Terence Sullivan v. Ocean 22 Vacation Owners' Association, 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

Terence Sullivan, Appellant.

v.

Ocean 22 Vacation Owners' Association, Inc.,
Respondent.

Appellate Case No. 2023-000969

Appeal From Horry County
R. Keith Kelly, Circuit Court Judge

Unpublished Opinion No. 2026-UP-016
Submitted October 1, 2025 – Filed January 21, 2026
Withdrawn, Substituted, and Refiled May 13, 2026

AFFIRMED

Jeffrey Ryan Heiskell, of Bell Legal Group, of
Georgetown, and Joseph Clay Hopkins, of Charleston,
for Appellant.

Nicholas James Rivera, Russell Grainger Hines, and
Edward D. Buckley, Jr., of Young Clement Rivers, of
Charleston, all for Respondent.
PER CURIAM: This appeal arises from the circuit court's dismissal of Terence
Sullivan's (Appellant's) complaint for lack of subject matter jurisdiction pursuant to
Rule 12(b)(1) of the South Carolina Rules of Civil Procedure. Appellant argues
the circuit court erred by (1) holding Ocean 22 Vacation Owners' Association (the
Association) was Appellant's statutory employer under the South Carolina
Workers' Compensation Act (the Act); and (2) ignoring case law that requires
statutory employers to procure workers' compensation insurance. We affirm.
1. Appellant argues the circuit court erred in finding the Association was his
statutory employer pursuant to the Act. We disagree. In making this
determination, the circuit court found (1) the Association qualifies as a business
under the Act, and (2) the work in which Appellant was engaged at the time of the
accident was an important part of the Association's trade, business, or occupation.
As such, the circuit court dismissed Appellant's complaint for lack of subject
matter jurisdiction because as the Association's statutory employee, Appellant's
exclusive remedy was through the Act. Appellant does not dispute the Association
was a business. As to the second prong, in his motion to reconsider, Appellant
attempted to draw a distinction between resort and time-share businesses.
However, this distinction was not raised prior to the motion to reconsider, and the
circuit court properly rejected Appellant's argument. We find this issue
unpreserved for our review. See Johnson v. Sonoco Prods. Co., 381 S.C. 172, 177,
672 S.E.2d 567, 570 (2009) (holding "[a]n issue may not be raised for the first time
in a motion to reconsider.")

2. Appellant argues "[t]he trial court erred in holding Harrell [v. Pineland
Plantation, Ltd.1] controlled and ignoring the Supreme Court's precedent in Poch v.
Bayshore Concrete Products/South Carolina, Inc.[2], which requires statutory
employers to procure worker's compensation insurance." We disagree. At the
hearing, Appellant did not argue Poch to the circuit court, and instead stated
Harrell applied. As such, the argument that the circuit court erred in ignoring
Poch is not preserved for our review. See TNS Mills, Inc. v. S.C. Dep't of Revenue,
331 S.C. 611, 617, 503 S.E.2d 471, 474 (1998) ("An issue conceded in a lower
court may not be argued on appeal."); Elam v. S.C. Dep't of Transp., 361 S.C. 9,
23, 602 S.E.2d 772, 779–80 (2004) ("Issues and arguments are preserved for
appellate review only when they are raised to and ruled on by the lower court.")

1
337 S.C. 313, 523 S.E.2d 766 (1999).
2
405 S.C. 359, 747 S.E.2d 757 (2013).
In any event, because the argument regarding procurement of workers'
compensation was briefly addressed at the hearing, we address this issue on the
merits. Appellant's argument that the Association was required to procure worker's
compensation insurance is misplaced and does not account for the amendment to
South Carolina Code section 42-1-415 as outlined below:

[P]rior to the enactment and amendment of S.C. Code
Ann. § 42-1-415 (Supp. 1998), the fact that the
immediate employer had properly secured the payment of
compensation did not remove the statutory employer's
obligation under the Act.

…

[W]e noted in Harrell that our conclusion on this point
was supported by the enactment and subsequent
amendment of S.C. Code Ann. § 42-1-415 (Supp. 1998).
Under section 42–1–415, as amended, a statutory
employer no longer needs to secure the payment of
compensation to avail itself of tort immunity under the
Act, if the requirements of section 42-1-415 are met.

Glover v. United States, 337 S.C. 307, 311, 523 S.E.2d 763, 764-65 (1999)
(internal citations omitted). As an initial matter, Appellant's final brief does not
argue that the requirements of section 42-1-415 are not met. Instead, Appellant
focuses on the incorrect notion that Poch required the Association to procure
workers' compensation. As such, any argument that the Association did not satisfy
the requirements of 42-1-415 is abandoned. See Fields v. Melrose Ltd. P'ship, 312
S.C. 102, 106, 439 S.E.2d 283, 285 (Ct. App. 1993) (holding "[a]n issue raised on
appeal but not argued in the brief is deemed abandoned and will not be considered
by the appellate court"). The circuit court held Appellant could not make the
argument that the requirements of section 42-1-415 were not met for the first time
in his motion to reconsider. Nevertheless, the circuit court found the requirements
were met, and the documentation required by section 42-1-415(A)3 was present via

3
"Notwithstanding any other provision of law, upon the submission of
documentation to the commission that a contractor or subcontractor has
represented himself to a higher tier subcontractor, contractor, or project owner
the Management Agreement between Appellant's direct employer, Hilton, and the
Association, which stated that Hilton was responsible for "employ[ing],
compensat[ing] and supervis[ing] all persons necessary to manage, maintain,
administer and operate the [Property]"; that those persons would be employees of
Hilton, not the Association; and that Hilton was responsible for "[a]ll matters
pertaining to employment, interviewing and screening process, supervision,
compensation, promotion, and discharge of employees[.]" The Management
Agreement further recognized that, in carrying out its responsibilities under the
Management Agreement, Hilton must comply with all applicable laws, which
included compliance with the insurance requirements of the Act. Such compliance
was evidenced by the prior workers' compensation settlement reached between
Appellant and Hilton through its workers' compensation insurance carrier.

Based on the foregoing, the decision of the circuit court is

AFFIRMED.4

WILLIAMS, C.J., and THOMAS and CURTIS, JJ., concur.

as having workers' compensation insurance at the time the contractor or
subcontractor was engaged to perform work, the higher tier subcontractor,
contractor, or project owner must be relieved of any and all liability under this
title except as specifically provided in this section." S.C. Code Ann. § 42-1-415
(2015).
4
We decide this case without oral argument pursuant to Rule 215, SCACR.