IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA 16

- 420

Filed: 20 December 2016

North Carolina Industrial Commission, I.C. No. X07855

JEFFREY EUGENE BEAL
, Employee, and LAWRENCE CRAIGE, Guardian of the Estate of JEFFREY EUGENE BEAL, Plaintiffs

v. COASTAL CARRIERS, INC.
, (Alleged) Employer, and ZURICH AMERICAN INSURANCE COMPANY, (Alleged Carrier ); Defendants; and THE WAREHOUSING COMPANY, LLC, (Alleged) Employer and KEY RISK INSURANCE COMPANY, (Alleged) Carrier, Defendant s. Appeal by defendant

- appellant Key Risk Insurance Company from opinion and
award entered 15 December 2015 by the North Carolina Industrial Commission

. Heard in the Court of Appeals 5 October 2016

.

Stiles, Byrum & Horne, L.L.P., by Henry C. Byrum, Jr.
, and B. Jeanette Byrum, for defendant s

- appellees Coastal Carriers, Inc. and Zurich American Insurance Company

. Hedrick Gardner Kincheloe & Garofalo, LLP, by Erica B. Lewis, Shelley W. Coleman, and M. Duane Jones, for defendant

- appellant Key Risk Insurance Company

.

DAVIS , Judge.

This workers ’ compensation insurance coverage dispute arises from a
workplace accident that occurred in Florida and injured an employee who lived in

North Carolina and had been lent to an employer based in South Carolina. Key Risk
Insurance Company ( “ Key Risk ” ) appeals f rom an opinion and a ward of the North

Carolina Industrial Commission ordering Key Risk to (1) pay temporary totalB EAL V

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Opinion of the Court

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- disability comp ensation to Jeffrey Eugene Beal ( “ Plaintiff ” ) pursuant to the North

Carolina Workers ’ Compensation Act; and (2) pay all indemnity benefits owed on

Plaintiff ’ s claim . Afte r careful review, we reverse and remand

. Factual Background
The facts giving rise to this case involve two furniture moving and installation
companies

— Coastal Carriers, Inc. ( “ Coastal ” ) and The Warehousing Company, LLC
( “ TWC ” ). On 20 July 2010, TWC

— a company based in South Carolina

— entered
into an agreement with Winter Park Construc tion Company ( “ Winter Park ” ) to
provide furniture, fixture s , and electronics installation services at Plantation Beach
Club Condominiums in Stuart, Florida ( the “ Florida Project ” ). Because TWC did not
have enough manpower to perform the job , TWC ’ s owner, Sidney Baird , contacted

Gordon Ray

— Baird ’ s longtime friend who was the president of Coastal

— to see
about the possibility of TWC hiring four of Coastal ’ s employees to temporarily work

for TWC on the Florida Project

. In 2010, Plaintiff was working for Coastal , which was based in North Carolina

. At a safety meeting of Coastal employees, Ray shared with them the information
regarding the Florida Project

. Upon learning of the employment opportunity from
Ray, Plaintiff and three other Coastal employees

— Michael Porter, Anthony Brown,
and Randy Wallace

— contacted Baird to inform him of their interest in working on
the Florida Project

. Baird offered each of the four employees the job

— which theyB EAL V

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Opinion of the Court

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- each accepted

— and told all of them that upon completion o f the job, they would be
paid by TWC.

Plaintiff worked on the Florida Project under the on

- site supervision of his
fellow Coastal employee, Porter , and a TWC employee named David Fleener. Baird
kept in contact with Porter and Fleener on a daily basis from his home in South

Carolina

. On 26 September 2010, while working at the Florida job site , Plaintiff was
injured when he fell while lifting furniture to the second floor of the building where

the TWC crew was working. As a result of the fall, he sustained multiple injuries.

On 2 2 October 2010, Plaintiff filed a Form 18 “ Notice of Accident ” with the
Industrial Commission, seeking compensation for his injuries from Coastal ’ s workers’
compensation ins urance carrier, Zurich American Insurance Company ( “ Zurich ” ), due

to his need for medical care for which TWC ’ s insurance carrier , Key Risk , had refused

to pay

. Zurich paid Plaintiff ’ s medical compensation of $350,799.25 and disabili ty
compensation of $44,068.85.
On 16 September 2011, Coastal filed a mot ion to add TWC as a defendant to

Plaintiff ’ s workers ’ compensation action. The motion was granted on 27 October

2011. On 2 January 2013, Coastal filed a Form 33 “ Request That Claim be Assigned

f or Hearing ” requesting that “ [TWC] and its workers ’ compensation carrier [Key Risk]
pay benefits pursuant to the North Carolina Workers ’ Compensation Act. ” On 25B EAL V

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- February 2013, Key Risk filed a Form 33R “ Response to Request Tha t Claim Be
Assigned for Hearing ” contendin g that Key Risk was not a party and “ would be
prejudiced if added into this claim as a party” more than two years after it was
removed from a hearing docket.

On 9 July 2013 , a hearing was held before Deputy Co mmissioner Melanie

Wade Goodwin. Deputy C ommissioner Goodwin issued an opinion and award
providing that Coastal, Zurich, and TWC were jointly liable for indemnity and
medical benefits paid by Zurich and ordering that Key Risk be dismissed with
prejudice as a party

- defendant in the matter. Coastal and Zurich filed a notice of
appeal from the deputy commissioner ’ s dismissal of Key Risk on 18 June 2014.
On 15 December 2015, t he Full Commission issued an opinio n and award
containing the following pertinent findings of fact:

1. On September 26, 2010, Jeffrey Eugene Beal (hereinafter, “ Jeffrey Beal ” or “ Mr. Beal ” or “ Plaintiff ’ ) was injured when he fell approximately 10

- 20 feet from a piece of equipment called a lull which was being used to lift furniture to the second floor of the building where The Warehousing Company, LLC (hereinafter, “ TWC ” ) crew was working. As a result of his fall, Mr. Beal sustained multiple injuries, including fractures of the left sphenoid wing, left lateral orbital wall, left maxillary sinus, and left zygomatic arch; a comminuted right distal radius and ulna fracture; a left elbow comminuted intra

- articular olecranon fracture; multiple left rib fractures; a ruptured spleen and a mild subarachnoid hemorrhage.

2. On October 22, 2010, Jeffrey Beal filed a Form 18 Notice of Accident with the North Carolina IndustrialB EAL V

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- Commi ssion seeking compensation for his injuries. The named Defendant was Coastal Carriers, Inc. (hereinafter,

“ Coastal ” ). Plaintiff

’ s claim was accepted and paid by Coastal and Zurich American Insurance Company (hereinafter “ Zurich ” ) due to the emergent need f or medical care which Key Risk Insurance Company (hereinafter,

“ Key Risk ” ), the workers ’ compensation carr ier for TWC, would not address.

