Morgan v. Morgan Motor Co. of Albemarle, Emp'r, & Brentwood Servs., Inc.

• Decision Date: 17 December 2013
• Docket Number: No. COA12–1485.,COA12–1485.
• Citation: 752 S.E.2d 677
• Parties: David M. MORGAN, Employee, Plaintiff v. MORGAN MOTOR COMPANY OF ALBEMARLE, Employer, and Brentwood Services, Inc., Servicing Agent for the North Carolina Auto Dealers Association Self–Insurer's Fund, Defendants.
• Court: North Carolina Court of Appeals

752 S.E.2d 677

David M. MORGAN, Employee, Plaintiff

v.MORGAN MOTOR COMPANY OF ALBEMARLE, Employer,andBrentwood Services, Inc., Servicing Agent for the North Carolina Auto Dealers Association Self–Insurer's Fund, Defendants.

No. COA12–1485.

Court of Appeals of North Carolina.

Dec. 17, 2013.

Appeal by plaintiff from opinion and award entered 27 August 2012 by the North Carolina Industrial Commission. Heard in the Court of Appeals 6 June 2013.Poisson, Poisson & Bower, PLLC, Wilmington, by E. Stewart Poisson and Fred D. Poisson, Jr., for plaintiff-appellant.

Teague, Campbell, Dennis & Gorham, L.L.P., Raleigh, by Bruce A. Hamilton and Carla M. Cobb, for defendants-appellees.

DAVIS, Judge.

David M. Morgan (“Plaintiff”) appeals from the Opinion and Award of the North Carolina Industrial Commission (“the Full Commission” or “the Commission”) denying his workers' compensation claim against Morgan Motor Company of Albemarle, Inc. (“Morgan Motors”). The issue before us is whether the Commission erred in concluding that Plaintiff's accident did not arise out of—or occur in the course of—his employment with Morgan Motors. After careful review, we affirm the Full Commission's opinion.

Factual Background

Plaintiff is a 55–year–old man who was the Secretary–Treasurer, Sales and Financial Manager, and 45.5% owner of Morgan Motors, a family-owned car dealership in Albemarle, North Carolina. Morgan Motors was initially located at 304 East Main Street in Albemarle but relocated in 1992 to a larger location on Highway 52. It continued to own the building at 304 East Main Street after its move to the Highway 52 location.

In 1998 or 1999, Plaintiff and his father had an architect draw up plans to remodel the old dealership building at 304 East Main Street into a restaurant. In 2003, Morgan Motors took out a $2.1 million dollar loan to pay off the mortgage on the Highway 52 building and also to renovate the building at 304 East Main Street. Approximately $1.3 million of the loan proceeds was used to renovate and remodel the old dealership building.

By virtue of a lease signed on 20 October 2004, Morgan Motors leased the old dealership building to Pontiac Pointe, a limited liability company formed by Plaintiff and his business partner, John Williams. Plaintiff's brother, Robert T. Morgan, signed the lease on behalf of Morgan Motors as the landlord along with Plaintiff, Mellanie M. Morgan, and Pamela C. Morgan. Plaintiff also signed the lease on behalf of the tenant, Pontiac Pointe. Paragraph 6 of the lease—entitled Maintenance, Repairs and Replacements—provided that

[d]uring the term of this Lease, Landlord [Morgan Motors] shall be responsible for maintenance of the roof and structure of the building and for replacements of heating and air-conditioning equipment and facilities. Tenant [Pontiac Pointe] shall be responsible for all other maintenance and replacements, which do not result by fire or other casualty, and for all normal and routine maintenance, cleaning and repairs to the building, doors, windows and plumbing, air-conditioning and heating and mechanical systems. Tenant shall keep the leased premises in a neat, clean and businesslike condition.

In December 2004, Pontiac Pointe began operating a restaurant at the old dealership building. Plaintiff continued in his roles with Morgan Motors while also acting as the financial manager of Pontiac Pointe. Plaintiff would usually go to Pontiac Pointe each morning to pick up the restaurant's receipts and reports and then make a deposit at the bank.

On 15 January 2008, Plaintiff drove from Morgan Motors to the bank. He then went to Pontiac Pointe to retrieve its cash receipts and daily reports. Plaintiff testified that as he was speaking with Jay Koral, the restaurant's general manager, he heard a noise that sounded like “a bearing that was going bad” in the air-conditioning unit on the roof. Plaintiff explained that after they “had an experience of already replacing part of that unit up there, [he] thought [he] needed to look at it and try to determine whether we needed somebody to come look at the system or not....” Plaintiff accessed the roof via an internal ladder. He was found shortly thereafter lying on the ground in the back patio area of the restaurant. Plaintiff did not remember falling but did testify that there was black ice on the roof. Plaintiff suffered a C7 spinal cord injury, leaving him paralyzed from the waist down. He also broke his collarbone and several ribs and had to have his spleen removed.

