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2008-UP-323 - Rochester v. Roberts

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

Keith Rochester d/b/a Rochester Cab Company and South Carolina Uninsured Employers’ Fund, Defendants,

v.

Arthur G. Roberts (deceased), Appellant,

of whom South Carolina Uninsured Employers’ Fund is the Respondent.


Appeal from Oconee County
J. Cordell Maddox, Jr., Circuit Court Judge


Unpublished Opinion No. 2008-UP-323
Submitted June 1, 2008 – Filed June 27, 2008   


REVERSED


W. Grady Jordan, of Easley, for Appellant.

Amy V. Cofield, of Lexington, for Respondent.

PER CURIAM:  Arthur G. Roberts (deceased), appeals the circuit court’s reversal of the Workers’ Compensation Commission’s order finding Roberts was an employee of Rochester Cab Company (Rochester).  We reverse.

FACTS

Roberts was shot and killed while driving a cab for Rochester Cab Company.  The single commissioner found that Roberts was Rochester’s employee under the workers’ compensation statute.  S.C. Code Ann. § 42-1-130 (Supp. 2007).  The appellate panel affirmed.  However, the circuit court reversed the appellate panel, finding it did not properly follow the four tests required to impose liability on as set forth in Nelson v. Yellow Cab Co., 349 S.C. 589, 564 S.E.2d 110 (2002).  

STANDARD OF REVIEW

Generally, a reviewing court will not overturn a decision by the appellate panel unless the determination is unsupported by substantial evidence or is affected by an error of law.  Liberty Mut. Ins. Co. v. S.C. Second Injury Fund, 363 S.C. 612, 619, 611 S.E.2d 297, 299 (Ct. App. 2005).  However, the narrow nature of the question on appeal dictates a preponderance of the evidence standard.  “Workers’ compensation awards are authorized only if an employer-employee relationship exists at the time of the injury.  Whether or not an employer-employee relationship exists is a jurisdictional question.  Where the issue involves jurisdiction, this Court can take its own view of the preponderance of the evidence.”  Nelson v. Yellow Cab Co., 349 S.C. 589, 594, 564 S.E.2d 110, 112 (2002) (citations omitted).  However, “[i]t is South Carolina’s policy to resolve jurisdictional doubts in favor of the inclusion of employers and employees under the Workers’ Compensation Act.  Id.

LAW/ANALYSIS

The analytical framework used by both the appellate panel and the circuit court involves the right of control and is set forth in the seminal case of Nelson v. Yellow Cab Co., 349 S.C. at 594, 564 S.E.2d at 113.  “There are four elements which determine the right of control: 1) direct evidence of the right or exercise of control; 2) furnishing of equipment; 3) right to fire; and 4) method of payment.”  Id.  In Nelson, the court stated proof of any single element would be indicative of an employment relationship while contrary evidence would only be mild evidence of an independent contractor relationship.  Id. at 594-95, 564 S.E.2d at 113.

Here, Rochester made many decisions which demonstrate its right or exercise of control, including:  deciding which car to lease to which driver; requiring drivers to keep the cars clean, to have the oil changed at the company’s expense, to be courteous, kind, and refrain from the use of profanity; and requiring drivers to have clean criminal records, to adhere to a dress code, to maintain the company sign on top of the cab, to charge city rates, and to keep their radio on if they wanted to keep their car.  Additionally, Rochester prohibited drivers from drinking alcohol or using drugs on the job. 

There is also evidence Rochester furnished the needed equipment, as it owned the cars which were leased to the drivers, paid for the car insurance, installed two-way radios, and provided business cards to the drivers.  Drivers paid for the lease of their car by providing Rochester with fifty percent of the fees earned.  This is an important distinction from the situation in Nelson where the driver paid a set lease fee and kept all fares and tips for his compensation.  Id. at 593, 599, 564 S.E.2d at 112, 115.  The arrangement in this case weighs heavily in favor of Roberts and a finding that an employer/employee relationship did exist.

Rochester also possessed the right to fire the drivers, as it would take a car away if the driver had a criminal record, used drugs or alcohol on the job, charged more than city rates, was not paying the full percentage of the fares he earned, or otherwise violated the requirements and prohibitions set forth above.  Moreover, Rochester specifically reserved the right to terminate the relationship if a driver did not complete his work in the expected manner.  Consequently, evidence of the third element in Nelson is present.

Finally, with respect to the method of payment, Robert’s earnings consisted of fifty percent of his fares with the other fifty percent remitted to Rochester.  We find this is distinguishable from Nelson, where the driver kept all his fares and tips after paying a set amount to the cab company for lease of the vehicle.  Rochester required that city rates be observed, but the rate for fares outside the city could be determined by the driver.  In the case of checks or insurance voucher slips, the driver submitted the check or slip to Rochester as though it were cash, and Rochester was then responsible for collecting its fifty percent of the day’s earnings by cashing the check or seeking reimbursement from the insurance company.  Overall, the fact that Roberts was only entitled to fifty percent of his fares supports the contention he was an employee as opposed to an independent contractor.     

Some factors weigh in favor of finding Roberts an independent contractor; however, we find more evidence to support a finding he was an employee of Rochester.  Rochester controlled and disciplined the drivers, and it furnished their equipment, not under a contractually set arrangement, but rather based on a percentage of what the driver earned.  Furthermore, Rochester could terminate the employer/employee relationship based on a violation of how the work was to be performed by the driver, and the driver was only entitled to fifty percent of his earnings no matter how much he brought in driving the cab.  Because South Carolina’s policy is to resolve jurisdictional doubts in favor of the inclusion of employers and employees under the Workers’ Compensation Act, and because there was ample evidence from which such a relationship could be found to exist, the decision of the circuit court is respectfully

REVERSED.[1]

HEARN, C.J., and SHORT, J., and KONDUROS, J., concur.


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