All opinions are subject to modification and
technical correction prior to official publication in the North Carolina
Reports and North Carolina Court of Appeals Reports. In the event of
discrepancies between the electronic version of an opinion and the print
version appearing in the North Carolina Reports and North Carolina Court of
Appeals Reports, the latest print version is to be considered authoritative.
NO. COA06-288
NORTH CAROLINA COURT OF
APPEALS
Filed: 6 February 2007
MARY NICOLE BOONE VOGLER,
Widow; MARILYN “SUE ANN”
CLYMER, Guardian Ad Litem for
KRISTIN DAKOTA VOGLER, Minor
Child; and MARK BOONE,
Guardian Ad Litem for MEGAN
NICOLE BOONE, Minor Stepchild;
of BILLY CHARLES VOGLER,
Deceased Employee,
Plaintiffs,
v. North
Carolina Industrial Commission
I.C.
File No. 034642
BRANCH ERECTIONS CO., INC.,
Employer-Defendant;
RELIANCE NATIONAL INSURANCE
COMPANY (now insolvent),
Carrier-Defendant;
NORTH CAROLINA INSURANCE
GUARANTY ASSOCIATION,
Defendant;
CAMBRIDGE INTEGRATED SERV.,
Third-Party
Administrator;
STERLING ADMINISTRATIVE
SERVICES and the GOFF GROUP,
Servicing Agents.
Appeals by defendants
from an Opinion and Award entered 27 July 2005 by the Industrial
Commission. Heard in the Court of
Appeals 20 September 2006.
J. Randolph Ward for
defendant-appellant/cross-appellee Branch Erections, Co., Inc.
Nelson, Mullins, Riley
& Scarborough, LLP, by Christopher Blake, for
defendant-appellee/cross-appellant North Carolina Insurance Guaranty
Association.
BRYANT, Judge.
The North Carolina
Insurance Guaranty Association (NCIGA) (defendant-appellee/cross-appellant) and
Branch Erections, Co., Inc. (Branch) (defendant-appellant/cross-appellee)
appeal from an Opinion and Award entered 27 July 2005 by the North Carolina
Industrial Commission (Commission).
On 23 March 2000, Billy
Charles Vogler (plaintiff-decedent) suffered a compensable workplace injury by
accident when he fell twenty feet to the ground after being struck by a
crane. Plaintiff died as a result of the
injuries sustained in the accident. In Vogler I, the Opinion and Award
of the Full Commission granting plaintiff 10% additional compensation was
reversed and remanded by this Court which held the Commission “abused its
discretion by declining to receive the policy as evidence and by failing to
take into account the terms of the [insurance] policy [between Branch and
Reliance(Note 1)].” Vogler v.
Branch Erections Co., 166 N.C. App. 169, 177, 601 S.E.2d 273, 278 (2004) (Vogler I).
The present case is
before this Court on appeal by both parties from the Commission’s 27 July 2005
Opinion and Award which concluded: (1)
the insurance policy between Branch and Reliance National Insurance Company
provides for NCIGA to pay plaintiff the 10% increase in compensation awarded
pursuant to N.C. Gen. Stat. §97-12; and (2) NCIGA could seek reimbursement from
Branch. Both defendants appeal.
_____________________
NCIGA argues the Commission erred in determining NCIGA was obligated to pay the 10% additional workers’ compensation awarded to plaintiff. Branch argues the Commission erred in holding that NCIGA is entitled to seek reimbursement from Branch for the 10% additional compensation awarded to plaintiff.
Opinions and awards of
the Commission are reviewed to determine whether competent evidence exists to
support the Commission’s findings of fact, and whether the findings of fact
support the Commission’s conclusions of law.
Bondurant v. Estes Express Lines, Inc., 167 N.C. App. 259, 263,
606 S.E.2d 345, 348 (2004) (quotations and citations omitted). If supported by competent evidence, the
Commission’s findings are binding on appeal even when there exists evidence to
support findings to the contrary. Allen
v. Roberts Elec. Contrs., 143 N.C. App. 55, 60, 546 S.E.2d 133, 137
(2001). The Commission’s conclusions of
law are reviewed de novo. Id.
at 63, 546 S.E.2d at 139. For the
reasons stated herein, we affirm the decision of the Commission.
On appeal NCIGA argues
the Commission erred in determining NCIGA was obligated to pay the additional
10% awarded to plaintiff. Specifically,
NCIGA challenges the Commission’s finding that the additional 10% increase to
plaintiff’s workers’ compensation award was a “covered claim.” In the alternative, NCIGA contends it should
not be required to pay the additional compensation, asserting it constitutes
“punitive and exemplary damages.”
