Gefre v. Skelton

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT
SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED
BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Leo Gefre and Ellen Gefre, Appellants,

v.

Donald Skelton and Robert Skelton d/b/a Creative Candles,
Defendants/Third Party Plaintiffs,

v.

Travelers Property and Casualty Insurance Company and Charter Oak Fire
Insurance Company, Third Party Defendants,

Of Whom Donald Skelton and Robert Skelton d/b/a/ Creative Candles are
the, Respondents.

Appeal From Georgetown County

 Paula H. Thomas, Circuit Court Judge

Unpublished Opinion No. 2004-UP-347

Submitted April 6, 2004 – Filed May
25, 2004

AFFIRMED

Thomas J. Rubillo, of Georgetown, for Appellants.

Gene McCain Connell, Jr., of Surfside Beach, for Respondents.

PER CURIAM:  Leo and Ellen Gefre brought
this action against Donald Skelton and Robert Skelton asserting causes of action
for negligence, assault, battery, intentional infliction of emotional distress,
wrongful discharge, and negligent supervision. [1]   The circuit court granted summary
judgment in favor of Robert Skelton as to all of the claims brought against
him.  The Gefres appeal.  We affirm.

FACTS

Both Leo and Ellen Gefre, husband and wife, were
employed at Creative Candles, a candle-making shop owned and operated by Robert
Skelton in Pawley’s Island, South Carolina.  The claims raised by the Gefres
in this case stem from an alleged altercation at the candle shop between Leo
Gefre and Robert Skelton’s son, Donald Skelton.

While working at the shop in May 1999, Leo Gefre
claims he was beaten and choked by Donald Skelton.  Following the assault, the
Gefres sought assurances from Robert Skelton that his son would not be allowed
to return to Creative Candles in order to prevent further threat of physical
violence.  Receiving no satisfactory assurances, the Gefres did not return to
work at the candle shop.

The Gefres subsequently brought suit against Donald
Skelton alleging common-law assault and battery as well as intentional infliction
of emotional distress.  Robert Skelton d/b/a Creative Candles was also included
in the suit under additional causes of action for negligence, negligent supervision,
and wrongful discharge.

On Donald and Robert Skelton’s motion for summary
judgment, the circuit court dismissed the causes of action against Robert Skelton
as owner of Creative Candles on the ground that the claims were precluded by
the exclusive remedy provision of the Workers’ Compensation Act (Act). S.C.
Code Ann. § 42-1-540 (1985).  Specifically, the court found that these claims
fell within the purview of the Act because Donald Skelton was a fellow “employee”
with the Gefres at the Creative Candles shop.

STANDARD OF REVIEW

A trial court should grant a motion for summary
judgment when “the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” Rule 56(c), SCRCP; see Fleming v. Rose, 350
S.C. 488, 493, 567 S.E.2d 857, 860 (2002) (“Summary judgment is appropriate
when there is no genuine issue of material fact such that the moving party must
prevail as a matter of law.”).  “In determining whether any triable issues of
fact exist, the evidence and all inferences which can be reasonably drawn from
the evidence must be viewed in the light most favorable to the nonmoving party.”
Strother v. Lexington County Recreation Comm’n, 332 S.C. 54, 61, 504
S.E.2d 117, 121 (1998).  If triable issues of fact exist, those issues must
go to the jury. Young v. South Carolina Dep’t of Corr., 333 S.C. 714,
717, 511 S.E.2d 413, 415 (Ct. App. 1999).

DISCUSSION

I.

The Gefres claim the circuit court erred
in finding their claims against Robert Skelton as the owner and manager of Creative
Candles for injuries resulting from Donald Skelton’s alleged attack were barred
by the Workers’ Compensation Act.  The Gefres argue they were not limited to
the remedies allowed under the Act because Donald Skelton was not an employee
of Creative Candles.  We disagree.  

            Section 42-1-540 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).

As this case was decided by the circuit
court on the narrow question of whether Donald Skelton was an employee, our
review of the facts is confined to determining whether that employer-employee
relationship existed between Donald Skelton and his father. [2]   “Whether or not an employer-employee relationship
exists is a jurisdictional question.”  Nelson v. Yellow Cab Co., 349
S.C. 589, 594, 564 S.E.2d 110, 112 (2002).  Because the issue involves determining
proper jurisdiction, this Court must take its own view of the preponderance
of the evidence in our analysis of whether Donald Skelton was employed at the
candle shop.  Id.  “It is South Carolina’s policy to resolve jurisdictional
doubts in favor of the inclusion of employers and employees under the Workers’
Compensation Act.”  Id. 

