Harrell v. Pineland Plantation, Ltd.

MOORE, Justice:

I disagree with the majority’s conclusion that Pineland does not have immunity because it carried no workers’ compensation insurance at the time of Harrell’s injury. Accordingly, I respectfully dissent.

First, the majority concludes, and I agree, that Pineland is a statutory employer under § 42-1-400 which provides:

When any person, in this section and §§ 44-1-420 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 §§ 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 which he would have been liable to pay if the workman had been immediately employed by him.

(emphasis added). 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). As the majority notes, 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 *332contingent 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. Bateson Co., 316 S.C. 95, 447 S.E.2d 197, 199 (1994) (Toal, AJ.) 0citing 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).

Pineland was obligated to pay workers’ compensation under the Act as a statutory employer and therefore it enjoys tort immunity irrespective of the existence of insurance. Here, the claimant pursued and obtained workers’' compensation from Pineland’s subcontractor, Folk. As a statutory employer, Pine-land shares the tort immunity of its subcontractor regardless of who actually paid the compensation. Parker, 267 S.E.2d at 528.

The majority attempts to support its position by applying to an owner the statutory requirement that an employer secure the payment of compensation under §§ 42-5-10 and -20 in order to enjoy tort immunity under the Act. As § 42-5-40 specifically provides, however, an employer who fails to secure compensation becomes liable to an employee “either for compensation under this Title or at law.” (emphasis added). Thus, in a situation where an employer is uninsured, a claimant may pursue workers’ compensation or, in the alternative, recovery in tort. Nothing in the Act entitles a claimant to recover both workers’ compensation and a tort judgment.

In conclusion, I would reverse the Court of Appeals’ decision and hold that Pineland is entitled to tort immunity as a statutory employer.

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 *332exemption to an owner’s liability if the contractor or subcontractor has represented it has workers’ compensation, unless the immediate employer is uninsured. Section 42-l-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.