Angela D. Keene, Individually and as Personal Representative of the Estate of Dennis Seay, Deceased, and Linda Seay, Respondents,
CNA Holdings, LLC, Appellant. Appellate Case No. 2016-000227
October 2, 2018
From Spartanburg County D. Garrison Hill, Circuit Court Judge
Mitchell Brown, Allen Mattison Bogan, and Blake Terence
Williams, all of Nelson Mullins Riley & Scarborough LLP,
of Columbia, for Appellant.
D. Kassel and Theile Branham McVey, both of Kassel McVey, and
Blake Hewitt, of Bluestein Thompson Sullivan LLC, all of
Columbia; and Chris Panatier and Kevin W. Paul, both of Simon
Greenstone Panatier Bartlett PC, of Dallas, Texas, for
wrongful death action, Appellant CNA Holdings, LLC challenges
the circuit court's denial of its motions for a judgment
notwithstanding the verdict (JNOV), new trial absolute, and
new trial nisi remittitur. Appellant argues the circuit court
erred by concluding that Dennis Seay was not a statutory
employee of Appellant's predecessor in interest, Hoechst
Celanese Corporation (Celanese), pursuant to section 42-1-400
of the South Carolina Code (2015). Appellant also argues the
circuit court erred by (1) declining to grant a mistrial on
the ground of jury misconduct; (2) admitting into evidence a
video of Seay crying out in pain; and (3) upholding the
amount of the jury's verdict. We affirm.
1971 to 1980, Seay performed maintenance work at the Celanese
polyester plant in Spartanburg. Celanese had contracted with
Daniel Construction Company, Seay's employer, to handle
all maintenance work at its Spartanburg plant, and Daniel
assigned Seay to work at this plant. Seay's duties
included maintaining and repairing pumps, valves, condensers,
and other equipment. In performing this work, Seay came into
contact with asbestos gaskets, packing, and insulation
materials. Tragically, in August 2013, Seay was diagnosed
with mesothelioma, a type of lung cancer.
September 25, 2013, Seay and his wife, Linda Seay, filed this
action against Appellant and several other defendants,
alleging negligence by failure to warn Seay of the dangers of
asbestos, failure to provide adequate safety measures against
asbestos dust, and failure to provide safe environmental
conditions in the Spartanburg plant. Seay died from advanced
mesothelioma on December 29, 2014. Subsequently, Seay's
daughter, Respondent Angie Keene, amended the complaint to
add causes of action for wrongful death and survival.
Appellant then filed a motion to dismiss pursuant to Rule
12(b)(6), SCRCP, or, in the alternative, for summary judgment
pursuant to Rule 56, SCRCP. The basis for this motion was
that Seay was a statutory employee of Celanese and,
therefore, his exclusive remedy was under the South Carolina
Workers' Compensation Act, SC Code Ann. §§
42-1-10 to 42-19-50.
circuit court denied the motion and conducted a trial from
September 28 through October 2, 2015, and from October 6
through 8, 2015. At the conclusion of the trial, the jury
found that the negligence of Celanese caused Seay's
mesothelioma and awarded $2 million in actual damages to
Seay's estate for its survival claim; $5 million in
actual damages to Seay's estate for its wrongful death
claim; and $5 million in actual damages to Linda Seay for her
loss of consortium claim. The jury also found Celanese was
willful, wanton, and reckless and awarded $2 million in
punitive damages. Appellant filed motions for a JNOV, new
trial absolute, and new trial nisi remittitur, which the
circuit court denied. This appeal followed.
the circuit court err by declining to grant a JNOV on the
ground that Seay was a statutory employee of Celanese?
the circuit court err by declining to grant a mistrial on the
ground of jury misconduct?
the circuit court err by admitting into evidence a video
showing Seay crying out in pain? 4. Did the circuit court err
by upholding the amount of the jury's verdict?
of the employer-employee relationship for workers'
compensation purposes is jurisdictional. Consequently, this
[c]ourt has the power and duty to review the entire record
and decide the jurisdictional facts in accord with the
preponderance of the evidence." Poch v. Bayshore
Concrete Prod./S.C., Inc., 405 S.C. 359, 367, 747 S.E.2d
757, 761 (2013) (quoting Glass v. Dow Chem. Co., 325
S.C. 198, 201-02, 482 S.E.2d 49, 51 (1997)).
granting or denying of a motion for mistrial is within the
sound discretion of the trial [court]. Absent an abuse of
discretion, the decision of the trial [court] will not be
overturned on appeal." Mishoe v. QHG of Lake City,
Inc., 366 S.C. 195, 202, 621 S.E.2d 363, 366 (Ct. App.
2005) (citation omitted). "An abuse of discretion occurs
[when] the trial court is controlled by an error of law or
[when] the [c]ourt's order is based on factual
conclusions without evidentiary support." City of
Columbia v. Pic-A-Flick Video, Inc., 340 S.C. 278, 282,
531 S.E.2d 518, 521 (2000).
admission or exclusion of evidence is a matter within the
trial court's sound discretion, and an appellate court
may only disturb a ruling admitting or excluding evidence
upon a showing of a 'manifest abuse of discretion
accompanied by probable prejudice.'" Burke v.
Republic Parking Sys., Inc., 421 S.C. 553, 558, 808
S.E.2d 626, 628 (Ct. App. 2017) (quoting State v.
Commander, 396 S.C. 254, 262-63, 721 S.E.2d 413, 417
(2011)). "Determining whether prejudice exists
'depends on the circumstances[, ]' and 'the
materiality and prejudicial character of the error must be
determined from its relationship to the entire
case.'" Id. (quoting State v.
