Thomas v. Overland Exp., Inc.

• Decision Date: 18 December 1990
• Docket Number: No. 8910IC1208,8910IC1208
• Citation: 398 S.E.2d 921,101 N.C.App. 90
• Parties: Perry L. THOMAS, Employee, Appellant, v. OVERLAND EXPRESS, INC. and/or Leasco, Inc., Employer, City Ins. Co., Carrier, Appellees.
• Court: North Carolina Court of Appeals

Page 921

398 S.E.2d 921

101 N.C.App. 90

Perry L. THOMAS, Employee, Appellant, v. OVERLAND EXPRESS, INC. and/or Leasco, Inc., Employer City Ins. Co., Carrier, Appellees.

No. 8910IC1208.

Court of Appeals of North Carolina.

Dec. 18, 1990.

Daniel S. Walden, Winston-Salem, for plaintiff-appellant.

Hedrick, Eatman, Gardner & Kincheloe by Hatcher B. Kincheloe, Charlotte, for defendant-appellees.

PARKER, Judge.

The primary issue for determination in plaintiff's appeal is whether the North Carolina Industrial Commission had subject matter jurisdiction over plaintiff's claim for personal injury occurring outside North Carolina.

Plaintiff, an experienced tractor-trailer driver, is a resident of North Carolina. Defendant employer (herein defendant) operates a tractor-trailer fleet. In the spring of 1986 plaintiff applied for a job with defendant by filling out an application form and turning it in at defendant's terminal in Greensboro. Defendant arranged for plaintiff to fly to Indianapolis, Indiana, along with other prospective employees for a road test and general orientation to the company. While in Indiana, plaintiff signed certain papers which provided in pertinent part as follows:

AGREEMENT

MADE this 24 day of April, 1986, by and between Leasco, Inc., an Indiana

corporation with its principal place of business at 1631 W. Thompson Road,

Indianapolis, Indiana 46217 ("Employer"), and Perry L. Thomas, an individual

residing at 2212 Olive Dr., Reidsville, North Carolina 27320 ("Employee").

Street Address City State Zip

WITNESSETH

WHEREAS, Employer is in the business of hiring qualified employees to perform

various tasks in the trucking business; and

WHEREAS, Employee desires to work in the trucking business for Employer; and

WHEREAS, Employee's duties require travel regularly in Employer's service in

Indiana and in other states;

NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby

covenant and agree as follows:

1. Employee's employment is principally localized in Indiana.

2. The laws of the State of Indiana, including the Indiana Workmen's

Compensation Act and its benefits, shall apply to the settlement of any claim

arising out of any job-related injury or disease of the Employee.

3. Employee agrees to this method of resolution regardless of his or her state

of residence or domicile.

4. Employee consents to the filing of this agreement with any appropriate

state agency which handles the administration of workers' compensation claims

for any state.

On 26 April 1986 plaintiff drove his first load from defendant's Greensboro, North Carolina, terminal. Plaintiff was a regional driver who drove primarily within the State of North Carolina until September 1986. In September 1986, however, defendant held a drivers' meeting at the Holiday Inn-Four Seasons in Greensboro, North Carolina, and informed the drivers that because defendant was losing money, drivers would be required to start making trips of five to seven days' duration into South Carolina, Georgia, Florida and Virginia. Additionally, instead of being dispatched from the Greensboro terminal as in the past, drivers were now dispatched by telephone from Indianapolis.

On 9 December 1986 plaintiff suffered an injury by accident to his right foot while picking up a load for defendant in Madison, Florida. He immediately reported his injury to defendant. Defendant filed a claim with the Industrial Board of the State of Indiana and plaintiff was compensated for temporary total disability under Indiana law at a rate of $190.00 per week for the following periods: 12 December 1986 through 14 December 1986, 3 February 1987 [101 N.C.App. 93] through 19 August 1987, and 22 December 1987 through 2 May 1988. Plaintiff resumed driving for defendant in August 1987 and left his employment voluntarily on 19 October 1987. On 21 December 1987 plaintiff filed a claim with the North Carolina Industrial Commission for benefits under the North Carolina Workers' Compensation Act claiming compensation for mileage and medication reimbursement, for an additional $55.86 per week in temporary total disability benefits, and, later, for a 40% permanent partial disability to his right foot--none of which was recoverable under the laws of Indiana.

