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2007-UP-384 - Miller v. Unity Group

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

Regina Miller, Plaintiff,

v.

The Unity Group Inc. Modern Business, Continental Casualty Insurance Company, and SCUEF, Defendants,

of whom The Unity Group Inc. Modern Business is the Respondent,

and Continental Casualty Insurance Company is the Appellant.


Appeal From Horry County
 James E. Lockemy, Circuit Court Judge


Unpublished Opinion No. 2007-UP-384
Heard June 6, 2007 – Filed September 20, 2007   


AFFIRMED


Andrew D. Smith, Trask & Howell, LLC, of Mt. Pleasant, for Appellant.

Nate Fata, Nate Fata, PA, of Surfside Beach, for Respondent.

PER CURIAM: Modern Business Associates (MBA) maintains workers’ compensation insurance coverage through Continental Casualty Insurance Company (Continental).  The trial court concluded Unity Group was also a named insured under this policy.  Continental appeals and we affirm. 

FACTS

This case arises out of workers’ compensation claims made by Regina Miller.  Miller claims she suffered compensable injuries that arose during the scope of employment in March and July of 2002.  When the March incident occurred, Unity Group had acquired Miller’s services through Multistaff Leasing Company (Multistaff). 

Unity Group is a hotel housekeeping company that services hotels in the Myrtle Beach area.  Unity Group had an agreement with Multistaff, which stated the latter would provide temporary employees, such as Miller, to Unity Group.  Shortly after the March episode, but prior to the July accident, Unity Group ended its relationship with Multistaff and contracted with MBA to provide leasing services. 

The contract between MBA and Unity Group required MBA to maintain workers’ compensation insurance coverage.  MBA’s insurance provider was Continental.  In late April 2002, Unity Group received a Certificate of Liability Insurance (the Certificate) prepared by Continental’s agent. 

The Certificate lists Unity Group as a “Certificate Holder Additional Insured.”  Based on the Certificate, Unity Group argues it is insured under MBA’s contract of insurance with Continental.  Unity Group also argues Continental’s decision to appeal the trial court’s ruling that Unity Group is an insured is an interlocutory appeal, and therefore, not immediately appealable. 

STANDARD OF REVIEW

When the purpose of the dispute is to determine whether a party is an insured under an insurance policy, we will correct errors of law, but factual findings of the trial court will not be disturbed unless unsupported by any evidence.  See Farm Bureau Mut. Ins. Co. v. James, 337 S.C. 86, 93, 522 S.E.2d 345, 348-49 (Ct. App. 1999) (In a suit to determine coverage under an automobile liability policy, an appellate court’s standard of review is limited to correcting errors of law.  Factual findings of the trial court will not be disturbed, unless found to be without evidence which reasonably supports the judge’s findings.).

LAW/ANALYSIS

A. Interlocutory appeal

Unity Group initially argues this Court lacks jurisdiction to decide this case because this appeal constitutes an interlocutory appeal.  We disagree.

Generally, an appeal to this Court will be allowed only if the trial court has issued a final judgment.  Hagood v. Sommerville, 362 S.C. 191, 194, 607 S.E.2d 707, 708 (2005).  However, the following four situations permit a party to appeal absent a final judgment:

(1) intermediate judgments, orders or decrees involving the merits, (2) orders affecting substantial rights when such orders in effect determine the action and prevent a judgment from which an appeal may be taken or when the orders discontinue the action, (3) a final order in special proceedings, and (4) interlocutory orders [relating to injunctions].

 Walker v. Springs Indus., Inc., 298 S.C. 249, 251, 379 S.E.2d 729, 730 (Ct. App. 1989).

 “An order involves the merits if it finally determines some substantial matter forming the whole or part of some cause of action or defense in the case.”  Green v. City of Columbia, 311 S.C. 78, 80, 427 S.E.2d 685, 687 (Ct. App. 1993).

The determination of whether Unity Group is a named insured involves the merits of the case.  If Unity Group is not an insured, then Continental does not owe a duty to defend Unity Group in the underlying action.  Conversely, if Unity Group is deemed a named insured under MBA’s workers’ compensation policy, then Continental owes a duty to defend Unity Group.  Thus, the determination of Unity Group’s status with respect to Continental is dispositive of whether Continental owes a duty to defend Unity Group.

