THE ESTATE OF GARY VAUGHN, TAMMY VAUGHN, ADMINISTRATRIX, Plaintiff v. PIKE ELECTRIC, LLC, PIKE ELECTRIC, INC., and KENNETH SHALAKO PENLAND, Defendants
Case Details
- Citation
- 230 N.C. App. 485
- Judge(s)
- Judges CALABRIA and ELMORE concur.
- Procedural Posture — the stage the case had reached
- appeal
- State
- North Carolina
- Circuit
- 4th Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
The appellate court reversed the trial court's denial of Pike Electric's motion to dismiss under the Workers' Compensation Act exclusivity provision, finding the employer lacked intentional misconduct. The court affirmed the denial of supervisor Penland's motion to dismiss, finding sufficient allegations of willful, wanton, and reckless negligence.
Excerpt
THE ESTATE OF GARY VAUGHN, TAMMY VAUGHN, ADMINISTRATRIX, Plaintiff v. PIKE ELECTRIC, LLC, PIKE ELECTRIC, INC., and KENNETH SHALAKO PENLAND, Defendants No. COA13-448 Filed 19 November 2013 1. Appeal and Error — interlocutory orders and appeals— denial of motions to dismiss — substantial right — Workers’ Compensation Act exclusivity provision The denial of a motion to dismiss under N.C.G.S. § 1A-1, Rule 12(b)(1) and the exclusivity provision of the Workers’ Compensation Act in a negligence case affected a substantial right and were immediately appealable. Further, the denial of defendants’ N.C.G.S. § 1A-1, Rule 12(b)(6) motions to dismiss were immediately appeal-able as affecting a substantial right to the extent that they involved the trial court’s jurisdiction over this matter. 2. Workers’ Compensation — Woodson employer exception— failure to allege intentional misconduct The trial court’s order denying defendant Pike Electric’s motions to dismiss under N.C.G.S. § 1A-1, Rules 12(b)(1) and 12(b)(6) in a negligence case was reversed. Plaintiff offered no basis to believe that Pike Electric was aware of, intended, or was substantially certain that defendant Penland’s actions on that day would result in decedent’s death. Plaintiff failed to allege uncontroverted evidence of defendant Pike Electric’s intentional misconduct. 3. Workers’ Compensation — Pleasant co-employee exception— willful, wanton, and reckless negligence The trial court’s order denying defendant Penland’s motions to dismiss under N.C.G.S. § 1A-1, Rules 12(b)(1) and 12(b)(6) in a negligence case was affirmed. An employee may exhibit willful, wanton, and reckless negligence either when he intentionally injures a coworker or when he does so with manifest disregard to the consequences of his actions. Defendant Penland’s alleged direction to send decedent up a utility pole despite decedent’s severe lack of training and expertise was sufficient to create an inference that Penland was manifestly indifferent to the consequences of his actions under either Rule 12(b)(1) or Rule 12(b)(6). Appeal by Defendants from order entered 25 February 2013 by Judge Gary M. Gavenus in Rutherford County Superior Court. Héard in the Court of Appeals 11 September 2013. Podgomy Law, P.A., by George Podgomy, Jr., and Price, Smith, Hargett, Petho & Anderson, by Richard L. Anderson, for Plaintiff. Roberts & Stevens, P.A., by F. Lachicotte Zemp, Jr. and Robin A. Seelbach, for Defendants Pike Electric, LLC and Pike Electric, Inc. Bennett & Guthrie, P.L.L.C., by Richard V. Bennett, Roberta King Latham, and Joshua H. Bennett, for Defendant Kineth Shalako Penland. STEPHENS, Judge. Factual and Procedural Background This case arises from the death of Gary Vaughn (“Decedent”). He was electrocuted on 29 October 2009 while working as a groundman for Defendants Pike Electric, LLC and Pike Electric, Inc. (collectively, “Pike Electric”) and died as a result of that injury. Almost three years later, on 4 October 2012, Decedent’s surviving spouse and the administratrix of his estate, Tammy Vaughn (“Plaintiff’), filed a negligence complaint against Pike Electric and Decedent’s supervisor, Defendant Kineth Penland (“Penland”), in Rutherford County Superior Court. In her complaint, Plaintiff alleges the following: 10. . . . Decedent was employed by Pike Electric as a groundman. As a groundman, . . . Decedent assisted foremen, linemen[,] and other employees of Pike Electric who worked on... overhead distribution lines .... 11. [Groundmen]... were neither trained nor permitted to perform work on poles with energized lines . .. due to the risk of electrocution and/or death inherent in such work. 13. On the morning of October 29, 2009,... Decedent was employed as a groundman in a crew overseen by Penland [, which had been] instructed to retrofit transformers on overhead power lines.... 14. As a groundman, the duties to be performed by . . . Decedent during this work were prescribed and circumscribed by the Pike Electric [work methods and safety manuals]. These duties did not include working on power lines; especially work on energized power lines. 15. [At the time of his death, Decedent had been employed as a groundman for less than two months] and had not received any training or job assessment during that period of time. [Defendants] knew that... Decedent had received no training to perform the work required of a lineman. 