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NO. COA07-1204
NORTH CAROLINA COURT OF APPEALS
CHARLES EGEN,
Employee,
Plaintiff,
v. North Carolina Industrial Commission
I.C. File No. 207627
EXCALIBUR RESORT PROFESSIONAL,
Employer,
TRAVELERS INSURANCE COMPANY,
Carrier,
Defendants.
Appeal
by plaintiff from orders entered 7 June and 23 July 2007 by the North Carolina
Industrial Commission. Heard in the
Court of Appeals 19 March 2008.
Bollinger
& Piemonte, PC, by Bobby L. Bollinger, Jr., for plaintiff-appellant.
Hedrick,
Gardner, Kincheloe & Garofalo, L.L.P., by Samuel E. Barker, for
defendant-appellees.
STROUD, Judge.
Deputy
Commissioner Myra L. Griffin issued an opinion and award which, inter alia,
denied plaintiff’s claim for additional benefits. Plaintiff attempted to appeal the opinion and award to the Full
Commission, and defendants filed a motion to dismiss the appeal as
untimely. Plaintiff filed a motion for
relief due to excusable neglect.
Defendants’ motion to dismiss was granted, and plaintiff filed a motion
for reconsideration. Plaintiff’s motion
for reconsideration was denied.
Plaintiff appeals both the granting of defendants’ motion to dismiss and
the denial of his motion for reconsideration.
For the following reasons, we reverse and remand.
On
or about 26 April 2007, Deputy Commissioner Myra L. Griffin issued an opinion
and award which, inter alia, denied plaintiff’s claim for additional
benefits. Deputy Commissioner Griffin’s
opinion and award was sent by email only to defendant’s counsel and to a legal
assistant in the office of plaintiff’s counsel. The facts regarding the delivery
of the opinion and award are not in dispute.
In
a letter to the Industrial Commission (“Commission”), dated 16 May 2007,
plaintiff’s attorney, Bobby L. Bollinger, described the circumstances regarding
his receipt of the opinion and award, in pertinent part, as follows:
Please
accept this letter as the Plaintiff’s Notice of Appeal of the Opinion and Award
filed on April 26, 2007 by Deputy Commissioner Griffin.
Please
note that I did not personally see the Opinion and Award until May 14, although
it was apparently served exclusively by email on April 26, with that email
being sent directly to defense counsel Sam Barker. However, that email was not sent directly to me, but rather to a
clerical employee in my office who did not understand the significance of the
email. I believe that the email to the
Plaintiff should have been sent directly to me, rather than to a clerical
employee, as the rules generally prevailing as to service of process require
service on the attorney of record, not upon his clerical support staff.
Furthermore, it is unfair to serve it directly on the lawyer for one party and
not serve it at the same time directly on the lawyer for the other party. In the past, we have received unfavorable Opinions
from the Commission by certified mail, return receipt requested. This one has yet to arrive in that fashion.
On
or about 22 May 2007, defendants filed a motion to dismiss plaintiff’s appeal
because it was untimely. On or about 25
May 2007, plaintiff filed a response to defendants’ motion to dismiss and also
filed a motion for relief due to excusable neglect. In a letter dated 30 May 2007, defendants wrote to Chairman
Lattimore and requested their letter serve as their response to plaintiff’s
response to defendants’ motion to dismiss and to plaintiff’s motion for
relief. On 7 June 2007, Chairman Buck
Lattimore issued an order granting defendants’ motion to dismiss.
On
or about 18 June 2007, plaintiff filed a motion for reconsideration along with
an affidavit from Janice A. Craig (“Ms. Craig”) which read in pertinent part,
1. I am a legal assistant employed by the law firm of Bollinger & Piemonte, PC.
2. On Thursday, April 26, 2007, I received an
email from Cheryl Powell at the Industrial Commission, which appeared to be
sent to Bobby Bollinger and Sam Barker attaching the Opinion and Award for the
above-referenced case. Please see the
attached Exhibit “A”. The email stated
that failure to acknowledge receipt will result in sanctions. I emailed back that we did, in fact, receive
the email.
