Hooper v. Liberty Mut. Ins. Co.

• Decision Date: 03 March 1987
• Docket Number: No. 8617SC489,8617SC489
• Citation: 84 N.C.App. 549,353 S.E.2d 248
• Court: North Carolina Court of Appeals
• Parties: James HOOPER, Jr. v. LIBERTY MUTUAL INSURANCE COMPANY.

Page 248

353 S.E.2d 248

84 N.C.App. 549

James HOOPER, Jr. v. LIBERTY MUTUAL INSURANCE COMPANY.

No. 8617SC489.

Court of Appeals of North Carolina.

March 3, 1987.

Bethea and Sands by Alexander P. Sands, III and J. Michael Thomas, Reidsville, for plaintiff-appellant.

Hutchins, Tyndall, Doughton & Moore by Richard Tyndall and Laurie H. Woltz, Winston-Salem, for defendant-appellee.

ORR, Judge.

Plaintiff attempts to raise the single issue of whether an employee can maintain an action against his employer's insurer for bad faith refusal to continue the payment of benefits.

However, the pleadings and record in the case sub judice are such that we need not address that question. We instead address the basic issue of whether plaintiff's complaint states a claim upon which relief can be granted. It did not, and accordingly, we affirm the trial court's dismissal.

From 1957 to 1969 plaintiff James Hooper, Jr. worked as a dock worker for J.P. Stevens & Co.; from 1969 to 14 October 1984 he worked for Stevens as a truck driver. During the course and in the scope of that employment, Mr. Hooper apparently suffered several accidental injuries to his back. A letter dated 14 September 1984 from Liberty Mutual Insurance Company, the employer's insurer, to Mr. Hooper's attorney, and incorporated in plaintiff's complaint, disclosed that Liberty Mutual had paid Hooper five weeks of temporary total disability at a compensation rate of $158.00 per week. The letter noted that Mr. Hooper had been paid compensation in accord with a 10 percent permanent partial disability rating to his back as well as medical expenses.

In the September 14th letter, the adjuster states that plaintiff has been given a 17 percent permanent partial disability rating; that 15 percent of this rating has been paid; and that the insurer was "waiting for Mr. Hooper to sign the agreement forms to pay the remaining 2%." In oral argument, counsel for Liberty Mutual explained that this phrase referred to "Form 21," the "Agreement for Compensation for Disability" form. To be binding this agreement must be signed by both parties and approved by the Industrial Commission. N.C.G.S. § 97-82 (1985). The letter further offers to increase the cash payment from $1,297.32 to $2,000.00 if a clincher agreement was signed.

A second letter dated 19 October 1984 from Liberty Mutual remarked upon Hooper's response to the September letter (the response is not in the record before this Court), in which Mr. Hooper apparently refused to sign the clincher agreement. Likewise, there is no indication that plaintiff signed the Form 21 agreement either. The October letter stated "it is our position that we are not responsible for the claimant's underlying arthritic condition[,] only the aggravation that his injury caused." It further stated that Liberty Mutual "would not be willing to pay anything further except by clincher agreement on this case", leaving the $2,000.00 offer to settle still open.

At this point, the dealings of the parties had been entirely within the scope and practice of the Workers' Compensation Act. Payments had been made by defendant and accepted by plaintiff based on agreed upon disability ratings. The parties, however, had not reached a mutually acceptable agreement to conclude the case either through the signing of a Form 21 Agreement or a clincher agreement.

The second letter motivated Mr. Hooper to file a complaint alleging that the insurer's actions as set forth in the two letters constituted a bad faith refusal to pay benefits and unfair and deceptive trade practices in contravention of N.C.G.S. §§ 58-54.4(11) and 75-1.1. Plaintiff asked for compensatory and punitive damages. The trial court granted defendant's motion pursuant to Rule 12 of the North Carolina Rules of Civil Procedure to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon...