The opinion
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-420
Filed: 20 December 2016
North Carolina Industrial Commission, I.C. No. X07855
JEFFREY EUGENE BEAL, Employee, and LAWRENCE CRAIGE, Guardian of the
Estate of JEFFREY EUGENE BEAL, Plaintiffs
v.
COASTAL CARRIERS, INC., (Alleged) Employer, and ZURICH AMERICAN
INSURANCE COMPANY, (Alleged Carrier); Defendants; and THE
WAREHOUSING COMPANY, LLC, (Alleged) Employer and KEY RISK
INSURANCE COMPANY, (Alleged) Carrier, Defendants.
Appeal by defendant-appellant Key Risk Insurance Company from opinion and
award entered 15 December 2015 by the North Carolina Industrial Commission.
Heard in the Court of Appeals 5 October 2016.
Stiles, Byrum & Horne, L.L.P., by Henry C. Byrum, Jr., and B. Jeanette Byrum,
for defendants-appellees Coastal Carriers, Inc. and Zurich American Insurance
Company.
Hedrick Gardner Kincheloe & Garofalo, LLP, by Erica B. Lewis, Shelley W.
Coleman, and M. Duane Jones, for defendant-appellant Key Risk Insurance
Company.
DAVIS, Judge.
This workers’ compensation insurance coverage dispute arises from a
workplace accident that occurred in Florida and injured an employee who lived in
North Carolina and had been lent to an employer based in South Carolina. Key Risk
Insurance Company (“Key Risk”) appeals from an opinion and award of the North
Carolina Industrial Commission ordering Key Risk to (1) pay temporary total
BEAL V. COASTAL CARRIERS, INC.
Opinion of the Court
disability compensation to Jeffrey Eugene Beal (“Plaintiff”) pursuant to the North
Carolina Workers’ Compensation Act; and (2) pay all indemnity benefits owed on
Plaintiff’s claim. After careful review, we reverse and remand.
Factual Background
The facts giving rise to this case involve two furniture moving and installation
companies — Coastal Carriers, Inc. (“Coastal”) and The Warehousing Company, LLC
(“TWC”). On 20 July 2010, TWC — a company based in South Carolina — entered
into an agreement with Winter Park Construction Company (“Winter Park”) to
provide furniture, fixtures, and electronics installation services at Plantation Beach
Club Condominiums in Stuart, Florida (the “Florida Project”). Because TWC did not
have enough manpower to perform the job, TWC’s owner, Sidney Baird, contacted
Gordon Ray — Baird’s longtime friend who was the president of Coastal — to see
about the possibility of TWC hiring four of Coastal’s employees to temporarily work
for TWC on the Florida Project.
In 2010, Plaintiff was working for Coastal, which was based in North Carolina.
At a safety meeting of Coastal employees, Ray shared with them the information
regarding the Florida Project. Upon learning of the employment opportunity from
Ray, Plaintiff and three other Coastal employees — Michael Porter, Anthony Brown,
and Randy Wallace — contacted Baird to inform him of their interest in working on
the Florida Project. Baird offered each of the four employees the job — which they
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Opinion of the Court
each accepted — and told all of them that upon completion of the job, they would be
paid by TWC.
Plaintiff worked on the Florida Project under the on-site supervision of his
fellow Coastal employee, Porter, and a TWC employee named David Fleener. Baird
kept in contact with Porter and Fleener on a daily basis from his home in South
Carolina.
On 26 September 2010, while working at the Florida job site, Plaintiff was
injured when he fell while lifting furniture to the second floor of the building where
the TWC crew was working. As a result of the fall, he sustained multiple injuries.
On 22 October 2010, Plaintiff filed a Form 18 “Notice of Accident” with the
Industrial Commission, seeking compensation for his injuries from Coastal’s workers’
compensation insurance carrier, Zurich American Insurance Company (“Zurich”), due
to his need for medical care for which TWC’s insurance carrier, Key Risk, had refused
to pay. Zurich paid Plaintiff’s medical compensation of $350,799.25 and disability
compensation of $44,068.85.
On 16 September 2011, Coastal filed a motion to add TWC as a defendant to
Plaintiff’s workers’ compensation action. The motion was granted on 27 October
2011. On 2 January 2013, Coastal filed a Form 33 “Request That Claim be Assigned
for Hearing” requesting that “[TWC] and its workers’ compensation carrier [Key Risk]
pay benefits pursuant to the North Carolina Workers’ Compensation Act.” On 25
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Opinion of the Court
February 2013, Key Risk filed a Form 33R “Response to Request That Claim Be
Assigned for Hearing” contending that Key Risk was not a party and “would be
prejudiced if added into this claim as a party” more than two years after it was
removed from a hearing docket.
On 9 July 2013, a hearing was held before Deputy Commissioner Melanie
Wade Goodwin. Deputy Commissioner Goodwin issued an opinion and award
providing that Coastal, Zurich, and TWC were jointly liable for indemnity and
medical benefits paid by Zurich and ordering that Key Risk be dismissed with
prejudice as a party-defendant in the matter. Coastal and Zurich filed a notice of
appeal from the deputy commissioner’s dismissal of Key Risk on 18 June 2014.
On 15 December 2015, the Full Commission issued an opinion and award
containing the following pertinent findings of fact:
1. On September 26, 2010, Jeffrey Eugene Beal
(hereinafter, “Jeffrey Beal” or “Mr. Beal” or “Plaintiff’) was
injured when he fell approximately 10-20 feet from a piece
of equipment called a lull which was being used to lift
furniture to the second floor of the building where The
Warehousing Company, LLC (hereinafter, “TWC”) crew
was working. As a result of his fall, Mr. Beal sustained
multiple injuries, including fractures of the left sphenoid
wing, left lateral orbital wall, left maxillary sinus, and left
zygomatic arch; a comminuted right distal radius and ulna
fracture; a left elbow comminuted intra-articular olecranon
fracture; multiple left rib fractures; a ruptured spleen and
a mild subarachnoid hemorrhage.
2. On October 22, 2010, Jeffrey Beal filed a Form 18
Notice of Accident with the North Carolina Industrial
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Opinion of the Court
Commission seeking compensation for his injuries. The
named Defendant was Coastal Carriers, Inc. (hereinafter,
“Coastal”). Plaintiff’s claim was accepted and paid by
Coastal and Zurich American Insurance Company
(hereinafter “Zurich”) due to the emergent need for medical
care which Key Risk Insurance Company (hereinafter,
“Key Risk”), the workers’ compensation carrier for TWC,
would not address.
....
5. On September 16, 2011, Defendant Coastal filed a
Motion to Add Party-Defendant, seeking to add TWC, as a
party Defendant. This Motion was granted by the
Executive Secretary on October 27, 2011.