The Act defines “employee” as those
persons “engaged in an employment under any appointment, contract of hire, or
apprenticeship, expressed or implied, oral or written . . . .”  S.C. Code Ann.
§ 42-1-130 (Supp. 2003).  In applying the definition of employee provided under
the Act, this Court has previously opined: “The employment relationship is contractual
in character; however, no formality is required.  The contract may be oral or
written, and also may be implied from conduct of the parties.  It is enough
if the circumstances show unequivocally that the parties recognize the relationship.” 
Spivey v. D.G. Const. Co., 321 S.C. 19, 22, 467 S.E.2d 117, 119 (Ct.
App. 1996).           

In determining whether an employer-employee relationship
exists for purposes of the Workers’ Compensation Act, our courts have examined
the employer’s right to control.  That is, the determination of employee status
depends on whether the putative employer has a right to control and direct the
particular details of the putative employee’s work.  Nelson, 349 S.C.
at 594, 564 S.E.2d at 113; see Young v. Warr, 252 S.C. 179, 189,
165 S.E.2d 797, 802 (1969) (“The general test applied is that of control by
the employer.  It is not the actual control then exercised, but whether there
exists the right and authority to control and direct the particular work or
undertaking, as to the manner or means of its accomplishment.”); 82 Am. Jur.
2d Workers’ Compensation § 123 (2003) (commenting that “[i]t has been
said that in a workers’ compensation case, the ultimate question in finding
an employment relationship is whether the employer assumes the right to control
the times, manner and method of executing the work of the employee”). 

Though these determinations depend on the specific
facts of each case, our courts generally look to four factors in examining an
employer’s degree of control: (1) direct evidence of the right or exercise of
control; (2) payment and method of payment; (3) furnishing major items of equipment;
and (4) the right to terminate the employment relationship at will and without
liability.  Dawkins v. Jordan, 341 S.C. 434, 439, 534 S.E.2d 700, 703
(2000).

Our review of the factual circumstances
concerning Robert Skelton’s right to control the method and manner which Donald
Skelton worked at the candle shop leads us to agree with the circuit court’s
conclusion that there is no material dispute of the facts concerning whether
Donald Skelton was an employee.  There was direct evidence presented of Robert
Skelton’s right and exercise of control of his son’s activities at work.  Both
Robert Skelton and Ellen Gefre testified that Donald would take instructions
relating to his work duties directly from his father.  Donald worked approximately
twenty hours per week and was paid $1,000 to $1,300 per month.  Donald worked
primarily in the candle-making factory portion of the business where all of
the equipment required to make candles was provided for him.  There is no evidence
that Donald’s employment was on any terms other than strictly at-will employment. 
Furthermore, Leo and Ellen Gefre both testified in their depositions that Donald
Skelton was an employee.  They also stated in their responses to the defendants’
discovery requests that Robert Skelton was Donald’s employer.

A consideration of these facts supports the conclusion
that each of the four indicia of control identified by our courts is present
in the circumstances of Donald Skelton’s work for his father.  We conclude therefore
that there is no genuine issue of material fact regarding whether Donald Skelton
was an “employee” under the Workers’ Compensation Act.  As such, the Gefres’
claims against Robert Skelton are precluded by the exclusive remedy provision
of the Act as a matter of law.

II.

The Gefres argue the circuit court improperly
dismissed their claim for wrongful discharge.   The court, however, did not
specifically address this issue in its order granting partial summary judgment. 
Despite this omission, the Gefres did not petition the court for a ruling by
way of a motion to alter or amend judgment pursuant to Rule 59(e), SCRCP.  As
such, this issue is not preserved for our review.  See Wilder Corp.
v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (holding that “[i]t
is axiomatic that an issue cannot be raised for the first time on appeal, but
must have been raised to and ruled upon by the trial judge to be preserved for
appellate review”); see also Noisette v. Ismail, 304 S.C.
56, 58, 403 S.E.2d 122, 124 (1991) (finding issue was not preserved where the
trial judge did not explicitly rule on the appellant’s argument and the appellant
did not raise the issue in a Rule 59(e), SCRCP, motion to alter or amend the
judgment).

CONCLUSION

We find no error with the circuit court’s ruling
that the Gefres’ claims stemming from injuries caused by Donald Skelton’s alleged
assault and battery were barred by the exclusive remedy provision of the Workers’
Compensation Act.  The Gefres’ claim for wrongful discharge was not preserved
for appellate review.  The court’s grant of summary judgment in favor of Robert
Skelton is therefore

AFFIRMED.

HUFF and STILWELL, JJ., and CURETON, AJ.,
concur.

[1]    Ellen Gefre also alleged causes of action for loss of consortium
and negligent infliction of emotional distress.

[2]    The parties do not appear to dispute that the causes of action
against Robert Skelton, with the exception of wrongful discharge, come within
the purview of the Act if an employee-employer relationship exists.  See
Loges v. Mack Trucks, Inc., 308 S.C. 134, 136, 417 S.E.2d 538, 540
(1992) (“Recovery under the Act is the exclusive means of settling personal
injury claims which come under the Act.”).