3. It appeared to me that that [sic] the email was
sent to Mr. Bollinger and I was simply “blind copied” with the email because my
name did not appear on the “To” line.
Instead, the following are the only names that appear on the “To”
line: “Bobby Bollinger; Sam
Barker”. See attached Exhibit “A”.
4. Because I thought I had simply been “blind
copied” and that the email had gone directly to Mr. Bollinger, I did not notify
him that I had received the email. I
know that Mr. Bollinger checks his email frequently throughout the day. Furthermore, neither the body of the email
nor the attachment to it mentioned any deadlines for appeal rights. The usual notice that the Commission
includes when it mails Opinions and Awards to us, Exhibit “C,” was not included.
5. On May 15, Mr. Bollinger asked me to pull up
the April 26 email. We then used the
“properties” radio button to identify the email addresses to which the
Commission had sent the email. This
revealed that the email had been sent directly to Mr. Barker and directly to
Janice Craig, but not to Mr. Bollinger.
See Exhibit “B” attached hereto.
I
have worked with this firm for a decade.
During this time, we have received many Opinions and Awards and other
Orders from the Commission. This case
is the only instance in the past ten (10) years that I am aware of in
which we received an Opinion and Award by way of email.
On
23 July 2007, Chairman Buck Lattimore denied plaintiff’s motion for
reconsideration.
Plaintiff
appeals both the granting of defendants’ motion to dismiss and the denial of
his motion for reconsideration. The
issues before this Court are (1) whether the Commission erred by emailing its
opinion and award to plaintiff’s attorney’s employee, rather than emailing it
directly to plaintiff’s attorney or using some alternative reliable means of
notification, and (2) whether the Commission erred in denying plaintiff’s
motions for appropriate relief and reconsideration due to excusable neglect.
by
serving the unfavorable Deputy Commissioner Opinion and Award upon a clerical
employee in plaintiff’s counsel’s office by email transmission, rather than
directly to plaintiff’s counsel or to plaintiff’s counsel’s office by certified
mail, return receipt requested or some other obvious, reliable and effective
means.
Chairman
Buck Lattimore determined in his order granting defendants’ motion to dismiss
plaintiff’s appeal that
Janice
Craig, plaintiff’s attorney’s legal assistant, received notice of the Opinion
and Award by email on April 26, 2007[,and that] [p]laintiff’s notice of appeal
to the Full Commission was made twenty (20) days after receiving notice of the
deputy commissioner’s Opinion and Award.
Therefore plaintiff’s appeal to the Full Commission was not timely made
pursuant to N.C. Gen. Stat. §97-85.[Note 1]
Plaintiff did not assign error to the
determinations, noted supra, in the order, but rather argues that the
Commission erred in the manner in which it served notice upon him, specifically
by (1) notifying plaintiff’s attorney’s employee, rather than plaintiff’s
attorney directly and (2) using email as the means of providing notice.
Our review of a decision of the Industrial
Commission is limited to determining whether there is any competent evidence to
support the findings of fact, and whether the findings of fact justify the
conclusions of law. The findings of the
Commission are conclusive on appeal when such competent evidence exists, even
if there is plenary evidence for contrary findings. This Court reviews the Commission’s conclusions of law de novo.
Ramsey v. Southern Indus. Constructors Inc., 178 N.C. App. 25, 29‑30,
630 S.E.2d 681, 685 (internal citations and internal quotation marks omitted), disc.
rev. denied, 361 N.C. 168, 639 S.E.2d 652 (2006).
“An agent is one who, by the authority of
another, undertakes to transact some business or manage some affairs on account
of such other, and to render an account of it.
He is a substitute, or deputy, appointed by his principal primarily to
bring about business relations between the latter and third persons.” SNML Corp. v. Bank, 41 N.C. App. 28,
36, 254 S.E.2d 274, 279 (1979). “[T]he
general agency doctrine holds the principal responsible for the acts of his
agent[.]” Ellison v. Gambill Oil
Co., Inc., ___ N.C. App. ___, ____, 650 S.E.2d 819, 824 (2007) (citation,
quotation marks, and ellipses omitted).