The purpose of the North
Carolina Insurance Guaranty Association Act (Guaranty Act), N.C. Gen. Stat.
§58-48-1 et seq. is:
to provide a mechanism
for the payment of covered claims under certain insurance
policies, to avoid excessive delay in payment, and to avoid financial loss
to claimants or policyholders because of the insolvency of an insurer, to
assist in the detection and prevention of insurer insolvencies, and to provide
an association to assess the cost of such protection among insurers.
N.C. Gen. Stat. §58-48-5
(2005) (emphasis added). All liability
insurance companies licensed to conduct business in North Carolina are members
of NCIGA. See N.C. Gen. Stat.
§58-48-25 (2005). When a member insurer
becomes insolvent, NCIGA assumes responsibility for defending and paying
covered claims against the insolvent company.
NCIGA has a statutory liability limit of $300,000.00. See N.C. Gen. Stat. §58-48-35
(2005). Furthermore, North Carolina
General Statutes, Section 97-98 provides:
No policy of insurance
against liability arising under this Article shall be issued unless it contains
the agreement of the insurer that it will promptly pay to the person entitled
to same all benefits conferred by this Article . . . .
N.C. Gen. Stat. §97-98
(2005).
In the present case, NCIGA challenges the following findings of the Commission:
11. [] The policy specifically requires the
employer to be responsible for any payment in excess of the benefits regularly
provided by the Workers’ Compensation Act, including those imposed due to the
employer’s failure to comply with a health or safety law or regulation.
12. When an insurer becomes insolvent, the
Guaranty Act . . . requires that NCIGA:
(1) Be obligated to the extent of the
covered claims . . . [and]
(2) Be deemed the insurer to the extent of
[NCIGA’s] obligation on the covered claims . . . as if the insurer had not
become insolvent. N.C. Gen. Stat. _ 58-48-35(a)(1) and (2)
(2003).
13. [] NCIGA is obligated [pursuant to the
statutory definition of a covered claim] to pay claims only to the extent of a
covered claim, which does not include any amount in excess of what the
insolvent insurer would be required to pay.
14. The insurance policy between
defendant-employer and Reliance provides in Part One, Section F, as follows:
F. Payments You
[employer] Must Make
You [employer] are
responsible for any payments in excess of the benefits regularly provided by
the workers’ compensation law including those required because:
1. Of your serious and
willful misconduct;
...
3. You fail to comply
with a health or safety law or regulation;
15. Based upon the clear language of the insurance policy between defendant-employer and Reliance, and therefore NCIGA as the successor to Reliance, the Commission finds that the policy provides for payment by the carrier of any 10% increase in compensation awarded pursuant to N.C. Gen. Stat. §97-12 and for the carrier to then seek reimbursement by defendant-employer.
NCIGA challenges the
Commission’s conclusions:
8. [B]ased upon a clear reading of [N.C.
Gen. Stat. §97-12], the 10% additional compensation awarded . . . is compensation
and does not constitute exemplary or punitive damages.
9. Therefore, the additional compensation is part of a covered claim and must be paid by NCIGA, but is subject to reimbursement by defendant-employer, pursuant to the terms of the workers’ compensation policy.
(Emphasis in original).
NCIGA argues the
Commission erred in finding plaintiff’s claim met the definition of a “covered
claim” as defined by N.C. Gen. Stat. §58-48-20. A “covered claim” is:
an unpaid claim,
including one of unearned premiums, which is in excess of fifty dollars
($50.00) and arises out of and is within the coverage and not in excess of the
applicable limits of an insurance policy to which this Article applies as
issued by an insurer, if such insurer becomes an insolvent insurer
. . . .
N.C. Gen. Stat.
§58-48-20(4) (2005); See Bowles v. BCJ Trucking Servs., 172 N.C. App.
149, 153, 615 S.E.2d 724, 727 (2005); and Hales v. North Carolina
Ins. Guar. Ass’n, 337 N.C. 329, 343, 445 S.E.2d 590, 599 (1994).
The Branch-Reliance
insurance policy provided that the insurer “will pay promptly when due the
benefits required of [Branch] by the workers’ compensation law.” The policy also states “terms of this
insurance that conflict with the workers’ compensation law are changed by this
statement to conform to that law.”
