage in the event of an injury.
In 1996, however, the Legislature created a narrow exception to this rule which provides that the general contractor may transfer the responsibility to pay benefits:
[U]pon the submission of documentation to the commission that a contractor or subcontractor has represented himself to a higher tier subcontractor, contractor, or project owner as having workers’ compensation insurance at the time the contractor or subcontractor was engaged to perform work, the higher tier subcontractor, contractor, or project owner must be relieved of any and all liability under this title except as specifically provided in this section.
Section 42-1-415(A). However, to transfer liability to the Fund, the higher-tier contractor “must collect documentation of insurance . . . on a standard form acceptable to the commission.” The workers’ compensation commission has promulgated a regulation providing that a Certificate of Insurance “shall serve as documentation of insurance” and that the Certificate “must be dated, signed, and issued by an authorized representative of the insurance carrier for the insured.” S.C. Code Reg. 67-415 (Supp. 2007). In other words, liability may be transferred from the higher tier contractor to the Fund only after the higher tier contractor has properly documented the subcontractor’s claim that it retains workers’ compensation insurance. This statutory scheme provides an ultimate safety net for general contractors against a subcontractor’s act of fraud.
In the instant case, by failing to collect a signed Certificate of Insurance form, Total Home failed to meet the requirement as set forth in the regulation. Even assuming Iyanel was not acting fraudulently in submitting the unsigned form, Total Home could have easily investigated the absence of the signature and determined that Iyanel did not have a valid policy. In our view, public funds should not be expended where Respondent could have discovered the mistake by acting in accordance with the regulations.
We recognize that the full commission found that the form was a valid documentation and, as the agency charged with administering the Workers’ Compensation Act, this decision should be given great deference. See Dunton v. S.C. Bd. of Exam’rs in Optometry, 291 S.C. 221, 223, 353 S.E.2d 132, 133 (1987) (recognizing that the construction of a statute by the agency charged with its administration will be accorded the most respectful consideration). However, we hold that the full commission’s decision should not be upheld because the interpretation is clearly contrary to its own regulation. See Brown v. South Carolina Dep’t of Health and Envtl. Control, 348 S.C. 507, 560 S.E.2d 410 (2002) (holding that while the Court typically defers to an agency’s construction of its own regulation, where the plain language of the regulation is contrary to the agency’s interpretation, the Court will reject the interpretation).
Conclusion
For the foregoing reasons, we reverse the decision of the court of appeals and hold that Total Home may not transfer liability to the Fund.
KITTREDGE, J., and Acting Justices James E. Moore and Donna S. Strom, concur. WALLER, J., dissenting in a separate opinion.
JUSTICE WALLER: I respectfully dissent. In my opinion, the Court of Appeals correctly held that respondent Total Home “met all of the statutory requirements to transfer liability.” Barton v. Higgs, 372 S.C. 109, 117, 641 S.E.2d 39, 43 (Ct. App. 2007). Accordingly, I would affirm in result.
S.C. Code Ann. § 42-1-415 provides that when a subcontractor “has represented himself” to a general contractor as having workers’ compensation insurance at the time the subcontractor “was engaged to perform work,” the general contractor “must be relieved of any and all liability.” The statute further states that the general contractor “must collect documentation of insurance … on a standard form acceptable to the commission.” S.C. Code Ann. § 42-1-415 (Supp. 2008).
A review of some additional facts is in order. The president for Total Home testified that he would not have given Iyanel Enterprises a contract without obtaining a certificate of workers’ compensation insurance. Likewise, the testimony of William Higgs confirmed that before Iyanel could work as a subcontractor on jobs for Total Home, Total Home required him to get a certificate of insurance. According to Higgs, he went to the Jackie Perry Insurance Agency, paid his money for the policy, and obtained the certificate. Despite the issuance of the certificate by the Perry Agency, the coverage was never bound, resulting in Iyanel not being insured on the date of Claimant’s accident.
