UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT H. SIMPSON,
Plaintiff-Appellant,

v.
                                                               No. 98-1906
DUKE ENERGY CORPORATION,
formerly known as Duke Power
Company,
Defendant-Appellee.

WILLIAM R. CHASTAIN,
Plaintiff-Appellant,

v.
                                                               No. 98-1950
DUKE ENERGY CORPORATION,
formerly known as Duke Power
Company,
Defendant-Appellee.

Appeals from the United States District Court
for the District of South Carolina, at Anderson.
William B. Traxler, Jr., District Judge.
(CA-98-471-8-21, CA-98-430-8-21)

Argued: June 8, 1999

Decided: September 8, 1999

Before MURNAGHAN, LUTTIG, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: Douglas Franklin Patrick, Sr., COVINGTON, PATRICK,
HAGINS, STERN & LEWIS, Greenville, South Carolina; Donald
Roscoe Moorhead, DONALD R. MOORHEAD, P.A., Greenville,
South Carolina, for Appellants. Ellis Murray Johnston, II, HAYNS-
WORTH, MARION, MCKAY & GUERARD, Greenville, South Car-
olina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Plaintiffs-Appellants William Chastain and Robert Simpson filed
actions against Duke Energy Corporation in the United States District
Court for the District of South Carolina as a result of burn injuries
they sustained in a steam pipe explosion at the Oconee Nuclear Sta-
tion in Oconee County, South Carolina. The district court granted
Defendant's motion for summary judgment, determining that Plain-
tiffs' exclusive remedy is under the South Carolina Workers' Com-
pensation Law, S.C. Code Ann. § 42-1-10 et seq. (Law. Co-op. 1985).
On appeal, Plaintiffs challenge the court's determination, arguing pri-
marily that the court should have certified certain questions to the
state supreme court for resolution. Finding no error, we affirm the dis-
trict court's decision.

I.

Plaintiffs-Appellants William Chastain ("Chastain") and Robert
Simpson ("Simpson"), along with five other workers, were injured on
September 24, 1996 when a steam pipe exploded at the Oconee
Nuclear Station in Oconee County, South Carolina. At the time of the
accident, both Chastain and Simpson were employees of Duke Energy

                    2
Corporation ("Duke Energy") and were acting within the course of
their employment.

Three days after the accident, Duke Energy filed a report regarding
the injuries with the South Carolina Workers' Compensation Com-
mission ("Commission"), as is required under S.C. Code Ann. § 42-
19-10. Thereafter, both Chastain and Simpson began to receive bene-
fits under the South Carolina Workers' Compensation Law (the
"Act"). Chastain received temporary benefits totaling $17,648.45. On
October 24, 1997, his case was heard by the Commission, and he was
awarded an additional $71,055.16 for a total compensation benefit of
$80,073.61. Duke Energy also paid medical benefits of $319,557.68
on his behalf. Simpson received temporary benefits totaling
$17,136.32. Duke Energy also paid medical benefits of $551,808.86
on his behalf. Simpson has not yet sought a final hearing before the
Commission.

Both Chastain and Simpson filed diversity actions against Duke
Energy in the United States District Court for the District of South
Carolina as a result of the burn injuries they sustained in the accident.
They maintain that Duke Energy was negligent in failing to design,
fabricate, operate, and inspect the Nuclear Station's piping and asso-
ciated systems and components properly.

Duke Energy filed answers to both actions on March 9, 1998 and
later moved for summary judgment with respect to both suits. The
district court held a hearing on the motions, where Chastain and
Simpson argued that § 42-5-250 of the South Carolina Code of Laws1
provides them with a common law right of action against Duke
Energy. Chastain and Simpson also urged the district court to certify
certain issues regarding the interpretation of § 42-5-250 to the South
Carolina Supreme Court. The district court granted Duke Energy's
motions and dismissed both cases.
_________________________________________________________________
1 Section 42-5-250 provides as follows: "This Title shall not apply to
policies of insurance against loss from explosion of boilers or flywheels
or other similar single catastrophe hazards. But nothing contained in this
section shall be construed to relieve the employer from liability for injury
or death of an employee as a result of such explosion or catastrophe."
S.C. Code Ann. § 42-5-250 (Law. Co-op. 1985).

                     3
Both Simpson and Chastain filed timely Notices of Appeal. This
Court, on August 14, 1998, consolidated both appeals for purposes of
briefing and oral argument. Because we find no error in the district
court's decision, we affirm.

II.