6. On September 26, 2010, Gordon Wayne Ray, Jr.
(hereinafter Mr. Ray) was the President of Coastal, which
was located in Wilmington, North Carolina. Coastal was a
mover of household goods regulated by state and federal
tariffs.
7. On September 26, 2010, Sidney “Skip” Baird
(hereinafter, “Mr. Baird”) was the owner of TWC located at
122 Watergate Drive, Myrtle Beach, South Carolina.
TWC’s business included the warehousing of and the
installation of furniture, fixtures, and electronics at resort
properties, installing furniture, fixtures, and electronics
which was commercial work which was not regulated by
state and federal tariffs.
....
11. On July 20, 2010, TWC (through Mr. Baird) entered
into a “Subcontract Agreement” with Winter Park
Construction Company (hereinafter; “Winter Park”) to
provide furniture, fixture and electronics installation
services at Plantation Beach Club Condominiums in
Stuart, Florida. This contract was negotiated entirely by
Mr. Baird on behalf of TWC and did not involve Mr. Ray or
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Opinion of the Court
Coastal in any way.
12. Under the terms of the contract, TWC had eight days
to complete the installation of furniture, fixtures and
electronics in thirty-two units. At the time in question,
TWC had multiple projects underway in various parts of
the United States and did not have the manpower to
complete all of these jobs. Mr. Baird’s situation was further
complicated by the fact that he was awaiting the birth of
his daughter, which required him to remain in Myrtle
Beach, South Carolina. Mr. Baird contacted Mr. Ray
indicating he was “in a jam” and that he wanted to hire four
of Mr. Ray’s employees to work for TWC on a Florida job
where all of the furniture, fixture and electronics
installation had to be completed in eight days.
13. Sometime prior to September 19, 2010, Mr. Ray
announced at a safety meeting of Coastal employees that
Mr. Baird wanted to hire workers for a Florida project and
since the work for his company was in a slow period, he
instructed any of his interested workers to contact Mr.
Baird directly. Mr. Ray did not select or designate any of
his workers for the Florida job. His workers were free to
accept or reject the offer of employment.
....
15. Following this meeting, which occurred in North
Carolina, four Coastal employees -- Michael Porter,
Anthony Brown, Randy Wallace and Jeffrey Beal --
arranged with Mr. Baird to go to Florida to work for TWC.
Prior to these workers leaving North Carolina, Mr. Baird
spoke by telephone with each of these four men -- Michael
Porter, Anthony Brown, Randy Wallace and Jeffrey Beal -
- to give a “pep talk[”] and discuss payment or wages at the
completion of the job in Florida. Mr. Baird informed them
they would be paid by TWC. Each one of these four men
accepted Mr. Baird’s offer of employment while still in
North Carolina.
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Opinion of the Court
16. Plaintiff testified that he agreed to work the Florida
job while he was in North Carolina.
17. The four individuals who agreed to work on the
Florida project did not have reliable transportation. When
informed of their transportation problems, Mr. Ray loaned
the men a Coastal sales van to drive and gave them a gas
card to purchase fuel. He expected to be reimbursed by
TWC for these expenses.
....
19. When the four individuals hired by TWC -- Michael
Porter, Anthony Brown, Randy Wallace and Jeffrey Beal
-- arrived in Florida, they went to a motel room that was
paid for by Mr. Baird. Mr. Porter supervised the work for
the first couple of days until David Fleener, an employee of
TWC arrived on the site. Mr. Fleener then instructed the
workers on what to do. Mr. Baird communicated with TWC
workers multiple times on a daily basis while they were in
Florida and personally supervised them through Michael
Porter and David Fleener. This included setting working
hours and monitoring progress on the job. Mr. Ray never
supervised the work of the TWC crew.
20. Prior to September 26, 2010, Mr. Ray had a conference
in West Palm Beach and he decided to stop by the Florida
jobsite for a visit on his way to the conference. During the
period of about thirty minutes when he was at the site, he
cautioned the TWC workers to “be careful” but did not offer
supervision or instruct them on their work. While Mr. Ray
was present, he was approached by Mr. Porter about
loaning Mr. Brown, Mr. Wallace, Mr. Beal and him money
for food. Mr. Baird had promised to send the TWC crew
money, but had failed to do so. Mr. Ray loaned each man
$100.00 out of his personal funds.
21. When TWC’s project in Florida was completed, Mr.
Baird paid Michael Porter, Anthony Brown, Randy Wallace
and Jeffrey Beal for the work they did for TWC in Florida.
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Opinion of the Court
These workers (other than Plaintiff) collected their money
in Myrtle Beach, South Carolina. The offices for TWC
remained in Myrtle Beach, South Carolina the entire time
the company was in existence.
22. Plaintiff was performing the work of TWC when his
accident occurred.
23. Anthony Brown gave a statement under oath on
February 17, 2012, which was included in the record,
stating he was one of four individuals who traveled from
North Carolina to Florida to work for TWC and was
working on the project for a man named “Skip.” Mr. Porter
was the contact person with Mr. Baird, and the two were
constantly talking. Mr. Brown considered himself to be an
employee of TWC. When the job was completed, the TWC
employees drove to Mr. Baird’s apartment in Myrtle Beach,
South Carolina where they collected their checks for the
project.
24. Plaintiff testified by deposition on October 9, 2012 in
a civil action he filed in Florida as a result of the September
26, 2010 accident. Plaintiff testified that he received
$100.00 from Mr. Ray so he would have food when Mr. Ray
visited the Florida jobsite with his wife and took a “tour
through the motel.” Plaintiff testified that he took orders
from Michael Porter on the job and that Mr. Porter kept his
hours. He was paid by Skip Baird for the work he
performed in Florida. Mr. Ray never directed his work on
the project.
....
26. Based upon a preponderance of the evidence in view
of the entire record, the Full Commission finds that Jeffrey
Beal was not an independent contractor for TWC. He was
expressly hired pursuant to an oral contract to leave North
Carolina and go to work in Florida for a job that was to be
completed in eight days. He did not possess any special
skills in performing the type of work done by TWC. He did
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Opinion of the Court
not have control over any aspects of the work that he
performed for TWC. Mr. Beal obtained his work directions
from persons designated by Mr. Baird to be onsite
supervisors. He had no power to hire or fire anyone. The
work he did was part of the trade or business of TWC. He
was paid wages and trip expenses by TWC.
27. Based upon a preponderance of the evidence in view
of the entire record, the Full Commission finds that Jeffrey
Beal was an employee of TWC at the time of his injury. Mr.
