All
opinions are subject to modification and technical correction prior to official
publication in the
NO.
COA07-1294
Filed:
20 January 2009
NORMAN BOJE,
Employee,
Plaintiff,
v.
I.C.
File No. 309779
D.W.I.T., L.L.C. ET
AL.,
Employer,
Noninsured,
D.J.
CONSTRUCTION COMPANY,
General Contractor,
Noninsured,
BUILDERS MUTUAL INSURANCE
COMPANY,
Carrier,
Defendants.
Appeal
by defendant D.W.I.T., L.L.C. from opinion and award entered 17 July 2007 by
the North Carolina Industrial Commission.
Heard in the Court of Appeals 13 May 2008.
No brief filed on
behalf of plaintiff.
Leicht &
Olinger, by Gene Thomas Leicht, for defendant-appellant D.W.I.T., L.L.C.
Lewis &
Roberts, P.L.L.C., by Brian D. Lake and Melissa K. Walker, for defendant-appellee
Builders Mutual Insurance Company.
GEER,
Judge.
Defendant
employer D.W.I.T., L.L.C. (“DWIT”) appeals from an opinion and award of the
Industrial Commission determining that defendant carrier Builders Mutual
Insurance Company had properly canceled DWIT’s workers’ compensation insurance
policy for non-payment of premiums.
Builders Mutual counters DWIT’s arguments by contending that the Commission’s
decision should be upheld on appeal on the alternative ground that DWIT failed
to appeal a deputy commissioner’s prior decision determining that DWIT did not
have workers’ compensation insurance on the date of plaintiff Norman Boje’s
injury. We agree with Builders Mutual
that DWIT was not entitled to relitigate the issue of insurance coverage
without having the prior deputy commissioner’s decision set aside. Because the Full Commission expressly found
no basis for setting aside that decision, and DWIT has not appealed that
ruling, we affirm.
Facts
DWIT
originally purchased workers’ compensation insurance from Builders Mutual for
the period of 10 May 2001 through 10 May 2002.
DWIT elected to pay its monthly premiums by self-reporting its payroll,
with payments due by the 20th of each month.
DWIT failed to submit the self-reporting information and premium payment
for April 2002 by the due date, and Builders Mutual sent out a late-payment
notification. On 6 June 2002, when DWIT
still had not provided payment or the self-reporting information, Builders
Mutual sent DWIT a “Policy Termination/Cancellation/Reinstatement Notice,”
notifying DWIT that its insurance policy would be cancelled effective 23 June
2002 if DWIT did not provide the necessary self-reporting information and
premium payments to bring the account current.
DWIT
sent Builders Mutual a check on 27 June 2002 as payment of the April and May
2002 premiums. Builders Mutual sent a
letter to DWIT acknowledging the payment, but refused to reinstate DWIT’s
policy unless DWIT submitted by 9 July 2002 a $260.00 policy renewal premium
and a statement of no losses. DWIT,
however, took no further action to renew its workers’ compensation insurance
policy, and Builders Mutual ultimately cancelled DWIT’s policy effective 23
June 2002.
On 13
September 2002, defendant Griffith Construction Company subcontracted with DWIT
to frame a house. On 19 September 2002,
while working for DWIT on that house, plaintiff fell and shattered his left
heel. Plaintiff filed a claim for
disability benefits. In an opinion and
award filed 26 June 2003, Deputy Commissioner Douglas E. Berger determined that
plaintiff had sustained a compensable injury on 19 September 2002. He further found that, “[o]n September 19,
2002, defendant-employer D.W.I.T., LLC did not have workers’ compensation
coverage for its employees.” Deputy
Commissioner Berger, therefore, ordered DWIT to pay plaintiff temporary total
disability benefits and to pay plaintiff’s medical expenses. Neither party appealed that opinion and
award.
On 20
October 2003, DWIT filed a motion to join Builders Mutual as a party, arguing
that Builders Mutual’s attempt to cancel DWIT’s insurance policy was
ineffective. This motion was allowed on
24 October 2003. On 21 May 2004,
plaintiff filed a motion to show cause, asking that corporate officers of DWIT
be held in contempt for nonpayment of plaintiff’s weekly compensation. In addition, on 23 June 2004, Builders Mutual
filed a motion to dismiss; an amended motion to dismiss was filed 2 July 2004.
On 9
July 2004, the Chief Deputy Commissioner entered an order assigning Deputy
Commissioner George Glenn to “hear all issues raised upon the pleadings” and to
“hear and decide all pending issues that may be present in this matter . . . .” In an opinion and award entered 19 April
2005, Deputy Commissioner Glenn determined, among other issues, that Builders
Mutual had not effectively cancelled DWIT’s workers’ compensation insurance
under the controlling statutory guidelines, and, consequently, that DWIT’s
insurance was still in effect on 19 September 2002, the date of plaintiff’s
injury.