After plaintiff's claim was filed with the North Carolina Industrial Commission, defendant filed a petition in the United States Bankruptcy Court for the Southern District of Indiana, seeking protection under Chapter 11. Plaintiff moved the Bankruptcy Court to lift the automatic stay to allow the present claim to proceed and plaintiff's motion was granted. Plaintiff's claim was heard on 23 May 1988 in Wentworth, North Carolina, before former Deputy Commissioner Richard B. Harper. At this hearing the parties stipulated that on 9 December 1986 plaintiff sustained an injury by accident arising out of and in the course of his employment with defendant. The parties also stipulated to the treating doctor's report showing plaintiff to have a 40% permanent partial disability to his right foot resulting from the 9 December 1986 accident.

On 30 January 1989 former Deputy Commissioner Harper issued his Opinion and Award dismissing plaintiff's claim by interpreting G.S. § 97-36 to mean that the Commission did not have subject matter jurisdiction over plaintiff's claim. Plaintiff appealed to the Full Commission. On 24 July 1989 the Commission issued its Opinion and Award affirming and adopting as its own the Opinion and Award of the Deputy Commissioner. On 17 August 1989, within the 30-day period for taking appeal as specified in G.S. § 97-86, plaintiff filed his written notice of appeal.

On appeal plaintiff brings forward four assignments of error. First, plaintiff contends that the Commission erred in finding and concluding that the contract of employment was made in Indiana as opposed to North Carolina. Second, plaintiff asserts that the Deputy Commissioner erred in finding and concluding that defendant's principal place of business was in Indiana as opposed to Greensboro, North Carolina. Third, plaintiff argues that the Deputy Commissioner erred in finding and concluding that the North Carolina Industrial Commission may not exercise subject matter jurisdiction over plaintiff's claim. Finally, plaintiff contends that the Commission erred in finding that G.S. § 97-36 is a jurisdictional statute that precludes application of the Act to plaintiff's claim.

As to plaintiff's contention that the Commission erred in finding and concluding that plaintiff's contract of employment was made in Indiana, the Commission made the following pertinent findings of fact to which plaintiff has not excepted:

3. On or about March 26, 1986 plaintiff responded to an employment ad placed by defendant, Overland Express, in the Greensboro News and Record. This ad stated several terms of employment including a requirement that employees must live within a 50 mile radius of Greensboro, North Carolina and that retirement and life insurance programs were provided as benefits.

4. Plaintiff submitted an application for employment to the dispatcher at the Overland Express Terminal located near the intersection of Interstate 40 and Chimney Rock Road in Greensboro, North Carolina near the end of March 1986. Following that application, the plaintiff was contacted by an agent of Overland Express and was informed of a flight reservation at the Greensboro Airport. Plaintiff arrived at the Greensboro Airport and was flown to Indianapolis, Indiana along with other prospective employees.

5. Following his arrival in Indiana the plaintiff was given a physical and road test by employees of Overland Express.

Since plaintiff has not excepted to these findings, they are binding on appeal. Salem v. Flowers, 26 N.C.App. 504, 216 S.E.2d 392 (1975). Plaintiff has excepted to the Commission's finding that:

6. On 24 April 1986, four days after his arrival in Indiana and while still in Indiana, plaintiff was informed that he had been hired as a driver by Overland Express. Plaintiff signed employment papers that day and agreed to become an employee of defendant.

In appeals from the Industrial Commission, when the assignments of error bring forward for review the findings of fact made by the Commission, the Court will review the evidence to determine whether there is any competent evidence to support the findings; if so, the findings of fact are conclusive. If a finding of fact is a mixed question of fact and law, it is also conclusive if supported by competent evidence. The appellate court can only review for errors of law. Lewter v. Enterprises, Inc., 240 N.C. 399, 82 S.E.2d 410 (1954). Our review of the transcript of the hearing before the Deputy Commissioner reveals that there was competent evidence to support this finding of fact; therefore, it is binding on appeal.

Based on these findings, the Commission concluded:

1. The contract of employment between plaintiff and defendants [sic] was made on 24 April 1986 in the State of Indiana when, by his own admission, plaintiff accepted defendant's first formal offer of employment. See, Goldman v. Parkland of Dallas, Inc., 7 N.C.App. 400, 173 S.E.2d 15 aff'd 277 N.C. 223, 176 S.E.2d 784 (1970).

Plaintiff objects to this conclusion on the grounds that the document which plaintiff signed in Indiana was not a contract of employment, but instead was a "waiver and release" of plaintiff's right to bring any claims under the North Carolina Workers' Compensation Act. Plaintiff also contends that finding that the contract was "made" in Indiana merely because plaintiff signed his W-2 forms and the release in Indiana is an arbitrary, technical and rigid manner of determining where the contract was entered into.

Contrary to plaintiff's contention that G.S. § 97-36 is not a jurisdictional statute and that the North Carolina legislature did not intend to limit the protection provided by the Workers' Compensation Act...