Appeal by defendants from an order entered 12 April 2001 by
Judge Benjamin G. Alford in Superior Court, Lenoir County. Heard
in the Court of Appeals 24 April 2002.
Davis & McCabe, P.A., by John M. McCabe; and Timothy D.
Welborn, P.A., by Timothy D. Welborn, for plaintiff-appellee.
Cranfill, Sumner & Hartzog, L.L.P., by Edward C. LeCarpentier
III, for defendant-appellants.
McGEE, Judge.
Allen Wayne Seymour, Jr. (plaintiff) filed suit on 11 May 2000
against Lenoir County, Sandy Bottom Volunteer Fire Department, Inc.
(defendant Fire Department), and James Goff, Jr. (defendant Goff).
Plaintiff's claims arose from events which occurred on 19 May 1997,
when plaintiff was employed as a volunteer firefighter with
defendant Fire Department. Defendant Fire Department conducted a
training exercise in which it set a house on fire. Selected
members of defendant Fire Department, including plaintiff, were
instructed to enter the house and conduct a search and rescueoperation. When plaintiff entered the house, he was engulfed by
flames and suffered severe burns and pulmonary injuries. Defendant
Goff was the instructor in charge of the exercise on behalf of
defendant Fire Department.
Defendant Goff and defendant Fire Department filed a motion to
dismiss for lack of subject matter jurisdiction pursuant to N.C.
Gen. Stat. § 1A-1, Rule 12(b)(1) on 8 February 2001. Defendant
Lenoir County did not join in this motion. Defendant Fire
Department and defendant Goff argued that the exclusivity provision
of the Workers' Compensation Act and the doctrine of sovereign
immunity precluded plaintiff's claims. The motion was heard on 19
February 2001 and denied by the trial court in an order entered 12
April 2001. Defendant Fire Department and defendant Goff appeal
from this order.
I.
Defendant Fire Department first argues the trial court erred
in denying its motion to dismiss because defendant Fire Department
is immune from liability under the doctrine of sovereign immunity.
Defendant Fire Department contends sovereign immunity precludes
plaintiff's claims because defendant Fire Department has not waived
its immunity by purchasing liability insurance that provides
coverage for intentional misconduct which defendant knew was
substantially certain to cause serious injury or death.
Accidents which occur in the course and scope of employment
are generally subject to the exclusivity provision of the North
Carolina Workers' Compensation Act.
See N.C. Gen. Stat. § 97-9 and N.C. Gen. Stat. § 97-10.1 (1999). However, our Courts have
created two notable exceptions to this general rule. A plaintiff
may bring either a
Pleasant claim or a
Woodson claim for
intentional acts by the employer or by a co-employee which result
in injury.
See Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244
(1985); and
Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222
(1991). We note that plaintiff's claim against defendant Fire
Department is a
Woodson claim. Under a
Woodson claim, a plaintiff
can bring a civil suit against an employer based on intentional
acts where "an employer intentionally engages in misconduct knowing
it is substantially certain to cause serious injury or death to
employees and an employee is injured or killed by that
misconduct[.]"
Woodson, 329 N.C. at 340, 407 S.E.2d at 228.
In general, "[w]hile provisions extending coverage will be
construed broadly to find coverage, provisions excluding coverage
are not favored and will be strictly construed against the insurer
and in favor of the insured, again, to find coverage."
Nationwide
Mut. Fire Ins. Co. v. Grady, 130 N.C. App. 292, 295, 502 S.E.2d
648, 651 (1998). Defendant Fire Department admits its insurance
policies cover injuries which arise out of accidents; however,
defendant Fire Department contends that plaintiff alleges injuries
which occurred as a result of an
intentional act which defendant
Fire Department knew "would be substantially certain to cause
Plaintiff serious injury or death." Defendant Fire Department
points to an exclusionary provision in two of defendant Fire
Department's insurance policies which bars claims based on intendedactions. The first policy has an exclusion which provides:
2. Exclusions
This insurance does not apply to:
a. Expected or Intended Injury
"Bodily injury" or "property damage" expected
or intended from the standpoint of the
insured.
A second insurance policy owned by defendant Fire Department states
the policy will cover "bodily injury or property damage which
. . . is caused by an occurrence." The policy defines occurrence
as "an accident . . . which results in bodily injury or property
damage which is neither expected nor intended from the standpoint
of the insured." Both policies contain essentially the same
exclusion.
Plaintiff contends that in order for an "act to be excluded
under the 'expected and intended' exclusion [of an insurance
policy], both the act and the resultant harm must have been
intended." Nationwide, 130 N.C. App. at 295-96, 502 S.E.2d at 651.
