Fagundes v. Ammons Dev. Grp., Inc., COA16-776

• Citation: 251 N.C.App. 735, 796 S.E.2d 529
• Case Date: February 07, 2017
• Court: Court of Appeal of North Carolina (US)

251 N.C.App. 735
796 S.E.2d 529

Francisco FAGUNDES and Desiree Fagundes, Plaintiffs,
v.
AMMONS DEVELOPMENT GROUP, INC. ; East Coast Drilling & Blasting, Inc.; Scott Carle; and Juan Albino, Defendants.

No. COA16-776

Court of Appeals of North Carolina.

Filed: February 7, 2017

The Jernigan Law Firm, by Leonard T. Jernigan, Jr., Raleigh, and Anthony L. Lucas, and Edwards Kirby, LLP, by William W. Plyler, Raleigh, for plaintiff-appellee.

Young Moore and Henderson, P.A., Raleigh, by Jay P. Tobin, for defendants-appellants.

DIETZ, Judge.

251 N.C.App. 736

The central issue in this appeal is whether employees injured while working in "ultrahazardous" jobs may sue their employers in the court system despite the provisions of the Workers’ Compensation Act requiring those claims to be pursued at the Industrial Commission.

Plaintiff Francisco "Frank" Fagundes, who seeks to sue his employer for injuries suffered during a blasting accident, acknowledges that this is a novel argument. But he contends that his position is simply a logical extension of our Supreme Court's decision in Woodson v. Rowland , 329 N.C. 330, 407 S.E.2d 222 (1991).

We disagree. The portion of Woodson addressing jurisdiction under the Workers’ Compensation Act does not depend on the inherent danger of the occupation. Woodson permits injured workers to sue in court if their employer engaged in "misconduct knowing it is substantially certain to cause serious injury or death," regardless of whether the job, ordinarily, is a dangerous one. 329 N.C. at 340, 407 S.E.2d at 228. Fagundes does not argue that he can satisfy the Woodson substantial certainty test. He instead argues that his job at a blasting company involved an "ultrahazardous" activity which, at common law, was the subject of a strict liability cause of action in the court system. He argues that, because of the danger of his job and the common law remedies traditionally available to him, he should be permitted to sue in court.

Put another way, what Fagundes wants is not for this Court to extend the reasoning of Woodson to a closely analogous set of facts, but to rewrite the Workers’ Compensation Act to create an exception that he believes serves important policy purposes. That is not what courts do. When the General Assembly established the exclusive jurisdiction of the workers’ compensation system, it chose not to create the exception that Fagundes seeks from the courts. We have no authority to override that legislative decision.

Accordingly, as explained in more detail below, we reverse the trial court's denial of Defendants’ motions for summary judgment and remand for entry of an appropriate order and judgment consistent with this opinion.

Facts and Procedural History

Defendant East Coast Drilling & Blasting, Inc. is a company that provides construction services, including drilling, blasting, and crushing rock. Defendant Scott Carle is the company's president and CEO. Defendant Juan Albino is a blaster for the company.

251 N.C.App. 737

On 25 July 2013, Plaintiff Frank Fagundes was performing rock crushing services for the company when debris ejected from a blasting operation that Albino was supervising struck and seriously injured Fagundes. On 29 January 2015, Fagundes sued the company, Carle, and Albino. Among other claims, Fagundes asserted a strict liability claim against all three defendants and a willful, wanton, or reckless negligence claim against Albino.

Defendants moved for summary judgment on 17 December 2015. Among other grounds, Defendants argued that Fagundes failed to forecast sufficient evidence to overcome the exclusivity provision in the Workers’ Compensation Act, which severely limits the types of workplace injury claims that can

796 S.E.2d 532

be pursued in the court system.¹ On 8 March 2016, the trial court entered an order partially granting the motion, but denying the motion with respect to Fagundes's strict liability claim and his willful, wanton, or reckless negligence claim against Albino. Defendants timely appealed. This Court has appellate jurisdiction because the denial of a motion concerning the exclusivity provision of the Workers’ Compensation Act affects a substantial right and thus is immediately appealable. Blue v. Mountaire Farms, Inc. , ––– N.C. App. ––––, ––––, 786 S.E.2d 393, 397–98 (2016).

Analysis

I. Strict liability claim for injury during an ultrahazardous activity

Defendants first argue that Fagundes's claims are barred because he was injured on the job. Thus, Defendants argue, the Industrial Commission has exclusive jurisdiction over his claims. Fagundes contends that, because he worked in an ultrahazardous occupation (involving blasting), he should be permitted to sue in the courts. Fagundes concedes that this is a novel argument but asserts that it is a logical extension of our Supreme Court's holding in Woodson v. Rowland , 329 N.C. 330, 407 S.E.2d 222 (1991). As explained below, we agree with Defendants.

In general, the provisions of the Workers’ Compensation Act "are the exclusive remedy in the event of [an] employee's injury by accident in connection with [his or her] employment." Reece v. Forga , 138 N.C.App. 703, 705, 531 S.E.2d 881, 882–83 (2000). Under the Act, "the injured employee may not elect to maintain a suit for recovery of damages for

251 N.C.App. 738

his injuries, but must proceed under the Act." Id. As a result, claims stemming from workplace injuries "are within the exclusive jurisdiction of the Industrial Commission; the superior court has been divested of jurisdiction by statute." Id.

In Woodson , our Supreme Court created a narrow exception to the exclusivity provision of the Act. See 329 N.C. at 340–41, 407 S.E.2d at 228. Under Woodson , "if an employer ‘intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death’ and that conduct causes injury or death, a plaintiff can pursue a civil action against his or her employer." Trivette v. Yount , 366 N.C. 303, 306, 735 S.E.2d 306, 309 (2012) (quoting Woodson , 329 N.C. at 340, 407 S.E.2d at 228 ). Importantly, nowhere in this analysis did the Supreme Court suggest that the dangerousness of the job itself impacted the Woodson test. Woodson , 329 N.C. at 337–44, 407 S.E.2d at 226–30.

Fagundes argues that this Court should extend Woodson to recognize "that an employer who engages in blasting ... is not protected by the exclusivity...