Having determined this appeal is properly before us, we now turn our attention to whether Unity Group is a named insured.

B. Unity Group is a named insured

The terms of an insurance policy must be construed liberally in favor of the insured.  Quinn v. State Farm Mut. Auto. Ins. Co., 238 S.C. 301, 304, 120 S.E.2d 15, 16 (1961).  Insurance policies are subject to the common rules of contract construction.  Id.  Accordingly, in the absence of ambiguity, the terms of the policy will be given their plain, ordinary, and popular meaning.  Id.  However, when the terms of the policy are capable of two reasonable interpretations, the ambiguity will be resolved in favor of the insured.  Id.   

The workers’ compensation policy between Continental and MBA covers the dates August 1, 2001 thru August 1, 2002.  This policy contains an Alternate Employer Endorsement (the Endorsement).  The Endorsement states that workers’ compensation insurance will apply if an employee of MBA is injured “in the course of special or temporary employment by the alternate employer . . . .”[1]  Thus, the question becomes whether Unity Group can be considered an “alternate employer.”

Neither the policy nor the Endorsement defines the term “alternate employer.”  Unity Group may or may not be an “alternate employer.”  We hold that the Endorsement creates an ambiguity of whether Unity Group qualifies as an “alternate employer.”  Under South Carolina law, the ambiguity will be resolved in favor of the insured.  Id.  Thus, Unity Group is an insured under the workers’ compensation policy between MBA and Continental.  This conclusion is supported by the Certificate presented to Unity Group by Continental’s agent. 

On April 26, 2002, an authorized representative for Continental presented the Certificate to Unity Group.  Although the Certificate is not part of the insurance policy between MBA and Continental, it clarifies the ambiguity created by the Endorsement.  The Certificate references the workers’ compensation policy between MBA and Continental.  It states, “Coverage is provided for only those employees leased to but not subcontractors of: The Unity Group, Inc.”  Moreover, Unity Group is listed as the certificate holder and an additional insured.  The Certificate specifically references the Endorsement.  Thus, the Certificate presented by Continental’s agent and the ambiguity created by the Endorsement support the conclusion that Unity Group is an insured.

Finally, we note the stated issue on appeal is not the real controversy involved in this case.  Miller had two accidents, one occurring in July 2002, during the time Continental’s policy was in full force and effect, and one occurring in March 2002.  The crux of the issue is not whether Continental provides coverage for Unity Group, but whether Continental owes a duty to Unity Group with respect to Miller’s March accident.  In the proceedings below, it has so far been determined that the injuries suffered by Miller are the result of the first accident.  Consequently, Unity Group is aggrieved because apparently through no fault of its own, it had no workers’ compensation coverage at that time. 

The discreet question we are asked is stated as follows:  “Did the Circuit Court err as a matter of law in finding that the Unity Group is an insured under Modern Business Associates’ policy of insurance with Continental Casualty Insurance Company, who is entitled to defense from Continental Casualty Insurance Company?”  This opinion correctly answers that question.  However, we have not been asked to determine if Unity  Group provides coverage for the injuries suffered by Miller as a result of the first accident, and we are therefore precluded from addressing that issue.  As former Chief Judge Sanders so aptly observed, “appellate courts in this state, like well-behaved children, do not speak unless spoken to and do not answer questions they are not asked.”  Langley v. Boyter, 284 S.C. 162, 182, 325 S.E.2d 550, 561 (Ct. App. 1984), quashed on other grounds by 286 S.C. 85, 332 S.E.2d 100 (1985); see Gold Kist, Inc. v. Citizens & S. Nat’l Bank of S.C., 286 S.C. 272, 276, 333 S.E.2d 67, 70 (Ct. App. 1985) (holding issues not raised in the briefs are deemed abandoned).   

CONCLUSION

Accordingly, the trial court’s decision is

AFFIRMED.

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


[1] Counsel for Continental argues the Endorsement is inapplicable because it does not cover the period of August 1, 2001 to August 1, 2002.  We find this argument unpersuasive.  The policy between MBA and Continental covers the period August 1, 2001 to August 1, 2002.  The Endorsement lists the policy period as “08/01/01 [to] 08/01/02.”  Thus, the Endorsement is part of the insurance policy.