Nixon v. N.C. Department of Transportation

*********** The undersigned have reviewed the prior Decision and Order based upon the record of the proceedings before Deputy Commissioner Holmes. The appealing party has not shown good grounds to reconsider the evidence, receive further evidence, or rehear the parties or their representatives; therefore, the Full Commission hereby AFFIRMS the Decision and Order of the Deputy Commissioner. *********** STIPULATION The Full Commission finds as facts and concludes as a matter of law the following stipulation which was entered into by the parties at the hearing before the Deputy Commissioner:

1. List of property that plaintiffs allege was damaged, designated as Exhibit #1.

*********** Based upon the evidence of record, the Full Commission adopts in part and modifies in part the findings of fact found by the Deputy Commissioner as follows: FINDINGS OF FACT 1. On September 6 and 7, 1996, Hurricane Fran passed over Trinity, North Carolina causing severe flooding in much of North Carolina, including the property of plaintiffs.

2. Much of plaintiffs' personal property sustained damage because of the flooding.

3. Hurricane Fran was a monumental storm which caused greater flooding to plaintiffs' property than had previously occurred.

4. Plaintiffs' Form T-1, Claim for Damages Under Tort Claims Act, wasfiled with the Industrial Commission on July 19, 2000, more than threeyears after the date on which their claim accrued.

5. Plaintiffs did not file their claim with the Industrial Commission within the three years statute of limitations allowed under N.C.G.S. § 143-299.

*********** Based upon the findings of fact, the Full Commission concludes as follows: CONCLUSION OF LAW 1. Plaintiffs failed to file their claim within the three years statute of limitations following the accrual of their claim as required by N.C.G.S. § 143-299; therefore, plaintiffs' claim is barred. N.C.G.S. § 143-299. *********** Based upon the foregoing findings of fact and conclusion of law, the Full Commission enters the following: ORDER 1. Plaintiffs shall receive nothing and their claim for damages is hereby DENIED and DISMISSED WITH PREJUDICE.

2. Each side shall bear its own costs.

This the ___ day of March 2002.

S/____________ BUCK LATTIMORE CHAIRMAN

CONCURRING:

S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

S/_______________ CHRISTOPHER SCOTT COMMISSIONER