Taylor, 333 S.C. 159, 172, 508 S.E.2d 870, 876 (1998)).
"Prejudice in this context means 'there is a
reasonable probability the jury's verdict was influenced
by the wrongly admitted or excluded evidence.'"
Id. (quoting Vaught v. A.O. Hardee & Sons,
Inc., 366 S.C. 475, 480, 623 S.E.2d 373, 375 (2005)).
a verdict is so grossly excessive and shockingly
disproportionate that it indicates the jury was motivated by
passion, caprice, prejudice, or other consideration not
founded on the evidence[, ] then it is the duty of the trial
court and the appellate court to set aside the verdict
absolutely." Caldwell v. K-Mart Corp., 306 S.C.
27, 33, 410 S.E.2d 21, 25 (Ct. App. 1991). Nonetheless,
"the jury's determination of damages is entitled to
substantial deference[, ]" and the circuit court's
decision on whether to grant a new trial based on the amount
of the verdict "will not be disturbed on appeal unless
it clearly appears the exercise of discretion was controlled
by a manifest error of law." Welch v. Epstein,
342 S.C. 279, 303, 536 S.E.2d 408, 420 (Ct. App. 2000).
asserts the circuit court erred by declining to grant a JNOV
on the ground that Seay was a statutory employee of Celanese.
Appellant argues that Seay's maintenance and repair work
on plant equipment was a part of the business of Celanese,
which was manufacturing polyester fiber, because the plant
would not have been able to properly function without the
maintenance and repair work performed by Seay and other
statutory employee doctrine converts conceded non-employees
into employees for purposes of the Workers' Compensation
Act." Glass, 325 S.C. at 201 n.1, 482 S.E.2d at
50 n.1. "The rationale is to prevent owners and
contractors from subcontracting out their work to avoid
liability for injuries incurred in the course of
employment." Id. Section 42-1-400 created the
concept of a statutory employee:
When any person, in this section and [s]ections 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 (in this section and Sections 42-1-420 to 42-1-450
referred to as "subcontractor") 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 to any workman employed in the work
any compensation under this title [that] he would have been
liable to pay if the workman had been immediately employed by
S.C. Code Ann. § 42-1-400 (2015) (emphasis added).
Pursuant to section 42-1-540, the exclusive remedy for an
injured statutory employee is the Workers' Compensation
Act. Therefore, even if a business organization does not have
a direct employment relationship with a worker, the
Workers' Compensation Act limits the worker to its
provisions as the exclusive remedy for injuries he received
while engaged in activity considered part of the
organization's trade, business, or occupation.
in its order denying Appellant's JNOV motion, the circuit
court found that the "trade, business[, ] or
occupation" of Celanese was the manufacture of polyester
fibers, and all Celanese employees were engaged in making
these fibers. The circuit court also found the maintenance
and repair work performed by Seay and other Daniel employees
was "significantly different" from the work
performed by Celanese employees and, therefore, concluded
that Seay was not a statutory employee of Celanese. The court
explained, "Although maintenance of the equipment in the
plant may have been important to Celanese's operation, it
does not follow that such maintenance was a 'part or
process' of its synthetic fiber manufacturing
courts have traditionally applied three tests in determining
whether a worker is engaged in activity that is part of the
organization's trade, business, or occupation: (1) the
activity is an important part of the
organization's business or trade; (2) the activity is a
necessary, essential, and integral part of the
organization's business; or (3) the activity has
previously been performed by the organization's
employees. Olmstead v. Shakespeare, 354 S.C. 421,
424, 581 S.E.2d 483, 485 (2003) (emphases added). These tests
were first articulated by our supreme court in 1988 in
Ost v. Integrated Products, Inc., 296 S.C. 241, 245,
371 S.E.2d 796, 798- 99 (1988) by drawing on three previous
opinions of the court. See Bridges v. Wyandotte Worsted
Co., 243 S.C. 1, 132 S.E.2d 18 (1963), overruled on
other grounds by Sabb v. S.C. State Univ., 350 S.C. 416,
422, 567 S.E.2d 231, 234 (2002); Boseman v. Pacific
Mills, 193 S.C. 479, 8 S.E.2d 878 (1940); Marchbanks
v. Duke Power Co., 190 S.C. 336, 2 S.E.2d 825
(1939). However, the court has acknowledged,
"Since no easily applied formula can be laid down for
determining whether work in a particular case meets these
tests, each case must be decided on its own facts."
Olmstead, 354 S.C. at 426, 581 S.E.2d at 486
(emphasis added) (quoting Glass, 325 S.C. at 201,
482 S.E.2d at 51); accord Ost, 296 S.C. at 244, 371
S.E.2d at 798; see also Meyer v. Piggly Wiggly No. 24,
Inc., 338 S.C. 471, 473, 527 S.E.2d 761, 763 (2000)
("Only one of these three tests need be met[, ] but
there is no easily applied formula and each case must be
decided on its own facts.").
"[t]he guidepost is whether or not that which is being
done is or is not a part of the general trade,
business[, ] or occupation of the owner." Id.
at 473- 74, 527 S.E.2d at 763 (emphasis added) (alteration in
original) (quoting Hopkins v. Darlington Veneer Co.,
208 S.C. 307, 311, 38 S.E.2d 4, 6 (1946)). Simply put,
"[e]mployees who work for the subcontractor but are not
employed to do the work that the owner would normally do
would not have a statutory employment ...