Glover v. United States

MOORE, Justice:

I respectfully dissent. As stated in my dissent in Harrell v. Pineland Plantation, 337 S.C. 313, 523 S.E.2d 766 (1999), I disagree with the majority’s conclusion that a statutory employer must have workers’ compensation insurance at the time of the injury in order to enjoy tort immunity under the Workers’ Compensation Act. In my opinion, this conclusion flies in the face of some basic tenets of our workers’ compensation law.

Under § 42-1-400, an “owner” is liable as a matter of law to pay workers’ compensation benefits to its statutory employees. Parker v. Williams and Madjanik, Inc., 275 S.C. 65, 267 S.E.2d 524, 527 (1980). A statutory employer has an absolute liability to pay workers’ compensation benefits. Long v. Atlantic Homes, 311 S.C. 237, 428 S.E.2d 711, 713 (1993).1 This obligation is not contingent upon whether the owner has workers’ compensation insurance.

“One who has obligations under the Act enjoys the immunities under the Act.” Freeman Mechanical, Inc. v. J.W. Bate-son Co., 316 S.C. 95, 447 S.E.2d 197, 199 (1994) (Toal, A.J.) (citing 2A ARTHUR LARSON, LARSON’S WORKMEN’S COMPENSATION LAW § 72.31 (1993)). The immunity granted by the Act parallels the liability imposed by the Act. Neese v. Michelin Tire Corp., 324 S.C. 465, 478 S.E.2d 91 (Ct.App.1996) (citing Freeman, supra). Because a statutory employer is obligated under the Act to pay workers’ compensation benefits, it enjoys tort immunity under the Act irrespective of insurance. I would answer the certified question in the negative.

WALLER, J., concurs.

. This absolute liability was recently modified by the enactment of S.C.Code Ann. § 42-l-415(A) (Supp.1998) which provides for a specific exemption to an owner's liability if the contractor or subcontractor has represented it has workers’ compensation, unless the immediate employer is uninsured. Section 42-1-415(D) specifically provides, however, that this section shall not abrogate a statutory employer's tort immunity. Accordingly, the modification to an owner’s absolute liability under this section does not impact my conclusion.