Adkins v. Stilwell, COA11–1468.

• Decision Date: 05 June 2012
• Docket Number: No. COA11–1468.,COA11–1468.
• Parties: William Anthony ADKINS II, Fiduciary and Administrator of the Estate of Nicholas Alexander Adkins, Deceased, Plaintiff, v. Judy Earlene STILWELL and The Southern Finishing Company, Inc., Defendants.
• Court: North Carolina Court of Appeals

725 S.E.2d 923

William Anthony ADKINS II, Fiduciary and Administrator of the Estate of Nicholas Alexander Adkins, Deceased, Plaintiff,
v.
Judy Earlene STILWELL and The Southern Finishing Company, Inc., Defendants.

No. COA11–1468.

Court of Appeals of North Carolina.

June 5, 2012.

Appeal by plaintiff from order entered 25 October 2011 by Judge Stuart Albright in Rockingham County Superior Court. Heard in the Court of Appeals 23 April 2012.

Jay Gervasi, P.A., by Jay A. Gervasi, Jr., for plaintiff appellant.

Carruthers & Roth, P.A., by Jack B. Bayliss, Jr., for Southern Finishing Company, defendant appellee.

Teague Rotenstreich Stanaland Fox & Holt, PLLC, by Steven B. Fox and Kara V. Bordman, for Judy E. Stilwell and Co-counsel for Southern Finishing Company, defendant appellees.

McCULLOUGH, Judge.

William Anthony Adkins II, acting as fiduciary and administrator of the estate of Nicholas Alexander Adkins (“plaintiff”), appeals from the trial court's order granting summary judgment in favor of defendant Southern Finishing Company (“defendant Southern”). The trial court found that in light of the covenant not to enforce judgment, a trial with solely Judy Stilwell (“defendant Stilwell”) would be a waste of judicial resources. Consequently, the trial court certified the order as immediately appealable. Plaintiff contends the trial court erred in granting defendant Southern's motion for summary judgment because there remained a genuine issue of material fact as to whether or not defendant Stilwell was in the course of her employment when the accident occurred. For the following reasons, we affirm the decision of the trial court.

I. Background

Defendant Stilwell began working for defendant Southern in August 2007, as a temporary employee on a ninety-day probationary period, at Plant 10 in her hometown of Stoneville, North Carolina. Defendant Southern is in the business of staining and laminating decorative molding pieces. Defendant Stilwell was trained as a production clerk, which involved receiving orders on her computer from customers and then transmitting those orders to the plant so they could be pulled, stained, boxed, and shipped. Additionally, she was required to print shipping labels and manage the accompanying shipping records. Following the ninety-day probationary period, defendant Stilwell obtained a permanent position as a production clerk in defendant Southern's Martinsville, Virginia, plant, about twenty to twenty-five minutes from defendant Stilwell's home.

On Friday 23 January 2009, at around 6:00 a.m. or 6:30 a.m., Keith Vernon, defendant Stilwell's supervisor, called her at home and asked her to report to the Stoneville plant to fill in for Melissa Joyce, another production clerk, who had to stay home with a sick child. Defendant Stilwell expected to return to her usual plant in Martinsville the following Monday. However, on the evening of Sunday, 25 January 2009, defendant Stilwell received another call from Mr. Vernon asking her to report to the Stoneville plant again on Monday. While on her way to the Stoneville plant Monday morning, defendant Stilwell stopped by Debbie's Restaurant to purchase a biscuit to eat during her morning break. After leaving the restaurant, defendant Stilwell continued to the Stoneville plant at which point she drove past a stopped school bus, hitting and killing 16–year–old Nicholas Adkins, who was crossing the road.

Plaintiff filed a complaint against defendants on 29 December 2010, claiming that Nicholas had been killed due to the negligence of defendant Stilwell while she was in the course of her employment, thus imputing her negligence to defendant Southern. Prior to that, on or about 30 June 2010, plaintiff had entered into a Release of Carrier and Covenant Not to Enforce Judgment, meaning that he would not seek to enforce judgment obtained against defendant Stilwell beyond $50,000.00, in exchange for that set amount, which was the limit of defendant Stilwell's liability insurance policy as set by her insurance carrier. Mr. Vernon provided an affidavit in preparation for trial in which he stated that it “was routine” for defendant Southern to assign employees to different plants, as necessary. Furthermore, “[i]f Ms. Joyce was not available at the Plant 10 warehouse facility, to update the shipping and inventory data in the computer each morning, [defendant] Stilwell was subject to reassignment to the warehouse facility at Plant 10.” However, he could only state for certain that defendant Stilwell was assigned to the Stoneville plant “for at least one day in November 2008.” Defendant Stilwell stated in her deposition that she had filled in at Stoneville “a couple of times before [,]” but that the Martinsville plant “was [her] office.”

Defendant Stilwell further indicated that she generally did not encounter stopped school buses during her usual commute to Martinsville, other than buses pulling in and out of school parking lots, which in her opinion were similar to regular vehicles. Also, defendant Stilwell usually did not have to arrive at work in Martinsville until 8:00 a.m., but while filling in at the Stoneville plant she had to arrive at 7:00 a.m. due to that being the normal arrival time for Ms. Joyce. As a result, she claimed she was unaccustomed to seeing stopped school buses due to her late commute time to Martinsville. Moreover, defendant Stilwell noted that on Thursday, 22 January 2009, she had taken home some shipping labels accidentally printed at the Martinsville plant, which were intended for the Stoneville plant. She had planned on dropping the labels off at the Stoneville plant on her way to work at the Martinsville plant on Monday morning, so that Ms. Joyce would not have to reprint the labels. Consequently, the labels were still in her vehicle at the time of the accident on Monday morning.

Defendants filed answers to plaintiff's complaint, both denying negligence, and defendant Southern specifically denying it was liable because defendant Stilwell was not in the course of her employment at the time of the accident. On 1 August 2011, defendant Southern filed a motion for summary judgment, which was heard on 29 August 2011 in Rockingham Superior Court. The trial court granted defendant Southern's motion and stated in its amended order, filed 25 October 2011, that the order was immediately appealable. Plaintiff filed his notice of appeal on 25 October 2011.

II. Analysis

Plaintiff raises a single issue on appeal in arguing that the trial court erred by granting defendant Southern's motion for summary judgment where a genuine issue of material fact remained as to whether or not defendant Stilwell was in the course of her employment when the accident occurred. We disagree.

As a...