Appellants requested that the district court certify the following
issues to the South Carolina Supreme Court under the certification
procedure authorized by Rule 2282 of the South Carolina Appellate
Court Rules:

         1. Does § 42-5-250 of the South Carolina Code of Laws
         (1976) permit an employee to sue his employer under
         a general negligence theory if his injury was caused by
         a "single catastrophic hazard" as defined under the stat-
         ute?

         2. If § 42-5-250 of the South Carolina Code of Laws
         (1976) removes injuries occasioned by "single cata-
         strophic hazards" from the South Carolina Workers'
         Compensation Act, can an employer claim election of
         remedies if workers' compensation benefits have been
         paid to the employee?

           3. Can an employer force its employee to proceed under
           the doctrine of election of remedies if the employer files
           for workers' compensation benefits on behalf of an
           employee who was injured in a "single catastrophic haz-
_________________________________________________________________
2 Rule 228 permits federal courts to certify an unsettled question of
state law to the South Carolina Supreme Court for resolution. The rule
states that "[t]he Supreme Court in its discretion may answer questions
of law certified to it by any federal court of the United States or the high-
est appellate court or an intermediate appellate court of any other state,
when requested by the certifying court if there are involved in any pro-
ceeding before that court questions of law of this state which may be
determinative of the cause then pending in the certifying court when it
appears to the certifying court there is no controlling precedent in the
decisions of the Supreme Court." S.C.A.C.R. 228(a).

                   4
          ard" as defined under § 42-5-250 of the South Carolina
          Code of Laws?

Even though § 42-5-250 has not been interpreted by the South Caro-
lina courts, the district court found it unnecessary to certify any of the
issues outlined above to the state supreme court. Appellants argue that
the lack of state precedent directly interpreting§ 42-5-250 should
have prompted the court to certify the issues, so the court's decision
was in error. We review a district court's refusal to certify a question
to the state's highest court for abuse of discretion. See Lehman Broth-
ers v. Schein, 416 U.S. 386, 391 (1974) (determining that use of certi-
fication procedure "rests in the sound discretion of the federal court");
Boyter v. Commissioner of Internal Revenue Service , 668 F.2d 1382,
1385 (4th Cir. 1981).

Appellants insist that, while the decision to certify is within the
court's discretion, the case law suggests there are broad guidelines
that the court must follow. For example, in Langley v. Pierce, 993
F.2d 36 (4th Cir. 1993), the Fourth Circuit pointed out that "[b]ecause
the resolution of the contentions of the parties is a matter of South
Carolina law, and it appears to us that there is no controlling prece-
dent on point in the decisions of the Supreme Court of South Caro-
lina, we believe [it] proper to certify to the Supreme Court of South
Carolina for decision the question in this case." Id. at 37-38. Simi-
larly, in Grattan v. Board of School Commissioners of Baltimore City,
805 F.2d 1160 (4th Cir. 1986), we stated that certification "is appro-
priate when the federal tribunal is required to address a novel issue
of local law which is determinative in the case before it." Id. at 1164
(denying appellant's certification request). Since there is no control-
ling precedent interpreting § 42-5-250, Appellants urge, certification
to the state supreme court would be appropriate.

To the contrary, there is no need for certification where the answer
to the question sought to be certified is reasonably clear. The Fourth
Circuit has emphasized that "[o]nly if the available state law is clearly
insufficient should the court certify the issue to the state court." Roe
v. Doe, 28 F.3d 404, 407 (4th Cir. 1994); see also Smith v. FCX, Inc.,
744 F.2d 1378, 1379 (4th Cir. 1984) (determining certification was
unnecessary since there was ample state precedent to guide the federal
court as to the answer the state court would provide), cert. denied,

                     5
471 U.S. 1103 (1985). Even "[w]here there is no case law from the
forum state which is directly on point, the district court [must]
attempt[ ] to do as the state court would do if confronted with the
same fact pattern." Roe, 28 F.3d at 407.

We are especially hesitant to overrule the district court's decision
denying certification where the party seeking certification is the same
party that sought federal jurisdiction in the first place and, by exten-
sion, federal interpretation of state law. See Smith, 744 F.2d at 1379
(suggesting that it was inappropriate for party to request certification
of issue to state supreme court where that party"sought and received
a federal court's interpretation of state law"). Chastain and Simpson
initiated their suits against Duke Energy in federal district court based
on diversity jurisdiction. They chose the forum and, in so doing, opted
for federal interpretation of the relevant provisions of the state Work-
ers' Compensation Law. We are reluctant to find an abuse of discre-
tion under such circumstances.