The record reflects that the Perry Agency had employed someone who issued certificates of insurance without the coverage being bound. Therefore, the only fraud that seems to have occurred in this case is by an employee of the insurance agency, not by the subcontractor. Although the majority concedes that section 42-1-415 is designed to protect a general contractor from fraud, the end result of the majority’s reasoning is that Total Home becomes a victim of fraud simply because it was not committed by the subcontractor.
More importantly, however, the majority seems to gloss over the fact that the express requirements of the statute clearly were met in the instant case. Instead, the majority opinion focuses its attention on the regulation’s requirements.[1] This runs contrary to settled precedent.
Although regulations authorized by the Legislature generally have the force of law, a regulation may not alter or add to a statute. Goodman v. City of Columbia, 318 S.C. 488, 490, 458 S.E.2d 531, 532 (1995); Banks v. Batesburg Hauling Co., 24 S.E.2d 496, 499 (1943); see also Society of Prof’l Journalists v. Sexton, 283 S.C. 563, 567, 324 S.E.2d 313, 315 (1984) (“Although a regulation has the force of law, it must fall when it alters or adds to a statute.”).
The Goodman case is instructive. Goodman involved S.C. Code § 42-17-50, the workers’ compensation statute which allows “an application for review” of the single commissioner’s order by the Full Commission. The Commission promulgated Regulation 67-701 which requires that a specific form be filed (Form 30). The petitioner in Goodman did not file a Form 30, but instead wrote the Commission a letter “expressing his desire to appeal.” Goodman, 318 S.C. at 490, 458 S.E.2d at 532. On direct appeal, the Court of Appeals found the petitioner’s letter did not substantially comply with section 42-17-50.
On certiorari, this Court reversed. The Goodman court stated that Regulation 67-701 “adds the requirement of applying for review with a particular form, thereby adding to the statute. Insofar as Reg. 67-701 increases the threshold requirements of section 42-17-50, the specifications set forth in the statute must prevail.” Id. at 490-491, 458 S.E.2d at 532 (emphasis added). The Court in Goodman therefore held that that petitioner’s letter constituted substantial compliance with section 42-17-50. Id. at 491, 458 S.E.2d at 532.
The instant case is analogous to Goodman in that there was substantial compliance with the applicable statute. Total Home requested and received documentation of Iyanel’s insurance on a form authorized by the Commission. All the substantive parts of the form were filled in – it listed Higgs as being insured with a workers’ compensation policy (including a policy number and coverage dates), and also listed Total Home as the certificate holder.
The only thing missing was a signature. In my opinion, requiring such strict compliance with the regulation would only serve to frustrate legislative intent.[2] The obvious purpose of section 42-1-415 is to encourage a higher tier contractor to require proof that its subcontractors carry workers’ compensation insurance. Therefore, if the higher tier contractor substantially complies with the document collection requirement, it should not be ultimately liable when the subcontractor turns out to not actually be insured. See§42-1-415; Goodman, supra.
In addition, nowhere in the statute is there a requirement that the higher tier contractor verify the authenticity of the documentation of insurance. Nevertheless, the majority suggests that Total Home “could have easily investigated the absence of the signature and determined that Iyanel did not have a valid policy.” First, I disagree that section 42-1-415 imposes this burden on the general contractor. Moreover, I also disagree that under the facts of this case, any such investigation would have uncovered the fraud apparently committed by a rogue employee of the insurance agency.[3]
Put simply, the majority’s focus on the absence of a signature literally “elevat[es] form over substance.” South Carolina Second Injury Fund v. American Yard Prods., 330 S.C. 20, 24, 496 S.E.2d 862, 864 (1998). At the very least, the majority has elevated regulation over statute, and in my opinion, this runs contrary to well-settled law. See, e.g., Goodman, supra; Society of Prof’l Journalists v. Sexton, supra.
In sum, because I believe the majority opinion overlooks precedent which stands for the principle that a regulation should not trump the language and intent of the statute, I respectfully dissent.
