Dawsey v. New South, Inc

Wayne Dawsey (“Dawsey”) appeals from the trial court’s dismissal of his
action against New South, Inc

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Wayne Dawsey,       
Appellant,

v.

New South, Inc.,       
Respondent.

Appeal From Horry County

John L. Breeden, Jr., Circuit Court
Judge

Unpublished Opinion No. 2003-UP-638

Submitted October 6, 2003 – Filed October
30, 2003

AFFIRMED

George Hunter McMaster, of Columbia, for Appellant

Arthur E. Justice, Jr., of Florence, for Respondent.

Per Curiam: Wayne
Dawsey appeals from the trial court’s order dismissing his action against New
South, Inc., in which the court held Dawsey’s exclusive remedy falls under the
South Carolina Workers’ Compensation Act, § 42-1-10, et seq. (1985 &
Supp. 2002) (the Act).  We affirm.

FACTS

Dawsey was employed as a supervisor in New South’s
wood treatment plant.  New South treats wood to make it resistant to insects,
microorganisms and fungal decay by pressure forcing chemicals into the cells
of the wood.  The primary chemical used in this process is chromated copper
aresenate (CCA). 

Dawsey has been diagnosed with Multiple Sclerosis,
which he contends was caused or enhanced by exposure to CCA.  He brought this
action, which he labeled a “toxic tort,” in circuit court.  He alleged that
although New South was aware of the health hazards posed by exposure to CCA,
it concealed these hazards from its employees, disseminated false information
to Dawsey, and exposed him to CCA while assuring him that the chemical was safe
and the procedures New South adopted were safe. 

Subsequent to filing its answer, New South moved
for dismissal, asserting Dawsey was barred from filing suit against his employer
because his exclusive remedy fell under the Act.  The trial court granted New
South’s motion to dismiss.  Dawsey appeals. 

LAW/ANALYSIS

Dawsey contends the trial court erred as a matter
of law by concluding his exclusive remedy was under the Act.  We disagree.

The exclusivity provision of the Act provides:

The rights and remedies granted by this Title to an employee
when he and his employer have accepted the provisions of this Title, respectively,
to pay and accept compensation on account of personal injury or death by accident,
shall exclude all other rights and remedies of such employee, his personal representative,
parents, dependents or next of kin as against his employer, at common law or
otherwise, on account of such injury, loss of service or death. . . .

S.C. Code Ann. § 42-1-540 (1985).

Thus, a worker who falls under the Act is prohibited
from seeking a common law remedy for work related injuries in a tort action. 
This exclusivity provision fulfills the purpose of the Act, which is to relieve
workers of the uncertainties of a trial by providing sure, swift recovery for
workplace injuries regardless of fault.  Peay v. U.S. Silica Co., 313
S.C. 91, 94, 437 S.E.2d 64, 65 (1993).  To give effect to this legislative intent,
the Act is construed liberally in favor of coverage.  Id.  Any exception
to workers’ compensation coverage must be narrowly construed.  Id. 

As one exception, a common law cause of action
is not barred by the Act if the employer acted with a deliberate or specific
intent to injure the employee.  Peay, 313 S.C. at 93; 437 S.E.2d at 65. 
Dawsey asserts his action falls within this exception because New South knew
of the dangers inherent in exposing its workers to CCA but failed to take appropriate
protective measures to protect its employees from CCA exposure.  He contends
New South’s deliberate disregard for safety conditions constitutes an intentional
tort against him.  In Peay, our supreme court specifically rejected a
broad interpretation of “intent” and declined to follow the North Carolina Supreme
Court’s adoption of the “substantial certainty standard” as set forth in Woodson
v. Rowland, 407 S.E.2d 222 (N.C. 1991). [1]   Peay, 313 S.C. at 94, 437 S.E.2d at
66.  Narrowly construing the intentional act exception, our supreme court held
“that only those injuries inflicted by an employer who acts with a deliberate
or specific intent to injure are exempted from the exclusive remedy of workers’
compensation coverage.”  Peay, 313 S.C. at 94, 437 S.E.2d at 65-66.  

Thus, in order to bring a tort action, Dawsey must
not simply show New South was deliberate in its disregard for its employee’s
safety, but must demonstrate that New South intended to injure him.  We find
no evidence in the record of such an intent. 

Relying on Smith v. Smith, 194 S.C. 247,
9 S.E.2d 584 (1940), Dawsey’s advances the theory in his reply brief that fraudulent
concealment of exposure to toxic materials constitutes a battery.  We find Dawsey’s
reliance on this case misplaced.  In Smith, the court held the intentional
administering of poison to a person with intent to inflict injury is the tort
of battery.  In the present case, Dawsey has failed to show that New South not
only exposed him to a dangerous substance but actually intended to injure him
in doing so or at least knew with substantial certainty that his injury would
result. 

As Dawsey’s injuries were allegedly incurred as
an employee of New South and do not fall within the intent exception of the
Act, the trial court properly held Dawsey’s exclusive remedy falls under the
Act. [2]  

AFFIRMED.

GOOLSBY, HUFF, and BEATTY, JJ., concur.

[1]
According to the substantial certainty standard as articulated in the
North Carolina Supreme Court’s ruling in Woodson, when an employer
intentionally engages in misconduct knowing it is substantially certain to
cause serious injury or death to employees and an employee is injured or killed
by that misconduct, such misconduct is tantamount to an intentional tort,
and civil actions based thereon are not barred by the exclusivity provisions
of the North Carolina Workers’ Compensation Act.  Woodson, 407 S.E.2d
at 228.

[2]   The South Carolina Supreme Court recently held the exclusivity provision
does not involve subject matter jurisdiction.  Sabb v. South Carolina State
Univ., 350 S.C. 416, 423, 567 S.E.2d 231, 234 (2002).  In the present
case, the trial court ruled it lacked subject matter jurisdiction because
Dawsey’s exclusive remedy is under the Act.  Although the trial court had
subject matter jurisdiction, it properly granted New South’s motion to dismiss
due to the exclusivity provision.  See I’On, L.L.C. v. Town of Mt.
Pleasant, 338 S.C. 406, 420, 526 S.E.2d 716, 723 (2000) (court can affirm
for any reason appearing in the record).