Plaintiff further contends that while defendant Goff's "act" of
ordering plaintiff into the burning house was intended, there is no
evidence which shows defendant Goff or anyone connected with
defendant Fire Department intentionally injured plaintiff. Our
Supreme Court has held that "in order to avoid coverage on the
basis of the exclusion for expected or intended injuries in the
insurance policy . . . the insurer must prove that the injury
itself was expected or intended by the insured. Merely showing the
act was intentional will not suffice." N.C. Farm Bureau Mut. Ins.
Co. v. Stox, 330 N.C. 697, 706, 412 S.E.2d 318, 324 (1992).
However, our Supreme Court continued that where the term "accident" is not specifically
defined in an insurance policy, that term does
include injury resulting from an intentional
act, if the injury is not intentional or
substantially certain to be the result of the
intentional act.
N.C. Farm Bureau Mut. Ins. Co. v. Stox, 330 N.C. 697, 709, 412
S.E.2d 318, 325 (1992) (second emphasis added). Thus, although it
is possible for injury from an intentional act to be within the
definition of an accident, that is not the situation where the
injury is "substantially certain to be the result of the
intentional act." Id. Because plaintiff alleged that defendant
Fire Department engaged in intentional acts which were
"substantially certain to cause Plaintiff serious injury or death,"
these acts do not meet the definition of an "accident." Thus, we
conclude plaintiff did not allege injuries by accident or as a
result of an occurrence and the insurance policies at issue do not
provide coverage for plaintiff's claim. Consequently, defendant
Fire Department has not waived its sovereign immunity. We reverse
the trial court's denial of defendant Fire Department's motion to
dismiss for lack of subject matter jurisdiction.
II.
Defendant Goff argues the trial court erred in denying his
motion to dismiss because plaintiff's claims against him are barred
by the exclusivity provision of the North Carolina Workers'
Compensation Act. As discussed above, our Courts have created two
exceptions to the exclusivity provision of the Workers'
Compensation Act. A
Pleasant claim may be brought against co-
employees and will cover intentional acts which are willful orwantonly negligent. A
Woodson claim may be brought against
employers but carries a stricter standard of intentional acts which
the employer knew or should have known would cause serious injury
or death. Plaintiff has elected to bring a
Pleasant claim against
defendant Goff. Plaintiff alleges defendant Goff's actions were
willful and wanton. The "Workers' Compensation Act does not shield
a co-employee from common law liability for willful, wanton and
reckless negligence."
Pleasant, 312 N.C. at 716, 325 S.E.2d at
249. However, defendant Goff contends he is an officer of a
corporation and not a "co-employee" of plaintiff, and therefore
subject to the stricter standard articulated in
Woodson. Since
plaintiff has alleged only willful and wanton behavior, defendant
Goff contends plaintiff's claim is barred by the exclusivity
provision of the Workers' Compensation Act. We disagree.
In
Woodson, our Supreme Court held that when corporate
employers could not be held liable, neither could their corporate
officers and directors because "in the workers' compensation
context, corporate officers and directors are treated the same as
their corporate employer vis-a-vis application of the exclusivity
principle."
Woodson, 329 N.C. at 347, 407 S.E.2d at 232. As a
result, in order for a corporate officer to be held liable, the
officer must have engaged in intentional misconduct which the
officer knew was substantially certain to cause serious injury or
death. Defendant Goff contends plaintiff has only asserted that
defendant Goff was willfully and wantonly negligent; therefore,
plaintiff has not met the
Woodson standard. However, we fail tosee how defendant Goff holds a position in the Sandy Bottom
Volunteer Fire Department, Inc. which would equate to a corporate
officer position of shareholder, president, vice-president, or
secretary. Similar to the defendant in
Pleasant, defendant Goff is
more of a co-employee of plaintiff than an employer of plaintiff.
We hold defendant Goff should be held to the same standard as a co-
employee. As a result, under
Pleasant, plaintiff can bring a civil
action against defendant Goff as a co-employee by alleging willful
and wantonly negligent behavior while also maintaining an action
under the Workers' Compensation Act.
Defendant Goff also seeks to escape liability by claiming to
be a public official and, under
Jones v. Kearns, 120 N.C. App. 301,
462 S.E.2d 245 (1995), immune from personal liability for mere
negligence in the performance of his duties. However, in order to
be considered a public official, the position must have been
statutorily or constitutionally created.
See Block v. County of
Person, 141 N.C. App. 273, 540 S.E.2d 415 (2000). Defendant Goff
has pointed this Court to no statute or constitutional provision
creating the position he filled. We overrule this assignment of
error, and we affirm the trial court's denial of defendant Goff's
motion to dismiss.
Affirmed in part and reversed in part.
Judges WALKER and CAMPBELL concur.
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