16. Defendants knew that . . . Decedent had ... no previous experience with power line distribution and transmission and had worked as a truck driver prior to being employed by... Pike Electric. 17. Defendants knew that. . . Decedent had received no training as a lineman and... was not [permitted to] climb [] poles or work[] on or near energized lines or equipment____ 18. Retrofitting transformers is an inherently dangerous activity as it involves de-energizing the transformer by disconnecting the stinger from the primary line, replacing the lightning arrester, installing guy sticks, installing a fused cutout[,] and re-energizing the transformers. 19. . . . Defendants knew that undertaking such a task required specific training and experience and that instructing a novice groundman such as ... Decedent to perform such work was certain to result in death or serious injury. 20. ... Penland instructed... Decedent to climb the utility pole [that] was supporting [the] overhead power lines . . . and to begin the work of retrofitting the transformer. 21. The power lines that Penland instructed ... Decedent to work on were high voltage distribution lines. They were energizedf,] uninsulated[,] and carried 7200 volts of electricity. 22. Defendants knew that [groundmen] such as Decedent were not qualified, nor permitted, to undertake any of those dangerous activities. 23. Nevertheless,... Decedent was... instructed to use a “shotgun” stick to de-energize the pole. This involved the dangerous step of removing the hotline clamp from the primary line which would leave the primary line exposed. This is a task reserved for [a] trained and experienced lineman. 24. Defendants knew that . . . Decedent had neither the training nor experience to safely carry out such a task[,] yet instructed him to do so regardless. 25. . . . Decedent was not supervised nor provided with adequate personal protective equipment while undertaking the tasks assigned to him. 26. Shortly after... Decedent climbed the utility pole, the remaining crewman heard a loud noise from the top of the pole and turned to see . . . Decedent hanging limp from the utility pole. 27. The other members of. . . Decedent’s crew were then forced to perform a pole[-]top rescue of... Decedent. 28. Resuscitation efforts were attempted[,] but [Decedent] did not survive his injuries. 29. As the foreman and/or employee in charge on October 29, 2009, Penland’s duties and responsibilities were prescribed by . . . OSHA regulations and [the Pike Electric safety manual]. These duties included... ensuring that all lines to be worked on were de-energized, . . . all employees followed applicable safety rules, and ... all of the employees in the work crew possessed the necessary information and work skills ... to perform the work carefully. 30. . . . Defendants knew, or should have known, that groundmen and other untrained and inexperienced employees were . . . instructed to perform the inherently dangerous activities reserved for trained linemen. 33. ... OSHA determined that Defendant Pike Electric had previously been cited by North Carolina OSHA for violations ... in North Carolina as well as in other states where [it provides] similar services. 34. . . . Pike [Electric] . . . was aware that employees such as . . . Decedent were being placed in[] hazardous situations that were substantially certain to cause injury or death. 35. . . . [Pike Electric] was cited for [ten] serious safety violations in the [S]tate of Georgia in 2001 following the fatal electrocution of an employee while upgrading an electrical system. 37. ... [Pike Electric] was cited for safety violations in the [S]tate of Florida in 2003 following [an employee injury] after [the injured employee] contacted] an energized power line. 38. Following [an] investigation [in this case], OSHA issued citations to [Pike Electric because]: a. ... An employee classified as a groundmanf, i.e., Decedent,] was allowed to perform work as a lineman for which he had not been trained[; and] b. ... [Decedent] was working in close proximity to 7200 volts . . . without wearing insulating gloves or... sleeves. Defendants Pike Electric and Penland moved to dismiss Plaintiffs complaint in December of 2012 under Rules 12(b)(1) and 12(b)(6) of the North Carolina Rules of Civil Procedure and section 97-10.1 (“the exclusivity provision”) of the North Carolina Workers’ Compensation Act (“the Act”). Pursuant to those rules, Defendants asserted that the trial court lacked subject matter jurisdiction to proceed with the case and that Plaintiff had failed to state a claim on which relief could be granted. The motions were heard on 18 February 2013 and, one week later, denied. Defendants appeal. Discussion Defendants appeal the trial court’s order denying their motions to dismiss under Rules 12(b)(1) and 12(b)(6). On both motions, we reverse as to Pike Electric and affirm as to Penland. I. Appellate Jurisdiction Defendants’ appeal is interlocutory. It is well settled that an order denying a motion to dismiss made pursuant to the exclusivity provision of the Act and either Rule 12(b)(6) or Rule 12(b)(1) is