Hopper v. Terry Hunt Construction

Justice PLEICONES:

I respectfully dissent. In September 2003, Kajima entered a contract with Hunt Construction for work that commenced in November 2003. Hunt gave Kajima an Acord 25-S Certificate of Liability Insurance indicating Hunt had workers compensation coverage through December 31, 2003. Pursuant to S.C. Reg. 67-415, this form, if issued by the carrier for the insured and dated, signed, and issued by an authorized representative of the carrier, “shall serve as documentation of insurance” for purposes of S.C.Code Ann. § 42-1-415 (Supp. 2008). See Barton v. Higgs, 381 S.C. 367, 674 S.E.2d 145(2009) (majority holds compliance with reg.’s four requirements are necessary to constitute statutory documentation). Here, the form was issued, dated, and signed by an authorized representative and thus met § 42-1-415’s documentation requirement. Id. Nothing in either the statute or the regulation requires, as would the majority here, that the form’s block nominated “DESCRIPTION OF OPERATIONS/LOCATIONS” be filled in, nor that the form contain coverage information or the amount of the deductible. In my opinion, there is no evidence in the record to support the ruling of the Full Commission, upheld by the Court of Appeals, that Kajima accepted an incomplete form and therefore did not have “documentation of insurance” “at the time the contractor or *318subcontractor was engaged to perform work”, i.e., in September 2003.

I also dissent from the additional sustaining ground found by the majority. Section 42-l-415(A) provides in relevant part:

Notwithstanding any other provision of law, upon the submission of documentation to the commission that a contractor or subcontractor has represented himself to a higher tier subcontractor, contractor, or project owner as having workers’ compensation insurance at the time the contractor or subcontractor was engaged to perform work, the higher tier subcontractor, contractor, or project owner must be relieved of any and all liability under this title except as specifically provided in this section.

The statute only requires that the lower tier contractor represented himself as having workers’ compensation insurance (not that it actually has such coverage) “at the time the contractor or subcontractor was engaged to perform work.” The majority interprets that term to mean that the general contractor is under a continuing duty to assure itself of coverage during “the complete time frame in which the subcontractor is engaged to perform the work.” I disagree.

In South Carolina Uninsured Employer’s Fund v. House, 360 S.C. 468, 602 S.E.2d 81 (Ct.App.2004) modified on other grounds Hardee v. McDowell, 381 S.C. 445, 673 S.E.2d 813(2009), the Court of Appeals held that § 42-1-415 does not require the general contractor to continue to collect proof of insurance after the initial documentation. As Judge Stilwell wrote for the court:

We are loath to read such a requirement into a statute that otherwise contains such straightforward language. Subsection (C) of section 42-1-415 is directed toward the subcontractor, places upon it the duty to notify the higher-tier contractor of any lapse in coverage, and sets forth the consequences of the subcontractor’s failure to do so when it provides, in relevant part:
Knowing and willful failure to notify, by certified mail, the higher tier ... contractor ... who originally was provided documentation of workers’ compensation coverage of a lapse in coverage within five days after the lapse is *319considered fraud and subjects the ... subcontractor who represented himself as having workers’ compensation insurance to the penalties for fraud provided by law.
S.C.Code Ann. § 42-l-415(C).
The use in subsection (C) of the word “originally” lends support to the reasoning that the information given at the inception of the engagement is the controlling factor, negating any statutory requirement on the part of the higher-tier contractor to continue collection proof of insurance.
House, 360 S.C. at 472, 602 S.E.2d at 83.

I agree with the Court of Appeals in House and would hold that Kajima is relieved of liability under § 42-1-415 because it received an Acord form which complied with the regulatory requirements of Reg. 67-415 at the time Hunt was engaged to perform the work.

For the reasons given above, I respectfully dissent.

WALLER, J., concurs.