. . . .
5. On September 16, 2011, Defendant Coastal filed a Motion to Add Party

- Defendant, seeking to add TWC, as a party Defendant. This Motion was granted by the Executive Secretary on October 27, 2011.

6. On September 26, 2010, Gordon Wayne Ray, Jr. (hereinafter Mr. Ray) was the President of Coastal, which was located in Wilmington, North Carolina. Coastal was a

mov er of household goods regulate d by state and federal tariffs.

7. On September 26, 2010, Sidney “ Skip ” Baird (hereinafter, “ Mr. Baird ” ) was the owner of TWC located at 122 Watergate Drive, Myrtle Beach, South Carolina. TWC ’ s business included the warehousing of and the installation of furniture, fixtures, and electronics at resort properties, installing furniture, fixtures, and electronics which was commercial work which was not regulate d by state and federal tariffs.

. . . .
11. On July 20, 2010 , TWC (through Mr. Baird) entered into a “ Subcontract Agreement ” with Winter Park Construction Company (hereinafter; “ Winter Park ” ) to provide furniture, fixture and electronics installation services at Plantation Beach Club Condominiums in Stuart, Florida . This contract was negotiated entirely by Mr. Baird on behalf of TWC and did not involve Mr. Ray orB EAL V

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- Coastal in any way.

12. Under the terms of the contract, TWC had eight days to complete the installation of furniture, fixtures and electronics in thirty

- two units. At the time in question, TWC had multiple projects underway in various parts of the United States and did not have the manpower to complete all of these jobs. Mr. Baird ’ s situation was further complicated by the fact that he was awaiting the bir th of his daughter, which required him to remain in Myrtle Beach, South Carolina. Mr. Baird contacted Mr. Ray indicating he was “ in a jam ” and that he wanted to hire four of Mr. Ray ’ s employees to work for TWC on a Florida job where all of the furniture, f ixture and electronics installation had to be completed in eight days.

13. Sometime prior to September 19, 2010, Mr. Ray announced at a safety meeting of Coastal employees that Mr. Baird wanted to hire workers for a Florida project and since the work for his company was in a slow period, he instructed any of his interested workers to contact Mr. Baird directly. Mr. Ray did not select or designate any of his workers for the Florida job. His workers were free to accept or reject the of

fer of employment.

. . . .
15. Following this meeting, which occurred in North Carolina, four Coastal employees

-- Michael Porter, Anthony Brown, Randy Wallace and Jeffrey Beal

-- arranged with Mr. Baird to go to Florida to work for TWC. Prior to these workers leaving North Carolina, Mr. Baird spoke by telephone with each of these four men

-- Michael Porter, Anthony Brown, Randy Wallace and Jeffrey Beal

-

- to give a “ pep talk [”] and discuss payment or wages at the completion of the job in Florida. Mr. Baird informed them they would be paid by TWC. Each one of these four men accepted Mr. Baird ’ s offer of employment while still in North Carolina.B EAL V

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- 16. Plaintiff testified tha t he agreed to work the Florida job while he was in North Carolina.

17. The four individuals who agreed t o work on the Florida p roject did not have reliable transportation. When informed of their transportation problems, Mr. Ray loaned the men a Coastal sales van to drive and gave them a gas card to purchase fuel. He expected to be reimbu rsed by TWC for these expenses.

. . . .
19. When the four individuals hired by TWC

-- Michael Porter, Anthony Brown, Randy Wallace and Jeffrey Beal

-- arrived in Florida, they went to a motel room that was paid for by Mr. Baird. Mr. Porter supervised the work for the first couple of days until David Fleener, an employee of TWC arrived on the site. Mr. Fleener then instructed the workers on what to do. Mr. Baird communicated with TWC workers multiple times on a daily basis while they were in Florida and personally supervised them through Michael Porter and David Fleener. This included setting working hours and monitoring progress on the job. Mr. Ray never super vised the work of the TWC crew.

20. Prior to September 26, 2010, Mr. Ray had a conference in West Palm Beach and he d ecided to stop by the Florida jobsite for a visit on his way to the conference. During the period of about thirty minutes when he was at the site, he cautioned the TWC workers to “ be careful ” but did not offer supervision or instruct them on their work. Wh ile Mr. Ray was present, he was approached by Mr. Porter about loaning Mr. Brown, Mr. Wallace, Mr. Beal and him money for food. Mr. Baird had promised to send the TWC crew money, but had failed to do so. Mr. Ray loaned each man $10 0.00 out of his personal funds.

21. When TWC ’ s project in Florida was completed, Mr. Baird paid Michael Porter, Anthony Brown, Randy Wallace and Jeffrey Beal for the work they did for TWC in Florida.B EAL V

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- These workers (other than Plaintiff) collected their money in Myrtle Beach, Sout h Carolina. The offices for TWC remained in Myrtle Beach, South Carolina the entire tim e the company was in existence.

22. Plaintiff was performing the work of TWC when his accident occurred.

23. Anthony Brown gave a statement under oath on February 17, 2012, which was included in the record, stating he was one of four individuals who traveled from North Carolina to Florida to work for TWC and was working on the project for a man named “ Skip. ” Mr. Porter was the contact person with Mr. Baird, and the two were constantly talking. Mr. Brown considered himself to be an employee of TWC. When the job was completed, the TWC employees drove to Mr. Baird ’ s apartment in Myrtle Beach, South Carolina where they collected their checks for the project.

24. Plaintiff t estified by deposition on October 9, 2012 in a civil action he filed in Florida as a result of the September 26, 2010 accident. Plaintiff testified that he received $100.00 from Mr. Ray so he would have food when Mr. Ray visited the Florida jobsite with hi s wife and took a “ tour through the motel. ” Plaintiff testified that he took orders from Michael Porter on the job and that Mr. Porter kept his hours. He was paid by Skip Baird for the work he performed in Florida. Mr. Ray never di rected his work on the pr oject.

. . . .
26. Based upon a preponderance of the evidence in view of the entire record, the Full Commission finds that Jeffrey Beal was not an independent contractor for TWC. He was expressly hired pursuant to an oral contract to leave North Carolina and go to work in Florida for a job that was to be completed in eight days. He did not possess any special skills in performing the type of work done by TWC. He didB EAL V

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- not have control over any aspects of the work that he performed for TWC. Mr. Beal obtained his work directions from persons designated by Mr. Baird to be onsite supervisors. He had no power to hire or fire anyone. The work he did was part of the trade or business of TWC. He was paid wages and tri p expenses by TWC.