Furthermore, in Cornell v. Western and S. Life Ins. Co., this
Court determined that notice of the deputy commissioner’s opinion and award was
effective when received via fax by the law firm, not by the individual attorney
assigned to the case. 162 N.C. App.
106, 111, 590 S.E.2d 294, 298 (2004).
As plaintiff does not argue that Ms. Craig was not his agent, but only
that it was not proper to serve notice upon her, we conclude that the
Commission could properly serve notice upon plaintiff’s attorney through his
employee, his agent. See Ellison at ____, 650 S.E.2d at 824; Cornell at
111, 590 S.E.2d at 297-98; SNML Corp. at 36, 254 S.E.2d at 279.
Our research of relevant law reveals that
plaintiff is correct in noting that “[t]here is nothing in the Worker’s
Compensation Act, or in the Industrial Commission’s Rules for Workers’
Compensation cases, that allows the Industrial Commission to serve Opinions and
Awards on parties or their counsel by way of email.” However, defendants are
also correct in noting that “there is no rule prohibiting transmission of an
Opinion and Award by way of email[.]”[Note 2]
“N.C. Gen. Stat. §97‑80(a) . . . grants
the Industrial Commission the power to make rules consistent with the Workers’
Compensation Act in order to carry out the Act’s provisions.” Jackson v.
Flambeau Airmold Corp., 165 N.C. App. 875, 878, 599 S.E.2d 919, 921 (2004);
see N.C. Gen. Stat. §97-80(a) (2001) (“The Commission may make rules,
not inconsistent with this Article, for carrying out the provisions of this
Article.”).
The
North Carolina Industrial Commission has the power not only to make rules
governing its administration of the act, but also to construe and apply such
rules. Its construction and application of its rules, duly made and
promulgated, in proceedings pending before the said Commission, ordinarily are
final and conclusive and not subject to review by the courts of this State, on
an appeal from an award made by said Industrial Commission.
Winslow v. Carolina Conference Ass’n, 211 N.C. 571, 579-80,
191 S.E. 403, 408 (1937). As the statutory
language only requires notice of the opinion and award, see N.C.
Gen. Stat. §97-85, see generally Cornell at 111, 590 S.E.2d at 297
(determining notice of the opinion and award from deputy commissioner was
proper when sent via fax), and as there is no rule expressly prohibiting the
use of email for notification purposes, we conclude that the Industrial
Commission did not err in notifying plaintiff’s attorney of the opinion and
award through email.[Note 3]
However, we also note that when email is used as
the means of communication for important documents within our judicial system
and administrative bodies, there are normally clearly delineated rules or
guidelines for its use, which often require acquiescence to email as a method
of communication. See, e.g., N.C.
Gen. Stat. §45-36.5(a)(2) (2007) (“A person gives a notification by . . .
[s]ending it by facsimile transmission, electronic mail, or other electronic
transmission to the recipient’s address for giving a notification, but only if
the recipient agreed to receive notification in that manner.”); Marolf
Constr. Inc. v. Allen’s Paving Co., 154 N.C. App. 723, 725, 572 S.E.2d 861,
862-63 (2002) (“The AAA’s[, American Arbitration Association,] Construction
Industry Rule 40 . . . provided for service . . . [w]here all parties and the
arbitrator agree, notices may be transmitted by electronic mail (E‑mail),
or other method of communication.”), cert. denied, 356 N.C. 673, 577
S.E.2d 625 (2003). At the very least,
rules governing permissible means of notification usually state whether and
under what circumstances email may be used.
See, e.g., N.C. Gen. Stat. §§47C-3-108, 58-35-85(a)-(b) (2007).
Therefore, if the Commission has begun a practice of using email for purposes
of notification regarding opinion and awards upon which appeal rights will
depend, we strongly encourage the Commission to establish rules for the use of
email, so that all parties and counsel can be aware of the possibility that
they may receive important, time-sensitive documents in this manner.
The order granting defendants’ motion to dismiss
stated it did not find excusable neglect.
“[T]he Commission has the inherent power and authority, in its
discretion, to consider defendant’s motion for relief due to excusable neglect.” Allen v. Food Lion, Inc., 117 N.C.