Because there exists sufficient sources of South Carolina law for
us to render a reasoned and principled conclusion (see discussion
below), certification is unnecessary. We, therefore, find no error in
the district court's decision.

III.

Concluding that the state Workers' Compensation Law provided
the exclusive remedy for injuries arising from "a single catastrophe
hazard," the district court granted Duke Energy's motion for summary
judgment against Appellants' common law negligence claims. Appel-
lants challenge the judgment, arguing that their injuries are outside
the scope of the Act and, thus, exempt from the exclusive remedy
rule. We review the court's grant of summary judgment, as well as
its interpretation of the state workers' compensation statute, de novo.
See Roe, 28 F.3d at 406-407; see also Salve Regina College v.
Russell, 499 U.S. 225, 231 (1991) (concluding that an appellate court
should review de novo a district court's determination of state law).

The South Carolina Workers' Compensation Law provides the
exclusive remedy against an employer for employees who are injured
in the course of employment. The Act specifically provides:

                    6
          The rights and remedies granted by this Title to an employee
          when he and his employer have accepted the provisions of
          this Title, respectively, to pay and accept compensation on
          account of personal injury or death by accident, shall
          exclude all other rights and remedies of such employee, his
          personal representative, parents, dependents or next of kin
          as against his employer, at common law or otherwise, on
          account of such injury, loss of service or death.

          Provided, however, this limitation of actions shall not apply
          to injuries resulting from acts of a subcontractor of the
          employer or his employees or bar actions by an employee
          of one subcontractor against another subcontractor or his
          employees when both subcontractors are hired by a common
          employer.

S.C. Code Ann. § 42-1-540 (Law. Co-op. 1985). In short, Section 42-
1-540 bars all common law actions against an employer for accidental
personal injury. S.C. Code Ann. § 42-1-540; see also Cook v. Mack's
Transfer & Storage, 352 S.E.2d 296, 298 (S.C. App. 1986) (stating
that the exclusivity provision of the Act "bars all actions against an
employer where a personal injury to an employee comes within the
Act ... [making] the Act the exclusive means of settling all such
claims"), cert. denied, 355 S.E.2d 861 (S.C. 1987).

The South Carolina courts have recognized narrowly-defined
exceptions to the exclusive remedy provision of the Workers' Com-
pensation Law. First, the statute itself expressly excludes claims for
injuries that result from certain "acts of a subcontractor." S.C. Code
Ann. § 42-1-540. In addition, since § 42-1-540 only bars actions aris-
ing out of "personal injury or death by accident," employees can
maintain an action against their employer if the action is not based on
a claim of personal injury. As such, it is beyond the scope of the Act.
For example, in Loges v. Mack Trucks, Inc., 417 S.E.2d 538 (S.C.
1992), the South Carolina Supreme Court permitted an employee to
maintain a common law action for negligent supervision against her
employer for a co-employee's alleged slander. Id. at 540. The court
determined that a slander action did not constitute a personal injury
claim and, thus, was not barred by the Act's exclusivity provision
"since the gravaman of a slander action is injury to one's reputation."

                    7
Id. Similarly, in Peay v. U.S. Silica Co. , 437 S.E.2d 64 (S.C. 1993),
the state Supreme Court noted that § 42-1-540, which by its express
terms only applies to accidents, does not bar a common law action if
the employer "acted with deliberate or specific intent to injure the
employee." Id. at 65.

Appellants argue that, under § 42-5-250, their injuries are similarly
outside the scope of the Act. Section 42-5-250 states:

          This Title shall not apply to policies of insurance against
          loss from explosion of boilers or flywheels or other similar
          single catastrophe hazards. But nothing contained in this
          section shall be construed to relieve the employer from lia-
          bility for injury or death of an employee as a result of such
          explosion or catastrophe.

S.C. Code Ann. § 42-5-250. Appellants maintain that the provision
effectively removes from the Act injuries caused by a single catastro-
phe hazard like the pipe explosion at issue here. Consequently, Appel-
lants argue, if an employee's injury is caused by such a hazard, he can
sue his employer under a general negligence theory.