27. Based upon a preponderanc e of the evidence in view of the entire record, the Full Commission finds that Jeffrey Beal was an employee of TWC at the time of his injury. Mr. Baird, owner of TWC, expressly made a contract of hire with Plaintiff. The work Mr. Beal did for TWC was entirely the work of Mr. Baird and TWC and benefitted TWC and not Coastal. Mr. Baird and TWC had the right, and did in fact, control the details of the work done by Mr. Beal during the period he worked for TWC, including the date of his injury by accident. During the period Mr. Beal was hired to work for TWC, he did not do an y work for Coastal and the work that he did for TWC was not part of the trade or business of Coastal. Mr. Beal and Mr. Baird on behalf of TWC agreed upon the employment terms. Coastal w as not involved in the employment contract agreement, Mr. Ray did not assign employees to TWC; he only announced the availability of a temporary job with TWC and left the decision of whether to seek the job entirely up to a ny of his interested employees.

. . . .
32. The Full Commission finds that both Coastal and TWC are liable for all of the compensable consequences of Plaintiff ’ s September 26, 2010 injury by accident in proportion to the wage liability of ea ch employer.

33. At the time of Plaintiff ’ s i njury on September 26, 2010, TWC was insured by Key Risk. There is a dispute, however, over whether the policy of insurance between Key Risk and TWC covered Plaintiff ’ s claim herein.

34. Mr. Baird arranged workers ’ compensation insuranceB EAL V

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- for the Florida p roject on behalf of TWC through Associated Insurors (hereinafter “ Associated ” ) in Myrtle Beach, South Carolina. In doing so, he explained to the agent the nature of his business and that TWC worked outside South Carolina. At the time of Plaintiff ’ s injury, TWC had more projects outside South Carolina than within the State. It

was Mr. Baird ’ s understanding that TWC had workers ’ compensation coverage for each jobsite, including the jobsite in Florida where Plaintiff was injured.

35. As part of its Subcontrac t Agreement with Winter Park for the project in Stuart, Florida, TWC had to provide proof of workers ’ compensation insurance. Mr. Baird arranged for his insurance agent (Associated) to contact Winter Park to verify the required coverage. After that contact occurred, Associated sent Winter Park a certificate of insurance verifying workers ’ compensation insurance for TWC. The “ Certificate Holder ” was listed as Winter Park Construction, 221 Circle Drive, Maitland, Florida. After that contact occurred, Winter P ark sent TWC the Subcontract Agreement to execute, and TWC went to work.

. . . .
61. Key Risk co ntends that the language of TWC ’ s insurance policy provides for workers ’ compensation insurance coverage in South Carolina only, with additional coverage only if Plaintiff was hired in South Carolina or principally employed in South Carolina.

62. Based upon a preponderance of the evidence of record, the Full Commission finds that Plaintiff ’ s employment was located in South Carolina because it is the only state in which he had any “ base of operation. ” The only place of business ever maintained by TWC was located in Myrtle Beach, South Carolina. Plaintiff was hired from TWC ’ s office in Myrtle Beach, South Carolina. Mr. Baird provided work assignments to the emplo yees, including Plaintiff, working on the Winter Park project from his place of business in South Carolina and Plaintiff was paid out ofB EAL V

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- South Carolina for the work he performed in Florida. The other three lent employees from Coastal

-- Michael Porter, Ant hony Brown and Randy Wallace

-- traveled to Myrtle Beach, South Carolina to receive payment from TWC for the work they performed (along with Plaintiff) in Stuart, Florida upon completion of the job.

63. Based upon a preponderance of the evidence in view

o f the entire record, the Full Commission finds that Plaintiff ’ s claim for compensation is covered under the Key Risk policy issued to TWC.
64. Coastal and TWC are jointly liable for medical payments made consequent of Plaintiff ’ s September 26, 2010 injury . Since Coastal had no “ wage liability ” to Plaintiff for the Florida p roject , TWC owes all of Plaintiff ’ s indemnity compensation. As a result of Plaintiff ’ s injuries, Zurich has paid as carrier for Coastal, medical compensation in the amount of $350,799.25 and indemnity compensation in the amount of $44,068.85. TWC ’ s carrier, Key Risk, has paid nothing. TWC and Key Risk are obligated to reimburse Zurich for TWC ’ s and Key Risk ’ s (50%) share of the joint amount of the medical compensation due as a result of P laintiff ’ s claim. TWC and Key Risk are obligated to reimburse Zurich for all the indemnity compensation due Plaintiff that Zurich has paid. Since the matter in controversy before the Full Commission is between the Defendants, the amount of Plaintiff ’ s aver age weekl y wage is not being determined.
Based on these findings of fact, the Commission made the following pertinent

conclusions of law:

1. On September 26, 2010, Plaintiff, Jeffrey Beal, sustained a compensable injury by accident due to a fall which aro se out of and in the course of his employment with TWC and involved the interruption of his work routine and the introduction thereby of unusual conditions likely to result in unexpected consequences. N.C. Gen. Stat. §§ 97

-B EAL V

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- 2(5); 97

- 2(6).

2. At the time of Plaintiff ’ s injury on September 26, 2010, four employees, Michael Porter, Anthony Brown, Randy Wallace and Plaintiff, were employees of TWC who had been lent by Coastal to TWC. N.C. Gen. Stat. § 97

- 2 ; S.C. Code Ann. § 42

- 1

- 360(2).

3. The Full Commission concludes that the North Carolina Industrial Commission has jurisdiction over Plaintiff ’ s claim.

. . .

. . . .
6. The Full Commission concludes that Plaintiff was an employee of TWC, not an independent contractor, at the time of his injury on September 2 6, 2010.

. . .

. . . .
9. The Full Commission concludes, based upon a preponderance of the evidence of record, that the employment relationship Plaintiff had with TWC met all three of the conditions to establish a “ special employer ” relationship

. . . . The preponderance of the evidence of record establishes that Plaintiff made a contract of hire with TWC; the work Plaintiff was doing for TWC on the Florida p roject was work involving fur niture, fixture and electronics installations that TWC subcontracted with Winter Park to perform and was different from the type of work Plaintiff did for Coastal, a household moving company; Coastal had no part in negotiating the subcontract agreement that TWC made with Winter Park and there was no agreement between TWC an d Coastal for Coastal to share the profits from the project; the work being done by Plaintiff was essentially that of TWC, the special employer; and TWC, the special employer, had the right to control, and did control, the details of the work that Plaintif f did on the Florida p roject

. Anderson v. Demolition Dynamics, Inc. , 136 N.C. App. 603, 6 07, 525 S.E.2d 471,B EAL V

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- 473 (2000).

10. The Full Commission concludes that Coastal remained Plaintiff

’ s general employer while he was working for TWC since the prepondera nce of the evidence and the reasonable inferences therefrom, indicate that Coastal was the general employer of Plaintiff while he was working for TWC, as Plaintiff and the three other workers Coastal lent to TWC had an expectation of returning to work with Coastal when the job with TWC was completed. Therefore, the legal presumption that the general employment with Coastal continued is not rebutted by a

“ clear demonstration. ” Collins v. James Paul Edwards, Inc. , 21 N.C. App. 455, 204 S.E.2d 873 (1974); Ande rson v. Demolition Dynamics, Inc. , 136 N.C. App. 603, 6 07, 525 S.E.2d 471, 473 (2000).

