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www.morrisyork.com E-Briefs July 2007
Workers’ Compensation
Liability Announcing a brand of underinsured and uninsured
motorist coverage.
new Workers’
For example, under the
Compensation seminar!
Recent Decisions Just approved in July 2007 by the
proposal, if a claimant is entitled to
recover damages, then the limits of
North Carolina Department of the coverage provided by the owner
Contrib Tees Insurance for the award of four or operator of an uninsured vehicle
Golfer Into the Rough continuing education credits (P&L). will be determined by adding the
Cottam v. ClubCorp USA, We are ready to present this seminar highest limit available under an
Inc., et.al. at your workplace. The seminar underinsured provision. Essentially,
Plaintiff Cottam was a titled “Significant Topics in Defense a claimant who is legally entitled to
member of one of 29 teams playing of Workers’ Compensation Claims” recover damages will be able to
in ClubCorp’s Country Club and covers Occupational Diseases, House receive the full benefit from both
Resort Team Championship Bill 99, Suitable Employment, coverage provisions. This act, if
Tournament on Pinehurst’s No. 8 Intervening Injuries & Causation, passed, will become effective on
golf course in September, 2003. The Immigration and Illegal Aliens, January 1, 2008, and would apply to
Tournament employed a “Shotgun Medicare & Medicare Set-Asides, policies issued or renewed on or after
Start,” where all teams begin play at and recent Case Law decisions. If that date.
exactly the same time but at interested, please contact Tom Koch
different holes, and the course was to discuss scheduling this seminar.
full. The Plaintiff was injured when (704-375-4480 or email to Proposal to Add to the
he was struck in the head by a golf tkoch@morrisyork.com)
ball hit by the Defendant Dalton
Workers’ Compensation
while the plaintiff was finishing play Proposed Schedule of Injuries
on the same hole. The Defendant
A new proposal to the Workers’
was playing directly behind the Legislation Compensation Statute, if passed,
Plaintiff, and the hole in question
would expand the scheduled
had a blind spot, where players at Allowing Stacking of injuries that are already provided for
the hole’s tee box could not see the
area where Plaintiff was standing.
Uninsured in the statute. This particular
legislation would add injuries to the
Plaintiff was struck in the temple by and Underinsured brain, heart, and reproductive organs.
Defendant Dalton’s ball, knocking Insurance If the proposed legislation is passed,
him unconscious, and allegedly § 97-31 will include a new subdivision
causing brain damage. A new proposal from the
stating as follows: “In case of serious
Plaintiff contended that the General Assembly’s 2007-2008
injury to the brain, heart, or reproduc-
Defendant Dalton “knew or should session could have a significant
tive organs for which no compensa-
have known” that it was dangerous to impact on the insurance industry
tion is payable under any other
tee off before the Plaintiff’s team had concerning “stacking” of
subdivision in this section, the
cleared the hole. The Plaintiff also underinsured and uninsured provi-
Industrial Commission shall award
brought suit against the Tournament sions. The bill was filed on April 16,
proper and equitable compensation
corporation, as well as Pinehurst by Representative Faison and would
not to exceed $100,000.”
Continued on Page 2 essentially allow inter-policy stacking
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Continued from Page 1
Resort for negligence, on the basis
that they did not notify Tournament
players of the danger posed by the
Recent Opinions type of causal relation between the
accident and the performance of some
blind spot, by failing to instruct Determining whether service of the employment.
players to use a “monitor” or other In Frost, the Supreme Court
means to check for players in the area,
an injury held that driving a go-cart is not
and by failing to “promulgate and “arises out of or in the something that most people would
enforce reasonable rules” to protect say has a causal relation to the duties
the players. Plaintiff alleged Defen-
course of employment” or services of an EMT employee.
dant Pinehurst was also negligent in Frost v. Salter Path Fire & Driving a go-cart is also not a risk
failing to provide “adequate appli- Rescue, 361 N.C. 181, 639 S.E. 2d 429 that a reasonable person would
ances for prevention of injuries.” (2007). associate or relate to the anticipated
After a short deliberation The North Carolina Supreme risks that are part of the EMT’s job
period of approximately 40 minutes, Court recently considered when an description. Instead, the type of
the jury returned a verdict of no injury “arises out of or in the course injury that was sustained by the
negligence on the part of the of employment” under § 97-2(6) in plaintiff is more of a hazard that is
Tournament and Pinehurst. Frost v. Salter Path Fire & Rescue, 361 contemplated by the general public
Defendant Dalton was found N.C. 181, 639 S.E. 2d 429 (2007). The that takes part in the activity of riding
negligent, but was able to use North defendant appealed from the a go-cart. The Court also cited
Carolina’s contributory negligence Industrial Commission’s award of precedent, stating that when an
doctrine to negate liability. temporary total disability benefits. In employer provides a recreational
According to the Southern Pines that case, the plaintiff, an EMT activity outside of work that is
Pilot, the jury found that the Plaintiff employee, was injured while voluntary and an employee is injured
was found contributorily negligent operating a go-cart at a private while participating in the voluntary
for playing slower-than-normal. amusement park. Her employer, Salter recreational activity, such injuries will
At the charge conference Path Fire had arranged the event for not be deemed to arise out of the
prior to the jury deliberating, Plaintiff their employees at the amusement employment.
