Heflin v. G.R. Hammonds Roofing, Inc., No. COA08-1309.

Docket NºNo. COA08-1309.
Citation689 S.E.2d 388
Case DateDecember 08, 2009
CourtCourt of Appeal of North Carolina (US)
689 S.E.2d 388
Patricia HEFLIN, Widow; Christopher Heflin and Gregory Heflin, by their Guardian Ad Litem, N. Victor Farah; Andrew Heflin, by his Guardian Ad Litem, Cindy Diggs; and Claude Heflin and Lowell Heflin, by Their Guardian Ad Litem, Lisa Wayne, Plaintiffs,
v.
G.R. HAMMONDS ROOFING, INC., Employer,
American Interstate Insurance Company, Carrier, Defendants.
No. COA08-1309.
Court of Appeals of North Carolina.
December 8, 2009.

[689 S.E.2d 389]

Appeal by plaintiff from opinion and award entered 30 July 2008 by the North Carolina Industrial Commission. Heard in the Court of Appeals 9 April 2009.

Law Offices of Kathleen G. Sumner, Greensboro, by Kathleen G. Sumner and Jeanette F. Gray, for plaintiff-appellant Patricia Heflin.

Lewis & Roberts, P.L.L.C., Raleigh, by John D. Elvers, Sarah C. Blair, and Melissa K. Walker, for defendants-appellees.

[689 S.E.2d 390]

GEER, Judge.


Plaintiff Patricia Heflin appeals the opinion and award of the Full Commission ordering defendants to pay her death benefits at the rate of $64.62 per week from 2 April 2004 through the date of the deputy commissioner's opinion and award on 8 January 2008, but no further. On appeal, Ms. Heflin contends that the Commission erred in failing to rule on her motion to stay her pending workers' compensation proceedings in North Carolina so that she could pursue her wrongful death claim against defendants in Florida. Because we agree that the Commission, in ignoring Ms. Heflin's motion, disregarded its duty to hear and rule on every issue raised by the parties, we vacate the Commission's opinion and award and remand for a ruling on Ms. Heflin's motion for a stay.

Facts

On 2 April 2004, Ms. Heflin's husband, Claude Franklin Heflin, Jr., was killed while working on a job site in Florida. He was survived by Ms. Heflin and his children by previous wives. On 21 April 2004, Ms. Heflin sent a letter to the field case manager for defendant American Interstate Insurance Company, identifying three dependent children of her husband, but indicating that there was an issue regarding a fourth child.

Mr. Heflin's employer, defendant G.R. Hammonds Roofing, Inc., and its insurance carrier, defendant American Interstate, did not accept or deny the claim for death benefits, but, instead, on 30 April 2004, filed a Form 33 Request for Hearing with the Industrial Commission, asking that the proper dependents be determined. In the Form 33, defendants incorrectly stated that Mr. Heflin's death occurred in Fayetteville, North Carolina.

Ms. Heflin filed a Form 18 Notice of Accident and Claim on 22 June 2004. On 10 January 2005, Ms. Heflin also filed a petition in Florida for workers' compensation benefits arising out of Mr. Heflin's injury. On 18 February 2005, Ms. Heflin's North Carolina attorney filed a motion to withdraw as her counsel. Ms. Heflin then sent an email on 21 February 2005 to Chief Deputy Commissioner Stephen L. Gheen with a copy to Deputy Commissioner Philip A. Baddour, III, defendants' counsel, the claims adjuster, and Ms. Heflin's counsel stating: "I am asking for a stay on this case, as I filed Workers' Compensation in Florida in January 2005. My attorney in Florida, Mark L. Zientz, P.A. has advised me that he spoke with a claims adjuster last week, and was advised that the claim has been sent to a defense attorney in Florida, and that he should soon be receiving a notice of appearance."

On 16 March 2006, Deputy Commissioner Baddour sent a letter to defendants' counsel, Ms. Heflin's Florida counsel, and the guardians ad litem for the minor children, addressing the need to locate two of the minor children. On 25 March 2005, Deputy Commissioner Baddour signed an order allowing Ms. Heflin's North Carolina attorney's motion to withdraw. No order was ever entered or communication sent regarding Ms. Heflin's 21 February 2005 request for a stay.

On 24 March 2005, Ms. Heflin voluntarily withdrew her petition for benefits in Florida. On 2 December 2005, however, Ms. Heflin filed a wrongful death claim in Florida, contending that the insurer failed to accept or respond to her Florida claim for workers' compensation benefits and was, therefore, estopped under Florida law from relying upon the exclusive remedy defense in the tort suit. On 7 May 2007, Mr. Zientz, Ms. Heflin's Florida workers' compensation attorney, sent a fax to Deputy Commissioner Baddour stating that Mr. Zientz understood that Ms. Heflin had withdrawn her claim for benefits under North Carolina law and had initiated a wrongful death action under Florida law against defendant Hammonds Roofing.