11. Based upon a preponderance of the evidence of record, the Full Commission concludes that Plaintiff was lent by Coastal to TWC and that at the time of his injury on September 26, 2010, he was jointly employed by both TWC and Coastal and both employers are jointly liable for Plaintiff ’s injuries. N.C. Gen. Stat. § 97

- 51; Collins v. James Paul Edwards, Inc. , 21 N.C. App. 455, 204 S.E.2d 873 (1974); Anderson v. Demolitio n Dynamics, Inc. , 136 N.C. App. 603, 6 07, 525 S.E.2d 471, 473 (2000).

. . . .
14. The Commission has the inherent power in this case to order TWC and Key Risk to reimburse Coastal and Zurich for benefits paid or to be paid on Plaintiff [’]s claim

. . . .

. . . .
17. Key Risk further contends that Key Risk ’ s obligation under a policy must be defined by the terms of the policy itself and that in construing policy language, basic contract rules apply. If the terms of a contract are unambiguous, theB EAL V

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- contract must be enforced. South Carolina Ins. Co. v. White , 301 S.C. 133, 390 S.E.2d 471 (1990). Key Risk argues that coverage cannot be e xtended to Plaintiff under the “ Other State Insurance ” portion of the policy because Plaintiff ’ s claim does not meet the follo wing conditions of the policy: “ The employee claiming benefits was either hired under a contract of employment made in a state listed in Item 3.A. of the Information Page or was, at the time of the injury, principally employed in a state listed in Item 3.A . of the Information Page.

. . . ”

18. It is undisputed that the substantive law of South Carolina applies to this case.

. . .

. . . .
21. Coastal relies on the provisions of S.C. Cod e Ann. § 42

- [1] 5

- 10, which state: “ Any employee covered by the provisions of this Title is authorized to file his claim under the laws of the state where he is hired, the state where he is injured, or the state where his employment is located. [”] S.C. Code Ann. § 42

- 15

- 10 does not specifically use the term

“ principall y employed, ” and instead refers to where an employee ’ s employment is “ located. ” S.C. Code Ann. § 42

- 15

- 10.

22. Key Risk contends, however, that Plaintiff must first show that his claim comes under the jurisdiction of the South Carolina Workers ’ Compensati on Act before South Carolina statutory law can be applied to Plaintiff ’ s claim.

23. The Full Commission concludes that South Carolina could have exercised jurisdiction over Plaintiff ’ s claim had he chosen to file his claim in South Carolina because South Carolina is the state where Plaintiff ’ s employment was located. To determine where a worker ’ s employment is located, South Carolina follows the “ base of operation rule. ” Hill v. Eagle Motor Lines , 373 S.C. 422, 429

- 30, 645 S.E.2d 424, 427 (2007) (quoting H olman v. Bulldog Trucking Co.
, 311 S.C. 341, 346, 428 S.E.2d 889, 892 (1993)). Under thisB EAL V

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- rule, “ the worker ’ s employment is located at the employer ’ s place of business to which he reports, from which he receives his work assignments, and from which he starts his road trips, regardless of where the work is performed. ” Id. at 373 S.C. [sic] at 429, 373 S.E.2d at 432. Where the work is performed is irrelevant on the issue of where an employee ’ s employment is located. Id. In the present case, the only place of business ever maintained by TWC was located in Myrtle Beach, South Carolina. Plaintiff was hired from TWC ’ s office in Myrtle Beach, South Carolina. Mr. Baird (TWC) provided detailed and specific work assignments to the employees, including Plaintiff, w orking on the Winter Park project from his place of business in South Carolina and Plaintiff was paid out of South Carolina for the work he performed in Florida. The other three lent employees from Coastal

-- Michael Porter, Anthony Brown and Randy Wallace

-- traveled to Myrtle Beach, South Carolina to receive payment from TWC for the work they performed in Stuart, Florida upon completion of the job. S.C. Code Ann. § 42

- 15

- 10 ; Hill v. Eagle Motor Lines , 373 S.C. 422, 429

- 30, 645 S.E.2d 424, 427 (2007). The Court of Appeals of South Carolina in Voss v. Ramco , Inc. , 325 S.C. 560, 482 S.E.2d 582 (1997), held that the legislature did not intend to exclude all transient employment that did not fit neatly within the base of operations test set out in Holman

. Id. T he concept of “ base of operation ” rule presupposes that all employees have a fixed base of operation [to] which jurisdiction over a workers ’ compensation claim will attach. Id. The Court of Appeals in Voss ultimately held that South Carolina was the state where the employee ’ s employment was located, given the amount of control exerted over the employee by his employer, who operated out of South Carolina, even though the employee received his daily assignments from wherever his employer was located that day and he started his road trips from wherever the group was located, but never from South Carolina. Voss v. Ramco, Inc. , 325 S.C. 560, 482 S.E.2d 582 (1997). The Supreme Court of South Carolina agreeing with the Court of Appeals ’ analysis in Voss , held in Ox endine v. Davis , 373 S.C. 438, 646 S.E.2dB EAL V

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- 143 (2007), that the base of operations rule is to “ determine the location of nomadic employment based on the employer ’ s place of business, ” and used other factors outside of those defined in Holman , such as the em ployee reporting to the employer ’ s business in South Carolina to be paid, to determine the employee ’ s location of employment. Id. The Supreme Court in Oxendine ultimately held that an employer ’ s base of operations was in South Carolina when the employer cl early operated his business in South Carolina. Id. at 445, [646] S.E.2d at 150. Thus, even if the facts of the present case do [not] have all of the factors under the base of operations test set out in Holman , following the analysis of Oxendine and Voss , Plaintiff ’ s employment would still be located in South Carolina, given the amount of the control exerted over Plaintiff by Mr. Baird (TWC), who clearly operated his business out of South Carolina

. Oxendine v. Davis , 373 S.C. 438, 646 S.E.2d 143 (2007); Vos s v. Ramco, Inc. , 325 S .C. 560, 482 S.E.2d 582 (1997).