Baird, owner of TWC, expressly made a contract of hire
with Plaintiff. The work Mr. Beal did for TWC was entirely
the work of Mr. Baird and TWC and benefitted TWC and
not Coastal. Mr. Baird and TWC had the right, and did in
fact, control the details of the work done by Mr. Beal during
the period he worked for TWC, including the date of his
injury by accident. During the period Mr. Beal was hired to
work for TWC, he did not do any work for Coastal and the
work that he did for TWC was not part of the trade or
business of Coastal. Mr. Beal and Mr. Baird on behalf of
TWC agreed upon the employment terms. Coastal was not
involved in the employment contract agreement, Mr. Ray
did not assign employees to TWC; he only announced the
availability of a temporary job with TWC and left the
decision of whether to seek the job entirely up to any of his
interested employees.
....
32. The Full Commission finds that both Coastal and
TWC are liable for all of the compensable consequences of
Plaintiff’s September 26, 2010 injury by accident in
proportion to the wage liability of each employer.
33. At the time of Plaintiff’s injury on September 26, 2010,
TWC was insured by Key Risk. There is a dispute, however,
over whether the policy of insurance between Key Risk and
TWC covered Plaintiff’s claim herein.
34. Mr. Baird arranged workers’ compensation insurance
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Opinion of the Court
for the Florida project on behalf of TWC through Associated
Insurors (hereinafter “Associated”) in Myrtle Beach, South
Carolina. In doing so, he explained to the agent the nature
of his business and that TWC worked outside South
Carolina. At the time of Plaintiff’s injury, TWC had more
projects outside South Carolina than within the State. It
was Mr. Baird’s understanding that TWC had workers’
compensation coverage for each jobsite, including the
jobsite in Florida where Plaintiff was injured.
35. As part of its Subcontract Agreement with Winter
Park for the project in Stuart, Florida, TWC had to provide
proof of workers’ compensation insurance. Mr. Baird
arranged for his insurance agent (Associated) to contact
Winter Park to verify the required coverage. After that
contact occurred, Associated sent Winter Park a certificate
of insurance verifying workers’ compensation insurance for
TWC. The “Certificate Holder” was listed as Winter Park
Construction, 221 Circle Drive, Maitland, Florida. After
that contact occurred, Winter Park sent TWC the
Subcontract Agreement to execute, and TWC went to work.
....
61. Key Risk contends that the language of TWC’s
insurance policy provides for workers’ compensation
insurance coverage in South Carolina only, with additional
coverage only if Plaintiff was hired in South Carolina or
principally employed in South Carolina.
62. Based upon a preponderance of the evidence of record,
the Full Commission finds that Plaintiff’s employment was
located in South Carolina because it is the only state in
which he had any “base of operation.” The only place of
business ever maintained by TWC was located in Myrtle
Beach, South Carolina. Plaintiff was hired from TWC’s
office in Myrtle Beach, South Carolina. Mr. Baird provided
work assignments to the employees, including Plaintiff,
working on the Winter Park project from his place of
business in South Carolina and Plaintiff was paid out of
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Opinion of the Court
South Carolina for the work he performed in Florida. The
other three lent employees from Coastal -- Michael Porter,
Anthony Brown and Randy Wallace -- traveled to Myrtle
Beach, South Carolina to receive payment from TWC for
the work they performed (along with Plaintiff) in Stuart,
Florida upon completion of the job.
63. Based upon a preponderance of the evidence in view
of the entire record, the Full Commission finds that
Plaintiff’s claim for compensation is covered under the Key
Risk policy issued to TWC.
64. Coastal and TWC are jointly liable for medical
payments made consequent of Plaintiff’s September 26,
2010 injury. Since Coastal had no “wage liability” to
Plaintiff for the Florida project, TWC owes all of Plaintiff’s
indemnity compensation. As a result of Plaintiff’s injuries,
Zurich has paid as carrier for Coastal, medical
compensation in the amount of $350,799.25 and indemnity
compensation in the amount of $44,068.85. TWC’s carrier,
Key Risk, has paid nothing. TWC and Key Risk are
obligated to reimburse Zurich for TWC’s and Key Risk’s
(50%) share of the joint amount of the medical
compensation due as a result of Plaintiff’s claim. TWC and
Key Risk are obligated to reimburse Zurich for all the
indemnity compensation due Plaintiff that Zurich has paid.
Since the matter in controversy before the Full
Commission is between the Defendants, the amount of
Plaintiff’s average weekly wage is not being determined.
Based on these findings of fact, the Commission made the following pertinent
conclusions of law:
1. On September 26, 2010, Plaintiff, Jeffrey Beal,
sustained a compensable injury by accident due to a fall
which arose out of and in the course of his employment with
TWC and involved the interruption of his work routine and
the introduction thereby of unusual conditions likely to
result in unexpected consequences. N.C. Gen. Stat. §§ 97-
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Opinion of the Court
2(5); 97-2(6).
2. At the time of Plaintiff’s injury on September 26, 2010,
four employees, Michael Porter, Anthony Brown, Randy
Wallace and Plaintiff, were employees of TWC who had
been lent by Coastal to TWC. N.C. Gen. Stat. § 97-2; S.C.
Code Ann. § 42-1-360(2).
3. The Full Commission concludes that the North
Carolina Industrial Commission has jurisdiction over
Plaintiff’s claim. . . .
....
6. The Full Commission concludes that Plaintiff was an
employee of TWC, not an independent contractor, at the
time of his injury on September 26, 2010. . . .
....
9. The Full Commission concludes, based upon a
preponderance of the evidence of record, that the
employment relationship Plaintiff had with TWC met all
three of the conditions to establish a “special employer”
relationship . . . . The preponderance of the evidence of
record establishes that Plaintiff made a contract of hire
with TWC; the work Plaintiff was doing for TWC on the
Florida project was work involving furniture, fixture and
electronics installations that TWC subcontracted with
Winter Park to perform and was different from the type of
work Plaintiff did for Coastal, a household moving
company; Coastal had no part in negotiating the
subcontract agreement that TWC made with Winter Park
and there was no agreement between TWC and Coastal for
Coastal to share the profits from the project; the work being
done by Plaintiff was essentially that of TWC, the special
employer; and TWC, the special employer, had the right to
control, and did control, the details of the work that
Plaintiff did on the Florida project. Anderson v. Demolition
Dynamics, Inc., 136 N.C. App. 603, 607, 525 S.E.2d 471,
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473 (2000).
10. The Full Commission concludes that Coastal
remained Plaintiff’s general employer while he was
working for TWC since the preponderance of the evidence
and the reasonable inferences therefrom, indicate that
Coastal was the general employer of Plaintiff while he was
working for TWC, as Plaintiff and the three other workers
Coastal lent to TWC had an expectation of returning to
work with Coastal when the job with TWC was completed.
