Moore v. Upchurch Realty Co., Inc. , 62 N.C. App. 314 ( 1983 )

302 S.E.2d 654 (1983)

Jerry MOORE
v.
UPCHURCH REALTY CO., INC. and Nationwide Insurance Company.

No. 8210IC518.

Court of Appeals of North Carolina.

May 17, 1983.

Morgan, Bryan, Jones and Johnson by Robert C. Bryan, Dunn, for plaintiff-appellant.

Young, Moore, Henderson and Alvis by George M. Teague, Raleigh, for defendants-appellees.

WEBB, Judge.

The plaintiff does not argue that the Industrial Commission was in error in finding he was not an employee of Upchurch Realty Co. He argues that the defendants are estopped to deny workers' compensation coverage.

It has been held in this state if an insurance carrier accepts workers' compensation insurance premiums for a person, it cannot deny liability for coverage. Aldridge v. Motor Co., 262 N.C. 248, 136 S.E.2d 591 (1964); Pearson v. Pearson, Inc., 222 N.C. 69, 21 S.E.2d 879 (1942); Garrett v. Garrett and Garrett Farms, 39 N.C.App. 210, 249 S.E.2d 808 (1978), cert. denied, 296 N.C. 736, 254 S.E.2d 178 (1979); and Allred v. Woodyards, Inc., 32 N.C.App. 516, 232 S.E.2d 879 (1977). There is no evidence in this case that the insurance carrier received any premium for the workers' compensation coverage for the plaintiff. We do not believe the defendant insurance carrier is liable under the above cited cases or any other theory of estoppel. Equitable estoppel requires proof that the party to be estopped must have misled the party asserting the estoppel either by some words or some action or by silence. The person asserting the estoppel must have taken some action or failed to take some action to his detriment relying on the words, action or silence, and the injured party must not have been misled by his own lack of care or circumspection. See Homes, Inc. v. Bryson, 273 N.C. 84, 159 S.E.2d 329 (1968); Peek v. Trust Co., 242 N.C. 1, 86 S.E.2d 745 (1955); and Conner Co. v. Spanish Inns, 34 N.C.App. 341, 238 S.E.2d 525 (1977), aff'd, 294 N.C. 661, 242 S.E.2d 785 (1978). There is no evidence in this case that Nationwide Insurance Company took any action which could have misled the plaintiff. We affirm the order of the Industrial Commission as to Nationwide.

As to the defendant Upchurch Realty Co., we do not believe the Industrial Commission made findings of fact which are sufficient for us to determine whether the conclusions of law were proper. The Industrial Commission found as a fact that the deductions by Upchurch from what was paid to the plaintiff were for workers' compensation insurance premiums for plaintiffs' employees. This is in effect a finding that no premiums were deducted for plaintiff. This finding of fact is supported by the evidence. We do not believe, however, that this finding of fact is sufficient to support the conclusion that the defendant Upchurch is not estopped from denying compensation coverage for the plaintiff. Although the evidence is that Mr. Upchurch did not tell the plaintiff he was covered, he did discuss coverage with the plaintiff and deduct from what was paid to him an amount of money based on compensation premiums. The plaintiff testified that he thought he was covered.

We believe there should be findings of fact as to whether by his action Mr. Upchurch misled plaintiff as to the status of his workers' compensation insurance, whether this caused the plaintiff not to procure coverage for himself, and whether the plaintiff was misled by his own lack of care and circumspection.

We affirm as to Nationwide Insurance Company. We reverse and remand as to Upchurch Realty Co. for additional findings of fact. The Industrial Commission may take further evidence if it so desires.

Affirmed in part; reversed and remanded in part.

WHICHARD and BRASWELL, JJ., concur.