contended that the trial judge should park, which was known as “fun day.” The Supreme Court also
have instructed the jury on the The costs of the event were not cited a six-question analysis to aid in
doctrine of “last clear chance.” funded by the defendant, but were determining whether an injury arises
Plaintiff argued that he had no paid for by the community. Also, out of employment.
obligation to go back and tell players participation at the event was entirely 1.) Did the employer in fact sponsor
that he was still on the same hole, and voluntary, no employee was obligated the event?
that the Defendant had the last clear to attend, no awards or recognition 2.) To what extent was the attendance
chance to avoid injury to Plaintiff. was given at the event, and there really voluntary?
The trial judge denied that request, were no organized discussions 3.) Was there some degree of encour-
and the jury was not instructed on concerning work at the event. agement to attend, evidenced by
last clear chance. Section 97-2(6) defines such factors as:
Plaintiff’s counsel, Mark injury under the act as meaning only a. taking a record of attendance,
Sternlicht, was quoted in Lawyers “injury by accident arising out of and b. paying for time spent,
Weekly (May 28, 2007) as saying that in the course of employment.” c. requiring the employee to work if
contributory negligence is “a very Arising out of employment refers to he did not attend, or
harsh rule” and that “a change is long the manner in which the injury occurs d. maintaining a known custom of
overdue.” The President-elect of the or the origin of the accident. This is attending?
N.C. Association of Defense Attor- often referred to as the causal relation 4.) Did the employer finance the
neys responded by saying that any rule. The rule states that an injury occasion to a substantial extent?
changes would necessarily have to arises out of the employment when it 5.) Did the employees regard it as an
come from the legislature, which has is a “natural and probable employment benefit to which they
historically upheld contributory consequence or incident of the were entitled as of right?
negligence. employment and a natural result of 6.) Did the employer benefit from the
Continued on Page 3 one of its risks.” There must be some Continued on Page 3
3
Continued from Page 2
Apparently Sternlicht is not alone
with respect to his opinions on
contributory negligence. Rep. John
Blust, N.C. House of Representatives
Continued from Page 2 4.) Contractual duty exception-where member from Guilford County, has
event, not merely in a vague way an employer contractually provides proposed House Bill 1571, which
through better morale and good will, transportation or allowances to cover would authorize a study of the
but through such tangible advan- the cost of transportation. doctrine of contributory negligence,
tages as having an opportunity to In the recent case Hollin v. as well as joint and several liability, by
make speeches and awards? Johnston County Council on Aging, the Legislative Research Committee.
Always run through the the Court of Appeals described the The Committee would then make
above six question analysis in general rule and the exceptions in recommendations on whether
determining whether an injury regards to an employee’s use of their comparative negligence or another
received during a recreational event private vehicle as part of their method of determining tort liability
would be compensbible under the employment. There, the plaintiff was would be more appropriate. On May
Workers’ Compensation Act. a health care aide who provided 22, 2007, the Bill was re-referred to the
assistance to patients in their homes. Committee on Rules, Calendar, and
The “Going and She was required to use her own Operations of the House.
Coming Rule” and the personal vehicle for transportation to
the patients’ homes and she received
use of a personal reimbursement for any travel costs.
UM/UIM Coverage
vehicle However, the plaintiff was not follows the person, not
Hollin v. Johnston County considered to be “on the clock” when the vehicle-
Council on Aging, 639 S.E. 2d 88 (N.C. traveling from her residence to the Beddard & Beddard v. McDaniel,
App. 2007). first patient’s home, as well as from Cook & Universal, June 5, 2007.
The “going and coming rule” her last patient’s home back to her The North Carolina Court of
provides that injuries sustained by an residence. Consequently, she did not Appeals determined that the “owned
employee while going to and from receive any reimbursement for those vehicle” exclusion was unenforceable
work are usually not compensable traveling expenses. as to insureds driving a personal
under the Workers’ Compensation The injuries sustained by the vehicle, where they were “designated
Act because the injuries do not arise plaintiff were a result of an accident individuals,” and therefore qualified
out of or in the course of employment. that occured when the plaintiff was as insureds under a business policy
The rationale for this rule is that the traveling from her residence to her that provided underinsured motorist
risk of injuries while traveling to and first patient’s home in the morning. coverage (UIM). This case reaffirms
from work are injuries that are The Industrial Commission held that the premise that UM and UIM
common to the public at large and not the injuries did not arise out of the coverage follows the person, and not
due to specific course of course of employment and denied the the vehicle.