Therefore, the legal presumption that the general
employment with Coastal continued is not rebutted by a
“clear demonstration.” Collins v. James Paul Edwards,
Inc., 21 N.C. App. 455, 204 S.E.2d 873 (1974); Anderson v.
Demolition Dynamics, Inc., 136 N.C. App. 603, 607, 525
S.E.2d 471, 473 (2000).
11. Based upon a preponderance of the evidence of record,
the Full Commission concludes that Plaintiff was lent by
Coastal to TWC and that at the time of his injury on
September 26, 2010, he was jointly employed by both TWC
and Coastal and both employers are jointly liable for
Plaintiff’s injuries. N.C. Gen. Stat. § 97-51; Collins v.
James Paul Edwards, Inc., 21 N.C. App. 455, 204 S.E.2d
873 (1974); Anderson v. Demolition Dynamics, Inc., 136
N.C. App. 603, 607, 525 S.E.2d 471, 473 (2000).
....
14. The Commission has the inherent power in this case
to order TWC and Key Risk to reimburse Coastal and
Zurich for benefits paid or to be paid on Plaintiff[’]s
claim. . . .
....
17. Key Risk further contends that Key Risk’s obligation
under a policy must be defined by the terms of the policy
itself and that in construing policy language, basic contract
rules apply. If the terms of a contract are unambiguous, the
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Opinion of the Court
contract must be enforced. South Carolina Ins. Co. v.
White, 301 S.C. 133, 390 S.E.2d 471 (1990). Key Risk
argues that coverage cannot be extended to Plaintiff under
the “Other State Insurance” portion of the policy because
Plaintiff’s claim does not meet the following conditions of
the policy: “The employee claiming benefits was either
hired under a contract of employment made in a state listed
in Item 3.A. of the Information Page or was, at the time of
the injury, principally employed in a state listed in Item
3.A. of the Information Page. . . .”
18. It is undisputed that the substantive law of South
Carolina applies to this case. . . .
....
21. Coastal relies on the provisions of S.C. Code Ann. § 42-
[1]5-10, which state: “Any employee covered by the
provisions of this Title is authorized to file his claim under
the laws of the state where he is hired, the state where he
is injured, or the state where his employment is located.[”]
S.C. Code Ann. § 42-15-10 does not specifically use the term
“principally employed,” and instead refers to where an
employee’s employment is “located.” S.C. Code Ann. § 42-
15-10.
22. Key Risk contends, however, that Plaintiff must first
show that his claim comes under the jurisdiction of the
South Carolina Workers’ Compensation Act before South
Carolina statutory law can be applied to Plaintiff’s claim.
23. The Full Commission concludes that South Carolina
could have exercised jurisdiction over Plaintiff’s claim had
he chosen to file his claim in South Carolina because South
Carolina is the state where Plaintiff’s employment was
located. To determine where a worker’s employment is
located, South Carolina follows the “base of operation rule.”
Hill v. Eagle Motor Lines, 373 S.C. 422, 429-30, 645 S.E.2d
424, 427 (2007) (quoting Holman v. Bulldog Trucking Co.,
311 S.C. 341, 346, 428 S.E.2d 889, 892 (1993)). Under this
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Opinion of the Court
rule, “the worker’s employment is located at the employer’s
place of business to which he reports, from which he
receives his work assignments, and from which he starts
his road trips, regardless of where the work is performed.”
Id. at 373 S.C. [sic] at 429, 373 S.E.2d at 432. Where the
work is performed is irrelevant on the issue of where an
employee’s employment is located. Id. In the present case,
the only place of business ever maintained by TWC was
located in Myrtle Beach, South Carolina. Plaintiff was
hired from TWC’s office in Myrtle Beach, South Carolina.
Mr. Baird (TWC) provided detailed and specific work
assignments to the employees, including Plaintiff, working
on the Winter Park project from his place of business in
South Carolina and Plaintiff was paid out of South
Carolina for the work he performed in Florida. The other
three lent employees from Coastal -- Michael Porter,
Anthony Brown and Randy Wallace -- traveled to Myrtle
Beach, South Carolina to receive payment from TWC for
the work they performed in Stuart, Florida upon
completion of the job. S.C. Code Ann. § 42-15-10; Hill v.
Eagle Motor Lines, 373 S.C. 422, 429-30, 645 S.E.2d 424,
427 (2007). The Court of Appeals of South Carolina in Voss
v. Ramco, Inc., 325 S.C. 560, 482 S.E.2d 582 (1997), held
that the legislature did not intend to exclude all transient
employment that did not fit neatly within the base of
operations test set out in Holman. Id. The concept of “base
of operation” rule presupposes that all employees have a
fixed base of operation [to] which jurisdiction over a
workers’ compensation claim will attach. Id. The Court of
Appeals in Voss ultimately held that South Carolina was
the state where the employee’s employment was located,
given the amount of control exerted over the employee by
his employer, who operated out of South Carolina, even
though the employee received his daily assignments from
wherever his employer was located that day and he started
his road trips from wherever the group was located, but
never from South Carolina. Voss v. Ramco, Inc., 325 S.C.
560, 482 S.E.2d 582 (1997). The Supreme Court of South
Carolina agreeing with the Court of Appeals’ analysis in
Voss, held in Oxendine v. Davis, 373 S.C. 438, 646 S.E.2d
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Opinion of the Court
143 (2007), that the base of operations rule is to “determine
the location of nomadic employment based on the
employer’s place of business,” and used other factors
outside of those defined in Holman, such as the employee
reporting to the employer’s business in South Carolina to
be paid, to determine the employee’s location of
employment. Id. The Supreme Court in Oxendine
ultimately held that an employer’s base of operations was
in South Carolina when the employer clearly operated his
business in South Carolina. Id. at 445, [646] S.E.2d at 150.
Thus, even if the facts of the present case do [not] have all
of the factors under the base of operations test set out in
Holman, following the analysis of Oxendine and Voss,
Plaintiff’s employment would still be located in South
Carolina, given the amount of the control exerted over
Plaintiff by Mr. Baird (TWC), who clearly operated his
business out of South Carolina. Oxendine v. Davis, 373 S.C.
438, 646 S.E.2d 143 (2007); Voss v. Ramco, Inc., 325 S.C.
560, 482 S.E.2d 582 (1997).
24. Applying the applicable provisions of the South
Carolina law to the current claim, the Full Commission
finds that the Key Risk policy provided coverage for
Plaintiff’s claim filed in North Carolina. Pursuant to S.C.
