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Unpublished Opinion No. 2011-UP-093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."