[1] The Fund’s sole argument, with which the majority agrees, is that because the form was unsigned, it did not meet the requirements of the applicable regulation. Regulation 67-415 provides the following information about the term “documentation of insurance” used in the statute:
For purposes of Section 42-1-415, the ACORD Form 25-S, Certificate of Insurance, as published by the ACORD Corporation and as issued by the insurance carrier for the insured, shall serve as documentation of insurance. The Certificate of Insurance must be dated, signed, and issued by an authorized representative of the insurance carrier for the insured.
S.C. Code Reg. 67-415(A) (Supp. 2008). The ACORD Form 25-S is a standard insurance industry form.
[2] See, e.g., South Carolina Second Injury Fund v. American Yard Prods., 330 S.C. 20, 22, 496 S.E.2d 862, 863 (1998) (this Court’s primary function when interpreting a statute is to ascertain and give effect to the intent of the legislature).
[3] For example, if Total Home had called the Perry Agency to verify the unsigned documentation, it is quite possible that the employee who was not binding the coverage could have simply lied to cover up his/her own fraudulent activity.
Mar 13, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation
This SC Supreme Court case addresses the issue of “stacking” wages. In many states, an employer is only responsible for an injured workers’ lost wages from the one job. However, under SC workers’ compensation law, you are able, in most situations, to “stack” or “combine” lost wages from other employment as well. Here, the Court was presented with the unique issue of whether someone serving jail time on the weekends could similarly stack their wages when injured at prison. Given clear legislative language against same, the Court ruled no stacking was permitted under these limited circumstances. Because the “average weekly wage” and resulting “compensation rate” are key to every financial aspect of a workers’ compensation claim, it is imperative that you get maximum credit for all possible wages and even qualifying fringe benefits. Better make sure your attorney understands this area of workers’ compensation law and is willing to fight to get you the best possible compensation rate. There is too much at stake 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 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
James A. Smith, Respondent,
v.
Barnwell County, Employer, and South Carolina Association of Counties Self Insurance Fund, Carrier, Appellants.
Appeal from Barnwell County
Doyet A. Early, III, Circuit Court Judge
Opinion No. 26716
Heard June 10, 2009 – Filed September 8, 2009
REVERSED
Richard Kale, Jr., of Wilson, Jones, Carter & Baxley, of Greenville, for Appellants.
Andrew Nathan Safran, of Columbia, for Respondent.
Grady L. Beard and Daniel W. Hayes, both of Sowell, Gray, Stepp & Laffitte, of Columbia, for Amicus Curiae.
JUSTICE PLEICONES: This case presents the question whether an inmate injured while serving time on weekends may include his full time employment wages in addition to prison pay in determining his average weekly wage, for purposes of workers’ compensation. Because we find that the legislature intended to deny inmates the right to combine wages, we find that Respondent may not do so. We therefore reverse the circuit court’s decision to the contrary.
FACTS
After a conviction for driving under the influence, Appellant James A. Smith served time on weekends at the Barnwell County Detention Center, where he was directed to engage in various work activities.[1] Smith also worked during the week at Bowe Construction. While working at a landfill during his weekend sentence, Smith fell from a tractor and injured his back.
Barnwell County elected to cover its prisoners under the workers’ compensation program, as allowed by S.C. Code Ann. § 42-1-500 (2005). Barnwell County accepted Smith’s claim for workers’ compensation and began paying him compensation based upon an average weekly wage of $40 a week, the amount provided in S.C. Code Ann. § 42-7-65 (2005) as the average weekly wage for county and municipal prisoners. Smith then filed a Form 50 with the Workers’ Compensation Commission contending that the average weekly wage from his regular employment, which he claimed was $333.82, should also be included in determining his compensation.
Following a hearing, the single commissioner ruled that Smith could not include the average weekly wage from his regular employment. The full commission affirmed and the circuit court reversed the full commission. Barnwell County appealed.
ISSUES
| Did the circuit court err in finding that Smith is an “employee” of Barnwell County? |
| Did the circuit court err in finding that Smith may combine wages from civilian employment with the statutory average weekly wage for county prisoners? |
DISCUSSION
The amount of compensation awarded under the workers’ compensation statutes is based on the worker’s average weekly wage. S.C. Code Ann. § 42-1-40 provides the method for calculating the average weekly wage, but allows for deviation from the method “for exceptional reasons . . . .” S.C. Code Ann. § 42-1-40 (2005). This Court has held that concurrent employment is one such exceptional reason. See Foreman v. Jackson Minit Markets, Inc., 265 S.C. 164, 217 S.E.2d 214 (1975).