App. 289, 291, 450 S.E.2d 571, 572 (1994) (citing Hogan v. Cone Mills Corp.,
315 N.C. 127, 337 S.E.2d 477 (1985)); see generally N.C. Gen. Stat. §1A‑1,
Rule 60(b)(1) (2001). “Whether excusable neglect has been shown is a question
of law, not a question of fact.” Equipment,
Inc. v. Lipscomb, 15 N.C. App. 120, 122, 189 S.E.2d 498, 499 (1972). “This Court reviews the Commission’s
conclusions of law de novo.” Ramsey
at 29‑30, 630 S.E.2d at 685.
“[W]hat constitutes excusable neglect depends upon what, under all the
surrounding circumstances, may be reasonably expected of a party in paying
proper attention to his case.” Thomas M. McInnis & Assoc., Inc. v. Hall,
318 N.C. 421, 425, 349 S.E.2d 552, 555 (1986).
“Deliberate or willful conduct cannot constitute excusable neglect, . .
. nor does inadvertent conduct that does not demonstrate diligence[.]” Couch v. Private Diagnostic Clinic,
133 N.C. App. 93, 103, 515 S.E.2d 30, 38 (internal citation omitted), aff’d,
351 N.C. 92, 520 S.E.2d 785 (1999).
Considering “all the surrounding circumstances .
. . [and what] may be reasonably expected of a party in paying proper attention
to his case” we conclude that it was excusable neglect for Ms. Craig (1) to
assume she was blind copied in the email because her “name did not appear on
the ‘To’ line,” and (2) to assume that Mr. Bollinger had actually been emailed
the opinion and award as the ‘To’ line was addressed to Bobby Bollinger and Sam
Barker. See Couch at 103, 515
S.E.2d at 38; Thomas M. McInnis & Assoc., Inc. at 425, 349 S.E.2d at
555. Furthermore, Ms. Craig stated in
her affidavit,
I
have worked with this firm for a decade.
During this time, we have received many Opinions and Awards and other
Orders from the Commission. This case
is the only instance in the past ten (10) years that I am aware of in
which we received an Opinion and Award by way of email.
(Emphasis
in original). Based on her ten years of
experience, the lack of any Commission rules regarding the use of email which
could have put her on notice that an opinion and award may arrive by email, and
the appearance of the email, it was excusable neglect for Ms. Craig to conclude
that Mr. Bollinger had also been sent a copy of the email and for her not to
realize that plaintiff’s right to appeal would depend upon her delivery of the
email to Mr. Bollinger. See Couch
at 103, 515 S.E.2d at 38; Thomas M. McInnis & Assoc., Inc. at 425,
349 S.E.2d at 555. Therefore, the
failure of Mr. Bollinger to file the appeal within the 15 day period required
by statute was excusable neglect due to the actions of his agent. See Ellison at ____, 650 S.E.2d at
824; Couch at 103, 515 S.E.2d at 38; Thomas M. McInnis & Assoc.,
Inc. at 425, 349 S.E.2d at 555; SNML Corp. at 36, 254 S.E.2d at 279.
III.
Conclusion
Though it was not error for the Commission to
serve notice on plaintiff’s attorney of the opinion and award of the deputy
commissioner by email and through plaintiff’s attorney’s agent, see N.C.
Gen. Stat. §97-85; Ellison at
____, 650 S.E.2d at 824; Cornell at 111, 590 S.E.2d at 297; SNML
Corp. at 36, 254 S.E.2d at 279, we do conclude that the Commission erred in
not finding excusable neglect on the part of plaintiff’s attorney for the
reasons as stated above. Therefore, we
reverse the order granting defendants’ motion to dismiss and remand this case
to the Full Commission for further proceedings not inconsistent with this
opinion. As we are reversing the
granting of defendants’ motion to dismiss we need not address plaintiff’s argument
as to his motion for reconsideration.
REVERSED AND REMANDED.
Judge ELMORE concurs.
Judge HUNTER concurs in a separate opinion.
NOTES
1. See N.C. Gen. Stat. §97-85 (2001) (requiring that appeal to the Full Commission must be made “within 15 days from the date when notice of the award shall have been given[.]”).
