Cox v. Pitt County Transp. Co., 89

• Decision Date: 06 March 1963
• Docket Number: No. 89,89
• Citation: 259 N.C. 38,129 S.E.2d 589
• Court: North Carolina Supreme Court
• Parties: Annie Lee COX, Administratrix of the Estate of Simon W. Cox, Deceased, and Guardian of Simon Ray Cox and others, minor dependants of Simon W. Cox, Deceased, v. PITT COUNTY TRANSPORTATION COMPANY, Inc., and Fidelity & Casualty Company of New York, Compensation Carrier.

Page 589

129 S.E.2d 589

259 N.C. 38

Annie Lee COX, Administratrix of the Estate of Simon W. Cox Deceased, and Guardian of Simon Ray Cox and others, minor dependants of Simon W. Cox, Deceased, v. PITT COUNTY TRANSPORTATION COMPANY, Inc., and Fidelity &amp Casualty Company of New York, Compensation Carrier.

No. 89

Supreme Court of North Carolina.

March 6, 1963

Lewis G. Cooper and Charles H. Whedbee, Greenville, for plaintiffs.

Teague, Johnson & Patterson, Raleigh, for defendants.

DENNY, Chief Justice.

The primary question presented on this appeal is whether our Declaratory Judgment Act may be used to determine whether or not the employer's insurance carrier is entitled to the right of subrogation against the funds received from the third party, tort feasor, under the provisions of G.S. § 97-10.2, or does the Industrial Commission have the exclusive original jurisdiction to determine the question posed herein.

It is pointed out in G.S. § 97-10.2(f) (1):

'If the employer has filed a written admission of liability for benefits under this chapter with, or if an award final in nature in favor of the employee has been entered by, the Industrial Commission, then any amount obtained by any person by settlement with, judgment against, or otherwise from the third party by reason of such injury or death shall be disbursed by order of the Industrial Commission for the following purposes and in the following order of priority:

'a. First to the payment of actual court costs taxed by judgment.

'b. Second to the payment of the fee of the attorney representing the person making settlement or obtaining judgment, and such fee shall not be subject to the provisions of § 90 of this chapter but shall not exceed one third of the amount obtained or recovered of the third party.

'c. Third to the reimbursement of the employer for all benefits by way of compensation or medical treatment expense paid or to be paid by the employer under award of the Industrial Commission.

'd. Fourth to the payment of any amount remaining to the employee or his personal representative.' (Emphasis added.)

G.S. § 97-91 provides: 'All questions arising under this article if not settled by agreements of the parties interested therein, with the approval of the Commission, shall be determined by the Commission, except as otherwise herein provided.' Greene v. Spivey, 236 N.C. 435, 73 S.E.2d 488.

'As a general rule where a statute provides a special form of remedy for a specific type of case, the statutory remedy must be followed, and under such circumstances a declaratory judgment will not be granted. This is especially so where the statutory remedy is exclusive * * *.' 26 C.J.S. Declaratory Judgments § 20, page 89.

'A court will not take jurisdiction to render a declaratory judgment where another statutory remedy has been especially provided for the character of case presented, if the effect would be to interfere with the right of the parties to appeal to the court given jurisdiction in that particular matter by the statute. Likewise, a declaration will not be made where the purpose is to affect proceedings which may be taken before a public board which has full power to act in the matter and which would not be bound by the declaratory judgment. * * *' 16 Am.Jur., Declaratory Judgments, section 21, page 295.

In the case of Prudential Insurance Co. v. Powell, 217 N.C. 495, 8 S.E.2d 619, the plaintiff instituted a declaratory judgment proceeding in the Superior Court to have determined the question whether it should contribute to the unemployment compensation plan in behalf of one of its agents, which it claimed was an independent contractor. This Court held the defendant's demurrer interposed in the Superior Court was properly sustained. Inter alia, this Court said: 'Where an administrative remedy is provided by statute for revision, against collection, or for recovery of taxes assessed or collected, the taxpayer must first exhaust the remedy thus provided before the administrative body, otherwise he cannot be heard by a judicial tribunal to assert its invalidity. Metro-Goldwyn-Mayer Distributing Corp. v. Maxwell, 209 N.C. 47, 182 S.E. 724; Hart v. Com'rs., 192 N.C. 161, 134 S.E. 403 ; Maxwell v. Hinsdale, 207 N.C. 37, 175 S.E. 847. He must not only resort to the remedies that the Legislature has established but he must do so at the time and in the manner that the statute and proper regulations provide.'

In Bragg Development Co. v. Braxton, 239 N.C. 427, 79 S.E.2d 918, the plaintiff brought an action under the Declaratory Judgment Act to determine the right of the county to collect a certain tax. The Court ...