Code Ann. § 42-5-60, “Every policy for the insurance of the
compensation provided in this Title or against liability
therefore shall be deemed to be made subject to provisions
of this Title . . . .” Therefore, the statutory provisions of the
South Carolina Workers’ Compensation Code are a
required part of the Key Risk policy for workers’
compensation insurance issued to TWC. Also, S.C. Code
Ann. § 42-5-70 provides that jurisdiction of the insured for
the purpose of this Title shall be jurisdiction of the insurer
and S.C. Code Ann. § 42-5-60 requires that the Key Risk
policy conform to South Carolina law. These statutory
requirements are reflected in the language of the Key Risk
workers’ compensation insurance policy issued to TWC.
The policy states, “Jurisdiction over you is jurisdiction over
us for purposes of workers’ compensation law. We are
bound by decisions against you under the law, subject to
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Opinion of the Court
the provisions of this policy that are not in conflict with the
law.” The policy also provided that, “Terms of this
insurance that conflict with the workers’ compensation law
are changed by this statement to conform to that law.” S.C.
Code Ann. § 42-5-70. Key Risk, in issuing its workers’
compensation policies, has submitted to the jurisdiction of
South Carolina and its statutory provisions governing
workers’ compensation claims. Based upon the “base of
operation” analysis above, the employment for the other
three lent employees from Coastal was also located in
South Carolina. Therefore, TWC had four or more
employees in South Carolina for the purposes of
jurisdiction under South Carolina Workers’ Compensation
Act. S.C. Code Ann. § 42-1-360(2).
25. The Full Commission concludes that the
preponderance of the evidence of record establishes that
South Carolina has jurisdiction over TWC, the insured, and
that the workers’ compensation insurance policy issued by
Key Risk to TWC covered Plaintiff’s injury, requiring Key
Risk to reimburse Coastal and Zurich pursuant to N.C.
Gen. Stat. § 97-86.1(d). . . .
Key Risk filed written notice of appeal from the Commission’s 15 December
2015 Opinion and Award.1
Analysis
Appellate review of an opinion and award of the Industrial Commission is
“limited to consideration of whether competent evidence supports the Commission’s
findings of fact and whether the findings support the Commission’s conclusions of
law.” Philbeck v. Univ. of Mich., 235 N.C. App. 124, 127, 761 S.E.2d 668, 671 (2014)
1 The appellees in this appeal are Coastal and Zurich. At times in this opinion, we refer to
them jointly as “Coastal.”
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Opinion of the Court
(citation and quotation marks omitted). “The findings of fact made by the
Commission are conclusive on appeal if supported by competent evidence even if there
is also evidence that would support a contrary finding. The Commission’s conclusions
of law, however, are reviewed de novo.” Morgan v. Morgan Motor Co. of Albemarle,
231 N.C. App. 377, 380, 752 S.E.2d 677, 680 (2013) (internal citations omitted), aff’d
per curiam, 368 N.C. 69, 772 S.E.2d 238 (2015).
Before addressing Key Risk’s arguments, we must first determine whether the
Commission had jurisdiction over Plaintiff’s workers’ compensation claim. North
Carolina’s Workers’ Compensation Act provides, in pertinent part, as follows:
Where an accident happens while the employee is
employed elsewhere than in this State and the accident is
one which would entitle him or his dependents or next of
kin to compensation if it had happened in this State, then
the employee or his dependents or next of kin shall be
entitled to compensation (i) if the contract of employment
was made in this State, (ii) if the employer’s principal place
of business is in this State, or (iii) if the employee’s
principal place of employment is within this State;
provided, however, that if an employee or his dependents
or next of kin shall receive compensation or damages under
the laws of any other state nothing herein contained shall
be construed so as to permit a total compensation for the
same injury greater than is provided for in this Article.
N.C. Gen. Stat. § 97-36 (2015) (emphasis added).
In order to determine where a contract of employment was made, we apply the
“last act” test. Murray v. Ahlstrom Indus. Holdings, Inc., 131 N.C. App. 294, 296, 506
S.E.2d 724, 726 (1998). “For a contract to be made in North Carolina, the final act
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Opinion of the Court
necessary to make it a binding obligation must be done here.” Id. (citation, quotation
marks, and brackets omitted).
Here, the Commission found that the last act making the employment
arrangement between Plaintiff and TWC “a binding obligation” was Plaintiff’s
agreement during his telephone conversation with Baird to work on the Florida
Project for TWC. Because Plaintiff was physically present in North Carolina during
this conversation, the contract of employment was made in North Carolina.
“To be entitled to maintain a proceeding for workers’ compensation, the
claimant must be, in fact and in law, an employee of the party from whom
compensation is claimed.” Youngblood v. N. State Ford Truck Sales, 321 N.C. 380,
383, 364 S.E.2d 433, 437 (1988) (citations omitted). If no employer-employee
relationship exists, the Commission lacks jurisdiction to hear the claim. See Lucas v.
Li’l Gen. Stores, 289 N.C. 212, 218, 221 S.E.2d 257, 261 (1976) (citations omitted).
“The issue of whether the employer-employee relationship exists is a jurisdictional
one.” Youngblood, 321 N.C. at 383, 364 S.E.2d at 437.
Here, the parties do not contest the Commission’s finding that an employer-
employee relationship existed between Plaintiff and TWC at the time of the 26
September 2010 accident. The record establishes that — as the Commission found
— TWC was a “special employer,” Plaintiff was a “borrowed employee,” and Coastal
remained Plaintiff’s “general employer.”
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BEAL V. COASTAL CARRIERS, INC.
Opinion of the Court
“The North Carolina Supreme Court has determined that the Industrial
Commission has jurisdiction to . . . hear and determine questions of fact and law
respecting the existence of insurance coverage and liability of the insurance carrier.”
Smith v. First Choice Servs., 158 N.C. App. 244, 248, 580 S.E.2d 743, 747 (2003)
(citation and quotation marks omitted); see also Harrison v. Tobacco Transp., Inc.,
139 N.C. App. 561, 564-65, 533 S.E.2d 871, 873-74 (2000) (determining that
Industrial Commission had jurisdiction to determine whether Kentucky’s workers’
compensation statutes expanded insurance policy’s coverage so as to provide benefits
to employee of Kentucky employer).
Having determined that the Commission had jurisdiction to hear this matter,
we next turn to Key Risk’s argument that its policy does not provide coverage for
Plaintiff’s injuries. Specifically, Key Risk argues that (1) Plaintiff was not
“principally employed” in South Carolina, and therefore, no coverage for his injuries
exists under the terms of the policy it issued to TWC; and (2) South Carolina’s
Workers’ Compensation Act does not require that such coverage be provided under
Key Risk’s policy.
The Information Page of Key Risk’s policy states, in pertinent part, as follows:
3.A. Workers’ Compensation Insurance: Part One of the
policy applies to the Workers’ Compensation Law of the
states listed here:
SC
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BEAL V. COASTAL CARRIERS, INC.
Opinion of the Court
....
