THIS OPINION
HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Marsha Elaine
Massey, Employee, Respondent,
v.
Werner
Enterprises, Inc., Employer, and Liberty Mutual Insurance Corp., Carrier, Appellants.
Appeal From Greenville County
Doyet A. Early, III, Circuit Court Judge
Unpublished Opinion No. 2010-UP-001
Heard December 16, 2009 Filed January 7,
2010
Withdrawn, Substituted, and Refiled March
24, 2010
AFFIRMED IN PART, REVERSED IN PART
Stanley Case, of Spartanburg, for Appellants.
Donald Kamb, Jr., and Kathryn Williams, both of Greenville, for Respondent.
PER CURIAM: Marsha
Massey filed this workers' compensation case[1] seeking to recover benefits for injuries she suffered while allegedly employed
by Werner Enterprises, Inc. Werner and its carrier, Liberty Mutual Group
(collectively Appellants), denied the claim. Appellants asserted the South
Carolina Workers' Compensation Commission (the Commission) lacked jurisdiction
and Massey was not entitled to benefits.
After a hearing, the
single commissioner awarded Massey temporary total disability benefits and
causally related medical expenses, finding Massey was Werner's employee, not an
independent contractor. As an alternative ground, the single commissioner held
Massey was a statutory employee under section 42-1-400 of the South Carolina
Code. The single commissioner awarded benefits based on an average weekly wage
of $667.11. Finally, the single commissioner held the Commission had
jurisdiction because Massey was hired and employed in South Carolina.
Appellants appealed to the Commission's appellate panel, which affirmed
the single commissioner's findings. Both the circuit court and this
court affirmed. Massey v. Werner Enterprises, Inc., Op. No. 2008-UP-126
(S.C. Ct. App. filed Feb. 20, 2008). Appellants then filed a petition
for a writ of certiorari with the supreme court. The supreme court granted
certiorari and remanded the action to this court for further consideration of
the independent contractor issue in light of the supreme court's recent opinion
in Wilkinson v. Palmetto State Transp. Co., 382 S.C. 295, 676 S.E.2d 700
(2009).[2] Massey v. Werner Enterprises, Inc., Op. No. 2009-MO-034 (S.C. Sup. Ct.
filed June 29, 2009). The parties filed supplemental briefs with this court
applying the Wilkinson opinion to the facts of this case. We affirm in
part and reverse in part.
LAW / ANALYSIS
I. EMPLOYEE OR
INDEPENDENT CONTRACTOR
Relying
on Wilkinson, Appellants argue Massey is not entitled to South Carolina
Workers' Compensation benefits because she was an independent contractor for
workers' compensation purposes. We agree.
Although the parties' contract must be considered in
determining the nature of their relationship, the description of the
relationship set forth in the contract is not dispositive. Kilgore Group, Inc. v. S.C. Employment
Sec. Comm'n, 313 S.C. 65,
68-69, 437 S.E.2d 48, 50 (1993). Rather, the
test to determine whether an employer-employee relationship exists is if the
alleged employer has the right and authority to control and direct the
claimant's work or undertaking as to the manner or means of its
accomplishment. S.C. Workers' Comp. Comm'n v. Ray Covington Realtors, Inc.,
318 S.C. 546, 547, 45 S.E.2d 302, 303 (1995). In determining the right of
control, an appellate court must examine the following four factors: (1) direct
evidence of the right or exercise of control; (2) furnishing of equipment; (3)
method of payment; and (4) right to fire. Tharpe v. G.E. Moore Co., 254
S.C. 196, 200, 174 S.E.2d 397, 399 (1970). In Dawkins v. Jordan, the
supreme court approved of adding the following framework to the analysis:
[F]or
the most part, any single factor is not merely indicative of, but, in practice,
virtually proof of, the employment relation; while, in the opposite direction,
contrary evidence is as to any one factor at best only mildly persuasive
evidence of contractorship, and sometimes is of almost no such force at all.
341 S.C. 434, 439, 534 S.E.2d
700, 703 (2000) (quoting Arthur Larson & Lex K. Larson, 3 Larson's
Workers' Compensation Law § 61.04 (2000)).
In Wilkinson,
however, the supreme court overruled the approach set forth in Dawkins,
stating "[we] overrule Dawkins' analytical framework, for it most
assuredly skews the analysis to a finding of employment. We return to our
jurisprudence that evaluates the four factors with equal force in both
directions." 382 S.C. at
300, 676 S.E.2d at 702.
Here,
after considering the parties' contract and evaluating the four factors with
equal force, we hold Massey was an independent contractor.
Massey
admits she and her husband entered into a "contract" with Werner to
lease their truck pursuant to an owner-operator agreement. Moreover, Massey
concedes she signed an "Owner-Operator Compensation Coverage
Agreement," wherein she is referred to as a "Contractor," and
she sought workers' compensation coverage under Nebraska law. Further, in a
"Declaration of Employment Status" document, Massey declared she was
"self-employed." See Kilgore Group,
313 S.C. at 68-69, 437 S.E.2d at 50 (holding the description of the parties' relationship as set forth in the
parties' contract must be considered, but the description is not dispositive in
determining the nature of their relationship).
