All
opinions are subject to modification and technical correction prior to official
publication in the
NO.
COA08-1149
Filed: 5
May 2009
CITY OF
Plaintiff-Appellee,
v.
No.
06 CVS 6126
SAFETY NATIONAL
CASUALTY
CORPORATION and
UNITED STATES
FIRE INSURANCE
COMPANY,
Defendants-Appellants.
Appeal by Safety National Casualty
Corporation (Defendant) from judgments entered 11 February 2008 and 7 July 2008
by Judge A. Leon Stanback, Jr. in Superior Court,
Kennon, Craver, Belo, Craig & McKee,
PLLC, by Joel M. Craig and Henry W. Sappenfield, for Plaintiff-Appellee.
Robinson & Lawing, L.L.P., by Jane C.
Jackson and W. Mark Peck, for Defendant-Appellant.
McGEE, Judge.
The City of
Defendant and USFIC filed cross-motions
for summary judgment in November 2007.
In an order entered 11 February 2008, the trial court granted USFIC’s
motion for summary judgment. It further
denied Defendant’s summary judgment motion and granted Plaintiff summary
judgment against Defendant on the issue of liability under its policy for
excess loss coverage. Plaintiff filed a
motion for summary judgment seeking entry of a money judgment against Defendant
on 6 May 2008. In an order entered 7
July 2008, the trial court granted Plaintiff’s motion for summary
judgment. Defendant appeals.
The relevant facts underlying Pulley’s
workers’ compensation claim are as follows: Pulley began working for Plaintiff
in November 1975. At that time, Pulley
was the only female public safety officer employed by Plaintiff. While working in the Youth Division from 1980
to 1984, Pulley was repeatedly exposed to traumatic situations, particularly
crimes involving child sexual abuse.
Pulley began mental health treatment in July 1984 for psychological
difficulties she was experiencing as a result of her employment. Pulley took a three-month medical leave of
absence from work as recommended by her psychologist in August 1984. Pulley was transferred to the Records
Division in 1986 and was promoted to acting lieutenant for a brief period in
1987. Pulley transferred to the Warrants
Division in 1987 and to the Traffic Division in 1988. Pulley took another medical leave of absence
in April 1989. When Pulley’s medical
leave expired, she was not able to return to work. Pulley’s application for disability
retirement was approved in October 1989.
Plaintiff filed an employer’s report of injury with the North Carolina
Industrial Commission (the Commission) on 13 April 1989. The Commission entered an opinion and award
granting Pulley temporary total disability compensation benefits beginning 30
April 1989.
Defendant argues the trial court erred in
failing to grant summary judgment to Defendant.
Defendant contends the trial court misapplied the circumstances of
Pulley’s underlying workers’ compensation claim to the express terms of
Defendant’s insurance policy and incorrectly applied the doctrine of last
injurious exposure.
Summary judgment is properly granted “if
the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that any party is entitled to a judgment as a matter of
law.” N.C. Gen. Stat. §1A‑1, Rule
56(c) (2007). We review an order
allowing summary judgment de novo. McCutchen v. McCutchen, 360
N.C. 280, 285, 624 S.E.2d 620, 625 (2006) (citing Howerton v. Arai Helmet,
Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004)).
Plaintiff had excess workers’
compensation insurance from 1 August 1986 through 1 September 1993 through a
policy issued by Defendant. Defendant’s
policy provided coverage for loss incurred by Plaintiff above a specified
retention level, if the loss resulted from an “occurrence.” Defendant’s policy defined “occurrence” as: “Occupational
disease sustained by each Employee shall be deemed to
. . . tak[e] place upon the date the Employee ceases work as a
result of such disease or upon the date established by the Workers’
Compensation or Employers’ Liability Laws of the appropriate jurisdiction.”
Defendant argues the word “ceases” should
be interpreted to include a temporary suspension from employment. Plaintiff argues “ceases” should be
interpreted only to a permanent termination of employment. However, we need not choose between the two interpretations
of “ceases” because the plain terms of the policy include “the date established
by the Workers’ Compensation . . . Laws” as an alternative
method for determining the date of the occurrence of Pulley’s occupational
disease.
