McAllister v. Cone Mills Corp.

• Decision Date: 02 February 1988
• Docket Number: No. 8719SC556,8719SC556
• Citation: 364 S.E.2d 186,88 N.C.App. 577
• Court: North Carolina Court of Appeals
• Parties: Laurene McALLISTER, Executrix for the Estate of the late Frank S. McAllister v. CONE MILLS CORPORATION.

Page 186

364 S.E.2d 186

88 N.C.App. 577

Laurene McALLISTER, Executrix for the Estate of the late Frank S. McAllister v. CONE MILLS CORPORATION.

No. 8719SC556.

Court of Appeals of North Carolina.

Feb. 2, 1988.

Gene H. Kendall, Charlotte, for plaintiff-appellant.

Smith, Helms, Mulliss and Moore by J. Donald Cowan, Jr., Greensboro, for defendant-appellee.

PARKER, Judge.

The primary issue for consideration on this appeal is whether the Superior Court or the Industrial Commission has original subject matter jurisdiction of plaintiff's claim. We hold that original jurisdiction was vested in the Industrial Commission and affirm the trial court's entry of summary judgment.

Plaintiff Laurene McAllister, executrix of the estate of decedent, Frank S. McAllister, instituted this wrongful death action on 21 March 1986. The complaint alleged that defendant, decedent's employer, negligently required decedent to perform tasks which exposed decedent to known carcinogens, thereby causing decedent's cancer of the bladder and resulting death. The complaint further alleged that defendant had express knowledge that decedent's job exposed him to carcinogenic substances and that defendant failed to implement safety procedures that would have reduced such exposure. Plaintiff sought all damages recoverable for wrongful death under G.S. 28A-18-2 and also sought punitive damages for defendant's failure to take precautions when it knew of the risk to decedent.

Defendant's answer substantially denied the allegations in the complaint. Defendant also moved to dismiss the complaint for failure to state a claim upon which relief could be granted and for lack of personal and subject matter jurisdiction on the ground that the action is barred by the North Carolina Workers' Compensation Act. In addition, defendant made alternative motions for judgment on the pleadings and summary judgment.

On 28 April 1986, defendant's jurisdictional motions were heard before The Honorable Robert A. Collier, Jr. At the hearing, Judge Collier considered defendant's motions, defendant's brief, arguments of counsel, and the affidavit of David V. Brooks, Chairman of the North Carolina Industrial Commission. Chairman Brooks averred that during the time of decedent's employment, defendant and its employees were subject to the Workers' Compensation Act; that defendant had complied with the provisions of the Act; and that defendant had been qualified as a self-insured corporation by the Industrial Commission. Judge Collier denied the jurisdictional motions. Defendant duly noted its exception and cross-assigns error to this ruling on appeal.

On 12 January 1987, defendant filed a motion for summary judgment. The motion was supported by the pleadings filed in the case, affidavits, plaintiff's answers to interrogatories, and depositions. Judge Helms heard and granted the motion and ordered that plaintiff's complaint be dismissed.

Plaintiff first contends that Judge Helms erred in considering the same issues that had previously been decided in plaintiff's favor by Judge Collier. This argument is based on the principle that one superior court judge may not overrule the judgment of another superior court judge in the same case on the same legal issue. Carr v. Carbon Corp., 49 N.C.App. 631, 272 S.E.2d 374 (1980), disc. rev. denied, 302 N.C. 217, 276 S.E.2d 914 (1981). Plaintiff contends that Judge Helms permitted defendant to argue and present evidence on the jurisdictional issues that were previously decided by Judge Collier. Although Judge Helms did not specify the grounds for summary judgment, defendant's supporting materials clearly relate to the issue of jurisdiction and defendant does not argue any other basis for summary judgment in its brief. We presume, therefore, for purposes of this appeal, that Judge Helms granted defendant's motion for summary judgment on the ground that plaintiff's action is barred by the North Carolina Workers' Compensation Act. This same issue was previously ruled upon by Judge Collier in his denial of defendant's jurisdictional motions.

Under the circumstances of this case, however, Judge Helms did not err in considering the jurisdiction issue. The issue of whether plaintiff's claim is barred by the Workers' Compensation Act is a question of subject matter jurisdiction. See, e.g., Burgess v. Gibbs, 262 N.C. 462, 137 S.E.2d 806 (1964). The denial of a motion to dismiss for lack of subject matter jurisdiction is not immediately appealable, Teachy v. Coble Dairies, Inc., 306 N.C. 324, 293 S.E.2d 182 (1982); but the question of subject matter jurisdiction may be raised at any time, even on appeal. Lemmerman v. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 85 (1986). If a court finds at any stage of the proceedings that it lacks jurisdiction over the subject matter of a case, it must dismiss the case for want of jurisdiction. Burgess v. Gibbs, 262 N.C. at 465, 137 S.E.2d at 808.

We turn therefore to the issue of whether the superior court has jurisdiction over the subject matter of this action. Defendant contends that, under the allegations of the complaint, plaintiff's action is barred by the Workers' Compensation Act. The Act provides that its remedies are the only remedies an employee has against his or her employer for claims covered by the Act. Lemmerman v. Williams Oil Co., 318 N.C. at 579, 350 S.E.2d at 85; G.S. 97-10.1. If an employee's action would be barred by the Act, then a wrongful death action brought by the employee's representative is also barred. Horney v. Pool Co., 267 N.C. 521, 148 S.E.2d 554 (1966). Even where the complaint alleges willful and wanton negligence and prays for punitive damages, the remedies under the Act are exclusive. Barrino v. Radiator Specialty Co., 315 N.C. 500, 340 S.E.2d 295 (1986). An employee cannot elect to pursue an alternate avenue of recovery, but is required to proceed under the Act with respect to compensable injuries. Freeman v. SCM Corporation, 311 N.C. 294, 316 S.E.2d 81 (1984) (per curiam); see also Stack v. Mecklenburg County, 86 N.C.App. 550, 359 S.E.2d 16, disc. rev. denied, 321 N.C. 121, 361 S.E.2d 597 (1987).

In this case, plaintiff does not contend that decedent was not subject to the Act or that her claim does not arise out of decedent's employment with defendant. Plaintiff's only argument is that, as a matter of law, her claim is not compensable under the Act and that an action for wrongful death is her sole remedy.

For plaintiff's claim to be compensable under the Act, decedent's death must have been the result of an "accident arising out of and in the course of the employment" or an "occupational disease." Booker v. Medical Center, 297 N.C. 458, 465, 256 S.E.2d 189, 194 (1979). The complaint alleges that decedent's cancer was caused by frequent and recurring exposure to carcinogens over a period of years. Decedent's death is not therefore the result of an "accident," but is compensable only if it resulted from an occupational disease. G.S. 97-52. Only those diseases and conditions enumerated in G.S. 97-53 are occupational diseases within the meaning of the Act. Hansel v. Sherman Textiles, 304 N.C....