24. Applying the applicable provisions of the South Carolina law to the current claim, the Full Commission finds that the Key Risk policy provided coverage for Plaintiff ’ s claim filed in North Carolina. P ursuant to S.C. Code Ann. § 42

- 5

- 60, “ Every policy for the insurance of the compensation provided in this Title or against liability therefore shall be deemed to be made subject to provisions of this Title . . . . ” Therefore, the statutory provi sions of the South Carolina Workers ’ Compensation Code are a required part of the Key Risk policy for workers ’ compensation insurance issued to TWC. Also, S.C. Code Ann. § 42

- 5

- 70 provides that jurisdiction of the insured for the purpose of this Title shal l be jurisdiction of the insurer and S.C. Code Ann. § 42

- 5

- 60 requires that the Key Risk policy conform to South Carolina law. These statutory requirements are reflected in the language of the Key Risk workers ’ compensation insurance policy issued to TWC. The policy states, “ Jurisdiction over you is jurisdiction over us for purposes of workers ’ compensation law. We are bound by d ecisions against you under the l aw, subject toB EAL V

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- the provisions of this policy that are not in conflict with the law. ” The policy al so provided that, “ Terms of this insurance that conflict with the workers ’ compensation law are changed by this statement to conform to that law. ” S.C. Code Ann. § 42

- 5

- 70. Key Risk, in issuing its workers ’ compensation policies, has submitted to the juris diction of South Carolina and its statutory provisions governing workers ’ compensation claims. Based upon the “ base of operation ” analysis above, the employment for the other three lent employees from Coastal was also located in South Carolina. Therefore, TWC had four or more employees in South Carolina for the purposes of jurisdiction under South Carolina Workers ’ Compensation Act. S.C. Code Ann. § 42

- 1

- 360(2).

25. The Full Commission concludes that the preponderance of the evidence of record establishes that South Carolina has jurisdiction over TWC, the insured, and that the workers ’ compensation insurance policy issued by Key Risk to TWC covered Plaintiff ’ s injury, requiring Key Risk to reimburse Coastal and Zurich pursuant to N.C. Gen. Stat. § 97

- 86.1(d ).

. . . Key Risk filed written notice of appeal from the Commission ’ s 15 December

2015 Opinion and Award

. 1
Analysis
Appellate review of an opinion and award of the Industrial Commission is

“ limited to consideration of whether competent evidence supports the Commission ’ s
findings of fact and whether the findings support the Commission ’ s conclusions of

law. ” Philbeck v. Univ. of Mich. , 235 N.C. App. 124, 127, 761 S.E.2d 668, 671 (2014)

1 The appellees in this appeal are Coastal and Zurich. At times in this opinion, we refer to them jointly as “Coastal.”B EAL V

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- (citation and quotation marks omitted). “ The findings of fact made by the
Commission are conclusive on appeal if supported by competent evidence even if there
is also evidence that would support a contrary finding. The Commission ’ s conclusions
of law, however, are reviewed de novo

. ” Morgan v. Morgan Motor Co. of Albemarle
, 231 N.C. App. 377, 380 , 752 S.E.2d 677, 680 (2013) (internal citation s omitted), aff ’ d
per curiam , 368 N.C. 69, 772 S.E.2d 238 (2015).
Before addressing Key Risk ’ s arguments, we must first determine whether the
Commission had jurisdiction over Plaintiff ’ s workers ’ compensation claim. North

Carolina ’ s Workers ’ Compensation Act provides , in pertinent part, as follows:

Where an accident happens while the employee is employed elsewhere than in this State and the accident is one which would entitle him or his dependents or next of kin to compensation if it had happened in this State, then the employee or his dependents or next of kin shall be entitled to compensation (i) if the contract of employment was made in this State , (ii) if the employer ’ s principal plac e of business is in this State, or (iii) if the employee ’ s principal place of employment is within this State; provided, however, that if an employee or his dependents or next of kin shall receive compensation or damages under the laws of any other state n othing herein contained shall be construed so as to permit a total compensation for the same injury greater than is provided for in this Article.
N.C. Gen. Stat. § 97

- 36 (2015) (emphasis added)

. In order to determine where a contract of employment was made, we apply the

“ last act ” test. Murray v. Ahlstrom Indus. Holdings, Inc. , 131 N.C. App. 294, 296, 506
S.E.2d 724, 726 (1998). “ For a contract to be made in North Carolina, the final actB EAL V

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Opinion of the Court

- 19

- necessa ry to make it a binding obligation must be done here. ” Id. (citation, quotation

marks , and brackets omitted).
Here, the Commission found that the last act making the employment
arrangement between Plaintiff and TWC “ a binding obligation ” was Plaintiff ’ s

a greement during his telephone conversation with Baird to work on the Florida
Project for TWC

. Because Plaintiff was physically present in North Carolina during

this conversation , the contract of employme nt was made in North Carolina.

“ To be entitled to maintain a proceeding for workers ’ compensation, the
claimant must be, in fact and in law, an employee of the party from whom
compensation is claimed. ” Youngblood v. N. State Ford Truck Sales , 321 N.C. 380,
383, 364 S.E.2d 433, 437 (1988) (citations omitt ed). If no employer

- employee
relationship exists, the Commission lacks jurisdiction to hear the claim. See Lucas v.

Li ’ l Gen. Stores , 289 N.C. 212, 218, 221 S.E.2d 257, 261 (1976) (citations omitted).

“ The issue of whether the employer

- employee relation ship exists is a jurisdictional

one. ” Youngblood , 321 N .C. at 383, 364 S.E.2d at 437.
Here, the parties do not contest the Commission ’ s finding that an employer

employee relationship existed between Plaintiff and TWC at the time of the 26
September 2010 a ccident

. The record establishes that

— as the Commission found

— TWC was a “ special employer, ” Plaintiff was a “ borrowed employee, ” and Coastal

remained Plaintiff

’ s “ general employer. ”B EAL V

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Opinion of the Court

- 20

- “ The North Carolina Supreme Court has determined that the Industrial

C ommission has jurisdiction to

. . . hear and determine questions of fact and law
respecting the existence of insurance coverage and liabi lity of the insurance carrier. ”

Smith v. First Choice Servs. , 158 N.C. App. 244, 248, 580 S.E.2d 743, 747 (2003)
(cita tion and quotation marks omitted); see also Harrison v. Tobacco Transp., Inc. , 139 N.C. App. 561, 564

- 65, 533 S.E.2d 871 , 873

- 74 ( 2000) (determining that
Industrial Commission had jurisdiction to determine whether Kentucky ’ s workers ’
compensation statutes expanded insurance policy ’s coverage so as to provide benefits
to employee of Kentucky employer).
Having determined that the Commissio n had jurisdiction to hear this matter ,

we next turn to Key Risk ’ s argument that its policy does not provide cove rage for

Plaintiff ’ s injuries

. Specifically, Key Risk argues that (1) Plaintiff was not

“ principally employed ” in South Carolina , and therefore, no coverage for his injuries

exists under the terms of the policy it issued to TWC ; and (2) South Carolina ’ s

W orkers ’ Compensation Act does not require that such coverage be provided under
Key Risk ’ s policy.
The Information Pag e of Key Risk ’ s p olicy state s , in pertinent part, as follows:

3.A. Workers ’ Compensation Insurance: Part One of the policy applies to the Workers ’ Compensation Law of the states listed here:

SCB EAL V

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Opinion of the Court

- 21

- . . . . C. Other States Insurance: Part Three of the policy applies to t he states, if any, listed here:
[none listed]
The p olicy als o contained a Residual Market Limited Other States Insurance
Endorsement (the “ Endorsement ” ), the relevant language of which provides as

follows:

“ Part Three

- Other States Insurance ” of the policy is

replaced by the following:

PART THREE OTHER STATE INSURANCE
A. How This Insurance Applies:
1. We will pay promptly when due the benefits required of you by the workers ’ compensation law of any state not listed in Item 3.A. of the Information Page if all of the following conditions are met:
a. The emplo yee claiming benefits was either hired under a contract of employment made in a state listed in Item 3.A. of the Information Page or was, at the time of injury, principally employed in a state listed in Ite m 3.A. of the Information Page [.]

