Boone v. Vinson , 127 N.C. App. 604 ( 1997 )

492 S.E.2d 356 (1997)

Raymond L. BOONE, Plaintiff-Appellant,
v.
Woodrow VINSON, Jr., Willie Robinson and Roanoke-Chowan Logging Company, Inc., Defendant-Appellees.

No. COA96-1440.

Court of Appeals of North Carolina.

November 4, 1997.

Braxton H. Bell, Rocky Mount, and Mario E. Perez, Greenville, for plaintiff-appellant.

Battle, Winslow, Scott & Wiley, P.A. by M. Greg Crumpler, Rocky Mount, for defendant-appellees.

ARNOLD, Chief Judge.

Summary judgment is appropriate if a defending party can establish that no claim for relief exists or that the claimant cannot overcome an affirmative defense or legal bar to the claim. Wilder v. Hobson, 101 N.C.App. 199, 201, 398 S.E.2d 625, 627 (1990). In addition, when the only issues to be decided are issues of law, summary judgment is proper. Brawley v. Brawley, 87 N.C.App. 545, 548, 361 S.E.2d 759, 761 (1987), disc. review denied, 321 N.C. 471, 364 S.E.2d 918 (1988).

An injured person is entitled to compensation under the Workers' Compensation Act (hereinafter the Act) only if he is an employee of the party from whom compensation is claimed. Richards v. Nationwide Homes, 263 N.C. 295, 301-02, 139 S.E.2d 645, 649 (1965). The central issue in this case is whether an employer-employee relationship existed between Roanoke-Chowan and plaintiff, allowing defendants to invoke the exclusive remedy provisions of the Act, which preclude plaintiff from recovering damages in tort. See N.C. Gen.Stat. § 97-9, -10.1, -19 (1991). An employer-employee relationship at the time of the injury is a jurisdictional fact, on which this Court must make its own findings. Doud v. K & G Janitorial Services, 69 N.C.App. 205, 211, 316 S.E.2d 664, 669, disc. review denied, 312 N.C. 492, 322 S.E.2d 554 (1984).

The Act provides that a person who might not otherwise be covered may be deemed a "statutory employee" under certain circumstances, thereby subjecting him to coverage under the Act. See N.C. Gen.Stat. § 97-19 (1991); Rich v. R.L. Casey, Inc., 118 N.C.App. 156, 158-59, 454 S.E.2d 666, 667, disc. review denied, 340 N.C. 360, 458 S.E.2d 190 (1995). The determinative issue, then, is whether plaintiff, as a subcontractor, was a statutory employee of Roanoke-Chowan when he was injured.

This case requires an interpretation of G.S. § 97-19 as it existed at the time of plaintiff's injury on 21 January 1994. The statute then in effect read:

Any principal contractor, intermediate contractor, or subcontractor who shall sublet any contract for the performance of any work without requiring from such subcontractor or obtaining from the Industrial Commission a certificate, issued by a workers' compensation insurance carrier, or a certificate of compliance issued by the Department of Insurance to a self-insured subcontractor, stating that such subcontractor has complied with G.S. 97-93 hereof, shall be liable, irrespective of whether such subcontractor has regularly in service less than four employees in the same business within this State, to the same extent as such subcontractor would be if he were subject to the provisions of this Article for the payment of compensation and other benefits under this Article on account of the injury or death of any such subcontractor, and principal or partner of such subcontractor or any employee of such subcontractor due to an accident arising out of and in the course of the performance of the work covered by such subcontract.... If the subcontractor has no employees and waives in writing his right to coverage under this section, the principal contractor, intermediate contractor, or subcontractor subletting the contract shall not thereafter be held liable for compensation or other benefits under this Article to said subcontractor. Subcontractors who have no employees are not required to comply with G.S. 97-93.

N.C. Gen.Stat. § 97-19 (1991) (emphasis added). N.C. Gen.Stat. § 97-93 (1991) provides that employers subject to the Act are required to carry insurance or prove financial ability to pay compensation. Plaintiff, as an independent subcontractor with no employees, is not required to comply with G.S. § 97-93. We also note that plaintiff did not waive in writing his right to coverage under G.S. § 97-19.

The General Assembly amended G.S. § 97-19, effective 5 August 1987, by inserting "any such subcontractor, any principal or partner of such subcontractor or" immediately preceding the phrase "any employee of such contractor" in the first sentence of the statute. See Southerland v. B.V. Hedrick Gravel & Sand Co., 345 N.C. 739, 743, 483 S.E.2d 150, 152 (1997). Prior to the 1987 amendment, the statute was interpreted to protect the employees of a subcontractor, not the subcontractor himself. Richards, 263 N.C. at 302, 139 S.E.2d at 650.

The sole question, then, is whether the Act in effect at the time of plaintiff's injury extended workers' compensation benefits to subcontractors under the same conditions as it extended coverage to employees of subcontractors. We find the case of Southerland v. B.V. Hedrick Gravel & Sand Co., 345 N.C. 739, 483 S.E.2d 150 (1997) controlling.

In Southerland, the plaintiff, an independent subcontractor, was injured at a construction site in December 1990 while he was performing roofing work under a subcontract with the defendant. Although he advised the defendant that he maintained workers' compensation insurance coverage, the defendant did not obtain from him or any other source a certificate of insurance. The Southerland Court interpreted the "clear and unambiguous" language of the statute in effect at the time of the plaintiff's injury and held that "[t]he 1987 amendment clearly extended the class of persons protected by this provision to include not only employees of the subcontractor but also the subcontractor himself." Id. at 744, 483 S.E.2d at 152.

We note that the broadened scope of liability under this statute was recently abrogated. In 1995 the General Assembly reinstated the pre-1987 language of G.S. § 97-19 by deleting "any such subcontractor, any principal or partner of such subcontractor or" preceding "any employee of such subcontractor," effective 10 June 1996. See 1995 N.C. Sess. Laws ch. 555, § 1.

We agree with defendants that by virtue of the mandated coverage for subcontractors under G.S. § 97-19 at the time of plaintiff's injury, the parties are subject to and bound by the Act, and defendants are entitled to the protection of the exclusive remedy provisions under G.S. §§ 97-9 and -10.1. Furthermore, we have reviewed plaintiff's contentions that Roanoke-Chowan cannot avail itself of the exclusive remedy defense because it failed to comply with the Act and find them without merit.

As in Southerland, then, "[s]ince plaintiff is a member of the class of subcontractors entitled to individual coverage under N.C.G.S. § 97-19 as it existed at the time of his accident, the statute extended workers' compensation benefits to plaintiff[.]" Southerland, 345 N.C. at 744, 483 S.E.2d at 153 (emphasis added).

Accordingly, we affirm summary judgment in favor of defendants.

Affirmed.

WALKER and McGEE, JJ., concur.