Builders
Mutual appealed to the Full Commission, and, in an opinion and award entered 17
July 2007, the Commission reversed Deputy Commissioner Glenn’s decision. Based on its determination that Builders
Mutual had properly cancelled DWIT’s workers’ compensation policy on 23 June
2002 and that DWIT had failed to renew its policy for the period May 2002
through May 2003, the Commission concluded that “DWIT did not possess workers’
compensation insurance for its employees on September 19, 2002, the date of
plaintiff’s injury.” Plaintiff and DWIT
both filed notices of appeal to this Court, but only DWIT has pursued the
appeal.
Discussion
DWIT
argues that the Commission erroneously determined that Builders Mutual
effectively canceled DWIT’s workers’ compensation insurance under the governing
statutory provision, N.C. Gen. Stat. §58-36-105 (2007). Builders Mutual has, however, cross-assigned
error to the Commission’s failure to conclude that DWIT was barred by Deputy
Commissioner Berger’s opinion and award from asserting that it had workers’
compensation insurance coverage under the Builders Mutual policy. Builders Mutual contends that Deputy
Commissioner Berger’s opinion and award constitutes an alternative basis in law
for supporting the Commission’s opinion and award. See N.C.R. App. P. 10(d) (“Without
taking an appeal an appellee may cross-assign as error any action or omission
of the trial court which was properly preserved for appellate review and which
deprived the appellee of an alternative basis in law for supporting the
judgment, order, or other determination from which appeal has been taken.”).
Deputy
Commissioner Berger made the following finding of fact in his 26 June 2003
opinion and award: “On September 19, 2002, defendant-employer D.W.I.T., LLC did
not have workers’ compensation coverage for its employees.” This opinion and award was not an
interlocutory decision, but rather was a final determination of the merits of
plaintiff’s claim against DWIT for temporary total disability benefits. DWIT was entitled to appeal this opinion and
award to the Full Commission pursuant to N.C. Gen. Stat. §97-85 (2007), but did
not do so.
It is
well established that “[t]he doctrine of res judicata precludes
relitigation of final orders of the Full Commission and orders of a deputy
commissioner which have not been appealed to the Full Commission.” Bryant v. Weyerhaeuser Co., 130 N.C.
App. 135, 138, 502 S.E.2d 58, 61, disc. review denied, 349 N.C. 228, 515
S.E.2d 700 (1998). In Bryant,
this Court held that when the parties had failed to appeal from a deputy
commissioner’s opinion and award on the merits of the plaintiff’s claim against
Weyerhaeuser, the issue whether the plaintiff was required to comply with
reasonable vocational rehabilitation — as ordered in that opinion and award —
could not be relitigated “even before the Full Commission.”
The “law
of the case,” a related doctrine, provides that when a party fails to appeal
from a tribunal’s decision that is not interlocutory, the decision below
becomes “the law of the case” and cannot be challenged in subsequent
proceedings in the same case. See
Williams v. Asheville Contr. Co., 257 N.C. 769, 771, 127 S.E.2d 554, 555
(1962) (per curiam) (“[W]hen the appeal was abandoned or not perfected within
the time allowed, the order of the court below sustaining the demurrer and
dismissing the action became the law of the case and the plaintiff was thereby
precluded from amending his complaint which ordinarily may be done when a
demurrer is sustained without dismissing the action.”); Alphin v. Tart L.P.
Gas Co., __ N.C. App. __, __ n.3, 666 S.E.2d 160, 168 n.3 (2008) (“We agree
that since plaintiff did not appeal the finding that he is capable of sedentary
work, that ruling is now the law of the case.”).
Here,
under either approach, since DWIT did not appeal Deputy Commissioner Berger’s
2003 opinion and award finding that it did not have workers’ compensation
insurance coverage on the date of plaintiff’s accident, it was barred from
relitigating that issue in subsequent proceedings. DWIT could have moved to have that opinion
and award set aside or modified. See
Hogan v. Cone Mills Corp., 315 N.C. 127, 137, 337 S.E.2d 477, 483 (1985)
(holding that Commission has inherent power to set aside its prior decisions); Bryant,
130 N.C. App. at 138 n.1, 502 S.E.2d at 61 n.1 (“The Full Commission has the
inherent power, analogous to that conferred on courts by Rule 60(b)(6), to set
aside or modify its own orders, including final orders of the deputy
commissioners . . . .” (internal quotation marks omitted)). DWIT did not, however, formally make such a
motion.
In any
event, the Full Commission, in its opinion and award, specifically found: “DWIT
did not appeal from Deputy Commissioner Berger’s finding of fact and conclusion
of law that it did not have workers’ compensation insurance at the time of
plaintiff’s injury. The Full Commission
finds no valid grounds to set aside this finding of fact and conclusion of law.” DWIT does not challenge on appeal this
determination that no grounds exist to set aside Deputy Commissioner Berger’s
finding of fact and conclusion of law. Accordingly, we affirm the Commission’s
opinion and award determining that DWIT did not have workers’ compensation
insurance coverage on the date of plaintiff’s compensable injury on the
alternative ground that DWIT was barred from relitigating that issue by Deputy
Commissioner Berger’s opinion and award.
Affirmed.
Judge
Judge
WYNN concurs in the result only.