Wofford v. City of Spartanburg

415 S.C. 152

781 S.E.2d 146

Boisha WOFFORD, alleged surviving spouse, and Kaelyn Wofford, surviving child, on behalf of Brian Wofford, deceased employee, Appellants,

v.CITY OF SPARTANBURG, through the SOUTH CAROLINA MUNICIPAL INSURANCE TRUST, Respondents.

Appellate Case No. 2014–001269.

No. 5369.

Court of Appeals of South Carolina.

Heard Oct. 14, 2015.

Decided Dec. 9, 2015.

Rehearing Denied Jan. 21, 2016.

Kenneth C. Anthony, Jr., and Kenneth Jay Anthony, both of the The Anthony Law Firm, P.A., of Spartanburg, for appellants.

Helen Faith Hiser, of McAngus Goudelock & Courie, LLC, of Mount Pleasant; and Stephanie Lamb Pugh, of Turner Padget Graham & Laney, P.A., of Greenville, for respondents.

LOCKEMY, J.

Boisha Wofford and Kaelyn Wofford (Claimants) appeal the Appellate Panel of the South Carolina Workers' Compensation Commission's order finding Brian Wofford was not acting within the course and scope of his employment at the time of his death under an exception to the "going and coming rule."¹ We affirm.

FACTS

Wofford, the former Superintendent of the Parks and Recreation Department for the City of Spartanburg (the City), died in a motorcycle accident in Moore, South Carolina. Wofford was on his way from his mother's home in Moore to one of the City's recreational centers. The accident occurred around 11:15 a.m.

At the hearing before the single commissioner, the City's aquatics director, Tracey Ballew, recalled calling Wofford on the morning of the accident to ask him to meet her at the City's swim center to sign some forms and retrieve a key from the Department's C.C. Woodson Recreational Center. Ballew stated Wofford told her he "was going directly to [C.C. Woodson Recreational Center] to get the key, and then coming to the Swim Center."

Scott Page, the City's Parks Manager, testified Wofford often worked out of other recreation centers, including the C.C. Woodson Recreational Center. Similarly, Deborah McClary, an administrative assistant, stated Wofford often worked at several different locations, including the Department's main office, the four recreational centers, the swim center, and the City's parks.

Mitchell Kennedy, the City's Director of Community Services and Wofford's supervisor, testified Wofford's job duties involved traveling between the various recreational centers and parks. Kennedy testified he often communicated with employees via phone, e-mail, and text, even when he or the employees were not at work. Kennedy explained, "I have communicated with employees, based upon certain circumstances, where I knew that they were not at work and I may have a task.... So I would not consider [them] on the job if I knew that ... person was not at work." Kennedy stated it was not unusual for Wofford to fulfill requests like Ballew's to retrieve keys and sign forms. Additionally, Kennedy explained it was common for Wofford to travel among the various recreational centers, parks, and swim centers. According to Kennedy, Wofford had discretion in setting his work hours.

Janice Littlejohn, Wofford's mother, testified Wofford came to her house in Moore on the morning of the accident to pick up his motorcycle, which he stored at her home. Littlejohn stated her home was in the opposite direction of Wofford's office. Littlejohn recalled Wofford had two business-related phone calls while he was visiting her. Wofford was at Littlejohn's home for approximately three hours. When Wofford left Littlejohn's home, he told her he was on his way to work.

The single commissioner concluded Wofford did not suffer a compensable injury because Claimants failed to show his accident arose out of and in the course of his employment as Wofford was not working at the time of his accident. Further, the commissioner found the remote communication that Wofford had with other City employees did not rise to the level such that his actions were within the course and scope of his employment. Even if his communication made his actions within the course and scope of his employment, the commissioner concluded Wofford's decision to drive to his mother's home to visit her for three hours and pick up his motorcycle resulted in a substantial deviation from his employment.

Finally, the commissioner found there were no applicable exceptions to the going and coming rule. The commissioner noted Wofford's accident occurred on the way to work, and Wofford did not have any work-related duties to perform on the way to work nor was he under the control of the City. The commissioner also found the special errand exception to the going and coming rule was inapplicable because Wofford was not charged with a task on his way to work. The commissioner further found Wofford was going to work to perform his typical job duties and it was common for Wofford to work at his office, the recreational centers, or at a City event.