. . . .
IMPORT ANT NOTICE!
If you hire any employees outside those states listed in Item 3.A. on the Information Page or begin operations in any such state, you should do whatever may be required under that state ’ s law, as this endorsement does not satisfy the requireme nts of that state ’ s workers ’ compensationB EAL V

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Opinion of the Court

- 22

- law.
(Emphasis added.)
Thus, when the Endorsement is read in conjunction with Item 3.A. of the
Information Page, the policy provides that Key Risk will pay benefits required by the

workers ’ compensation law of a state other than South Carolina only if t he employee
claiming benefits was either (1) hired under a contract of employment made in South
Carolina; or (2) princi pally employed in South Carolina at the time of injury

. Neither
party contends that Plaintiff was hired under a contract of emp loyment made in

South Carolina. However, the parties disagree as to whether Plaintiff was

“ principally employed ” in South Carolina at the time of his injury.
Key Risk contends that Plaintiff was principally employed in Florida

— rather

than South Carolina

— because his work on the project took place exclusively in
Florida. Coastal, conversely, contends that South Carolina was the state in which

Plaintiff was principally employed because TWC was based in South Carolina a nd
exercised control from South Carolina over the Florida Project.

“ With insurance contracts the principle of lex loci contractus mandates that the
substantive law of the state where the last act to make a binding contract occurred,
usually delivery of the policy, controls the interpretation of the contract. ” Harrison , 139 N.C. App. at 565, 533 S.E.2d at 874 (citation and quotation marks omitted). Here,
Baird, a resident of South Carolina, sought workers ’ compensation coverage for TWC,B EAL V

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.
Opinion of the Court

- 23

- a South Carolina bu siness, through an agent in South Carolina. He received coverage
through a policy issued by Key Risk, and the policy was delivered to him at his South
Carolina address. Thus, the last act to make a binding insurance contract between
Key Risk and TWC occu rred in South Carolina. As such, the Commission correctly

determined that South Carolina ’ s substantive law governs the interpretation of Key

Risk ’ s policy.
Under South Carolina law,
[i] nsurance policies are subject to the general rules of contract construction. This Court must give policy language its plain, ordinary, and popular meaning. When a contract is unambiguous, clear, and explicit, it must be construed according to the terms the parties have used.

B.L.G. Enters. v. First Fin. Ins. Co. , 334 S.C. 529, 535, 514 S. E.2d 327, 330 (1999)
(internal citations omitted).
In the present case, t he Commission held

— and the parties agree

— that the

term “ principally employed ” in the Endorsement cannot be read in isolation but

instead mu st be construed in conjunction with South Carolina ’ s Workers ’
Compensation Act. See S.C. Code Ann. § 42

- 5

- 60 (2015) ( “ Every policy for the
insurance of the compensation provided in this title or against liability therefor shall
be deemed to be made subjec t to provisions of this title. No corporation, association , or organization shall enter into any such policy of insurance unless its form shall have
been approved by the Director of the Department of Insurance. ” ).B EAL V

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Opinion of the Court

- 24

- Coastal argues that § 42

- 15

- 10 of South C arolina ’ s Workers ’ Compensation Act

“ extended jurisdiction over South Carolina employers beyond state lines by
specifically authorizing employees to assert claims against employers domiciled in
South Carolina in any state where the employee was hired, inju red or his employment

was located. ” Even assuming arguendo that this is correct, however, we conclude

that the Commission erred in determining that Key Risk ’ s policy provided coverage

for Plaintiff

’ s accident

. S.C. Code Ann. § 42

- 15

- 10 states as follows:
Any employee covered by the provisions of this title is authorized to file his claim under the laws of the state where he is hired, the state where he is injured, or the state where his employment is located . If an employee shall receive compensation or d amages under the laws of any other state, nothing contained in this section shall be construed to permit a total compensation for the same injury greater than that provided in this title.
S.C. Code Ann. § 42

- 15

- 10 (201 5 ) (emphasis added)

.
Based on this st atute , Coastal contends that the phrase “ principally employed ”

as used in Key Risk ’ s policy must be interpreted as having the same meaning as the
phrase “ where

. . . employment is located ” as contained in th e statute . For this reason,

Coastal asserts that it is appropriate to examine South Carolina casel aw interpreting

this language in § 42

- 15

- 10.
In determining where a worker ’ s employment is located for purposes of § 42

-

15

- 10 , South Carolina courts apply the “ base of operation ” rule, a doctrine originatin gB EAL V

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Opinion of the Court

- 25

- from the deci sion by the South Carolina Court of Appeals in Holman v. Bulldog
Trucking Co. , 311 S.C. 341, 428 S.E.2d 889 (Ct. App. 1993) . Under this rule, “ the

worker ’ s employment is located at the employer ’ s place of business to which he
reports, from which he receives his work assignments and from which he starts his
road trips, regardless of where the work is performed. ” Id. at 346, 428 S.E.2d at 892

.
South Carolina ’ s appellate courts have made clear that “ the location of employment
can only be in o ne state. ” Vo ss v. Ramco, Inc. , 325 S.C. 560, 572, 482 S.E.2d 582 , 588
(Ct. App. 1997 )

. In the present case, the Commission made the following finding of fact, which
Key Risk challenges in this appeal:

62. Based upon a preponderance of the evidence of record, the Full Commission finds that Plaintiff ’ s employment was located in South Carolina because it is the only state in which he had any “ base of operation. ” The only place of business ever maintained by TWC was located in Myrtle Beach, South Carolina. Plaintiff was hired from TWC ’ s office in Myrtle Beach, South Carolina. Mr. Baird provided work assignments to the employees, including Plaintiff, working on the Winter Park project from his place of business in South Carolina and Plaintiff was paid out of South Carolina for the work he performed in Florida. The other three lent employees from Coastal

-- Michael Porter, Anthony Brown and Randy Wallace

-- traveled to Myrtle Beach, South Carolina to receive payment from TWC for the work they performed (along with Plaintiff) in Stuart, Flor ida upon completion of the job.
The Commission then purported to apply the principles set forth in Holman

and Voss as well as in two other South Carolina cases

— Oxendine v. Davis , 373 S.C.B EAL V

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Opinion of the Court

- 26

- 438, 646 S.E.2d 143 (2007), and Hill v. Eagle Motor Lines , 373 S.C. 422, 645 S.E.2d
424 (2007) . Because of the significant amount of attention that the Commission and
the parties give these four cases, we address each of them in turn

.
In Holman , the employee , a truck driver , lived in So uth Carolina, but he would
report to Georgia for his assignments. Holman , 311 S.C. at 343 , 428 S.E.2d at 89 1

. While driving his truck in Georgia, the employee was killed in an accident on the
highway. The employee ’ s mother filed for b enefits under South Carolina ’ s Workers ’
Compensation Act . Her claim was denied, and she appealed the decision to the South

Carolina Court of Appeals. Id. at 344, 428 S.E.2d at 891.