Defendants Morgan Motors and Brentwood Services, Inc., the third-party administrator for the North Carolina Auto Dealers Association Self–Insurer's Fund, denied Plaintiff's workers' compensation claim on the basis that his injury did not arise out of—or occur in the course of—Plaintiff's employment with Morgan Motors. The matter was heard by Deputy Commissioner George T. Glenn, II on 7 March 2011 and 23 May 2011. Deputy Commissioner Glenn filed an opinion and award on 23 January 2012 finding that Plaintiff “sustained a compensable injury by accident arising out of and in the course and scope of his employment with Employer Defendant [Morgan Motors].” He determined that Plaintiff was therefore entitled to medical expenses, attendant care expenses, and compensation in the amount of $786.00 per week until further order or until Plaintiff returned to suitable employment at his pre-injury average weekly wage.

Defendants appealed to the Full Commission. On 27 August 2012, the Full Commission issued an opinion reversing Deputy Commissioner Glenn's opinion and award, concluding that Plaintiff's injury did not arise out of, or occur within the course and scope of, his employment with Morgan Motors. Plaintiff gave timely notice of appeal to this Court.

Analysis

Our 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.” Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d 582, 584 (2008). With regard to review of the Commission's findings of fact, this Court's “duty goes no further than to determine whether the record contains any evidence tending to support the finding[s].” Id. (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. Nale v. Ethan Allen, 199 N.C.App. 511, 514, 682 S.E.2d 231, 234,disc. review denied,363 N.C. 745, 688 S.E.2d 454 (2009). The Commission's conclusions of law, however, are reviewed de novo. Gregory v. W.A. Brown & Sons, 212 N.C.App. 287, 295, 713 S.E.2d 68, 74,disc. review denied,––– N.C. ––––, 719 S.E.2d 26 (2011).

I. “Arising Out Of” and “In The Course Of” Elements

“Under the Workers' Compensation Act, an injury is compensable only if it is the result of an accident arising out of and in the course of the employment.” Chavis v. TLC Home Health Care, 172 N.C.App. 366, 370, 616 S.E.2d 403, 408 (2005) (citation and quotation marks omitted), appeal dismissed,360 N.C. 288, 627 S.E.2d 464 (2006). “The phrases ‘arising out of’ and ‘in the course of’ one's employment are not synonymous but rather are two separate and distinct elements[,] both of which a claimant must prove to bring a case within the Act.” Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977).

“Arising out of employment relates to the origin or cause of the accident.” Hedges v. Wake Cty. Pub. Sch. Sys., 206 N.C.App. 732, 735, 699 S.E.2d 124, 126 (2010) (citation and quotation marks omitted), disc. review denied,––– N.C. ––––, 705 S.E.2d 746 (2011). “The controlling test of whether an injury arises out of the employment is whether the injury is a natural and probable consequence of the nature of the employment.” Dildy v. MBW Inv., Inc., 152 N.C.App. 65, 69, 566 S.E.2d 759, 763 (2002) (citation and quotation marks omitted). “In other words, the employment must be a contributing cause or bear a reasonable relationship to the employee's injuries.” Rivera v. Trapp, 135 N.C.App. 296, 301, 519 S.E.2d 777, 780 (1999). Thus, an injury is compensable under the Workers' Compensation Act if “it is fairly traceable to the employment or any reasonable relationship to the employment exists.” Id. (citations and quotation marks omitted).

“The words ‘in the course of’ refer to the time, place, and circumstances under which an accident occurred. The accident must occur during the period and place of employment.” Chavis, 172 N.C.App. at 370, 616 S.E.2d at 408 (citation and quotation marks omitted). “An employee is injured in the course of his employment when the injury occurs ‘under circumstances in which the employee is engaged in an activity which he is authorized to undertake and which is calculated to further, directly or indirectly, the employer's business.’ ” Shaw v. Smith & Jennings, Inc., 130 N.C.App. 442, 446, 503 S.E.2d 113, 116 (1998) (quoting Powers v. Lady's Funeral Home, 306 N.C. 728, 730, 295 S.E.2d 473, 475 (1982)).

In discussing the respective roles of the Industrial Commission and a reviewing court, our Supreme Court has made clear that

(1) the Full Commission is sole judge of the weight and credibility of the evidence, and (2) appellate courts reviewing Commission decisions are limited to reviewing whether any competent evidence supports the Commission's findings of fact and whether the findings of fact support the Commission's conclusions of law.

Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). When making determinations of credibility, the Industrial Commission is not obligated to explain why it deemed certain evidence credible or not credible. Id. This is so because

[r]equiring the Commission to explain its credibility determinations and allowing the Court of Appeals to...