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The affirmative defense of "Willful Intent"

Posted by Katie Phipps | Jun 18, 2023 | 0 Comments

There are four statutory affirmative defenses to a WC claim in SC-intoxication, statute of limitations, notice and willful intention. We examined Notice in the last newsletter. This issue we will explore the state of the law as it relates to the affirmative defense of “willful intention.” To perfect this defense, Defendants have the burden of proving the Claimant acted with “willful intention to injure or kill himself or another.” S.C. Code Ann. 42-9-60. The precedent case law has carved this out as an extremely narrow defense to be used “only in those cases where it is shown that the acts of the employee are so serious and aggravated as to evince a willful intent to injure.” Zeigler v. South Carolina Law Enforcement 250 S.C. 326, 329, 157 S.E. 2d 598, 599 (1967)(emphasis added). Why would the exception be so narrow? Simply stated, if it were not, application of Section 42-9-60 would compromise the very premise of the “no fault” Workers' Compensation system we have in South Carolina as generally “neither the fault of the of the employer nor that of the employee is a critical factor in determining whether an employee is entitled to workers' compensation benefits.” Yousman v. Coastal Petroleum Co., 333 S.C. 195, 508 S.E. 2d 43 (1998).  Precedent cases offer a clear map of what behavior can be considered willful verses what behavior will be considered spontaneous. 
           In Zeigler, which is the leading case where a claimant was denied benefits, two SLED agents were involved in a fight.  The fight in Zeigler was initially broken up by a third party. At that point, the Claimant and another officer went outside. The court noted “both…were armed” and thus it could reasonably inferred claimant agreed to settle their “dispute by violence.” Both the only eye-witness and the shooter, testified the Claimant actually shot first. Id., at 331.  The court noted specifically that the “fatal altercation” was the result of conduct by the claimant that was so “grave or serious…as to evidence a willful intent on his part to injure his fellow employee, thereby barring any right to benefits under the Workers' Compensation Act.” Id. (emphasis added.)
           Ziegler was distinguished in Kinsey v. Champion American Service Center. Kinsey, 268 S.C. 177, 232 S.E.2d. 720 (S. Ct. 1977)  In Kinsey, the claimant had been drinking on the job and was told to go home by a co-worker named Brown. There were several incidents that led to their final encounter which started after Brown instructed the claimant to sit in the front office if he was not going home and before Brown “realized anything” he was on the ground fighting, inferring the claimant started the fight that led to his injury.   Here, the court said the statute does not afford a defense “based merely on who strikes the first blow.” Id., at 181. Instead, the court found the defense was limited to those case where “acts of the employee are so serious and aggravated as to evince a willful intent to injure.” Id. The Court explained, “if an altercation is spontaneous, impulsive, instinctive or otherwise lacking a deliberate formed intention to do injury, the statutory defense is unavailable.” Id.
           The holding in Kinsey was cited and affirmed in Yousman. Yousman, 333 S.C. 195, 508 S.E. 2d 43 (1998).  In Yousman, there was conflicting evidence about how a fight began at work wherein Yousman sustained injuries. Yousman testified Parson's, his supervisor, pushed him first and called him a racial slur. Parson's testified he never used a racial slur and instead that Yousman became irate and grabbed and slung him into a wall after receiving a verbal warning. Yousman, at 333 S.C. 200. The claimant was allowed to recover after the Court of Appeals found there was evidence, in the form of the claimant's own testimony, that he reacted spontaneously and without willful intent to injure when Parsons directed a racial slur at him.” Id.

About the Author

Katie Phipps

For more than 17 years, Katie had a successful practice at two of South Carolina's largest workers' compensation defense firms. During that time, she realized her favorite part of the job was helping Pro Se claimants navigate the settlement process. As a lawyer for the insurance carrier, she ofte...


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