interlocutory. Trivette v. Yount, _ N.C. App. _, _, 720 S.E.2d 732, 734 (2011) (“[T]he trial court’s order denying Defendant’s motion to dismiss pursuant to Rule 12(b)(1) ... is interlocutory.”) [hereinafter Trivette I\, affirmed in part, reversed in part on other grounds, and remanded, 366 N.C. 303, 735 S.E.2d 306 (2012); Block v. Cnty. of Person, 141 N.C. App. 273, 276, 540 S.E.2d 415, 418 (2000) (“[A] denial of a motion pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) is an interlocutory order from which no appeal may be taken immediately.”) (citation, brackets, certain punctuation, and internal quotation marks omitted). “An order is interlocutory if it is made during the pendency of an action and does not dispose of the case [, ] but requires further action by the trial court in order to finally determine the entire controversy.” Trivette I,_N.C. App. at _, 720 S.E.2d at 734. Generally, a party cannot immediately appeal from an interlocutory order. Davis v. Davis, 360 N.C. 518, 524, 631 S.E.2d 114, 119 (2006). “The rationale behind [disallowing the immediate appeal of interlocutory orders] is that no final judgment is involved in such a denial and the movant is not deprived of any substantial right that cannot be protected by a timely appeal from a final judgment which resolves the controversy on its merits.” Block, 141 N.C. App. at 276-77, 540 S.E.2d at 418. Because the trial court’s denial of Defendants’ motions to dismiss did not finally dispose of Plaintiff’s claims in this case, it is interlocutory and, therefore, not generally subject to immediate appellate review. Nevertheless, an interlocutory order may be reviewed on appeal when either “(1) . . . there has been a final determination as to one or more of the claims and the trial court certifies that there is no just reason to delay the appeal, [or] (2) ... delaying the appeal would prejudice a substantial right.” Milton v. Thompson, 170 N.C. App. 176, 178, 611 S.E.2d 474, 476 (2005). Because the trial court did not certify that there was no just reason to delay Defendants’ appeal, review is proper only if the delay would affect a substantial right. We hold that it would. A. Denial of Defendants’ Motions to Dismiss Under Rule 12(b)(1) As Pike Electric points out, our Supreme Court has determined that the denial of a motion to dismiss under Rule 12(b)(1) and the exclusivity provision of the Act affects a substantial right “and will work injury if not corrected before final judgment____” See Burton v. Phoenix Fabricators & Erectors, Inc., 362 N.C. 352, 661 S.E.2d 242 (2008) (remanding to the Court of Appeals for consideration of the merits of an appeal that was brought on the denial of the defendant’s Rule 12(b)(1) motion to dismiss the plaintiff’s negligence action under the exclusivity provision of the Indiana workers’ compensation statute). Therefore, Defendants’ appeal as to that element of the denial of their respective motions to dismiss — Rule 12(b)(1) — is proper. B. Denial of Defendants’ Motions to Dismiss Under Rule 12(b)(6) In footnote 2 of his brief, Penland states that his argument “will focus [exclusively] on the trial court’s ruling regarding [his motion to dismiss] pursuant to Rule 12(b)(6).” However, he goes on to attempt to preserve review of the denial of his motion to dismiss under Rule 12(b) (1) “should this Court determine that the trial court erred in dismissing his action under [Rule 12(b)(1)].” This is impermissible. Defendant’s ipse dixit statement is not sufficient to preserve appellate review. Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure states that, in order to preserve an issue for appellate review, a party must offer “reason or argument” in support of that issue. If not, the issue will be deemed abandoned. N.C.R. App. P. 28(b)(6). Because Penland intentionally omitted any reason or argument that the trial court erred in dismissing his motion under Rule 12(b)(1), that issue is deemed abandoned. Nevertheless, we elect to review the denial of Penland’s motion to dismiss as a jurisdictional matter under Rule 12(b)(1). Lee v. Winget Rd., LLC, 204 N.C. App. 96, 98, 693 S.E.2d 684, 687 (2010) (“[A]n appellate court has the power to inquire into jurisdiction in a case before it at any time, even sua sponte.”) (citation and internal quotation marks omitted). In their briefs, Defendants state that their appeals of the trial court’s denial of their motions to dismiss pursuant to Rule 12(b)(6) are properly before this Court under Burton. This is incorrect. The Supreme Court’s opinion in Burton allowed appellate review of the trial court’s denial of a motion to dismiss as affecting a substantial right pursuant to Rule 12(b)(1) and the exclusivity provision of another state’s workers’ compensation act. Id. It did not address whether jurisdiction was present for an appeal of the denial of a motion to dismiss under Rule 12(b)(6). Indeed, neither Pike Electric nor Penland has cited any case allowing review of the denial of a motion to dismiss under Rule 12(b)(6) and the exclusivity provision of the Act on grounds that such denial affects a substantial right. After reviewing