Ellis v. International Harvester Company, No. COA04-1114 (N.C. App. 8/1/2006)
| Decision Date | 01 August 2006 |
| Docket Number | No. COA04-1114,COA04-1114 |
| Court | North Carolina Court of Appeals |
| Parties | TRACY M. ELLIS, Plaintiff-Appellant, v. INTERNATIONAL HARVESTER COMPANY (a Delaware Corp.) NAVISTAR INTERNATIONAL TRANSPORTATION CORPORATION (a Delaware Corporation) INTERNATIONAL TRUCK AND ENGINE CORPORATION, formerly INTERNATIONAL HARVESTER CORPORATION, formerly INTERNATIONAL HARVESTER COMPANY, formerly NAVISTAR INTERNATIONAL CORPORATION, formerly NAVISTAR INTERNATIONAL TRANSPORTATION CORPORATION, d/b/a and t/a "INTERNATIONAL" d/b/a and t/a NAVISTAR t/a and d/b/a INTERNATIONAL from NAVISTAR KILE INTERNATIONAL TRUCKS, INC. (a Tennessee Corporation) GENERAL CAR AND TRUCK LEASING SYSTEM, INC., (an Iowa Corporation) NASHVILLE TRUCK COMPANY, INC. (a Tennessee Corporation) SOFA CONNECTION, INC. (a Tennessee Corporation), Defendants-Appellees. |
David R. Payne, P.A., by Peter U. Kanipe and David R. Payne; and Gary Dodd, for plaintiff-appellant.
Ball, Barden & Bell, P.A., by Ervin L. Ball, Jr., for defendant-appellee Sofa Connection, Inc.
Northup & McConnell, P.L.L.C., by Elizabeth E. McConnell, for defendant-appellee Nashville Truck Company, Inc.
Tracy M. Ellis (plaintiff) filed the present action against, inter alios, Sofa Connection, Inc. (Sofa Connection) and Nashville Truck Co., Inc. (Nashville Truck) (collectively defendants) on 1 November 2002. Plaintiff's cause of action against Sofa Connection was based on the exception to the exclusivity doctrine of the North Carolina Workers' Compensation Act as articulated by our Supreme Court in Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). Plaintiff's cause of action against Nashville Truck was based on allegations of negligence. Sofa Connection and Nashville Truck each filed a motion for summary judgment.
Evidence at a hearing on defendants' motions tended to show that plaintiff was employed as a delivery person by Sofa Connection, a company that sold sofas and other furniture in the Asheville area. On the morning of 4 November 1999, plaintiff and a co-worker, Joe Logan (Logan), delivered furniture to a home in Biltmore Forest. Plaintiff backed the delivery truck down the home's driveway and parked the truck within five feet of the garage. Plaintiff walked to the rear of the truck to begin unloading furniture. While he stood at the rear of the truck, the truck rolled backwards and pinned plaintiff against the house. As a result of being pinned by the truck, plaintiff suffered severe injuries. Plaintiff claims his injuries were caused by the failure of the delivery truck's emergency brake.
Immediately following plaintiff's accident, the delivery truck was taken to Carolina Truck and Tractor, Inc. (service center), the service center authorized by Nashville Truck to perform maintenance on the truck. According to an invoice dated 4 November 1999, the service center checked all components of the truck relating to the parking brake system and adjusted the truck's hand brake cable. After the adjustment, the brakes functioned "properly" and the truck held itself on a hill.
Sofa Connection began leasing the delivery truck from Nashville Truck on 10 January 1995. Under the terms of the lease, Sofa Connection was to notify Nashville Truck of any necessary repairs, which were to be made by Nashville Truck or a party authorized by Nashville Truck. Nashville Truck sold the delivery truck to General Car and Truck Leasing on 22 September 1999. Sofa Connection's lease was conveyed with the sale of the truck to General Car and Truck Leasing.
At the hearing on defendants' motions for summary judgment, plaintiff presented affidavits from plaintiff, Logan, and Sofa Connection warehouse manager Kevin Bruton stating that the delivery truck's emergency brake had failed on several prior occasions. Moreover, the affiants stated that plaintiff's supervisor, Monte Hunnicutt, was aware of the prior instances of brake failure, but instructed plaintiff to continue using the truck for deliveries. Sofa Connection presented an affidavit of Robert Peters, Executive Vice-President of Sofa Connection, stating that none of Sofa Connection's approximately two hundred drivers had ever experienced an accident similar to plaintiff's, and that Sofa Connection had never received an OSHA violation or had a workers' compensation claim involving any alleged failure of brakes or other mechanical problems. Plaintiff also presented his deposition, in which plaintiff stated that he personally took the delivery truck to the service center for maintenance approximately once a month from May 1999 through November 1999. Plaintiff also stated that on "[m]ore than five" occasions, he told the service center to check the truck's brakes.