C. Other States Insurance: Part Three of the policy applies
to the states, if any, listed here:
[none listed]
The policy also contained a Residual Market Limited Other States Insurance
Endorsement (the “Endorsement”), the relevant language of which provides as
follows:
“Part Three-Other States Insurance” of the policy is
replaced by the following:
PART THREE OTHER STATE INSURANCE
A. How This Insurance Applies:
1. We will pay promptly when due the benefits required of
you by the workers’ compensation law of any state not
listed in Item 3.A. of the Information Page if all of the
following conditions are met:
a. The employee claiming benefits was either hired under
a contract of employment made in a state listed in Item 3.A.
of the Information Page or was, at the time of injury,
principally employed in a state listed in Item 3.A. of the
Information Page[.]
....
IMPORTANT NOTICE!
If you hire any employees outside those states listed in
Item 3.A. on the Information Page or begin operations in
any such state, you should do whatever may be required
under that state’s law, as this endorsement does not satisfy
the requirements of that state’s workers’ compensation
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BEAL V. COASTAL CARRIERS, INC.
Opinion of the Court
law.
(Emphasis added.)
Thus, when the Endorsement is read in conjunction with Item 3.A. of the
Information Page, the policy provides that Key Risk will pay benefits required by the
workers’ compensation law of a state other than South Carolina only if the employee
claiming benefits was either (1) hired under a contract of employment made in South
Carolina; or (2) principally employed in South Carolina at the time of injury. Neither
party contends that Plaintiff was hired under a contract of employment made in
South Carolina. However, the parties disagree as to whether Plaintiff was
“principally employed” in South Carolina at the time of his injury.
Key Risk contends that Plaintiff was principally employed in Florida — rather
than South Carolina — because his work on the project took place exclusively in
Florida. Coastal, conversely, contends that South Carolina was the state in which
Plaintiff was principally employed because TWC was based in South Carolina and
exercised control from South Carolina over the Florida Project.
“With insurance contracts the principle of lex loci contractus mandates that the
substantive law of the state where the last act to make a binding contract occurred,
usually delivery of the policy, controls the interpretation of the contract.” Harrison,
139 N.C. App. at 565, 533 S.E.2d at 874 (citation and quotation marks omitted). Here,
Baird, a resident of South Carolina, sought workers’ compensation coverage for TWC,
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BEAL V. COASTAL CARRIERS, INC.
Opinion of the Court
a South Carolina business, through an agent in South Carolina. He received coverage
through a policy issued by Key Risk, and the policy was delivered to him at his South
Carolina address. Thus, the last act to make a binding insurance contract between
Key Risk and TWC occurred in South Carolina. As such, the Commission correctly
determined that South Carolina’s substantive law governs the interpretation of Key
Risk’s policy.
Under South Carolina law,
[i]nsurance policies are subject to the general rules of
contract construction. This Court must give policy
language its plain, ordinary, and popular meaning. When
a contract is unambiguous, clear, and explicit, it must be
construed according to the terms the parties have used.
B.L.G. Enters. v. First Fin. Ins. Co., 334 S.C. 529, 535, 514 S.E.2d 327, 330 (1999)
(internal citations omitted).
In the present case, the Commission held — and the parties agree — that the
term “principally employed” in the Endorsement cannot be read in isolation but
instead must be construed in conjunction with South Carolina’s Workers’
Compensation Act. See S.C. Code Ann. § 42-5-60 (2015) (“Every policy for the
insurance of the compensation provided in this title or against liability therefor shall
be deemed to be made subject to provisions of this title. No corporation, association,
or organization shall enter into any such policy of insurance unless its form shall have
been approved by the Director of the Department of Insurance.”).
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BEAL V. COASTAL CARRIERS, INC.
Opinion of the Court
Coastal argues that § 42-15-10 of South Carolina’s Workers’ Compensation Act
“extended jurisdiction over South Carolina employers beyond state lines by
specifically authorizing employees to assert claims against employers domiciled in
South Carolina in any state where the employee was hired, injured or his employment
was located.” Even assuming arguendo that this is correct, however, we conclude
that the Commission erred in determining that Key Risk’s policy provided coverage
for Plaintiff’s accident.
S.C. Code Ann. § 42-15-10 states as follows:
Any employee covered by the provisions of this title is
authorized to file his claim under the laws of the state
where he is hired, the state where he is injured, or the state
where his employment is located. If an employee shall
receive compensation or damages under the laws of any
other state, nothing contained in this section shall be
construed to permit a total compensation for the same
injury greater than that provided in this title.
S.C. Code Ann. § 42-15-10 (2015) (emphasis added).
Based on this statute, Coastal contends that the phrase “principally employed”
as used in Key Risk’s policy must be interpreted as having the same meaning as the
phrase “where . . . employment is located” as contained in the statute. For this reason,
Coastal asserts that it is appropriate to examine South Carolina caselaw interpreting
this language in § 42-15-10.
In determining where a worker’s employment is located for purposes of § 42-
15-10, South Carolina courts apply the “base of operation” rule, a doctrine originating
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BEAL V. COASTAL CARRIERS, INC.
Opinion of the Court
from the decision by the South Carolina Court of Appeals in Holman v. Bulldog
Trucking Co., 311 S.C. 341, 428 S.E.2d 889 (Ct. App. 1993). Under this rule, “the
worker’s employment is located at the employer’s place of business to which he
reports, from which he receives his work assignments and from which he starts his
road trips, regardless of where the work is performed.” Id. at 346, 428 S.E.2d at 892.
South Carolina’s appellate courts have made clear that “the location of employment
can only be in one state.” Voss v. Ramco, Inc., 325 S.C. 560, 572, 482 S.E.2d 582, 588
(Ct. App. 1997).
In the present case, the Commission made the following finding of fact, which
Key Risk challenges in this appeal:
62. Based upon a preponderance of the evidence of record,
the Full Commission finds that Plaintiff’s employment was
located in South Carolina because it is the only state in
which he had any “base of operation.” The only place of
business ever maintained by TWC was located in Myrtle
Beach, South Carolina. Plaintiff was hired from TWC’s
office in Myrtle Beach, South Carolina. Mr. Baird provided
work assignments to the employees, including Plaintiff,
working on the Winter Park project from his place of
business in South Carolina and Plaintiff was paid out of
South Carolina for the work he performed in Florida. The
other three lent employees from Coastal -- Michael Porter,
Anthony Brown and Randy Wallace -- traveled to Myrtle
Beach, South Carolina to receive payment from TWC for
the work they performed (along with Plaintiff) in Stuart,
Florida upon completion of the job.
The Commission then purported to apply the principles set forth in Holman
and Voss as well as in two other South Carolina cases — Oxendine v. Davis, 373 S.C.