Plaintiff’s workers’ compensation claim, as a result of Branches’
conduct, arose out of and was within the provisions contemplated by the
“Workers’ Compensation and Employers’ Liability Insurance Policy[Note 2].” When Reliance became insolvent, NCIGA became
liable to compensate plaintiff under the terms of the Branch-Reliance insurance
policy. This is clearly a covered claim
as contemplated by N.C.G.S. §58-48-20 such that NCIGA was required to
compensate plaintiff (claimant) in order “to avoid financial loss to claimants
or policyholders because of the insolvency of an insurer.” N.C.G.S. §58-48-5 (2005). The N.C. Workers’ Compensation Act states
“[w]hen the injury or death is caused by the willful failure of the employer to
comply with any statutory requirement or any lawful order of the Commission,
compensation shall be increased ten percent (10%).” N.C. Gen. Stat. §97-12 (2005).
See Felmet v. Duke Power Co., 131 N.C. App. 87, 504 S.E.2d
815 (1998) (legislature intended timely recovery for workers’ compensation
claimants); see also Cabe v. Parker-Graham-Sexton, Inc., 202 N.C.
176, 162 S.E. 223 (1932) (holding insurer obligated to pay for employer’s
wrongdoing in order “to grant certain and speedy relief to injured employees or
. . . their dependents”). It is
well-settled that, where “the language of the statute is clear and is not
ambiguous, we must conclude that the legislature intended the statute to be
implemented according to the plain meaning of its terms.” Hyler v. GTE Prods. Co., 333 N.C.
258, 262, 425 S.E.2d 698, 701 (1993).
In the instant case, the
Commission reviewed the Branch-Reliance insurance policy and made specific
findings of fact, including the finding that the clear language of the
insurance “policy provides for payment . . . of any 10% increase in
compensation awarded pursuant to N.C. Gen. Stat. §97-12. . . .” Those findings
of fact, based on competent evidence in the record, support the Commission’s
conclusions of law that the additional compensation is a part of a covered
claim to be paid by NCIGA. This
assignment of error is overruled.
NCIGA argues in the
alternative that the Commission erred in finding it was obligated to pay the
additional 10% compensation because such payment constituted “punitive and
exemplary damages.” We are unpersuaded
by NCIGA’s alternative argument.
Resolution of this issue
revolves around the language used in “Section F” of the Branch-Reliance
insurance policy which excludes
coverage for an insured’s intentional failure to comply with a health or safety
statute, and whether that language overrides the statutory requirements of
section 97-12 which allows for a 10% increase in compensation when such a
violation occurs. This appears to be an
issue of first impression in the appellate courts of North Carolina. However, there is strong persuasive
authority from the Kentucky courts which have examined this precise issue. In a case involving the identical language
used in “Section F” of the Branch-Reliance insurance policy [Note 3] and
a statute analogous to N.C. Gen. Stat. §97-12, the Kentucky court held:
There is no indication
that the 15% increase in compensation required by KRS 342.165(1)[Note 4]
was intended to fall outside the framework of workers’ compensation benefits.
Even if the [insurance] contract did apply, we do not believe the 15% increase
in compensation could be considered in “excess” of workers’ compensation
benefits, as provided in [Section F. of] the [] contract.
AIG/AIU Ins. Co. v. S.
Akers Mining Co.,
2004 Ky. App. LEXIS 338, ___S.W.3d ___, (Ky. Ct. App. 2004). In affirming the lower court, the Kentucky
Supreme Court made clear that the Kentucky statute, similar to N.C. Gen. Stat.
§97-12, “authorizes an increase or decrease in compensation if an ‘intentional
failure’ to comply with the safety regulation []contributes to causing an accident,
implying only that the increase or decrease serves to compensate the party that
benefits from it for the effects of the opponent’s misconduct.” AIG/AIU Ins. Co. v. S. Akers Mining Co.,
192 S.W.3d 687, 689, 2006 Ky. LEXIS 8, ___ S.W.3d ___ (Ky. Jan. 19, 2006). The Kentucky Supreme Court held that “the
employer’s insurance carrier is liable for any increase in benefits under KRS
342.165(1) despite a contractual term to the contrary.” Id.
The court went on to acknowledge that the consequence of the 15% increase
under the Kentucky statute may appear to penalize the employer or the carrier,
but that, unlike other statutes where punitive damages are explicitly
mentioned, the statute at issue did not explicitly mention punitive damages,
only an increase in compensation.