employment. However there are four plaintiff’s claim. The facts of the case show
notable exceptions to this general The plaintiff in Hollin argued that on the evening of May 15, 2001,
rule: that her injury fell under the “travel- the Defendant caused a collision with
1.) Premises exception-where an ing salesman exception” and/or the Plaintiffs’ vehicle. Plaintiffs filed suit
employee is going to or coming from “contractual duty exception.” The for their personal injuries, as well as a
work but is on the employer’s applicability of the traveling salesman claim for declaratory judgment,
premises when the accident occurs. exception depends on whether the alleging that they were entitled to
2.) Special errands exception-where employee has fixed job hours and UIM coverage under their business
an employee is acting in the course location. In Hollin, the plaintiff did automobile insurance policy with
of his employment and in the have fixed job hours as she worked Defendant Universal. The insurer
performance of some duty, errand, or from 8 a.m. to 4 p.m., Monday filed a Motion for Summary Judgment,
mission. through Friday. The Commission which was denied, and the trial court
3.) Traveling salesman exception- also found that although the plaintiff allowed summary judgment in favor of
where an employee has no definite had multiple patients in different Plaintiffs. The insurer appealed,
time and place of employment, locations, she would routinely see contending that the insurance policy
requiring them to make a journey to the same patients for a significant excluded UIM coverage because the
perform service on behalf of the period of time until the patients died.
Continued on Page 4 Continued on Page 4
employer.
4
Continued from Page 3
car the Plaintiffs were driving was not a
“covered auto” within the meaning of
the policy.
The North Carolina Supreme
Court has previously ruled on this
particular issue. In Nationwide v. Mabe, Continued from Page 3
the Court ruled that an “owned vehicle”
exclusion in the UIM section of a
These facts tended to show that
the plaintiff did have fixed hours Spotlight!
and locations and, thus, was not
business automobile insurance policy
applicable to the traveling
that denies coverage to a family member
salesman exception depends on
who is driving a family owned vehicle
whether the employee has fixed
violates the NC Motor Vehicle Safety job hours and location. In Hollin,
and Financial Responsibility Act. One the plaintiff did have fixed job
of the reasons the Act was promulgated hours as she worked from 8 a.m.
was to protect the named insured, family to 4 p.m., Monday through
and household members, as well as any Friday. The Commission also
person who uses the insured’s vehicle found that although the plaintiff Morris York is pleased to introduce
with their consent, from financially inept had multiple patients in different
our two Summer Clerks for 2007!
tortfeasors by providing UM/UIM locations, she would routinely
coverage. The North Carolina Supreme see the same patients for a
Danny Bridgman graduated
Court in Mabe also held that UM/UIM significant period of time until the high school from Lakewood High, in
coverage follows the person, and not patients died. These facts tended Roseboro, North Carolina. He is
the vehicle. to show that the plaintiff did have currently a student at Wake Forest
The Defendant contends that fixed hours and locations and, University School of Law.
the Nationwide case does not apply, thus, was not applicable to the He is active in the School’s Pan Asian
because the insurance policy in ques- traveling salesman exception. Law Association. Danny was a
tion was made to cover the Beddard’s The contractual duty Summer Associate last year, in Ft.
Affordable Tire & Auto, and thus exception states that where an Lauderdale, Florida with a Social
should only be read to cover their used employer provides transportation
Security Disability firm.
car business, rather than all liability. It is or allowances that cover costs of
Danny enjoys playing sports,
uncontroverted that the Plaintiffs were transportation, that injuries traveling, reading, running, going to
driving a car that was not listed on the resulting from that transportation the lake, UNC sports, and the Carolina
business insurance policy at the time of are compensable. As noted, the
Panthers. Danny considers his mentor
the collision. However, the Supreme plaintiff in Hollin was reimbursed his first year torts professor.
Court has expressly ruled that UIM for travel to and from the patients’ Linda Kim graduated from
coverage follows the person and not the homes, but she was not reim-
Myers Park High, in Charlotte, and
vehicle, and therefore this argument was bursed for traveling to and from
now attends Campbell University.
not persuasive. her residence to the first and last Linda participates in the Christian
The Court found that the patient of the day. Thus, the Legal Society, Prisoners Assistance
Plaintiffs in Beddard were designated exception would apply if plaintiff Legal Services (PALS) program, and
individuals on the declarations of the was injured while traveling the Delta Theta Phi fraternity. She
policy, and were therefore named between patients’ homes, but also participated in a Joint Summer
insureds. The Court of Appeals does not apply when traveling to Program in Korea. Linda’s previous
found it irrelevant whether the car or from her residence. experience includes clerking for
involved in the accident was a covered
vehicle on the policy. The court found,
given the broad purpose of the Financial
************** Hayes Williams Turner & Daughtry,
PA. Linda enjoys jewelry making,
E-Briefs is an email service karaoke, and making sushi. She is
Responsibilty Act to allow an injured courtesy of the Charlotte, active in the St. John Lee Korean
tortfeasor to recover damages when the N.C. law firm of Morris York Catholic Church. Linda considers her
tortfeasor does not have adequate Williams Barringer Lewis & parents her mentors and heroes
insurance to fully compensate the injured Briggs, L.L.P Telephone
because they made her who she is
insured, that there was no reason to make (704) 375-4480 Fax (704)
375-6895 or on the web at today.
an exception that would bar Plaintiffs
www.morrisyork.com. To be We are very excited to have
from a full recovery.
removed from this mailing list Danny and Linda with us this
email tkoch@morrisyork.com summer!
