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2007-UP-299 - Altstaetter v. Liberty Insurance Corporation

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Mark and Beth-Ann Altstaetter, Appellants,

v.

Liberty Insurance Corporation and Liberty Mutual Insurance Company, Respondents.


Appeal From Beaufort County
Curtis L. Coltrane, Circuit Court Judge


Unpublished Opinion No. 2007-UP-299
Submitted May 1, 2007 – Filed June 8, 2007


AFFIRMED


Terry Wayne Yarbrough, of Beaufort, for Appellants. 

Pope D. Johnson, III, of Columbia, for Respondents.

PER CURIAM:  Mark Altstaetter and Beth-Ann Altstaetter appeal the grant of summary judgment in favor of Liberty Insurance Corporation and its subsidiary, Liberty Mutual Insurance Company (collectively Liberty).  We affirm.[1]

FACTS

Mark Altstaetter sustained an injury while working for Balfour Beatty, Inc. (Employer).  Liberty provided workers’ compensation coverage for Employer.  Altstaetter filed a workers’ compensation claim against Employer and Liberty.  Liberty appointed Sandy Mayhew, an employee of Liberty, as the nurse case manager for the claim.  As a nurse case manager, Mayhew takes an active role in managing the treatment of a claimant, utilizing her nursing skills.  Altstaetter concluded Mayhew neglected to inform him of his true diagnosis, exacerbating his condition.  The Altstaetters filed this action against Liberty alleging, inter alia, negligence, breach of fiduciary duty, and breach of good faith and fair dealing.  Liberty moved for dismissal alleging the Workers’ Compensation Act provided the Altstaetters’ exclusive remedy. 

After reviewing affidavits and considering the parties’ arguments, the court treated the matter as a motion for summary judgment and granted Liberty relief.  The court denied the Altstaetters’ motion for reconsideration and motion to correct a scrivener’s error. 

STANDARD OF REVIEW

Summary judgment is proper when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.  Fleming v. Rose, 350 S.C. 488, 493-94, 567 S.E.2d 857, 860 (2002).  In determining whether any triable issue of fact exists, the evidence and all inferences, which can reasonably be drawn therefrom, must be viewed in the light most favorable to the nonmoving party.  Faile v. S.C. Dep’t of Juvenile Justice, 350 S.C. 315, 324, 566 S.E.2d 536, 540 (2002). 

LAW/ANALYSIS

I.

The Altstaetters argue the circuit court erred in finding as an “undisputed fact” that Liberty was functioning in its capacity as the workers’ compensation carrier and entitled to an employer’s immunity under the South Carolina Workers’ Compensation Act.  We disagree.

Employers are immune from tort actions by employees for work-related accidents or injuries because the Workers’ Compensation Act provides the exclusive remedy for an employee.  S.C. Code Ann. § 42-1-540 (1985); Fuller v. Blanchard, 358 S.C. 536, 541, 595 S.E.2d 831, 834 (Ct. App. 2004).  In Ancrum v. U.S. Fidelity & Guaranty Co., our supreme court addressed the certified question of whether the immunity provided to an employer extended to workers’ compensation insurance carriers.  301 S.C. 32, 32, 389 S.E.2d 645, 645 (1989).  The court concluded a carrier enjoys an employer’s immunity under the act except when the carrier stands in the position of a third party unrelated to its function as a compensation carrier.  Id. at 34, 389 S.E.2d at 646. 

In Ancrum, the carrier provided safety inspections for its insured employers.  Id. at 32, 389 S.E.2d at 645.  The court provided a guideline to determine whether a carrier functioning in such a capacity acted as a carrier or as an unrelated third party:

Carriers may perform safety inspections to assess risk and reduce on-the-job injuries in order to minimize benefit payments and premium increases.  In such a case, safety inspections would be integral to the function of a worker’s compensation carrier.  On the other hand, a carrier may contract with an employer as an independent provider of safety inspections undertaking the employer’s legal duty to provide a reasonably safe work place.  In this situation, the carrier would be performing as a third party and would not be immune from liability.  Evidence of such an agreement could include specific contractual language or payment of additional fees for these services.

Id. at 34, 389 S.E.2d at 646.  By contrast, this court in Fuller, refused to extend the employer’s statutory immunity to a physician.  358 S.C. at 543, 595 S.E.2d at 834-35.  In Fuller, the allegedly negligent physician was an employee of Doctor’s Care, providing services to employees of Westinghouse pursuant to an agreement between Doctor’s Care and Westinghouse.  Id. at 539, 595 S.E.2d at 833.  Based on Westinghouse’s lack of the right to control the physician, this court concluded the physician was an independent contractor of Westinghouse.  Id. at 543, 595 S.E.2d at 835.  See S.C. Code Ann. § 42-1-560 (1985) (providing remedies from third parties).

In this case, we agree with the circuit court that, even in the light most favorable to the Altstaetters, Mayhew was an employee of Liberty, acting in the scope of employment, in furtherance of Liberty’s function as an insurance carrier rather than as an unrelated third party.[2]  Liberty provided nurse case managers as an ongoing part of its insurance carrier service to its employer clients.  The nurses were Liberty employees and worked exclusively on workers’ compensation cases.  Thus, we apply Ancrum and conclude Liberty is entitled to the immunity provided employers in the act. 

II.

The Altstaetters also contend the circuit court erred in:  (1) interpreting Ancrum to mean there is a grant of immunity for any conduct of the carrier in trying to return the employee to work; (2) holding that bad faith claims do not exist if the bad faith occurs while trying to get the employee back to work as soon as possible; and (3) holding that the Ancrum court granted absolute immunity to the workers’ compensation carrier for any conduct the carrier undertakes so long as the purpose is to return the employee to work as soon as possible.  These issues are not properly preserved for our review.  Where an issue presented to the trial court is not explicitly ruled on in the final order, the issue must be raised by an appropriate post-trial motion to be preserved for appeal.  Shealy v. Aiken County, 341 S.C. 448, 460, 535 S.E.2d 438, 444-45 (2000) (finding where the trial judge does not explicitly rule on an argument raised, and the issue is not raised in a Rule 59 motion, the appellate court may not address the issue). 

CONCLUSION

Based on the foregoing, we find the court did not err in granting summary judgment.  Accordingly, the order on appeal is

AFFIRMED.

STILWELL, SHORT, and WILLIAMS, JJ., concur.


 [1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] We acknowledge the issue of whether Liberty was functioning as a carrier is not undisputed, as argued by the Altstaetters in their post-trial motion to correct a scrivener’s error and on appeal.  However, we find no genuine issue of material fact as to this issue and accordingly view the circuit court’s use of the term “undisputed” as a scrivener’s error not entitling the Altstaetters to relief.  See Owners Ins. Co. v. Clayton, 364 S.C. 555, 563, 614 S.E.2d 611, 615 (2005) (finding error without prejudice does not warrant reversal).