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2011-UP-093 - Amerisure v. Dooley

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

Ex Parte: Amerisure Mutual Insurance Company, Carrier, Appellant,

and

The S.C. Uninsured Employer's Fund, Respondent.



In Re:

Salome Diaz-Cortez, Claimant,

v.

Dooley & Mack Construction Company, Employer, Appellant.


Appeal From Pickens County
D. Garrison Hill, Circuit Court Judge


Unpublished Opinion No. 2011-UP-093
Submitted January 4, 2011 – Filed March 10, 2011


AFFIRMED


Ryan S. Montgomery, of Greenville, for Appellant.

Robert Merrell Cook, II, of Batesburg-Leesville, for Respondent.

PER CURIAM:  Amerisure Mutual Insurance and its insured, Dooley & Mack Construction Company (collectively Appellants), appeal the circuit court's ruling that liability for a Dooley & Mack statutory employee's injuries could not be transferred to the South Carolina Uninsured Employer's Fund (the Fund).  We affirm.[1]

FACTS

Dooley & Mack was serving as general contractor at a job site in The Cliffs at Keowee, an upscale residential community in Greenville County, South Carolina.  Dooley & Mack hired Smeller Construction to perform work at the job site, and Smeller in turn hired Huberto Escoto to perform framing work.  One of Escoto's employees, Salome Diaz-Cortez, was seriously injured on the job when he fell from a ladder.  Escoto did not have workers' compensation insurance, so Diaz-Cortez's workers' compensation claim moved upstream to Smeller.  At the time of the contract between Dooley & Mack and Smeller, Smeller provided a certificate of insurance upon Dooley & Mack's request.  The certificate was sent via facsimile to Dooley & Mack's Florida office and listed Dooley & Mack with its Florida address as the certificate holder.  The certificate was sent from the listed producer, Spivey Insurance Agency in Austin, Texas.  The listed insured was Steve Smeller based out of Kemp, Texas, and the "description of the operation" was listed as "the Cliffs."  The certificate was unsigned. 

Smeller did not in fact have a valid workers' compensation policy in South Carolina and so liability for Cortez-Diaz's claim moved upstream yet again to Dooley & Mack.  After several hearings, it was determined that Cortez-Diaz's claim was compensable and that Dooley & Mack was the responsible party as the statutory employer.  Appellants then sought reimbursement from the Fund, and the single commissioner denied the request because Amerisure did not "pay in the first instance" as required by section 42-1-415 of the South Carolina Code (Supp. 2010) and because Smeller's certificate of insurance failed to demonstrate coverage in South Carolina.[2] 

An Appellate Panel of the South Carolina Workers' Compensation Commission (Appellate Panel), however, reversed the single commissioner finding Dooley & Mack had presented an acceptable certificate of insurance and that the lack of signature did not render the certificate insufficient pursuant to Barton v. Higgs, 372 S.C. 109, 641 S.E.2d 39 (Ct. App. 2007).[3]  Additionally, the Appellate Panel found that although Amerisure "did not initially pay this claim in the first instance" as required by section 42-1-415, the transfer of liability to the Fund was proper.[4] 

The Fund appealed the Appellate Panel's order to the circuit court.  The circuit court reversed the findings of the Appellate Panel relying largely on Hopper v. Terry Hunt Construction, 373 S.C. 475, 646 S.E.2d 162 (Ct. App. 2007) aff'd, 383 S.C. 310, 680 S.E.2d 1 (2009),[5] an opinion released during the pendency of the appeal from the Appellate Panel's order.  The circuit court concluded Smeller's certificate of insurance was "facially insufficient" to indicate coverage in South Carolina and further held Amerisure failed to pay in the first instance under section 42-1-415 thereby barring the transfer of liability to the Fund.  The circuit court did not render its findings based on the lack of signature on the certificate of insurance, but noted the South Carolina Supreme Court had granted a writ of certiorari to review Barton.  This appeal followed. 

STANDARD OF REVIEW

The South Carolina Administrative Procedures Act (APA) governs judicial review of a decision of the South Carolina Workers' Compensation Commission.  Lark v. Bi-Lo, Inc., 276 S.C. 130, 134, 276 S.E.2d 304, 306 (1981); Bass v. Isochem, 365 S.C. 454, 467, 617 S.E.2d 369, 376 (Ct. App. 2005).  Pursuant to the APA, an appellate court's review is limited to deciding whether the full commission's decision is unsupported by substantial evidence or is controlled by some error of law.  Grant v. Grant Textiles, 372 S.C. 196, 200-01, 641 S.E.2d 869, 871 (2007).

LAW/ANALYSIS

The Fund maintains the circuit court's decision should be affirmed on the additional sustaining ground that Smeller's certificate of insurance was unsigned.  We agree.

In finding the certificate of insurance in this case met the requirements of section 42-1-415 of the South Carolina Code (Supp. 2010), the Appellate Panel relied in part on Barton v. Higgs, which held that documentation of workers' compensation coverage could be sufficient even without a signature provided the documentation was on a "standard form acceptable to the commission."  387 S.C. 109, 117, 641 S.E.2d 39, 44.  However, that ruling was reversed by the South Carolina Supreme Court.   See Barton v. Higgs, 381 S.C. 367, 371, 674 S.E.2d 145, 147 (2009) ("[B]y failing to collect a signed Certificate of Insurance form, [the contractor] failed to meet the requirement as set forth in the regulation [67-415].").[6]   In this case, the certificate of insurance presented by Smeller was unsigned.  Therefore, it was insufficient to transfer liability to the Fund under section 42-1-415, and we affirm the circuit court's ruling on that basis. See I'On L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 420, 526 S.E.2d 716, 723 (2000) (holding the appellate court may consider additional sustaining grounds raised by the respondent "and, if convinced it is proper and fair to do so, rely on them or any other reason appearing in the record to affirm the lower court's judgment"); see also Rule 220(c), SCACR ("The appellate court may affirm any ruling, order, decision or judgment upon any ground(s) appearing in the Record on Appeal."). 

Accordingly, we need not address the issues raised by Appellants regarding whether the certificate of insurance indicated Smeller had coverage in South Carolina or whether Appellants failed to pay in the first instance.  See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not address remaining issues when the determination of another issue is dispositive of the appeal). 

AFFIRMED.

HUFF, LOCKEMY, JJ., and GOOLSBY, A.J., concur.


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

[2]  Section 42-1-415(A) of the South Carolina Code (Supp. 2010) provides:  "In the event that employer is uninsured, regardless of the number of employees that employer has, the higher tier subcontractor, contractor, project owner, or his insurance carrier shall in the first instance pay all benefits due under this title."

[3] In Barton, the court determined the lack of a signature did not necessarily preclude a certificate of insurance from being sufficient to transfer liability to the Fund.  Id. at 117, 641 S.E.2d at 44.

[4] The Appellate Panel's decision was a split decision with Commissioner David W. Huffstetler dissenting.

[5] In Hopper, 373 S.C. at 483 n.1, 646 S.E.2d at 166 n.1, the court determined that a contractor could not "turn a blind eye" to a subcontractor's "obvious lack of coverage" in South Carolina and expect to transfer liability to the Fund under section 42-1-415.

[6]  Regulation 67-415 of the South Carolina Code (Supp. 2007) stated: "For purposes of Section 42-1-415, the ACORD Form 25-S, Certificate of Insurance, as published by the ACORD Corporation and as issued by the insurance carrier for the insured, shall serve as documentation of insurance.  The Certificate of Insurance must be dated, signed, and issued by an authorized representative of the insurance carrier for the insured."