After reviewing the evidence and hearing oral arguments, the trial court granted defendants' motions for summary judgment. In orders entered 21 May 2004 and 26 May 2004, the trial court dismissed plaintiff's claims against Sofa Connection and Nashville Truck, respectively. Plaintiff filed a notice of appeal from those two orders with our Court on 2 June 2004.
Plaintiff and Sofa Connection filed briefs with our Court on 1 October 2004. Nashville Truck did not file a brief, but instead filed a motion to dismiss plaintiff's appeal as interlocutory. Our Court granted the motion and dismissed plaintiff's appeal by order filed 1 November 2004. Plaintiff filed a motion for discretionary review with our Supreme Court. Nashville Truck filed a brief with our Supreme Court urging dismissal of plaintiff's appeal and briefly touching upon the merits of plaintiff's appeal. On discretionary review, our Supreme Court vacated the order of dismissal and remanded plaintiff's case to this Court for a decision on the merits. Ellis v. International Harvester Co., 360 N.C. 171, 622 S.E.2d 489 (2005). Upon remand, Nashville Truck did not file a brief with our Court. Instead, two days prior to oral argument, Nashville Truck filed a motion with our Court requesting that we consider its brief previously filed with our Supreme Court. Nashville Truck also requested time to be heard, or to answer questions, during oral argument. Our Court heard oral arguments in Asheville on 11 May 2006. During arguments, plaintiff objected to Nashville Truck's presentation of an oral argument. We held plaintiff's objection open and permitted Nashville Truck's request to be heard briefly. Thereafter, plaintiff filed a motion to strike Nashville Truck's brief, on the grounds that the brief was filed after the applicable filing deadline and was improperly served on plaintiff following oral argument.
Under Rule 13 of the North Carolina Rules of Appellate Procedure, an appellee must file and serve copies of the appellee's brief within thirty days after the appellant's brief has been served on the appellee. N.C.R. App. P. 13(a)(1). In the present case, Nashville Truck failed to file and serve its brief within the prescribed thirty-day period. For this reason, we allow plaintiff's motion to strike Nashville Truck's brief, which was untimely filed in violation of our Rules of Appellate Procedure.
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c) (2005). The moving party must establish that an essential part of the plaintiff's claim does not exist, or that the plaintiff cannot produce evidence to support an essential element thereof. Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992). A trial court must view all evidence presented in a summary judgment motion in a light most favorable to the non-moving party. Yates v. Haley, 103 N.C. App. 604, 606, 406 S.E.2d 659, 660 (1991). Our Court's standard of review of summary judgment is de novo. Stafford v. County of Bladen, 163 N.C. App. 149, 151, 592 S.E.2d 711, 713 (2004). For the reasons below, we affirm summary judgment as to both Sofa Connection and Nashville Truck.
Generally, the Workers' Compensation Act provides the exclusive remedy for an employee injured in a workplace accident. Regan v. Amerimark Building Products, 118 N.C. App. 328, 330, 454 S.E.2d 849, 351, disc. review denied, 340 N.C. 359, 458 S.E.2d 189 (1995), cert. denied, 342 N.C. 659, 467 S.E.2d 723 (1996). However, our Supreme Court recognized an exception to the exclusivity rule of workers' compensation cases in Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). Our Court has articulated the elements of a Woodson claim as: "(1) misconduct by the employer; (2) intentionally engaged in; (3) with the knowledge that the misconduct is substantially certain to cause serious injury or death to an employee; and (4) that employee is injured as a consequence of the misconduct." Pastva v. Naegele Outdoor Advertising, 121 N.C. App. 656, 659, 468 S.E.2d 491, 494, disc. review denied, 343 N.C. 308, 471 S.E.2d 74 (1996).
The element at issue in the present case is whether Sofa Connection acted with knowledge that its conduct was substantially certain to cause serious injury or death to an employee. Our Supreme Court has addressed the "substantial certainty" element in several opinions. In Regan, our Supreme Court stated that Regan, 118 N.C....
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