With this argument in mind, Appellants urge us to adopt the hold-
ing of a recent decision of the South Carolina Court of Common Pleas
for Colleton County, Pender v. Dogwood Hills Country Club, Inc.,
No. 98-CP-15-647 (May 11, 1999). In Pender, an employee was
killed at work when an irrigation tank exploded. The wife and per-
sonal representative of the decedent brought a wrongful death action
against her deceased husband's former employer, Dogwood Hills
Country Club. The employer moved to dismiss the action on the
ground that the plaintiff's claims were precluded by the exclusive
remedy provision of the Workers' Compensation Law. Rejecting the
motion, the court construed § 42-5-250 to allow the plaintiff to main-
tain the negligence action against the employer. The court determined
that the plaintiff could recover any available insurance proceeds but
could not recover more than the insurance coverage."By excluding
only insurance policies from the Act," the court concluded, "the legis-
lature intended to allow employees to recover benefits in addition to
the benefits under the Workers' Compensation Act, but at the same

                    8
time not expose the employer to liability unless an insurance policy
covered the loss."3

Because the state trial court's decision is not an authoritative state-
ment of state law and, as an unpublished decision, lacks any prece-
dential value, we decline to follow the holding in Pender. Where
neither a state's supreme court nor its intermediate appellate courts
have ruled on an issue, a federal court is not bound by an unpublished
trial court decision. See King v. Order of United Commercial Travel-
ers of America, 333 U.S. 153, 160-61 (1948) (determining that deci-
sion of South Carolina Court of Common Pleas not binding on federal
district court); see also Commissioner of Internal Revenue v. Estate
of Bosch, 387 U.S. 456, 465 (1967) (noting that"while the decrees of
`lower state courts' should be `attributed some weight ... the decision
[is] not controlling ...' where the highest court of the State has not
spoken on the point"). In South Carolina, decisions of a common
pleas court are accorded little weight. They are"`binding solely upon
the parties who are before the Court in that particular case and would
not constitute a precedent in any other case in that Court or in any
other court in the State of South Carolina.'" King, 333 U.S. at 492.
"[I]t would be incongruous ... to hold the federal court bound by a
decision which would not be binding on any state court." Id. at 493.
Instead, as a federal appellate court, we must attempt to predict how
_________________________________________________________________
3 The trial court's reading of§ 42-5-250 to imply a legislative intent to
allow employees to recover benefits under the workers' compensation
system and at common law is contrary to state law on the issue. It is
well-established that an employee cannot obtain both workers' compen-
sation benefits and common law damages. In Boulware v. Mills, 362
S.E.2d 184 (S.C. App. 1987), for example, an employee was assaulted
by a co-worker, filed a workers' compensation claim, and recovered ben-
efits pursuant to the claim. The injured employee then filed a civil action
for assault and battery against the co-worker and employer. Id. at 185.
The South Carolina Court of Appeals dismissed the action, stating: "We
do not interpret the law to mean the employee may recover workers'
compensation and then proceed to file a suit against the employer under
common law. Rather, ... in such a case the employee has the option to
claim workers' compensation or sue his employer under the common
law." Id. Similarly, in McSwain v. Shei, 402 S.E.2d 890 (S.C. 1991), the
South Carolina Supreme Court cautioned that "an employee may not
recover under workers' compensation and at common law." Id. at 893.

                    9
the state's highest court would rule if confronted with the issue. See
id. at 492; see also Bosch, 387 U.S. at 465 ("If there be no decision
by [the state's highest court] then federal authorities must apply what
they find to be the state law after giving `proper regard' to relevant
rulings of other courts of the State."). Having reviewed the statutory
scheme and relevant case law, we believe the state supreme court, if
faced with interpreting § 42-5-250, would decide contrary to the trial
court's ruling in Pender.

First, as Duke Energy correctly points out, all other exceptions to
the exclusive remedy rule existing under South Carolina law are
anchored in the plain language of § 42-1-540. As explained above, the
provision expressly excludes claims for injuries resulting from certain
"acts of a subcontractor," S.C. Code Ann.§ 42-1-540, and, by defini-
tion, any action not based on an accidental personal injury. In con-
trast, Appellants attempt to force an unrelated provision from a
separate chapter of the Act governing workers' compensation insur-
ance into the discussion of employees' rights and remedies outlined
in § 42-1-540. State rules of statutory interpretation simply will not
allow an expansion of the statute's operation based on such a random
and forced construction of law. See Adams v. Clarendon County
School District No. 2, 241 S.E.2d 897, 900 (S.C. 1978) (determining
that statutory section cannot be read in isolation or interpreted so as
to ignore or conflict with other provisions of the statute).