The court held that in order to determine whether the truck driver ’ s
employment was located in South Carolina for purposes of § 42

- 15

- 10 , an application

of the “ base of operation ” test was required

. Id. at 346, 428 S.E.2d at 892. In applying
this test, t he court relied on the fact that although the employee lived i n South
Carolina, he had reported to Georgia for duty, picked up and returned his company
truck in Georgia, received his work assignments from G eorgia, and made calls to his
employer in Georgia. Therefore, the court concluded that his “ base of operation ” was
in Georgia, meaning that his “ employment was located ” in Georgia for purposes of
§ 42

- 15

- 10 such that his w orkers ’ c ompensation claim had been correctly denied

. Id.

at 346

- 47, 428 S.E.2d at 893.B EAL V

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Opinion of the Court

- 27

- I n Voss , the South Carolina Court of Appeals revisited this issue. In that case , a company called Ramco, Inc. that manufactured small industrial equipment was

located in South Carolina. Voss , 325 S.C. at 563, 482 S.E.2d at 583. Another

company , NATCO, which sold Ramco ’ s equipment, was also located in South

Carolina. Id. NATCO ’ s owner hired the plaintiff

— who lived in Texas

— to sell

Ramco ’ s equipment across the country. The plaintiff would travel from city to city
selling Ramco equipment by the truckload. Id. at 563, 482 S.E.2d at 583

- 84. The

ag reement between Ramco and NATCO provided that Ramco would deliver its
equipment to the city in which the group of salesmen

— including the plaintiff

—

w ere selling the equipment , and NATCO ’ s owner would then supervise the sales team
in each city to which the team traveled

. Id.
The plai ntiff was injured selling Ramco equipment while in the state of
Washington. Id. at 570 , 482 S.E.2d at 587 . During the time in which he worked for

Ramco, he never sold equipment in South Carolina and made only one trip to South
Carolina to pick up equipme nt. Id. at 565, 482 S.E.2d at 584. He filed a workers ’
compensation claim in South Carolina , but Ramco denied the claim, assert ing that

the South Carolina Workers ’ Compensation Commission lacked subject matter
jurisdiction over the plaintiff ’ s claim. Id

. at 563, 482 S.E.2d at 583. The commission

ruled in favor of the plaintiff, and its decision was ultimately affirmed by the circuit

court. Ramco appealed to the South Carolina Court of Appeals. Id.B EAL V

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Opinion of the Court

- 28

- The court invoked the “ base of operation ” test set out in Holman to determine
whether South Carolina had jurisdiction over the plaintiff ’ s claim, noting that “ al l
types of transient employment

. . . do not fit neatly within the employment ritual of
the employee truck driver in [ Holman ]. ” Id. at 571, 482 S.E.2d at 588. The court

observed that a traveling salesman would not have the same work routine as a truck
driver, stating the following:

[I] t was not this Court ’ s intention [in Holman ] to hold that a class of transient employees could never hav e a “ base of operation ” and therefore be limited under section 42

- 15

- 10 to the benefits available in two states (the state where the employee [was] hired and the state where the employee was injured), while other transient employees could choose the most advantageous of three states.

Id.

The court reiterated its previous statement in Holman that “ the location of
employ ment can only be in one state ” and that, logically, “ the location of employment

must be in some state. ” Id. at 572, 482 S.E.2d at 588. Th e court proceeded to hold
that although the plaintiff lived in Texas and was injured in Washington, his
employment was located in South Carolina

. Id. The court ruled that regardless of
the fact that the plaintiff received work assignments from a supervis or who was often
physically present in multiple states, the plaintiff ’ s employer was Ramco , and Ramco
was permanently located in South Carolina

. Id.

The court reasoned thatB EAL V

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.
Opinion of the Court

- 29

- although Voss started his road trips from wherever the group was located, but never from South Carolina, he nevertheless is principally employed in South Carolina because it is the only state in which he has any “ base of operation. ”

. . . [A] s a practical matter, South Caroli n a is the state where Voss was employed, given the amount of control exerted over Voss by [his employers], both of whom operated out of South Carolina.

Id

. In 2007, t he Supreme Court of South Carolina issued two decisions applying

the “ base of operation ” test. I n Oxendine
, the plaintiff was a construction worke r
living in North Carolina who did seasonal work for a construction company that was

based in South Carolina. Oxendine
, 373 S.C. at 440, 646 S.E.2d at 144. His employer

hired him to work at a jobsite in North Carolina on a project that lasted for six weeks.
The plaintiff had previously performed work for the employer in South Carolina and

had regularly traveled to South Carolina to receive his payment. Id.
During the six

- week period prior to his injury, the plaintiff worked solely at
the jobsite in North Carolina. Id. At one point, the plaintiff visited his employer ’ s
home in South Carolina for social purposes and fixed the employer ’ s water pump

— a task for which he was not paid. Id. He also traveled to the employer ’ s home in

Sou th Carolina to receive payment at least once during the time he worked on the
North Carolina project

. Id.
The plaintiff was injured in an accident while working on the North Carolina
jobsite. Id. He filed a workers ’ compe nsation claim in North Carolina, which wasB EAL V

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.
Opinion of the Court

- 30

- denied. Id. He then filed a claim under South Carolina ’ s Workers ’ Compensation
Act, and the South Carolina Workers ’ Compensation Commission determined that it

had jurisdiction over the plaintiff ’ s claim

. Id. at 440

- 41, 646 S.E.2d at 144. The
employer ultimately appealed to the Supreme Court of South Carolina. Id.

T he c ourt held that South Carolina was the plaintiff ’ s “ base of operation

. ” Id.

at 4 45, 646 S.E.2d at 146. In making this determination , the court relied on multiple
factors, notin g that while none was “ individually determinative, they all lend support
to the conclusion[.] ” Id. at 444 , 646 S.E.2d at 146.

(1) Respondent regularly worked for Employer in South Carolina during warm months for a number of years; (2) Respondent went to E mployer ’ s home/office in South Carolina on occasions to be paid, including at least once during the last interval of his work; (3) Respondent often met co

- workers at the place of employment to go to jobs; and (4) Respon dent performed work at Employer’ s home immediately before his injury.

Id.

