Thomas K. Fowler, Jr., of Peake & Fowler Law Firm, 

PA, of Columbia, for Appellant. 

Mark Davis Cauthen and Peter P. Leventis, IV, both of 

McKay Cauthen Settana & Stubley, PA, of Columbia, 

for Respondents. 

CHIEF JUSTICE TOAL: In this appeal, we reviewed the circuit court's order 

affirming the South Carolina Workers' Compensation Appellate Panel's decision 

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE 

CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING 

EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR. 

THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

Andreal Holland, Appellant, 

v. 

J.C. Witherspoon, Jr., Inc., A&K Mulch, and Capital City 

Insurance Company, Respondents. 

Appellate Case No. 2013-000276 

Appeal From Clarendon County 

R. Ferrell Cothran, Jr., Circuit Court Judge 

Memorandum Opinion No. 2014-MO-031 

Heard April 3, 2014 – Filed July 23, 2014 

REVERSED AND REMANDED 
that Respondents were entitled to stop paying Appellant's workers' compensation 

benefits. Appellant contends that Respondents waived the election of remedies 

defense because the carrier knew of Appellant's intent to file a third-party lawsuit 

and initially took action indicating joint pursuit of the third-party lawsuit, yet did 

not raise the election of remedies defense until more than two years later. 

"Waiver is a voluntary and intentional abandonment or relinquishment of a 

known right." Eason v. Eason, 384 S.C. 473, 480, 682 S.E.2d 804, 807 (2009) 

(quoting Parker v. Parker, 313 S.C. 482, 487, 443 S.E.2d 388, 391 (1994)). 

Waiver "may be expressed or implied by a party's conduct." Parker, 313 S.C. at 

487, 443 S.E.2d at 391 (citing Mende v. Conway Hosp., Inc., 304 S.C. 313, 404 

S.E.2d 33 (1991)). "An implied waiver results from acts and conduct of the party 

against whom the doctrine is invoked from which an intentional relinquishment of 

a right is reasonably inferable." Lyles v. BMI, Inc., 292 S.C. 153, 158–59, 355 

S.E.2d 282, 285 (Ct. App. 1987) (citing Pitts v. N.Y. Life Ins. Co., 247 S.C. 545, 

148 S.E.2d 369 (1966)). Based on the circumstances of this case and the authority 

cited above, we reverse and remand to the South Carolina Workers' Compensation 

Commission to reinstate Appellant's workers' compensation benefits. 

REVERSED AND REMANDED. 

BEATTY, KITTREDGE and HEARN, JJ., concur. PLEICONES, J., 

dissenting in a separate opinion. 
JUSTICE PLEICONES: I respectfully dissent as I can find no reversible 

error in the circuit court's ruling that Respondents did not waive their right to 

assert the defense of election of remedies. It is well-settled that a carrier's 

actual knowledge of an injured worker's intent to file third party suit does not 

excuse the injured party's failure to comply with the notice requirements of 

S.C. Code Ann. § 42-1-560 (1985). See Callahan v. Beaufort Cnty Sch. Dist., 

375 S.C. 92, 96, 651 S.E.2d 311, 313 (2007) fn.2. The circuit court agreed 

with the factual finding of the Full Commission that Respondents "raised this 

defense, election of remedies, at every contested hearing in this case since the 

defense became viable . . . ." Under the substantial evidence scope of review, 

I find that we must uphold this factual finding and affirm. E.g., Bridges v. 

Housing Auth., City of Charleston, 278 S.C. 342, 295 S.E.2d 872 (1985).