Alyward v. Woods ProClean

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

Louis Alyward,
Employee, Respondent,

v.

Woods ProClean,
Employer, Cogdell Group, Inc., Statutory Employer, St. Paul Fire &
Marine, Carrier for Cogdell Group, Inc., and South Carolina Workers'
Compensation Uninsured Employers' Fund, Defendants,

Of Whom Cogdell
Group, Inc.,  Statutory Employer, and  St. Paul Fire & Marine, Carrier
for Cogdell Group, Inc., are Appellants,

And Woods
ProClean, Employer, and South Carolina Workers' Compensation Uninsured
Employers' Fund are Respondents.

Appeal From Florence County

John M. Milling, Circuit Court Judge

Unpublished Opinion No. 2011-UP-094

Submitted January 4, 2011 – Filed March
10, 2011   

AFFIRMED

Jason Alexander Griggs, of Greenville, for
Appellants.

Brenda Woods, of Leavenworth, Kansas;
Kathryn  Williams, of Greenville; Samuel Thompson Brunson, of Florence, for
Respondents.

PER CURIAM:  St. Paul Fire & Marine and its insured, Cogdell
Group, Inc. (collectively Appellants), appeal the circuit court's ruling that
liability for a Cogdell Group's statutory employee's injuries could not be
transferred to the South Carolina Uninsured Employer's Fund (the Fund).  We
affirm.[1]

FACTS

Cogdell Group managed the
McLeod Medical Plaza building in Florence, South Carolina.  The janitorial
services for the facility were contracted out to Woods ProClean.  One of Woods
ProClean's employees, Louis Alyward, was injured on the job.  At the time of
the contract between Cogdell Group and Woods ProClean, Woods ProClean provided
two certificates of insurance to Cogdell Group.  The first certificate was
issued on April 30, 1998, from Geller Insurance Agency, Inc. in Lenexa, Kansas,
and the insured was listed as ProClean of Leavenworth, Kansas. The certificate
holder was listed as "The Cogdell Group Incorpated: The McLeod Regional
Medical Center of the Pee Dee."  The description of operations field was
left blank.  The second certificate was received May 19, 1998, to satisfy a
Cogdell Group requirement that it be listed as an additional insured on all
certificates. 

The second certificate was
identical to the first with two exceptions.  The certificate holder field read,
"McLeod Regional Medical Center of the Pee Dee, c/o Cogdall [sic]
Group/Deno Keretses, 305 E Cheves St, St 220, Florence, SC 29506," and the
description of operations showed "Cogdall [sic] Group Inc. is the
Management Company.  See Certificate - Addl Insured." 

After several years of
litigation, it was determined Woods ProClean did not in fact have valid
workers' compensation coverage in South Carolina and so liability for Alyward's
claim moved upstream to Cogdell Group.  Following several hearings, the
conclusion was reached that Alyward's claim was compensable and that Cogdell
Group was the responsible party as the statutory employer. 

Appellants then sought
reimbursement from the Fund.  The single commissioner denied the request
finding the certificates of insurance provided to Cogdell Group failed on their
faces to demonstrate coverage in South Carolina as required by section 42-1-415
of the South Carolina Code (2010) and 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).  An Appellate Panel of the South Carolina Workers'
Compensation Commission (Appellate Panel) affirmed the single commissioner, and
the circuit court affirmed the Appellate Panel's order.  This appeal followed. 

LAW/ANALYSIS

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 Appellate Panel'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).  "Substantial evidence
is not a mere scintilla of evidence, but evidence which, considering the record
as a whole, would allow reasonable minds to reach the conclusion the agency
reached."  Tennant v. Beaufort Cnty. Sch. Dist., 381 S.C. 617, 620,
674 S.E.2d 488, 490 (2009).  "In workers' compensation cases, the [Appellate
Panel] is the ultimate fact finder."  Jordan v. Kelly Co., 381 S.C.
483, 486, 674 S.E.2d 166, 168 (2009).

In Hopper v. Terry Hunt
Construction, 373 S.C. 475, 482-83, 646 S.E.2d 162, 166 (Ct. App. 2007),
the court determined as a matter of law that section 42-1-415 of the South
Caroline Code requires an upstream contractor to obtain a certificate of
insurance indicating worker's compensation coverage in South Carolina exists in
order to transfer liability to the Fund.  In reaching this decision the court
stated:

Our
ruling today does not put an extra duty upon the general contractor to inquire
into the validity of the subcontractor's coverage.  However, a general
contractor cannot expect to turn a blind eye to the subcontractor's obvious
lack of coverage in South Carolina and have the State shoulder that burden.  A
determination of what type of conduct constitutes an obvious lack of coverage
in South Carolina will have to be settled on a case-by case basis. 

Id. at 483 n.1, 646 S.E.2d at 166 n.1.

In this case, the Appellate
Panel determined the certificates presented were insufficient under section
42-1-415 to allow Cogdell Group to shift liability to the Fund.  The Appellate
Panel did not directly address the Cogdell Group's argument regarding the
identity of the certificate holder as "The McLeod Regional Medical Center
of the Pee Dee."  The circuit court found, however, substantial evidence supported
the Appellate Panel's findings.  The circuit court further indicated the
identity of the certificate holder and the faxing of the certificate to a South
Carolina location was insufficient to undermine the Appellate Panel's factual
findings when the producer and insured were both listed as Kansas entities and
the description of operations field was left blank.  The second certificate
provided no additional information regarding the existence of coverage in a
particular location but simply satisfied the Cogdell Group's requirement that
it be listed as an additional insured. 

Appellants correctly note that
in Hopper all three parties, the producer the insured, and the
certificate holder, were listed as Georgia entities.  Hopper, 373 S.C.
at 484, 646 S.E.2d at 167.  The Hopper court concluded, however, the
certificate did not indicate "in which state, if any, [the subcontractor]
had workers' compensation coverage."  Id.  The identity of the
certificate holder in a particular state, therefore, does not necessarily
demonstrate coverage in that state under Hopper.  Otherwise, the Hopper court would have concluded the certificate demonstrated coverage in Georgia,
the locale of the certificate holder, instead of opining the certificate did
not indicate coverage in any particular state.

Based on our standard of
review, we conclude the circuit court did not err in affirming the Appellate
Panel as its findings were supported by substantial evidence in the record. 

AFFIRMED.

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

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