We are strongly
persuaded by the reasoning of the Kentucky courts as N.C. Gen. Stat. §97-12 is
very similar to the Kentucky statute and the provision in “Section F” of the
Branch-Reliance contract is the same as the provision in the Kentucky contract. While the effect of the 10% increase may
appear to penalize NCIGA, §97-12 does not explicitly mention punitive damages,
but in fact says “compensation shall be
increased ten percent.” The language of
the insurance policy does not preclude NCIGA’s liability for the increase. NCIGA is obligated to pay the additional 10%
compensation. This assignment of error
is overruled.
Branch claims the
Commission erred in holding that NCIGA is entitled to seek reimbursement from
Branch for the 10% additional compensation awarded to plaintiff for Branches’
willful violations of OSHA regulations under North Carolina statute and the
terms of the Branch-Reliance policy.
Where there is no ambiguity in a policy’s language, the courts must
apply the plain meaning of the policy language and enforce the policy as
written. Wachovia Bank & Tr. Co.
v. Westchester Fire Ins. Co., 276 N.C. 348, 354, 172 S.E.2d 518, 522
(1970).
Based on the specific
findings and conclusions of the Commission, the policy expressly included the
right to seek reimbursement if the insurer had to pay amounts “in excess of the
benefits regularly provided by the workers’ compensation law including those
required because: [] you fail to comply with a health or safety law or
regulation.” Branch has received the
benefits of the insurance policy as NCIGA has paid the workers’ compensation
benefits to date, exclusive of the additional 10% compensation. Thus, according to the plain language of the
policy the Commission correctly concluded that the “additional 10% amount is
subject to reimbursement by [Branch], as provided by the insurance policy,”
where Branch has been found to have wilfully violated the OSHA regulations and
must therefore reimburse NCIGA for any compensation attributed to such
conduct. This assignment of error is
overruled.
Affirmed.
Judge LEVINSON concurs.
Judge TYSON dissents in
a separate opinion.
1. On 3 October 2001, Reliance “was
declared insolvent in an order of liquidation” and the North Carolina Insurance
Guaranty Association (NCIGA) assumed its statutory obligations in connection
with this claim.
2. Paragraph A of the policy states
“[t]his workers’ compensation insurance applies to bodily injury by accident
[which] includes death.”
3. In pertinent part, this language is
taken from the “Part One Workers’ Compensation” portion of the standard
contract issued by the National Council on Compensation Insurance and approved
for use in all states, except Michigan:
F. Payments You [employer] Must Make
You [employer] are
responsible for any payments in excess of the benefits regularly provided by
the workers’ compensation law including those required because:
1. Of your serious and
willful misconduct;
...
3. You fail to comply
with a health or
safety law or regulation;
4. The referenced Kentucky statute states:
If an accident is caused
in any degree by the intentional failure of the employer to comply with any
specific statute or lawful administrative regulation made thereunder,
communicated to the employer and relative to installation or maintenance of
safety appliances or methods, the compensation for which the employer would
otherwise have been liable under this chapter shall be increased thirty percent
(30%) in the amount of each payment. . . .
KRS 342.165(1) (2005) (emphasis added).
NO.
COA06-288
NORTH CAROLINA COURT OF
APPEALS
Filed: 6 February 2007
MARY NICOLE BOONE VOGLER,
Widow; MARILYN “SUE ANN”
CLYMER, Guardian Ad Litem for
KRISTIN DAKOTA VOGLER, Minor
Child; and MARK BOONE,
Guardian Ad Litem for MEGAN
NICOLE BOONE, Minor Stepchild;
of BILLY CHARLES VOGLER,
Deceased Employee,
Plaintiffs,
v. North
Carolina Industrial Commission
I.C.
File No. 034642
BRANCH ERECTIONS CO., INC.,
Employer-Defendant;
RELIANCE NATIONAL INSURANCE
COMPANY (now insolvent),
Carrier-Defendant;
NORTH CAROLINA INSURANCE
GUARANTY ASSOCIATION,
Defendant;
CAMBRIDGE INTEGRATED SERV.,
Third-Party
Administrator;
STERLING ADMINISTRATIVE
SERVICES and the GOFF GROUP,
Servicing Agents.
TYSON, Judge,
dissenting.
The majority’s opinion
affirms the decision of the Commission and concludes: (1) “the additional compensation [under N.C. Gen. Stat. §97-12]
is a part of a covered claim to be paid by NCIGA;” (2) “the additional 10%
compensation . . . [does not] constitute[] “punitive and exemplary damages;”
and (3) “where Branch has been found to have wilfully violated the OSHA
regulations [they] must therefore reimburse NCIGA for any compensation
attributed to such conduct.”
