Frugard v. Pritchard

• Decision Date: 09 December 1994
• Docket Number: No. 479PA93,479PA93
• Citation: 450 S.E.2d 744,338 N.C. 508
• Court: North Carolina Supreme Court
• Parties: Barbara C. FRUGARD, v. Calvin Lee PRITCHARD, William Mastoras, t/a M & M Produce Company, Daniel Foster, and Wilson Pest Control, Inc.

Page 744

450 S.E.2d 744

338 N.C. 508

Barbara C. FRUGARD, v. Calvin Lee PRITCHARD, William Mastoras, t/a M & M Produce Company, Daniel Foster, and Wilson Pest Control, Inc.

No. 479PA93.

Supreme Court of North Carolina.

Dec. 9, 1994.

Clark & Stant, P.C. by Stephen C. Swain, Virginia Beach, VA, for plaintiff-appellant.

Tuggle Duggins & Meschan, Greensboro, P.A. by J. Reed Johnston, Jr. and Denis E. Jacobson, for William Mastoras, t/a M & M Produce Co., defendant-appellee.

Womble Carlyle Sandridge & Rice by Clayton M. Custer, Winston-Salem, for Daniel Foster and Wilson Pest Control, Inc., defendants-appellees.

WEBB, Justice.

We agree with the Court of Appeals that it was error to exclude evidence of the worker's compensation payments made to the plaintiff in Virginia. The accident occurred in North Carolina and the substantive law of this state governs. Braxton v. Anco Electric Inc., 330 N.C. 124, 409 S.E.2d 914 (1991). The law of the forum, in this case North Carolina, governs as to the admissibility of evidence. Tennessee Carolina Transportation, Inc. v. Strick Corp., 283 N.C. 423, 196 S.E.2d 711 (1973). 1 Brandis and Broun, North Carolina Evidence § 1 (4th ed. (1993)). The defendants argue that N.C.G.S. § 97-10.2(e) applies to this case and it makes the evidence admissible. That section says in part, "[t]he amount of compensation ... paid or payable on account of such injury or death shall be admissible in evidence in any proceeding against the third party." The plaintiff argues, relying on Leonard v. Johns-Manville Sales Corp., 309 N.C. 91, 305 S.E.2d 528 (1983), that this section does not apply.

We held in Johns-Manville that N.C.G.S. § 97-10.2(e) did not apply in that case so that the defendant could not assert a certain defense to a wrongful death claim when the defense was based on a worker's compensation payment under the law of another state. We said that this section applied only to worker's compensation claims made under the laws of this state. We held, however, that the defense could be asserted, based on the common law of this state.

The plaintiff argues, based on our holding in Johns-Manville, that N.C.G.S. § 97-10.2(e) does not apply to worker's compensation claims paid in other states and that this section does not allow the admission of this evidence. She argues that we must look to the case law in this state to determine the admissibility of the evidence and that Spivey v. Babcock & Wilcox Company, 264 N.C. 387, 141 S.E.2d 808 (1965), makes this evidence inadmissible.

In Spivey, a case decided before N.C.G.S. § 97-10.2(e) was amended to allow the admission of evidence of worker's compensation payments in an action against a third party we interpreted the section to hold that such evidence was not admissible. Spivey has now been overruled by the amendment to this section. The plaintiff argues that Spivey is still viable in cases involving out-of-state worker's compensation claims because the section does not apply to such claims.

Spivey does not govern because N.C.G.S. § 97-10.2(e) applied in that case and it does not apply in this case. The question we face in this case is whether we should hold that under our case law, evidence of out-of-state worker's compensation payments is not admissible when by statute evidence of in-state payments is admissible. We can see nothing in the distinction between these two situations that makes a difference. We believe we should have a uniform rule. We hold that evidence of out-of-state worker's compensation payments is admissible in actions against third parties. N.C.G.S. § 97-10.2(e) provides that when evidence of worker's compensation payments is introduced in an action against a third party, the court must instruct the jury that the amount of the worker's compensation payments will be deducted from the amount of the damages awarded the plaintiff. In order to put evidence of worker's compensation payments introduced under the rule of this case on the same footing with evidence which is introduced pursuant to N.C.G.S. § 97-10.2(e), we hold that the court must give the same instruction in cases in which such evidence is introduced under the rule of this case.

Although we hold that it was error not to have admitted evidence of the worker's compensation payments in Virginia, we also hold this was invited error which does not require a new trial. A party may not...