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BEAL V. COASTAL CARRIERS, INC.
Opinion of the Court
438, 646 S.E.2d 143 (2007), and Hill v. Eagle Motor Lines, 373 S.C. 422, 645 S.E.2d
424 (2007). Because of the significant amount of attention that the Commission and
the parties give these four cases, we address each of them in turn.
In Holman, the employee, a truck driver, lived in South Carolina, but he would
report to Georgia for his assignments. Holman, 311 S.C. at 343, 428 S.E.2d at 891.
While driving his truck in Georgia, the employee was killed in an accident on the
highway. The employee’s mother filed for benefits under South Carolina’s Workers’
Compensation Act. Her claim was denied, and she appealed the decision to the South
Carolina Court of Appeals. Id. at 344, 428 S.E.2d at 891.
The court held that in order to determine whether the truck driver’s
employment was located in South Carolina for purposes of § 42-15-10, an application
of the “base of operation” test was required. Id. at 346, 428 S.E.2d at 892. In applying
this test, the court relied on the fact that although the employee lived in South
Carolina, he had reported to Georgia for duty, picked up and returned his company
truck in Georgia, received his work assignments from Georgia, and made calls to his
employer in Georgia. Therefore, the court concluded that his “base of operation” was
in Georgia, meaning that his “employment was located” in Georgia for purposes of
§ 42-15-10 such that his workers’ compensation claim had been correctly denied. Id.
at 346-47, 428 S.E.2d at 893.
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BEAL V. COASTAL CARRIERS, INC.
Opinion of the Court
In Voss, the South Carolina Court of Appeals revisited this issue. In that case,
a company called Ramco, Inc. that manufactured small industrial equipment was
located in South Carolina. Voss, 325 S.C. at 563, 482 S.E.2d at 583. Another
company, NATCO, which sold Ramco’s equipment, was also located in South
Carolina. Id. NATCO’s owner hired the plaintiff — who lived in Texas — to sell
Ramco’s equipment across the country. The plaintiff would travel from city to city
selling Ramco equipment by the truckload. Id. at 563, 482 S.E.2d at 583-84. The
agreement between Ramco and NATCO provided that Ramco would deliver its
equipment to the city in which the group of salesmen — including the plaintiff —
were selling the equipment, and NATCO’s owner would then supervise the sales team
in each city to which the team traveled. Id.
The plaintiff was injured selling Ramco equipment while in the state of
Washington. Id. at 570, 482 S.E.2d at 587. During the time in which he worked for
Ramco, he never sold equipment in South Carolina and made only one trip to South
Carolina to pick up equipment. Id. at 565, 482 S.E.2d at 584. He filed a workers’
compensation claim in South Carolina, but Ramco denied the claim, asserting that
the South Carolina Workers’ Compensation Commission lacked subject matter
jurisdiction over the plaintiff’s claim. Id. at 563, 482 S.E.2d at 583. The commission
ruled in favor of the plaintiff, and its decision was ultimately affirmed by the circuit
court. Ramco appealed to the South Carolina Court of Appeals. Id.
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BEAL V. COASTAL CARRIERS, INC.
Opinion of the Court
The court invoked the “base of operation” test set out in Holman to determine
whether South Carolina had jurisdiction over the plaintiff’s claim, noting that “all
types of transient employment . . . do not fit neatly within the employment ritual of
the employee truck driver in [Holman].” Id. at 571, 482 S.E.2d at 588. The court
observed that a traveling salesman would not have the same work routine as a truck
driver, stating the following:
[I]t was not this Court’s intention [in Holman] to hold that
a class of transient employees could never have a “base of
operation” and therefore be limited under section 42-15-10
to the benefits available in two states (the state where the
employee [was] hired and the state where the employee
was injured), while other transient employees could choose
the most advantageous of three states.
Id.
The court reiterated its previous statement in Holman that “the location of
employment can only be in one state” and that, logically, “the location of employment
must be in some state.” Id. at 572, 482 S.E.2d at 588. The court proceeded to hold
that although the plaintiff lived in Texas and was injured in Washington, his
employment was located in South Carolina. Id. The court ruled that regardless of
the fact that the plaintiff received work assignments from a supervisor who was often
physically present in multiple states, the plaintiff’s employer was Ramco, and Ramco
was permanently located in South Carolina. Id.
The court reasoned that
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BEAL V. COASTAL CARRIERS, INC.
Opinion of the Court
although Voss started his road trips from wherever the
group was located, but never from South Carolina, he
nevertheless is principally employed in South Carolina
because it is the only state in which he has any “base of
operation.” . . . [A]s a practical matter, South Carolina is
the state where Voss was employed, given the amount of
control exerted over Voss by [his employers], both of whom
operated out of South Carolina.
Id.
In 2007, the Supreme Court of South Carolina issued two decisions applying
the “base of operation” test. In Oxendine, the plaintiff was a construction worker
living in North Carolina who did seasonal work for a construction company that was
based in South Carolina. Oxendine, 373 S.C. at 440, 646 S.E.2d at 144. His employer
hired him to work at a jobsite in North Carolina on a project that lasted for six weeks.
The plaintiff had previously performed work for the employer in South Carolina and
had regularly traveled to South Carolina to receive his payment. Id.
During the six-week period prior to his injury, the plaintiff worked solely at
the jobsite in North Carolina. Id. At one point, the plaintiff visited his employer’s
home in South Carolina for social purposes and fixed the employer’s water pump —
a task for which he was not paid. Id. He also traveled to the employer’s home in
South Carolina to receive payment at least once during the time he worked on the
North Carolina project. Id.
The plaintiff was injured in an accident while working on the North Carolina
jobsite. Id. He filed a workers’ compensation claim in North Carolina, which was
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BEAL V. COASTAL CARRIERS, INC.
Opinion of the Court
denied. Id. He then filed a claim under South Carolina’s Workers’ Compensation
Act, and the South Carolina Workers’ Compensation Commission determined that it
had jurisdiction over the plaintiff’s claim. Id. at 440-41, 646 S.E.2d at 144. The
employer ultimately appealed to the Supreme Court of South Carolina. Id.
The court held that South Carolina was the plaintiff’s “base of operation.” Id.
at 445, 646 S.E.2d at 146. In making this determination, the court relied on multiple
factors, noting that while none was “individually determinative, they all lend support
to the conclusion[.]” Id. at 444, 646 S.E.2d at 146.
(1) Respondent regularly worked for Employer in South
Carolina during warm months for a number of years; (2)
Respondent went to Employer’s home/office in South
Carolina on occasions to be paid, including at least once
during the last interval of his work; (3) Respondent often
met co-workers at the place of employment to go to jobs;
and (4) Respondent performed work at Employer’s home
immediately before his injury.