The insurance contract
between Branch and Reliance provides Branch is to be responsible for “payments
in excess of the benefits regularly provided by the workers’ compensation law
including those required [if]: 3.
[Branch] fail[s] to comply with a health or safety law or regulation.” Uncontested findings of fact show Branch’s
failure to comply with twenty OSHA regulations proximately caused decedent’s
death. Branch, not the Guaranty
Association, is responsible for the additional ten percent compensation
provided under N.C. Gen. Stat. §97-12.
I respectfully dissent.
I. Construction of Insurance Contracts
“[A]n insurance policy
is a contract and its provisions govern the rights and duties of the parties
thereto.” Gaston County Dyeing
Machine Co. v. Northfield Ins. Co., 351 N.C. 293, 299, 524 S.E.2d 558, 563
(2000); see also Allstate Ins. Co. v. Chatterton, 135 N.C.
App. 92, 94, 518 S.E.2d 814, 816 (1999) (“The interpretation of language used
in an insurance policy is a question of law, governed by well-established rules
of construction.”), disc. rev. denied, 351 N.C. 350, 542 S.E.2d 205
(2000). The language in the policy is
to be construed as written “without rewriting the contract or disregarding the
express language used.” Fidelity
Bankers Life Ins. Co. v. Dortch, 318 N.C. 378, 380, 348 S.E.2d 794, 796
(1986). “[T]he goal of construction is
to arrive at the intent of the parties when the policy was issued.” Woods v. Insurance Co., 295 N.C. 500,
505, 246 S.E.2d 773, 777 (1978).
Where “the language of a
contract is plain and unambiguous, the construction of the agreement is a
matter of law for the court.” W. S.
Clark & Sons, Inc. v. Ruiz, 87 N.C. App. 420, 421, 360 S.E.2d 814, 816
(1987). “The Commission’s conclusions
of law are reviewable de novo.” Arnold
v. Wal-Mart Stores, Inc., 154 N.C. App. 482, 484, 571 S.E.2d 888, 891
(2002).
In Bowles v. BCJ
Trucking Servs., Inc., this Court held the Guaranty Association
“stepped into the shoes of the insurance company found to be insolvent and is
deemed the insurer having ‘all rights, duties, and obligations of the insolvent
insurer as if the insurer had not become insolvent.’” 172 N.C. App. 149, 155, 615 S.E.2d 724,
728 (quoting N.C. Gen. Stat. §58-48-35(a)(2)), disc. rev. denied, 360
N.C. 60, 623 S.E.2d 579 (2005).
The Guaranty Association
can assert all rights and defenses Reliance could have asserted under the
insurance contract. “The agreement did
not create a new contract for insurance coverage but solely substituted a new
party[.]” Id. In Bowles, the insurance company
substituted the employer in the workers’ compensation insurance contract. 172 N.C. App. at 155, 615 S.E.2d at 728.
The Guaranty
Association’s liability is limited by statute.
Under N.C. Gen. Stat. §58-48-25(a)(1) - (2) (2005), the Guaranty
Association shall:
(1) Be obligated to the
extent of the covered claims existing prior to the determination of insolvency
and arising within 30 days after the determination of insolvency, or before the
policy expiration date if less than 30 days after the determination, or before
the insured replaces the policy or causes its cancellation, if he does so
within 30 days of the determination. This obligation includes only the amount
of each covered claim that is in excess of fifty dollars ($50.00) and is less
than three hundred thousand dollars ($300,000.00) . . . .
(2) Be deemed the
insurer to the extent of the Association’s obligation on the covered claims and
to such extent shall have all rights, duties, and obligations of the insolvent
insurer as if the insurer had not become insolvent.
A “covered claim” means:
(4) [A]n unpaid claim,
including one of unearned premiums, which is in excess of fifty dollars
($50.00) and arises out of and is within the coverage and not in excess of the
applicable limits of an insurance policy to which this Article applies as issued
by an insurer, if such insurer becomes an insolvent insurer after the effective
date of this Article and (i) the claimant or insured is a resident of this
State at the time of the insured event; or (ii) the property from which the
claim arises is permanently located in this State.
N.C. Gen. Stat.
§58-48-20(4) (2005).
It is uncontested that
Branch and Reliance entered into an insurance contract which states:
B. [Reliance will pay] -
[Reliance] will pay promptly when due the benefits required of you by the
workers’ compensation law.
. . . .