Second, a plain reading of the statute, see Brooks v. Northwood Lit-
tle League, 489 S.E.2d 647, 650 (S.C. App. 1997) (noting that South
Carolina courts must "give statutes their plain and ordinary meaning
where the statute's language is unambiguous"), makes clear that § 42-
5-250 applies only to "policies of insurance." Indeed, the provision
says so expressly and, additionally, it falls within the chapter entitled
"Insurance and Self-Insurance." S.C. Code Ann.§ 42-5-10 through
42-5-250 (Law. Co-op. 1985); see also T.W. Morton Builders, Inc. v.
Buedingen, 450 S.E.2d 87, 95 (S.C. App. 1994) (noting that, when
interpreting statute, court may use statute's title to show legislative
intent). As an insurance provision, section 42-5-250 merely relieves
employers of their obligation to carry insurance and comply with
other insurance-related requirements where the injuries for which
compensation is required are caused by single catastrophe hazards. It
does not lessen or discharge employers from liability under the Act.

                     10
See § 42-5-250 (stating that "nothing contained in this section shall be
construed to relieve the employer from liability for injury or death of
an employee as a result of such explosion or catastrophe."). Nor does
it provide an employee with a common law right of action for such
injuries.

Appellants maintain that the effect of removing insurance policies
for single catastrophe hazards from the Act is to remove injuries
resulting from those hazards from the Act. They reason that insurers
could refuse payment for such injuries, and, unless the employer had
a special policy or rider covering single catastrophe hazards, the
employer would be left with the loss. The picture Appellants paint is
surely possible but not inconsistent with the plain meaning and legis-
lative intent of the statute, by which we are bound. See Adams, 241
S.E.2d at 900 (commenting that in interpreting statutes, the court
"must be mindful of the principle that the intention of the legislature
is the primary guideline"). Under the Act, an employer who accepts
the compensation provisions of the statute is liable to its employees
for personal injury. To secure the payment of compensation to his
employees, the employer must insure his liability through an insur-
ance carrier or by self-insuring. S.C. Code Ann.§§ 42-5-10, 42-5-20
(Law. Co-op. 1985). If the employer decides not to secure the pay-
ment through a carrier, he must furnish to the Commission "satisfac-
tory proof of his financial ability to pay directly the compensation."
S.C. Code Ann. § 42-5-20. So, employer liability exists under the Act
independent of insurance coverage. Where "a remedy exists under the
statute, the injured worker has no right to bring a common law action
in the courts." Cook, 352 S.E.2d at 299.

Our holding is consistent with the broad principles that informed
the state's adoption of its workers' compensation system. As the
South Carolina Court of Appeals has noted, the Workers' Compensa-
tion Law "was founded upon a recognition that it is desirable to dis-
card the common law doctrines of tort liability in the employer-
employee relationship and substitute a duty of the employer, regard-
less of fault, to compensate the employee, in predetermined amounts
based upon his wages, for loss of earnings resulting from accidental
injury arising out of and in the course of his employment." Id. at 298;
see also Peay, 437 S.E.2d at 65 (noting that"[w]orkers' compensation
laws were intended by the Legislature to relieve workers of the

                    11
uncertainties of a trial for damages by providing sure, swift recovery
for workplace injuries regardless of fault"). In exchange for the
employer's assumption of any risk of work-related injuries, the
employee is required "to surrender his right to sue at common law."
Cook, 352 S.E.2d at 298. The workers' compensation system
becomes the "exclusive means of settling all claims for personal inju-
ries arising out of and in the course of an employment relationship."
Id. at 299. Given the essential role exclusivity plays in the state's
effort to compensate workplace injuries, see id. at 299-300
("Exclusivity is not incidental to the system of workers' compensa-
tion; it is an essential feature of a comprehensive legislative plan for
compensating workplace injuries."), we will not lightly read excep-
tions into that carefully crafted scheme. See Peay, 437 S.E.2d at 65
(determining that any exception to the exclusive remedy rule of § 42-
1-540 must be narrowly construed). Rather, as is dictated by South
Carolina law, we construe the statute liberally in favor of coverage.
See id. (noting that "workers' compensation statutes are construed lib-
erally in favor of coverage").

Since injuries arising from a "single catastrophe hazard" are not
exempted from the Act's coverage, Appellants' sole remedy for such
injuries is through the workers' compensation system. The district
court was, therefore, correct in granting summary judgment against
Appellants' negligence claims. Accordingly, the district court's deci-
sion is

AFFIRMED.

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