Appeal by plaintiff from order entered 17 May 1999 by Judge
Dennis J. Winner in Haywood County Superior Court. Heard in the
Court of Appeals 26 April 2000.
Melrose, Seago & Lay, by Randal Seago, for plaintiff-
appellant.
Patrick U. Smathers for defendant-appellees.
MARTIN, Judge.
Plaintiff brought this action seeking damages for personal
injuries allegedly caused by the negligence of defendants. In his
complaint, plaintiff alleged that while he was employed by
defendants and was engaged in loading wood into the bucket of a
front end loader, defendant Scott Forga negligently caused the
machine to swing around, injuring plaintiff. Defendants moved to
dismiss pursuant to G.S. § 1A-1, Rule 12(b)(6) for plaintiff's
failure to state a claim upon which relief can be granted. After
a hearing, the trial court entered the following order:
THIS CAUSE coming on to be heard before
the undersigned Superior Court Judge Presiding
upon Defendants' motion to dismiss, and the
Court finding that this is a claim for injurysustained during an employer/employee
relationship between the Parties, and there is
no allegation in Plaintiff's Complaint
alleging a basis for this action to be heard
outside the scope of the North Carolina
Workers Compensation Act, and the Court
determining that it does not have subject
matter jurisdiction of this matter.
NOW, THEREFORE, it is hereby ORDERED,
ADJUDGED and DECREED that Plaintiff's action
is hereby dismissed.
Plaintiff appeals.
The sole issue raised by the two assignments of error brought
forward in plaintiff's brief is whether the trial court erred in
dismissing the complaint for lack of subject matter jurisdiction.
Initially, we dispense with plaintiff's contention that the
superior court erred in addressing the question of subject matter
jurisdiction
sua sponte since the question was not raised by
defendants. A party may not waive jurisdiction,
Miller v. Roberts,
212 N.C. 126, 193 S.E. 286 (1937), and a court has inherent power
to inquire into, and determine, whether it has jurisdiction and to
dismiss an action
ex mero motu when subject matter jurisdiction is
lacking.
Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 350
S.E.2d 83,
reh'g denied, 318 N.C. 704, 351 S.E.2d 736 (1986). The provisions of Chapter 97 of the General Sta
tutes, the
Workers' Compensation Act (the Act), apply to all employees and
employers where the employer regularly employs three or moreemployees. N.C. Gen. Stat. § 97-2(1), 97-3. Subject to certain
exceptions not applicable here, where the employer and employee are
subject to and have complied with the Act, the rights granted an
injured employee under the Act are the exclusive remedy in the
event of the employee's injury by accident in connection with the
employment. N.C. Gen. Stat. § 97-10.1. Under such circumstances,
the injured employee may not elect to maintain a suit for recovery
of damages for his injuries, but must proceed under the Act.
McAllister v. Cone Mills Corp., 88 N.C. App. 577, 364 S.E.2d 186
(1988). Such cases are within the exclusive jurisdiction of the
Industrial Commission; the superior court has been divested of
jurisdiction by statute.
Lemmerman v. A.T. Williams Oil Co.,
supra; Sneed v. Carolina Power & Light Co., 61 N.C. App. 309, 300
S.E.2d 563 (1983). However, where the employer fails to secure the
payment of compensation by either insuring against liability or
qualifying as a self-insurer, G.S. § 97-93(a), such employer
shall be liable during continuance of such
refusal or neglect to an employee either for
compensation under the Article or at law at
the election of the injured employee.
N.C. Gen. Stat. § 97-94(b). There is a presumption that every
employer and employee subject to the Act has accepted its
provisions. N.C. Gen. Stat. § 97-3;
Miller v. Roberts, supra.
The foregoing statutes express a clear intent by the General
Assembly that claims for work related injuries be adjudicated
pursuant to the Act. Thus, where the relationship of employer-
employee as defined by the Act exists, the employee may elect to
pursue, in a court of law, a claim for accidental injuries arisingfrom that relationship only when the employer's conduct has taken
him outside the provisions of the Act; otherwise, jurisdiction has
been statutorily conferred upon the Industrial Commission.
See
Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991) (Act does
not relieve employer from civil liability for employer's
intentional tort or intentional misconduct substantially certain to
cause serious injury or death);
Seigel v. Patel, 132 N.C. App. 783,
513 S.E.2d 602 (1999) (noting that G.S. § 97-94 “arguably” permits
plaintiff to bring a claim at law where employer has failed to
secure compensation).
In the present case, plaintiff alleged only that he sustained
injuries due to defendants' negligence while he was performing
duties within the course and scope of his employment by them. Such
allegations bring plaintiff's claim within the G.S. § 97-3
presumption of acceptance of the provisions of the Act. While such
presumption may be rebutted, plaintiff has alleged no facts which,
if proved, would show that defendants had not accepted the Act or
were not otherwise subject to it. Nothing else appears of record
to rebut the presumption of acceptance. Absent some allegation or
showing to rebut the presumption, plaintiff's claim is within the
exclusive jurisdiction of the Industrial Commission. The trial
court's order dismissing the action for lack of subject matter
jurisdiction must be affirmed.
Affirmed.
Judges LEWIS and WALKER concur.
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