Barnwell County argues on appeal that Smith was not an “employee” of Barnwell County and therefore, since Smith was not working for two or more employers when the injury occurred, Smith may not recover compensation for concurrent employment. We need not reach this issue because we agree with the County that, even assuming Smith is an “employee” for workers’ compensation purposes, he may not combine wages under § 42-1-40.
Originally, the average weekly wage for prisoners was addressed in § 42-1-40, which contained the “exceptional reasons” provision.[2] In 1983, after this Court’s decision in Foreman, the General Assembly removed the inmate section from § 42-1-40 and included it in the newly-created § 42-7-65, which contains no “exceptional reasons” provision. Section 42-7-65 is entitled “Average weekly wage designated for certain categories of employees”[3] and provides in part, “[t]he average weekly wage for county and municipal prisoners is forty dollars a week.”
By removing inmates from § 42-1-40, designating a specific weekly wage for inmates, and not providing an “exceptional reasons” provision in § 42-7-65, we find that the General Assembly intended that inmates not be allowed to combine wages in determining their average weekly wage. Compare Boles v. Una Water District, 291 S.C. 282, 353 S.E.2d 286 (1987) (holding that volunteer firefighter may combine wages where firefighter’s average weekly wage was set forth in § 42-1-40). If the General Assembly had not intended such a result, there would have been no reason to remove inmates from § 42-1-40. See Cannon v. South Carolina Dep’t of Probation, Parole, and Pardon Serv., 371 S.C. 581, 430, 641 S.E.2d 429, 584 (2007), citing Denene, Inc. v. City of Charleston, 352 S.C. 208, 574 S.E.2d 196 (2002) (it must be presumed the Legislature did not intend a futile act, but rather intended its statutes to accomplish something).
Given the above, we find that the General Assembly intended to deny inmates the ability to combine wages in determining their average weekly wage. See State v. Scott, 351 S.C. 584, 588, 571 S.E.2d 700, 702 (2002) (The cardinal rule of statutory interpretation is to ascertain the intent of the legislature.). Smith is therefore limited to the average weekly wage provided by § 42-7-65.[4]
CONCLUSION
Assuming arguendo that Smith is an “employee” for purposes of the workers’ compensation statute, we find that Smith may not combine wages. The General Assembly did not intend for an inmate to be able to combine wages in determining his average weekly wage.
REVERSED.
TOAL, C.J., WALLER, BEATTY and KITTREDGE, JJ., concur.
[1] Though the record is silent as to whether Smith’s labor was mandatory or voluntary, he was apparently engaged in a voluntary program for labor on public works allowed by S.C. Code Ann. § 24-13-235 (2005).
[2] Though § 42-1-40 only specifically addressed the average weekly wage of inmates of the State of South Carolina, S.C. Code Ann. § 42-1-500 (1977) provided for worker’s compensation coverage for certain county inmates in accordance with the statutes addressing coverage for State inmates.
[3] 1983 Act No. 33, § 1; county prisoners were added in 1991 Act. No. 16, § 2.
[4] We reject Smith’s argument that S.C. Code Ann. § 42-7-65 (2005), as interpreted by Appellant, is penal in nature and so, must be strictly construed against the governmental entity seeking to enforce it. “A determination of whether a statute is civil or criminal in nature is primarily a question of statutory construction, which begins by reference to the act’s text and legislative history.” See In re Matthews, 345 S.C. 638, 648, 550 S.E.2d 311, 316 (2001). “Where the legislature has manifested its intent that the legislation is civil in nature, the party challenging that classification must provide ‘the clearest proof that the statutory scheme is so punitive in either purpose or effect as to negate the [legislature’s] intention.’” Id. In the instant case, Smith has failed to show the punitive nature of § 42-7-65, a part of the worker’s compensation act.
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,
v.
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.