An
examination of the four factors also weighs in favor of holding Massey was an
independent contractor. As to the first factor, Massey retained the right to
refuse any load Werner requested she haul. Although Werner required Massey to
affix Werner logos on the tractor, this requirement is in accordance with
federal government regulations and should not be considered as evidence of
control. See Wilkinson, 382 S.C. at 302, 676 S.E.2d at 703. Other evidence, however, shows Werner did maintain some control over
Massey. Massey could not drive the truck for personal errands or drive for
another company. In addition, Werner required Massey to use pre-approved fuel
stops and service shops. Werner also required Massey to install a global
positioning satellite (GPS) system in her truck to track the location of the
truck. But see id. (holding the presence of a GPS system was not
evidence of the motor carrier's control over its drivers when the system was
for the benefit of customers tracking the shipment of goods).
Regarding
the second factor, the furnishing of equipment, Massey and her husband owned
the tractor and leased it to Werner. Massey testified she had the
option to employ other individuals to drive the tractor, as long as the drivers
were approved by Werner. Although Werner provided Massey a gas card, Massey
reimbursed Werner for the cost of gas. As set forth above, the presence of
Werner logos should not be considered as evidence of control. See Wilkinson, 382 S.C. at 302, 676 S.E.2d
at 703.
As
to the third factor, method of payment, Massey's testimony demonstrates Massey
was paid as an independent contractor. Massey testified in her deposition she
was paid per mile and Werner deducted "fuel, insurance, tags, just about
everything it took to operate the truck" from Massey's check. Massey
further testified she could refuse a load, but Werner "just didn't pay
[her] for sitting there."
Finally,
although there is some evidence to the contrary,[3] Massey's testimony regarding the right to fire speaks for itself:
It was
in the lease contract that you had to work so long with them and they couldn't
even terminate they had to have a good reason to terminate the lease. . .
. I was under contract, under a lease that I had signed, that it [sic] would
stay with them so long.
As set forth above, the factors weigh in favor of
finding Massey was an independent contractor. Accordingly, we reverse the
circuit court and hold Massey was an independent contractor.
II. STATUTORY
EMPLOYEE
As
set forth above, the single
commissioner awarded Massey benefits holding, as an alternative ground, that Massey
was a statutory employee under section 42-1-400 of the South Carolina Code. We did not address this issue in our prior
unpublished opinion because we affirmed on the ground that Massey was Werner's direct
employee. The supreme court likewise did not address this issue. Because we
are now holding Massey was an independent contractor, we must decide whether
Massey is nevertheless entitled to benefits as a statutory employee.[4]
The statutory employment
concept is based on section 42-1-400 of the South Carolina Code. The section
provides as follows:
When
any person, in this section and §§ 42-1-420 and 42-1-430 referred to as
"owner," undertakes to perform or execute any work which is a
part of his trade, business or occupation and contracts with any other person (in this section and §§ 42-1-420 to
42-1-450 referred to as "subcontractor") for the execution or
performance by or under such subcontractor of
the whole or any part of the work undertaken by such owner, the owner shall be
liable to pay to any workman employed in the work any compensation under this
Title which he would have been liable to pay if the workman had been
immediately employed by him.
S.C.
Code Ann. § 42-1-400 (Supp. 2008). An activity is "part of [the owner's]
trade, business, or occupation" for purposes of the statute if it (1) is
an important part of the owner's business or trade; (2) is a necessary,
essential, and integral part of the owner's business; or (3) has previously been performed
by the owner's employees. Olmstead v. Shakespeare, 354 S.C. 421, 424,
581 S.E.2d 483, 485 (2003). "If the activity at issue meets even one of
these three criteria, the injured employee qualifies as the statutory employee of
'the owner.'" Id.
Here,
Massey, a truck driver, sustained injuries while transporting loads for Werner,
a common carrier. Clearly, the transportation of goods is an important,
integral part of Werner's trade, business, or occupation.
Further, Massey's status as an independent contractor
does not preclude her from receiving benefits as a statutory employee. See Smith v. T.H. Snipes & Sons, Inc., 306 S.C. 289, 411 S.E.2d 439
(1991). In Smith, Smith's decedent, a self-employed welder, was fatally
injured while repairing a metal shearing machine in T.H. Snipes' place of
business. Id. at 290, 411 S.E.2d at 439. Our supreme court found the
decedent was T.H. Snipes' statutory employee even though the decedent was
"self employed" and a "subcontractor." Id. at
290-91, 411 S.E.2d 439-40. The court stated "nothing in the language of
[§ 42-1-400] precludes classification of a subcontractor as a statutory
employee." Id. at 291, 411 S.E.2d at 440. We see no distinction between Smith and this case, except that the decedent in Smith was a welder and
Massey was a truck driver.