The parties cross-appealed to the Appellate Panel of the Commission. On appeal, Claimants argued two points to reverse the single commissioner. First, Claimants asserted Wofford was working while he was visiting his mother because he was emailing and calling employees. Second, Claimants maintained Wofford's accident met an exception to the going and coming rule because he was on a special errand to retrieve keys for Ballew. The Appellate Panel affirmed the single commissioner's findings in full. This appeal followed.

STANDARD OF REVIEW

"The South Carolina Administrative Procedures Act establishes the substantial evidence standard for judicial review of decisions by the Commission." Murphy v. Owens Corning, 393 S.C. 77, 81, 710 S.E.2d 454, 456 (Ct.App.2011) (citing S.C.Code Ann. § 1–23–380 (Supp.2014) ). "Under the substantial evidence standard of review, this court may not substitute its judgment for that of the Commission as to the weight of the evidence on questions of fact, but may reverse where the decision is affected by an error of law." Id. at 81–82, 710 S.E.2d at 456.

LAW/ANALYSIS

I. Two Issue Rule

Initially, the City claims the two issue rule bars Claimants' appeal because the Appellate Panel denied their claim on multiple grounds, but the Claimants appealed only one of those grounds. The City asserts even if this court reverses the Appellate Panel's findings on the going and coming rule, Claimants could not succeed on appeal because the Appellate Panel found Wofford's trip to his mother's house was a substantial deviation from his employment. Second, the City maintains Wofford did not meet an exception to the going and coming rule. Initially, the City notes Claimants have not indicated which exception to the going and coming rule applies.

Further, the City argues none of the exceptions apply because Wofford was on his way to work to perform his normal job duties and merely volunteered to pick up a key for Ballew.

Claimants assert the two issue rule does not apply here. Claimants argue that if Wofford was engaged in a special task for his employer and met an exception under the going and coming rule, then the Appellate Panel's other rulings would be "invalidated." We find the two issue rule does not apply here.

"Under the two issue rule, where a decision is based on more than one ground, the appellate court will affirm unless the appellant appeals all grounds because the unappealed ground will become the law of the case."

Jones v. Lott, 387 S.C. 339, 346, 692 S.E.2d 900, 903 (2010). " It should be noted that although cases generally have discussed the ‘two issue’ rule in the context of the appellate treatment of general jury verdicts, the rule is applicable under other circumstances on appeal, including affirmance of orders of trial courts." Anderson v. S.C. Dep't of Highways & Pub. Transp., 322 S.C. 417, 420 n. 1, 472 S.E.2d 253, 255 n. 1 (1996).

For example, if a court directs a verdict for a defendant on the basis of the defenses of statute of limitations and contributory negligence, the order would be affirmed under the "two issue" rule if the plaintiff failed to appeal both grounds or if one of the grounds required affirmance.

Id.

We find the two issue rule does not apply here because Claimants presented two reasons why their claim was compensable—(1) Wofford had worked all morning by communicating remotely with other City employees and (2) he met an exception to the going and coming rule once he left his mother's home. The Appellate Panel found Wofford's communications did not rise to the level that would bring his actions at his mother's home within the course and scope of his employment, and even if they did, he substantially deviated from his employment by visiting his mother in Moore. Further, the Appellate Panel found no applicable exceptions to the going and coming rule applied because retrieving the key and signing forms for Ballew was within Wofford's ordinary job duties. Although Claimants did not appeal the Appellate Panel's ruling that Wofford's phone calls and e-mails to other employees at his mother's home did not rise to the level such that his actions were within the scope of his employment, they did appeal the Appellate Panel's finding that Wofford did not meet an exception to the "going and coming rule" once he left his mother's home. We find the Appellate Panel's order addresses two different points in time—(1) Wofford's actions at his mother's home and (2) his actions when he was on his way to work.

II. Exception to Going and Coming Rule

Claimants argue the Appellate Panel erred in finding Wofford was acting outside the course and scope of his employment at the time of his death because his claim fell within an exception to the going and coming rule. Claimants assert that once Wofford left his mother's home, he was in the process of executing a specific task for the City—retrieving a spare key from a recreational center. Thus, Claimants maintain Wofford was performing an act in connection with his duties as the superintendent of the Department. We disagree.

Generally, an employee going to or coming from the place where he works is not...