2. N.C. Gen. Stat. §97-86 requires that
awards from the Full Commission “be sent by registered mail or certified
mail[.]” N.C. Gen. Stat. §97-86 (2001).
3. No rule permits or prohibits the use
of fax to provide notice of an opinion and award from a Deputy Commissioner,
but such notice was approved by this Court in Cornell. See Cornell at 162 N.C. 111, 590 S.E.2d
297 (2004).
NO. COA07-1204
NORTH CAROLINA COURT OF APPEALS
CHARLES EGEN,
Employee,
Plaintiff,
v. North Carolina Industrial Commission
I.C. File No. 207627
EXCALIBUR RESORT PROFESSIONAL,
Employer,
TRAVELERS INSURANCE COMPANY,
Carrier,
Defendants.
HUNTER, Judge, concurring.
I agree that the Industrial Commission’s award
and opinion must be reversed, but write separately because I would do so on
different grounds.
As the majority notes, the two issues this
appeal brought before us were (1) whether the Commission erred by emailing its
opinion and award to plaintiff’s attorney’s employee, rather than emailing it
directly to plaintiff’s attorney or using some alternative reliable means of
notification, and (2) whether the Commission erred in denying plaintiff’s
motions for appropriate relief and reconsideration due to excusable
neglect. The majority reverses this
case on the basis of the second issue; I would not reach the second, but rather
reverse on the basis that email was not a valid form of communicating the
Industrial Commission’s ruling.
As the majority states, the Industrial
Commission does have “the power to make rules consistent with the Workers’
Compensation Act in order to carry out the Act’s provisions.” Jackson v. Flambeau Airmold Corp.,
165 N.C. App. 875, 878, 599 S.E.2d 919, 921 (2004); N.C. Gen. Stat. §97-80(a)
(2007) (“[t]he Commission may make rules, not inconsistent with this Article,
for carrying out the provisions of this Article”). Rule 803 of the Workers’ Compensation Rules of the North Carolina
Industrial Commission governs the procedure for any such new rule making:
Prior to adopting, deleting, or amending any Workers’
Compensation Rule of the Industrial Commission which affects the substantive
rights of parties, the Industrial Commission will give at least 30 days’ notice
of the proposed change in rules. Such
notice will be given by publishing, in a newspaper or newspapers of general
circulation in North Carolina, notice of such proposed change. Such notice will include an invitation to
any interested party to submit in writing any objection, suggestion or other
comment with respect to the proposed rule change or to appear before the Full
Commission at a time and place designated in the notice for the purpose of
being heard with respect to the proposed rule change.
Workers’
Comp. R. of N.C. Indus. Comm’n 803, 2008 Ann. R. N.C. 1063, 1092 (emphasis
added). There is no question that such
a process did not occur in this case.
No formal rule was promulgated authorizing this previously unused method
of communication; rather, this new method was employed with no prior notice to
anyone, including the parties to whom it was sent. As such, no valid rule authorizing the use of email as a method
of communication exists, and thus the Commission’s authority to create such
rules is irrelevant.
It is worth noting too that, N.C. Gen. Stat.
§97-86 (2007), which governs appeals from the Full Commission to this Court,
allows thirty days from notice of the award and specifies that such
notice must be “sent by registered mail or certified mail[.]” In contrast, per N.C. Gen. Stat. §97-85
(2007), any appeal from the opinion and award of a deputy commissioner -- as in
this case -- must be taken within fifteen days of the notice of the award. With the turnaround time between receipt and
appeal halved, surely it is doubly important that the opinion and award from a
deputy commissioner be communicated to the parties in the most reliable manner
possible. The sudden use of a new
method of communication -- particularly one in which, as evidenced by this case,
messages can so easily go astray -- does not fit that description.
The majority states that, if emailing such
opinions has become standard practice, “we strongly encourage the Commission to
establish rules for the use of email[.]”
Until such a rule is promulgated, however, the Full Commission may not
simply select any method of communication available and use it to convey the
time-sensitive information contained in its opinion and award.
Thus, I would reverse this case based on the fact that the Industrial Commission has not promulgated a rule authorizing the use of email as a method of notifying parties of opinions and awards; I would therefore not reach the issue of excusable neglect.