Id.
The court then stated the following:
In reaching this conclusion, we look not only at
Respondent’s six-week employment term, but also at his
broad employment history with Employer. Respondent’s
regular and recurring employment with Employer for
several years prior to his injury was nearly entirely based
in South Carolina. The fact that Respondent was working
in North Carolina on this particular occasion does not
transport the Employer’s base of operations from South
Carolina to North Carolina.
Id.
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Opinion of the Court
The court further noted that “[t]his conclusion is underscored by the amount
of control exerted over Respondent by Employer who was located in South Carolina.”
Id. In explaining its ruling, the court clarified the principles it drew from Holman
and Voss:
Appellants also argue that if the base of operations rule
applies, the relevant base of operation was North Carolina
because it is the employee’s base, and not the employer’s
base, that should be considered. Appellants’ reasoning
directly contradicts both Voss and Holman[,] cases which
apply the base of operations rule to determine the location
of nomadic employment based on the employer’s place of
business, “regardless of where work is performed.”
Id. at 445, 646 S.E.2d at 146.
Hill concerned a plaintiff truck driver who lived in South Carolina and was
injured while driving through Virginia. Hill, 373 S.C. at 427, 645 S.E.2d at 426. The
plaintiff’s employer was based in Alabama. After his accident, the plaintiff
successfully filed a claim under South Carolina’s Workers’ Compensation Act. His
employer appealed the decision in favor of the plaintiff to the Supreme Court of South
Carolina. Id. at 427-28, 645 S.E.2d at 426.
Because the plaintiff had been hired in South Carolina, the court held that
South Carolina had jurisdiction over the plaintiff’s claim. Id. at 430, 645 S.E.2d at
428. However, the court also ruled that in addition to being the state where the
plaintiff was hired, South Carolina was likewise the state where plaintiff’s
employment was “located” for purposes of § 42-15-10. The court determined that the
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Opinion of the Court
plaintiff’s “base of operation” was in South Carolina because the plaintiff began his
road trips from South Carolina, kept his truck at his South Carolina home on the
weekends, and received his paycheck at his home in South Carolina. Id. at 432-33,
645 S.E.2d at 429. The court further noted that although the plaintiff called the
Alabama office at the end of each delivery to find out where to pick up his next load,
he was not required to report to the Alabama office for duty or return to Alabama
after completing his assignments. Id. at 432, 645 S.E.2d at 429. Nor was the
plaintiff’s truck licensed in Alabama. Id.
Holman, Voss, Oxendine, and Hill demonstrate the fact-specific nature of the
“base of operation” test’s application and the difficulty of determining where a
worker’s employment is “located” when his employment is nomadic in nature. In such
cases, the employee works on multiple jobs for a particular employer in more than
one state, making it difficult to pinpoint one specific state as the location of his
employment.
In the present case, conversely, Plaintiff’s employment was not nomadic. He
worked at one location for his employer during the entire period of his employment.
He had no prior history of working on jobs — in South Carolina, Florida, or anywhere
else — for TWC, and the record is devoid of any indication that he was likely to work
on future projects for TWC. He was not a traveling salesman or a truck driver whose
job duties for his employer required him to travel to multiple states. Nor was he akin
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BEAL V. COASTAL CARRIERS, INC.
Opinion of the Court
to the worker in Oxendine who performed multiple jobs for his employer in one state
prior to being dispatched by the employer to perform a job in another state.
Instead, Plaintiff was a lent employee who was hired by TWC to perform one
specific job in one specific place. TWC required that he perform all of his work in
Florida, and he lived in Florida for the entire duration of the job, commuting from a
motel in Florida to the Florida jobsite throughout the duration of his employment
with TWC. Plaintiff reported to work each day in Florida and received assignments
from on-site supervisors in Florida.
Standing in stark contrast to his numerous connections with Florida during
his employment with TWC is the utter lack of contacts Plaintiff had with South
Carolina. Plaintiff never reported to South Carolina for duty either before the project
began or after it was completed. Indeed, the record is devoid of any indication that
Plaintiff visited South Carolina for any purpose — except when he drove through that
state as a matter of geographical necessity between North Carolina and Florida.
For these reasons, the present case requires nothing more than a commonsense
application of the “base of operation” test to conclude that Plaintiff’s employment with
TWC was “located” in Florida. The courts in Holman, Voss, Oxendine, and Hill were
required to balance competing factors in applying this test given that each of those
cases involved employees who performed work for a single employer in multiple
states. The facts of this case simply do not require us to do so here.
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BEAL V. COASTAL CARRIERS, INC.
Opinion of the Court
We are unpersuaded by Coastal’s argument that Plaintiff’s job assignments
actually came from Baird in South Carolina. The record shows only two instances of
direct contact between Baird and Plaintiff — the telephone call during which Baird
offered him the job and a subsequent call in which he gave Plaintiff a “pep talk.” Both
of these telephone calls occurred while Plaintiff was still in North Carolina and before
he had left the state to start work on the Florida Project.
Plaintiff had on-site supervisors at the Florida jobsite — initially Porter and
later Fleener — who gave him his work assignments and instructions for the work to
be performed. The record clearly indicates that these supervisors were both in
Florida when they instructed Plaintiff as to his duties on the Florida Project. While
Coastal argues that these on-site supervisors were relaying orders that had been
given to them by Baird from South Carolina, we do not believe that any such indirect
control over Plaintiff’s work by Baird serves as a sufficient substitute for direct
connections between Plaintiff and South Carolina given the circumstances of
Plaintiff’s employment with TWC.
Therefore, we conclude that throughout Plaintiff’s employment with TWC, his
“base of operation” was Florida. Accordingly, he was neither “principally employed”
(for purposes of the Endorsement) in South Carolina nor was South Carolina the state
“where his employment [was] located” (for purposes of § 42-15-10). Thus, the
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Opinion of the Court
Commission erred in determining that Key Risk’s policy provided coverage for
Plaintiff’s workplace accident.2
Conclusion
For the reasons stated above, we reverse the Commission’s Opinion and Award
to the extent it determined that Key Risk’s policy provides any coverage for the 26
September 2010 accident and remand this matter for further proceedings not
inconsistent with this opinion.
REVERSED AND REMANDED.
Judges INMAN and ENOCHS concur.
2On appeal, Key Risk also raises as an alternative argument that the Commission erred in
ordering Key Risk to pay all indemnity benefits owed on Plaintiff’s claim as a result of his injury based
on the theory that “the proportion of the responsibility of [Plaintiff’s] wages [was] equal between
Coastal and [TWC].” However, in light of our holding that Key Risk’s policy does not provide any
coverage regarding Plaintiff’s accident, we need not address this issue.
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