The court then stated the following:

In reaching this conclusion, we look not only at Respondent ’ s six

- week employment term, but also at his broad employment history with Employer. Respondent ’ s regular and recurring employment with Employer for several years prior to his injury was nearly entirely based in South Carolina. The fact that Respondent was working in North Carolina on this particular occasion does not transport the Employer ’ s base of operations from South Carolina to North Carolina.

Id.B EAL V

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Opinion of the Court

- 31

- T he court further noted that “ [t]his conclusion is underscored by the amount

of control exerted over Respondent by Employer who was located in South Carolina. ”

Id. In explaining its ruling , the court clarified the princip les it drew from Holman

and Voss :
Appellants also argue that if the base of operations rule

applies, the relevant base of operation was North Carolina because it is the employee ’ s base, and not the employer ’ s base, that should be considered. Appellants ’ re asoning directly contradicts both Voss and Holman [,] cases which apply the base of operations rule to determine the location of nomadic employment based on the employer ’ s place of business, “ regardless of where work is performed. ”

Id. at 445, 646 S.E.2d at 146.

Hill concerned a plaintiff truck driver who lived in South Carolina and was
injured while driving through Virginia. Hill , 373 S.C. at 427 , 645 S.E.2d at 426

. The
plaintiff ’ s employer was based in Alabama. After his accident , the plaintiff

succes sfully filed a claim under South Carolina ’ s Workers ’ Compensation Act. His
employer appealed the decision in favor of the plaintiff to the Supreme Court of South

Carolina. Id. at 42 7

- 2 8, 645 S.E.2d at 426.

Because the plaintiff had been hired in South Ca rolina , the court held that
South Carolina had jurisdiction over the plaintiff ’ s claim. Id. at 430, 645 S.E.2d at

428

. However , the c ourt also ruled that in addition to being the state where the
plaintiff was hired, South Carolina was likewise the state where plaintiff ’ s
employment was “ located ” for purposes of § 42

- 15

- 10

. The court determined that theB EAL V

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.
Opinion of the Court

- 32

- plaintiff ’ s “ base of operation ” was in South Carolina because the plaintiff began his
road trips from South Carolina, kept his truck at his South C arolina home on the
weekends, and received his paycheck at his home in South Carolina. Id. at 432

- 33,

645 S.E.2d at 429. The court further noted that although the plaintiff called the
Alabama office at the end of each delivery to find out where to pick u p his next load , he was not required to report to the Alabama office for duty or return to Alabama
after completing his assignments. Id. at 432, 645 S.E.2d at 429. Nor was the
plaintiff ’ s truck licensed in Alabama

. Id.

Holman , Voss , Oxendine , and Hill demonstrate the fact

- specific nature of the

“ base of operation ” test ’s application and the difficulty of determining where a

worker ’ s employment is “ located ” when his employment is nomadic in nature. In such

cases, the employee works on multiple jobs for a particular employer in more than
one state, making it difficult to pinpoint one specific state as the location of his
employment.
In the present case , conversely, Plaintiff’s employment was no t nomadic . H e

worked at one location for his employer during the entire period of his employment.

He had no prior history of working on jobs

— in South Carolina, Florida, or anywhere

else

— for TWC, and the record is devoid of any indication that he was likely to work
on future projects for TWC. He was not a trav eling salesman or a truck driver whose
job duties for his employer required him to travel to multiple states. Nor was he akinB EAL V

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.
Opinion of the Court

- 33

- to the worker in Oxendine who performed multiple jobs for his employer in one state
prior to being dispatched by the employer to p erform a job in another state.
Instead, Plaintiff was a lent employee who was hired by TWC to perform one
specific job in one specific place . TWC required that he perform all of his work in
Florida, and he lived in Florida for the entire duration of the job, commuting from a

m otel in Florida to the Florida jobsite throughout the duration of his employment

with TWC. Plaintiff reported to work each day in Florida and received assignments

from o n

- site supervisors in Florida.
Standing i n stark contrast to his numerous connections wi t h Florida during
his employment with TWC is the utter lack of contacts Plaintiff had with South
Carolina. Plaintiff never reported to South Carolina for duty either before the project
began or after it was c ompleted. Indeed, t he record is devoid of any indication that

Plaintiff visited South Carolina for any purpose

— except when he drove through that
state as a matter of ge ographical necessity between North Carolina and Florida.

For these reasons , t he prese nt case requ ires nothing more than a common sense
application of the “ base of operation ” test to conclude that Plaintiff ’ s employment with

TWC was “ located ” in Florida. The courts in Holman , Voss , Oxendine , and Hill were
required to balance competing facto rs in applying this test given that each of those
cases involved employees who performed work for a single employer in multiple

states. The facts of this case simply do not require us to do so here.B EAL V

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Opinion of the Court

- 34

- We are unpersuaded by Coastal ’ s argument that Plaintiff ’ s job assignments
actually came from Baird in South Carolina. The record shows only two instances of

direct contact between Baird and Plaintiff

— the telephone call during which Baird
offered him the job and a subsequent call in which he gave Plaintiff a “ pep talk. ” Both
of these telephone calls occurred while Plaintiff was still in North Carolina and before

he had left the state to start work on the Florida Project

.
Plaintiff had on

- site supervisors at the Florida jobsite

— initially Porter and

later Fle ener

— who gave him his work assignments and instructions for the work to

be performed . T he record clearly indicates that these supervisors were both in

Florida when they instructed Plaintiff as to his duties on the Florida Project. While
Coastal argues that these on

- site supervisors were relaying orders that had been
given to them by Baird from South Carolina, we do not believe that any such indirect

control over Plaintiff’s work by Baird serves as a sufficient substitute for direct

connections between P laintiff and South Carolina given the circumstances of
Plaintiff’s employment with TWC

. Therefore, we conclude that throughout Plaintiff ’ s employment with TWC, his

“ base of operation ” was Florida. Accordingly, he was neither “ principally employed ”
(for purposes of the Endorsement) in South Carolina nor was South Carolina the state

“ where his employment [ was ] located ” (for pur poses of § 42

- 15

- 10). Thus
, theB EAL V

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Opinion of the Court

- 35

- Commission erred in determin ing that Key Risk ’ s policy provid ed coverage for

Plaintiff’s wor kplace accident

. 2

Conclusion

For the reasons stated above, we reverse the Commission ’ s O pinion and A ward
to the extent it determined that Key Risk’s policy provides any coverage for the 26
September 2010 accident and remand this matter for further proceedi ngs not
inconsistent with this opinion

.
REVERSED AND REMANDED.
Judge s INMAN and ENOCHS concur.

2 On appeal, Key Risk also raises as an alternative argument that the Commission erred in ordering Key Risk to pay all indemnity benefit s owed on Plaintiff’s claim as a result of his injury based on the theory that “ the proportion of the responsibility of [ Plaintiff’s ] wages [ was ] equal between Coastal and [ TWC ]

. ” However, in light of our holding that Key Risk’s policy does not provide an y coverage regarding Plaintiff’s accident, we need not address this issue.