The Commission’s opinion and award
ordered Plaintiff to pay weekly temporary total disability benefits to Pulley
beginning 30 April 1989. This date,
established by the Commission under
However, Defendant argues we should
consider the reason why the Commission established the date of disability as 30
April 1989. Defendant contends the only
reason the Commission did not order benefits to be paid to Pulley for the
period between 8 July 1984 and 14 October 1984 was because Plaintiff and Pulley
stipulated that Pulley had previously received payment for that time period.
Defendant argues that the Commission’s decision read as a whole establishes
Pulley’s date of disability as 8 July 1984, outside the period Defendant
provided insurance coverage to Plaintiff.
However, even if the Commission’s opinion
and award established Pulley’s date of disability as 8 July 1984, we hold the
trial court correctly applied the doctrine of last injurious exposure (the
doctrine) in finding Defendant liable to Plaintiff. The doctrine is defined in N.C. Gen. Stat. §97-57
as:
In any case where compensation is payable
for an occupational disease, the employer in whose employment the employee was
last injuriously exposed to the hazards of such disease, and the insurance
carrier, if any, which was on the risk when the employee was so last exposed
under such employer, shall be liable.
N.C. Gen. Stat. §97-57 (2007).
Defendant argues the trial court
misapplied the doctrine. Defendant
contends the doctrine should be applied by determining the date of disability
and then looking backward in time to determine liability. However, Defendant cites no
The purpose of the doctrine is “to
eliminate the need for complex and expensive litigation of the issue of
relative contribution by each of several employments to a plaintiff’s occupational
disease.” Frady v. Groves Thread,
56 N.C. App. 61, 64, 286 S.E.2d 844, 846 (1982), aff’d per curiam, 312
N.C. 316, 321 S.E.2d 835 (1984). Our
Court held in Caulder v. Waverly Mills that a “plaintiff need only show
(1) that he has a compensable occupational disease and (2) that he was last
injuriously exposed to the hazards of such disease while in [the] defendant’s
employment.” Caulder v. Waverly Mills,
67 N.C. App. 739, 741, 314 S.E.2d 4, 5 (1984), aff’d, 314 N.C. 70, 331
S.E.2d 646 (1985). Our Supreme Court
interpreted the phrase “last injuriously exposed” to mean “‘an exposure which
proximately augmented the disease to any extent, however slight.’“ Rutledge v. Tultex Corp., 308 N.C. 85,
89, 301 S.E.2d 359, 362-63 (1983) (quoting Haynes v. Feldspar Producing Co.,
222 N.C. 163, 166, 22 S.E.2d 275, 277 (1942)).
In the present case, Pulley’s mental
health began deteriorating in 1984 due to her employment stress. However, her employment stress did not cause
her to be permanently unable to work at that time. Pulley continued working for Plaintiff and
continued experiencing work-related stress for five years, until April
1989. Pulley’s condition worsened after
she transferred out of the Youth Division in 1986. Pulley was “under significant pressure” and
had “numerous outbursts” while working in the Records Division in 1986. Pulley was transferred to the Warrants
Division in July 1987. Working in the
Warrants Division “caused [Pulley] so much stress that [she] found it
increasingly difficult to concentrate.”
While working in the Traffic Division from May 1988 until April 1989,
Pulley became “more frustrated and angry” and “[i]t got to the point where,
emotionally, [she] could no longer handle dealing with the public.” Pulley stated: “The stress I was under due to
my work environment finally got so bad that, in April 1989, I was no longer
able to work in any capacity.”
Pulley continued to be “exposed to the
hazards” of her occupational disease throughout her employment with Plaintiff
until April 1989 when she was unable to continue working in any capacity.
Therefore, because Defendant provided excess insurance coverage to Plaintiff in
April 1989, we find the trial court correctly applied the doctrine in holding
Defendant liable to Plaintiff. We affirm
the trial court’s granting of summary judgment in favor of Plaintiff.
Affirmed.
Judges HUNTER and BEASLEY concur.