F. Payments [Branch]
Must Make - [Branch is] responsible for any payments in excess of the
benefits regularly provided by the workers’ compensation law including those
required because:
1. of [Branch’s]
serious and willful misconduct;
. . . .
3. [Branch] fail[s]
to comply with a health or safety law or regulation; or
. . . .
If [Reliance] makes any
payments in excess of the benefits regularly provided by the workers’
compensation law on [Branch’s] behalf, [Branch] will reimburse [Reliance]
promptly.
(Emphasis
supplied). The Commission entered the
following uncontested and binding findings of fact:
6. . . .[on] October 3, 2001, Reliance was
declared insolvent in an order of liquidation entered in Pennsylvania. Following the insolvency of Reliance, the
North Carolina Insurance Guaranty Association (“NCIGA”) assumed its statutory
obligations in connection with this claim pursuant to the Insurance Guaranty
Association Act (“Guaranty Act”).
. . . .
1. On March 23, 2000, decedent suffered a compensable injury by accident while in the course and scope of his employment with defendant-employer when a crane broke loose from its platform and fell, striking decedent and causing him to fall 20 feet to the ground. As a direct result of said injury by accident, decedent was killed.
. . . .
3. OSHA performed an investigation of
decedent’s March 23, 2000 death by accident and cited defendant-employer for 20
violations of OSHA regulations, all characterized as “serious.” The OSHA investigator was of the opinion and
the Commission finds that the violations were the proximate cause of decedent’s
death.
4. The OSHA report indicated that
defendant-employer’s records showed a failure to inspect the crane turret bolts
for two years prior to this incident, even though OSHA regulations require a
daily inspection of the same when in use.
Decedent’s death was caused by the crane falling on him as he was
working on a section of a communications tower erected 18 feet above ground.
5. The OSHA inspector found that the
failure to have the crane and other equipment inspected resulted in
defendant-employer’s failure to discover worn, cracked, and rusty bolts on the
turret which caused the crane to fall on decedent. The inspector further stated: “According to the crane operator he
heard a snap, then the crane boom started to fall, striking the employee
[decedent] on the top leg of the tower section. The csho [Safety/Health Compliance Officer] observed that the
bolts holding the upper and lower portions of the turret had sheared off. Upon closer examination many bolts showed
signs of rust, indicative of cracks.
Turret bolts could also be turned by hand, and the csho removed twenty
two bolts using no tools. Maintenance
records for the crane indicated that in the last two years the crane had not
been inspected. Crane operators were
not trained. Operators did not inspect
the crane prior to, and during use.
Severity is high due to death from crushing. Probability is also high due to the continuous use of the
crane. NOTE: VIOLATION WAS PROXIMATE
CAUSE OF ACCIDENT.”
. . . .
8. The OSHA inspection revealed and the
Commission finds that defendant-employer knew or should have been aware of the
safety hazards that existed at the job site because the violations were in
plain view. Defendant-employer failed
to conduct inspections of the crane, rigging equipment, fall protection and
general worksite conditions, which resulted in the fatality on March 23, 2000.
See State v. Watkins, 337 N.C. 437, 438, 446
S.E.2d 67, 68 (1994) (findings of fact which are not excepted to are binding on
appeal).
Branch and Reliance
contracted and agreed that Branch would be responsible for “any payments . . .
required because 1. [Branch’s] serious and wilful misconduct . . . [or] 3.
[Branch’s] fail[ure] to comply with a health or safety law or regulation.” The Commission’s uncontested findings of
fact show Branch’s twenty OSHA regulation violations proximately caused
decedent’s death. The Commission
properly concluded decedent is entitled to an additional 10% compensation
because of Branch’s willful failure to comply with OSHA regulations. N.C. Gen. Stat. §97-12.
Under the contract, Branch, as employer, is responsible for payments in excess of benefits regularly provided by the workers’ compensation law. The Commission erred when it concluded the “additional compensation is part of a covered claim and must be paid by NCIGA.”
II. Conclusion
The contract between
Branch and Reliance plainly and unambiguously states Branch is to be
responsible for excess payments because of Branch’s “serious and wilful
conduct” and “fail[ure] to comply with a health or safety law or
regulation.” Branch is solely
responsible for the additional ten percent compensation allowed under N.C. Gen.
Stat. §97-12.
The Commission erred when it concluded “the additional compensation [provided in N.C. Gen. Stat. §97-12] is part of a covered claim and must be paid by NCIGA.” I vote to reverse the Commission’s order. I respectfully dissent.