Smalls v. Coreas, 2013-UP-130

William Smalls, Appellant, v. Alex Antonion Coreas and Hightrak Staffing, Inc., a/k/a Hitrak Staffing, Defendants, Of whom Hightrak Staffing, Inc. a/k/a Hitrak Staffing is the Respondent.

Appellate No. 2011-196106

No. 2013-UP-130

Court of Appeals of South Carolina

March 27, 2013

UNPUBLISHED OPINION

Heard March 6, 2013

Appeal From Charleston County R. Markley Dennis Jr., Circuit Court Judge

Kevin B. Smith, of Hoffman Law Firm, of North Charleston, for Appellant.

Robert H. Hood and James B. Hood, of Hood Law Firm, LLC, of Charleston, and Deborah H. Sheffield, of Law Office of Deborah Harrison Sheffield, PA, of Columbia, for Respondent.

PER CURIAM

In this negligence action, Appellant William Smalls (Smalls) seeks review of the circuit court's grant of summary judgment to Respondent Hightrak Staffing, Inc. (Hightrak) on the ground that Smalls' claims against Hightrak are barred by the Workers' Compensation Act.^[1]

1. As to whether the circuit court erred in concluding that Coreas was an employee of Detyens Shipyard (Detyens) at the time of his alleged negligence, we affirm. Detyens' president David Loy Stewart Jr., testified that Detyens used Hightrak to fill its labor requirements for ongoing projects when Detyens did not have enough permanent employees to fill those needs. Detyens and Hightrak had an ongoing agreement requiring Detyens to pay Hightrak a certain amount per hour for skilled labor and a different amount per hour for unskilled labor. Stewart also testified that Detyens filtered the laborers to make sure they were qualified to perform the required tasks. According to the hull superintendent, James Skiles, this filtering included testing the laborers to make sure they were competent at their stated skill. Further Detyens required laborers who were sent from Hightrak to follow the same workplace practices that Detyens' permanent employees had to follow, and Detyens had the authority to terminate the laborers sent from Hightrak. While Detyens did not have the authority to terminate an employee from his employment with Hightrak, Detyens did have the authority to terminate that employee's responsibilities with Detyens. Moreover, Leo Fary, treasurer of Detyens stated in his affidavit that Detyens provided all of the tools used by laborers sent by Hightrak to Detyens, and these laborers worked under the direction and supervision of a Detyens manager.

Based on the foregoing, the circuit court correctly concluded, as a matter of law, that Coreas was an employee of Detyens at the time of his alleged negligence. See Rule 56(c) SCRCP (providing that summary judgment shall be granted 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" (emphasis added)); Nix v. Columbia Staffing, Inc., 322 S.C. 277, 281, 471 S.E.2d 718, 720 (Ct. App. 1996) (holding the test for determining whether an employee furnished by one person to another becomes a lent employee is "whether the employee passes under the latter's right of control with regard not only to the work to be done but also to the manner of performing it" (citing Parker v. Williams & Madjanik, 269 S.C. 662, 239 S.E.2d 487 (1977))).

2. To the extent that Smalls' complaint may be interpreted to assert Hightrak's vicarious liability for Coreas' alleged negligence, such a claim is barred by section 42-5-10 of the South Carolina Code (1985),^[2] which provides that an employee who negligently injures another employee while in the scope of employment is immune from personal liability. See Strickland v. Galloway, 348 S.C. 644, 647, 560 S.E.2d 448, 449 (Ct. App. 2002) ("[A] co-employee who negligently injures another employee while in the scope of employment is immune under the Workers' Compensation Act and cannot be held personally liable."); cf. Guillory v. Gukutu, 534 F. Supp.2d 267, 274 (D.R.I. 2008) (holding an injured worker's estate was barred from bringing a respondeat superior action against a staffing agency, who was the nominal employer of the allegedly negligent co-worker, because the co-worker, as a borrowed servant of the injured worker's employer, was immune from liability under the Longshore and Harbor Workers' Compensation Act and, thus, the injured worker's estate could not assert against the staffing agency its nonexistent right against the co-worker).

3. Smalls argues that a material issue of fact existed as to whether Hightrak was a subcontractor for Detyens. However, it is undisputed that Hightrak was not performing any...