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2010-UP-001 - Massey v. Werner Enterprises, Inc.

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Unpublished Opinion No. 2010-UP-001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Withdrawn, Substituted, and Refiled March 24, 2010  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.")