the case law, we are unable find a decision of either appellate court addressing the validity of an interlocutory appeal from the denial of a motion to dismiss under Rule 12(b)(6) and the exclusivity provision. Accordingly, whether the trial court’s denial of a motion to dismiss under Rule 12(b)(6) and the exclusivity provision of the Act is immediately appealable as affecting a substantial right is a matter of first impression. As discussed above, our Supreme Court has determined that the denial of a motion to dismiss under Rule 12(b)(1) and the exclusivity provision of the Act is immediately appealable as affecting a substantial right. In this case, Defendants limit their arguments regarding the trial court’s denial of their motions to dismiss under Rule 12(b)(6) to the issue of jurisdiction, arguing that Plaintiff failed to state a claim upon which relief may be granted because the superior court did not have jurisdiction to determine her claim since it arose under the exclusivity provision of the Act. Importantly, Defendants do not argue on appeal that Plaintiff failed to state a claim upon which relief can be granted pursuant to North Carolina tort law. Because the Supreme Court has determined that the denial of a motion to dismiss for lack of jurisdiction under the exclusivity provision of the Act affects a substantial right, we conclude that the denial of Defendants’ Rule 12(b)(6) motions to dismiss is immediately appealable as affecting a substantial right to the extent that those motions were asserted pursuant to the exclusivity provision of the Act. Accordingly, to the extent that they involve the trial court’s jurisdiction over this matter, we review Defendants’ appeals on the merits. II. Standard, of Review “The standard of review on a motion to dismiss under Rule 12(b) (1) for lack of jurisdiction is de novo.” Dare Cnty. v. N.C. Dep’t of Ins., 207 N.C. App. 600, 610, 701 S.E.2d 368, 375 (2010) (citations and internal quotation marks omitted). Under Rule 12(b)(6), [t]he motion to dismiss . . . tests the legal sufficiency of the complaint. In ruling on the motion the [factual] allegations of the complaint must be viewed as admitted, and on that basis the court must determine as a matter of law whether the allegations state a claim for which relief may be granted. Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979) (citations omitted). On a motion to dismiss under Rule 12(b)(6), the court is not, however, required to accept mere conclusory allegations, unwarranted deductions of fact, or unreasonable inferences as true. Strickland, v. Hedrick, 194 N.C. App. 1, 20, 669 S.E.2d 61, 73 (2008) (citation and internal quotation marks omitted); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 167 L. Ed. 2d 929, 934 (2007) (“While a complaint attacked by a [Federal] Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions^ Indeed,] a formulaic recitation of the elements of a cause of action will not do[.]”) (citations, internal quotation marks, and brackets omitted). III. Analysis The exclusivity provision of the Act states that “the rights and remedies [provided to] the employee, his dependents, next of kin, or personal representative shall exclude all other rights and remedies of the employee ... as against the employer at common law or otherwise on account of... injury or death.” N.C. Gen. Stat. § 97-10.1 (2011). The social policy behind [this provision] is that injured workers should be provided with dignified, efficient^] and certain benefits for work-related injuries and that the consumers of the product are the most appropriate group to bear the burden of the payments. The most important feature of the typical workers’ compensation scheme is that the employee and his dependents give up their common law right to sue the employer for negligence in exchange for limited but assured benefits. Consequently!,] the negligence and fault of the injured worker ordinarily is irrelevant. Pleasant v. Johnson, 312 N.C. 710, 712, 325 S.E.2d 244, 246-47 (1985). Under the exclusivity provision, a worker is generally barred from bringing an action in our courts of general jurisdiction against either his employer or a co-employee. Id. at 713, 325 S.E.2d at 247. Instead, the worker must pursue his or her action before the North Carolina Industrial Commission. In cases involving intentional injury by an employer or co-employee, however, our Supreme Court has stated that the worker may bring suit at common law. Id. Over time, this rule has been applied to two different circumstances. First, when a worker wishes to maintain an action against his employer, our Supreme Court has directed us to ask (a) whether the worker suffered injury or death and (b) whether the employer intentionally engaged in misconduct knowing that such conduct was substantially certain to cause serious injury or death. Woodson v. Rowland, 329 N.C. 330, 340-41, 407 S.E.2d 222, 228 (1991). If the answer to both questions is “yes,” then the worker “or the personal representative of the estate],] in [the] case of death, may pursue a civil action agains
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