Summary
In Freeman v. SCM Corporation, 66 N.C. App. 341, 311 S.E.2d 75, aff'd, 311 N.C. 294, 316 S.E.2d 81 (1984), our court held, in part, that because plaintiff employee had received workers' compensation benefits he could no longer bring a tort action against his employer.
Summary of this case from Woodson v. RowlandOpinion
No. 8320SC85
Filed 7 February 1984
Master and Servant 87 — receipt of workers' compensation benefits — court action on gross negligence and intentional acts preluded A plaintiff who has received workers' compensation benefits for an injury is precluded by G.S. 97-10.1 from maintaining a separate tort action against the employer based upon allegations that her injury was the result of gross negligence and intentional acts on the part of the employer.
APPEAL by plaintiff from Seay, judge. Judgment entered 10 January 1983 in Superior Court, MOORE County. Heard in the Court of Appeals 8 December 1983.
Pollock Fullenwider Cunningham Patterson, by Bruce T. Cunningham, Jr., for plaintiff-appellant.
William D. Sabiston, Jr., for defendant-appellee.
Judge PHILLIPS dissenting.
Plaintiff, an employee of defendant SCM Corporation, was working on a molding machine on 14 October 1980 when she noticed that it was not functioning properly. She reported the problem to her supervisor and requested permission to turn off the machine. The supervisor ordered plaintiff to continue operating the machine despite this and subsequent repeated warnings. Plaintiff was later struck in the face by a pressure bolt which blew out of the machine.
Plaintiff sought and recovered workmen's compensation benefits for injury to her nose, back, neck and shoulder. A lump sum payment was approved by the Commission on 19 November 1980.
On 26 October 1982, plaintiff filed this action, alleging that her injuries were caused by the gross, willful and wanton negligence and by the intentional acts of defendant. Plaintiff further alleged that her injuries did not result from an "accident" within the meaning of the Workers' compensation Act and, therefore, her claim was not barred by the exclusivity provisions of G.S. 97-10.1. Defendant alleged lack of subject matter jurisdiction and moved to dismiss pursuant to Rule 12(b)(1) of the Rules of Civil Procedure. From the granting of defendant's motion, plaintiff appeals.
The crux of plaintiff's appeal is her contention that the trial court erred in granting defendant's motion to dismiss for lack of subject matter jurisdiction. She claims that since her injuries were not caused by "accident," her claim was not barred by G.S. 97-10.1.
G.S. 97-10.1 provides as follows:
If the employee and the employer are subject to and have complied with the provisions of this Article, then the rights and remedies herein granted to the employee, his dependents, next of kin, or personal representative shall exclude all other rights and remedies of the employee, his dependents, next of kin, or representative as against the employee at common law or otherwise on account of such injury or death.
It is plaintiff's contention that her injuries were the result of gross negligence and intentional acts on the part of defendant. Since the Workers' Compensation Act contemplates recoverable injuries as being those which result from "accident" under G.S. 97-2, she claims that she is now entitled to recover damages from defendant employer in addition to any workmen's compensation benefits she may have received. Plaintiff indeed may have been injured by defendant's gross negligence, rather than by accident. However, she is still precluded from maintaining an action against defendant.
Plaintiff relies heavily on the case of Andrews v. Peters, 55 N.C. App. 124, 284 S.E.2d 748 (1981), to support her claim for relief. In Andrews, this Court held that the Workers' Compensation Act was not the exclusive remedy for an employee intentionally injured by a fellow employee. In the case at bar, however, any liability on the part of defendant employer appears to be more the result of gross negligence than any intentional act, despite plaintiff's catch-all assertion to the contrary. Moreover, plaintiff was not injured by the intentional tort of a fellow employee, as occurred in Andrews.
In fact, the court in Andrews distinguished a claim against a fellow employee from a claim against an employer, stating that "[o]ur courts . . . have barred injured employees covered by the act from bringing negligence actions against their employers" (citations omitted, but adding that "[j]urisdictions differ as to whether such immunity should extend to co-employees." Id. at 126, 284 S.E.2d at 749.
Plaintiff has been compensated by the payment of workmen's compensation benefits. She cannot now maintain a separate action against her employer for additional compensation. Having already selected one avenue of recovery, plaintiff is precluded from maintaining a tort action. The trial court's order granting defendant's motion to dismiss for lack of subject matter jurisdiction is
Affirmed.
Judge JOHNSON concurs.
Judge PHILLIPS dissents.