On 23 August 2007, the Deputy Commissioner conducted the hearing requested by defendants in their 30 April 2004 Form 33. Beginning in April 2005 and continuing through the date of the hearing, defendants, without filing any forms with the Commission, sent Ms. Heflin checks. Ms. Heflin accepted and cashed each of the checks. At the hearing, Ms. Heflin stated that she was renouncing her entitlement to future benefits. Ms. Heflin also claimed that she had renounced her entitlement to any and all benefits paid to her by defendants in the

689 S.E.2d 391

past. On 19 October 2007, defendants' counsel submitted a letter to Deputy Commissioner Baddour indicating that Ms. Heflin had continued to accept and cash checks dated through 27 September 2007.

On 8 January 2008, the Deputy Commissioner filed an opinion and award directing defendants to pay death benefits to three children from 2 April 2004 and continuing until the child reached age 18 or for 400 weeks, whichever was later. The Deputy Commissioner concluded that Ms. Heflin was estopped from renouncing benefits accepted prior to the opinion and award, but that she had effectively renounced any right to future benefits.

Ms. Heflin appealed to the Full Commission. In an opinion and award filed 30 July 2008, the Commission stated: "The sole issue before the Commission is to whom should death benefits be paid." With respect to Ms. Heflin, the Commission found that she was married to the deceased employee on the date of his death. The Commission then found that Ms. Heflin, through counsel, filed in the Industrial Commission a Form 18 Notice of Accident and Claim on 22 June 2004 and filed a Florida Petition for Workers' Compensation Benefits on 10 January 2005. The Commission observed, however, that Ms. Heflin's counsel had voluntarily dismissed that petition on 24 March 2005. The Commission further found that it had allowed Ms. Heflin's North Carolina counsel to withdraw as counsel, but stressed that "[t]he North Carolina claim was not, and has not been, dismissed." The Commission then acknowledged that Ms. Heflin filed a wrongful death claim in Florida on 2 December 2005 "based on her allegation that the insurer failed to accept or deny the Florida workers' compensation claim."

The Commission found that defendants made payments to Ms. Heflin "in the amount of $41.00 per week ($82.00 biweekly) from April 2, 2004 and continuing through the present in connection with her North Carolina workers' compensation claim." The Commission noted that Ms. Heflin admitted that she accepted and cashed the checks, but that she "stated in open court that she wishes to renounce her entitlement to future benefits pursuant to the present proceeding before the North Carolina Industrial Commission."

Based on these findings of fact, the Commission concluded:

The law of estoppel applies in workers' compensation cases as in all other cases. Hughart v. Dasco Tran[s]p., Inc., 167 N.C.App. 685, 606 S.E.2d 379 (2005). Patricia Heflin is estopped from claiming a renunciation of benefits prior to the entry of this Opinion and Award based upon her acceptance of benefits paid to her by defendants. However, based upon Ms. Heflin's statement in open court, and in her written contentions, that she wishes to renounce her right to future benefits pursuant to the present proceeding...

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3 practice notes
  • Steinkrause v. Tatum, No. COA08-1080.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 8 Diciembre 2009
    ...otherwise. This is an impermissible speculation, which cannot be used to support probable cause. Moreover, because petitioner did not 689 S.E.2d 388 admit to consuming alcohol until after her arrest, Finding of Fact No. 9 cannot be considered in our reasonable grounds determination. There a......
  • Stevens v. U.S. Cold Storage, Inc., No. COA11–1000.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 17 Julio 2012
    ...whether before a hearing officer or on appeal to the full Commission.” Heflin v. G.R. Hammonds Roofing, Inc., 201 N.C.App. 365, ––––, 689 S.E.2d 388, 392 (2009), disc. rev. denied,363 N.C. 854, 694 S.E.2d 202 (2010) (internal quotation marks omitted). In Heflin, the plaintiff filed a motion......
  • Heflin v. G.R. Hammonds Roofing Inc, No. 17P10.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 11 Marzo 2010
    ...Wayne, GAL, for Claude Heflin/Lowell Heflin.Kathleen G. Sumner, Greensboro, for Patricia Heflin. Prior report: --- N.C.App. ----, 689 S.E.2d 388. ORDER Upon consideration of the petition filed on the 12th of January 2010 by Defendants in this matter for discretionary review of the decision ......
3 cases
  • Steinkrause v. Tatum, No. COA08-1080.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 8 Diciembre 2009
    ...otherwise. This is an impermissible speculation, which cannot be used to support probable cause. Moreover, because petitioner did not 689 S.E.2d 388 admit to consuming alcohol until after her arrest, Finding of Fact No. 9 cannot be considered in our reasonable grounds determination. There a......
  • Stevens v. U.S. Cold Storage, Inc., No. COA11–1000.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 17 Julio 2012
    ...whether before a hearing officer or on appeal to the full Commission.” Heflin v. G.R. Hammonds Roofing, Inc., 201 N.C.App. 365, ––––, 689 S.E.2d 388, 392 (2009), disc. rev. denied,363 N.C. 854, 694 S.E.2d 202 (2010) (internal quotation marks omitted). In Heflin, the plaintiff filed a motion......
  • Heflin v. G.R. Hammonds Roofing Inc, No. 17P10.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 11 Marzo 2010
    ...Wayne, GAL, for Claude Heflin/Lowell Heflin.Kathleen G. Sumner, Greensboro, for Patricia Heflin. Prior report: --- N.C.App. ----, 689 S.E.2d 388. ORDER Upon consideration of the petition filed on the 12th of January 2010 by Defendants in this matter for discretionary review of the decision ......

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