United States District Court, D. South Carolina, Florence Division
CHRISTOPHER A. PROVAU, Plaintiff,
YRC, Inc., d/b/a YRC Freight, Inc., and Ricky Walter, Defendants.
Bryan Harwell, United States District Judge
matter is before the Court for review of Defendants39;
re-filed Motion to Dismiss Plaintiff39;s complaint [ECF
#27]. On December 28, 2016, Plaintiff filed a response in
opposition to this Motion [ECF #28] and Defendants filed
their reply brief on January 4, 2017. [ECF #29]. All parties
have had the opportunity to extensively brief the issues
raised in the motions, and this Court has thoroughly
considered all pleadings filed in this case.[1" name="FN1" id="FN1">1]
Background and Procedural History
December 23, 2015, Plaintiff Christopher Provau (hereinafter,
“Mr. Provau” or “Plaintiff”) filed an
action in state court seeking damages against YRC, Inc.,
d/b/a YRC Freight, Inc. (“YRC”) and Ricky Walters
(“Mr. Walters”) (collectively,
“Defendants”). [ECF #1-1]. Plaintiff alleges in
his complaint that he was employed by a vendor to perform
repairs on a tractor trailer owned by YRC. [ECF #1-1, p. 5');">p. 5].
Plaintiff39;s employer, Poston39;s Trailer Repair, LLC,
sent Plaintiff to YRC on the day of the injury. While
performing said repairs, Mr. Walters, individually and as an
agent and/or employee of YRC, drove away in a truck that was
attached to the tractor trailer that Plaintiff was repairing.
[ECF #1-1, pp. 5');">p. 5-6]. Plaintiff alleges that as a direct and
proximate result of the negligence, gross negligence, and
willful and wanton behavior of Defendants, he incurred
damages. [ECF #1-1, pp. 6-7]. Defendants filed their notice
of removal pursuant to 28 U.S.C. § 1441, et seq. on
February 10, 2016. [ECF #1]. That same day, Defendants filed
their initial motion to dismiss this action pursuant to Rule
12(b)(1) of the Federal Rules of Civil Procedure, alleging
that Plaintiff39;s exclusive remedy is through the South
Carolina Workers39; Compensation Act because he is a
statutory employee of YRC. [ECF #4, 3');">p. 3].
Order dated August 25, 2016, this Court allowed Plaintiff
additional time to complete discovery, and gave Defendants
the opportunity to re-file their motion to dismiss at the
conclusion of a sixty-day period. [ECF #16, p. 5');">p. 5]. The
parties have had now had the opportunity to conduct
discovery, and on December 9, 2016, the Defendants re-filed
their motion asserting the same grounds they asserted in
their prior motion, but with additional facts to support
their argument that Plaintiff is a statutory employee of YRC.
The Court now issues the following Order.
filed their motion to dismiss pursuant to 12(b)(1) of the
Federal Rules for Civil Procedure for lack of subject matter
jurisdiction. Defendants contend that Mr. Provau was a
statutory employee of YRC as defined by The South Carolina
Workers39; Compensation Act (the “Act”) at the
time of the alleged injury, and therefore, his exclusive
remedy is under the Act. S.C. Code Ann. § 42-1-400.
under the Workers39; Compensation Act depends on the
existence of an employment relationship. Edens v.
Bellini, 3');">597 S.E.2d 863, 866, 359 S.C. 433');">359 S.C. 433 (Ct. App.
2004). Section 42-1-400 provides an exception to the general
rule by imposing upon an owner or upstream employer liability
for the payment of compensation benefits to worker who is not
directly employed by the owner or upstream employer,
depending upon the nature of the work performed. Id.
The determination of whether a worker is considered a
statutory employee is jurisdictional and is a question of
law. See Carrier v. Westvaco Corp., 806 F.Supp.
1242, 1244 (D.S.C. 1992) (whether a plaintiff is a statutory
employee is a question of subject matter jurisdiction);
see also Lentine v. 3M Co., No. 6:08-2542, 2009 WL
792497, at *2 (D.S.C. Mar. 23, 2009) (citing Posey v.
Proper Mold & Engineering, Inc., 1 S.E.2d 395');">661 S.E.2d 395, 378
S.C. 210 (Ct. App. 2008)). Notably, South Carolina policy
warrants resolving jurisdictional doubts in favor of
including employers and employees under the Act. Kemp v.
JHN Enters., Inc., No. 6:14-cv-02604, 2016 WL 859361, at
*6 (citing Edens v. Bellini, 3');">597 S.E.2d 863, 870
(S.C. Ct. App. 2004)).
issue again before this Court is whether Plaintiff is the
statutory employee of YRC, such that this Court lacks subject
matter jurisdiction to hear this case. Defendants argue that
Plaintiff meets the statutory exception found in §
42-1-400 of the Act, which states:
[w]hen any person, in this section and sections 42-1-420 and
42-1-430 referred to as “owner, ” undertakes to
perform or execute any work which is a part of his trade,
business or occupation and contracts with any other person .
. . for the execution or performance by or under such
subcontractor of the whole or any part of the work undertaken
by such owner, the owner shall be liable to pay any workman
employed in the work any compensation under this Title which
he would have been liable to pay if the workman had been
immediately employed by him. S.C. Ann. § 42-1-400.
denies this claim, specifying that he performs specialized
services to YRC through his employer, Poston Trailer Repair,
LLC (“Poston”), and as such did not perform work
which was a part of the “trade, business or
occupation” of YRC. Plaintiff does not dispute that he
was an employee of Poston on the date the alleged injury
occurred, nor he does dispute that he was performing repairs
on a tractor trailer owned by YRC. [ECF #1-1, p. 5');">p. 5].
alternative tests are applied to determine whether the
activity of an employee, such as Plaintiff, of a
subcontractor is sufficient to make him a statutory employee
as it is defined under § 42-1-400: (1) is the activity
an important part of the owner39;s business or trade; (2)
is the activity a necessary, essential, and integral part of
the owner39;s trade, business or occupation; or (3) has the
identical activity previously been performed by the
owner39;s employees? Edens, 597 S.E.2d at 868;
see also Glass, 482 S.E.2d at 50. The questionable
activity need only meet one of the three criteria
for the worker to qualify as a statutory employee of the
owner or upstream employer. Edens, 597 S.E.2d at 868
deposed Greg Drake, the 30(b)(6) designee of YRC on October
19, 2016. Mr. Drake testified that the work performed by
Plaintiff as the individual sent by Poston to conduct repairs
is necessary, essential and integral to YRC's business.
[ECF #27-2, pp. 8, 9]. Similarly, Wilson Wayne Poston, the
30(b)(6) designee of Poston, testified that his understanding
of the importance of the maintenance and mechanical work his
company performs for YRC is “very important for
mechanical breakdowns, keeping equipment up. Tires. Is very
important.” [ECF #27-3, p. 7]. Mr. Poston ...