An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1471


Filed: 21 October 2003


v .                         
LARRY WEBB BOYER, WERNER                Buncombe County
ENTERPRISES, INC., and                 No. 99 CVS 3626


    Defendant and
    Third-Party Defendant.

    Appeal by plaintiff from order entered 29 July 2002 by Judge Dennis J. Winner in Buncombe County Superior Court. Heard in the Court of Appeals 8 September 2003.

    McGuire, Wood & Bissette, P.A., by Joseph P. McGuire, for plaintiff-appellant.

    Attorney General Roy Cooper, by Assistant Attorney General Donna B. Wojcik, for the North Carolina Department of Transportation.

    EAGLES, Chief Judge.

    Plaintiff appeals from the dismissal of her negligence claim against the North Carolina Department of Transportation for lack of subject matter jurisdiction.    The record tends to establish the following: The North Carolina Department of Transportation (“NCDOT”) contracted Hendrix & Dail, Inc. (“Hendrix & Dail”) to fumigate approximately 280 acres of state right-of-way along various North Carolina highways. Although the contract required Hendrix & Dail to “comply with all applicable federal, state, and local laws . . . governing safety[,]” the contract also provided that NCDOT “personnel . . . [were] responsible for traffic control[]” during the fumigation operations.
    On the morning of 5 August 1998, Hendrix & Dail was fumigating the median of Interstate 40 in Asheville, approximately one mile east of U.S. Highway 19-23. Shortly after 10:00 a.m., traffic in the eastbound lanes of I-40 began backing up and eventually came to a complete stop. Plaintiff's ward, Jeanette Carland McLendon (“McLendon”), was among the eastbound drivers who stopped on I-40. After McLendon stopped, her car was struck from behind by a tractor trailer driven by Larry Webb Boyer (“Boyer”), causing McLendon permanent body and brain injuries.
    Plaintiff filed a complaint in Buncombe County Superior Court alleging negligence on the part of Boyer and Hendrix & Dail. Hendrix & Dail filed a cross-claim for indemnity and contribution against Boyer's principal, Werner Enterprises, Inc. (“Werner”). Boyer and Werner then filed a third-party complaint against NCDOT pursuant to N.C. R. Civ. P. 14(c), also seeking contribution and indemnity. NCDOT later consented to being added as a named defendant in the action, allowing plaintiff to assert any claims“relating to the subject motor vehicle accident” directly against NCDOT in superior court, rather than before the North Carolina Industrial Commission. Plaintiff subsequently filed an amended complaint, alleging negligence on the part of NCDOT. NCDOT moved for summary judgment pursuant to N.C. R. Civ. P. 56 and the matter was heard by Judge Dennis J. Winner on 29 July 2002, together with Hendrix & Dail's motion for summary judgement. Before addressing the merits of defendants' motions, the trial judge raised, ex mero motu, the question of whether the superior court had subject matter jurisdiction over plaintiff's tort claim against NCDOT. The trial court concluded that only the North Carolina Industrial Commission has subject matter jurisdiction over tort claims asserted directly against the State and dismissed plaintiff's claim against NCDOT. Plaintiff appeals.
    Plaintiff contends that under the facts of this case, the plain language of N.C. R. Civ. P. 14(a) and (c) allowed plaintiff to assert her negligence claim against NCDOT in superior court. We agree.
    At the outset, we note that NCDOT was properly made a third- party defendant pursuant to N.C. R. Civ. P. 14(c). We further note that plaintiff's claim against NCDOT arises out of the same transaction and occurrence that is the subject matter of plaintiff's claims against Boyer and Werner, the third-party plaintiffs. See N.C. R. Civ. P. 14(a). For the reasons announced by this Court in Batts v. Batts, ___ N.C. App. ___, ___ S.E.2d ___, No. COA02-1647 (Oct. 7, 2003), we hold the trial court improperlyconcluded that it lacked subject matter jurisdiction over plaintiff's claim against NCDOT. Accordingly, the order of the trial court dismissing plaintiff's claim against NCDOT is reversed and this matter is remanded to the superior court for further proceedings not inconsistent with this opinion.
    Reversed and remanded.
    Judges McCULLOUGH and STEELMAN concur.    
    Report per Rule 30(e).

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