We therefore affirm the circuit court's holding that
Massey is entitled to benefits as a statutory employee.
AFFIRMED IN PART AND REVERSED IN PART.[5]
PIEPER, J., and CURETON and GOOLSBY, A.JJ., concur.
AMENDMENT[6]
Appellants
filed a petition for rehearing, arguing this court erred in holding Massey is
entitled to benefits as a statutory employee. Specifically, Appellants argue
Massey cannot be a statutory employee because she did not elect to receive
benefits as required by section 42-1-130 of the South Carolina Code (Supp.
2009). Massey filed a return to Appellants' petition, arguing this court erred
in even addressing the issue because it was not preserved for our review.
Although Appellants argued Massey was not a statutory employee
because she "was not a workman employed by a subcontractor as contemplated
by [section] 42-1-400," Appellants never argued Massey was not a statutory
employee because she failed to elect to receive benefits under section
42-1-130. Furthermore, the circuit court did not
rule on this particular issue. In fact, in its analysis, the circuit court did
not even mention the statutory employee issue, but it did "affirm the
Order of the Commission as to all issues."[7]
We further note that Appellants did not file a Rule 59(e), SCRCP, motion to
alter or amend the judgment asking the circuit court to address the issue.
Accordingly,
we hold this issue is not properly before us, and the Appellate Panel's holding
is the law of the case. See Noisette v. Ismail, 304 S.C. 56, 58,
403 S.E.2d 122, 124 (1991) (holding the court of appeals should not address an
issue that was not explicitly ruled on below); ML-Lee Acquisition Fund, L.P.
v. Deloitte & Touche, 327 S.C. 238, 241, 489 S.E.2d 470, 472 (1997)
(stating an unappealed ruling is the law of the case and should not be reconsidered by the appellate court).[8]
Our
conclusion remains the same. The order of the circuit court is reversed in
part and affirmed in part.
[1] Prior to filing this action, Massey received benefits
under Nebraska law.
[2] With facts similar to the
case at hand, Wilkinson involved the issue of whether the claimant, a
long-haul trucker, was an employee of or an independent contractor for Palmetto,
an interstate motor carrier. In that case, the supreme court reversed
this court and held the claimant was an independent contractor. Id.
[3] Massey testified she could not drive a load for
another company "and then come back to work." In addition, Massey
testified Werner would terminate the lease if she took more than four
consecutive days off.
[4] Appellants summarily addressed this issue in their
initial brief and supplemental brief. We address this issue giving Appellants
the benefit of the doubt regarding whether this issue is properly before us. See Bryson v. Bryson, 378 S.C. 502, 510, 662 S.E.2d 611, 615 (Ct. App. 2008)
("An issue is deemed abandoned and will not be considered on appeal if the
argument is raised in a brief but not supported by authority."); Glasscock,
Inc. v. U.S. Fidelity & Guar. Co., 348 S.C. 76, 81, 557 S.E.2d 689, 691
(Ct. App. 2001) ("[S]hort, conclusory statements made without supporting
authority are deemed abandoned on appeal and therefore not presented for
review.").
[5] In their initial brief, Appellants also raised the
following arguments: (1) Massey is not entitled to
benefits in South Carolina because she elected and received coverage under
Nebraska law; (2) the commission lacked jurisdiction over Massey's claim for
benefits; and (3) the
commission erred in determining Massey's weekly wage and compensation rate.
Because these issues were not affected by the Wilkinson opinion or addressed
in the supplemental briefs, we adopt our analysis from our prior unpublished opinion. See Massey, Op. No. 2008-UP-126.
[6] Per our order denying Appellants' petition for
rehearing, we strike though the statutory employee section set forth above and
substitute the following in its place.
[7] We note the single
commissioner never ruled on whether Massey was entitled to benefits despite her
failure to elect benefits.
[8] We further note Appellants summarily addressed this
issue in their initial brief, simply stating Massey was "not entitled to
Workers' Compensation benefits under the South Carolina Workers' Compensation
Act as a direct employee or as a statutory employee under [section]
42-1-400." See Bryson v. Bryson, 378 S.C. 502, 510, 662
S.E.2d 611, 615 (Ct. App. 2008) ("An issue is deemed abandoned and will
not be considered on appeal if the argument is raised in a brief but not
supported by authority."); Glasscock, Inc. v. U.S. Fidelity & Guar.
Co., 348 S.C. 76, 81, 557 S.E.2d 689, 691 (Ct. App. 2001) ("[S]hort,
conclusory statements made without supporting authority are deemed abandoned on
appeal and therefore not presented for review."). Furthermore, Appellants
made no mention of the issue in their statement of issues on appeal. See Rule 208(b)(1)(B), SCACR ("Ordinarily, no point will be considered which
is not set forth in the statement of issues on appeal.")