Appeal by plaintiff from opinion and award entered by the
North Carolina Industrial Commission on 23 November 2005. Heard in
the Court of Appeals 18 October 2006.
Patterson Harkavy, L.L.P., by Leto Copeley, for plaintiff-
Patterson, Dilthey, Clay, Bryson & Anderson, L.L.P., by
Phillip J. Anthony and Kathrine Downing Fisher, for defendant-
Plaintiff filed a workers' compensation claim on 23 February
2000 against plaintiff's uninsured employer, Iftikhar Taj Abbasi
(Abbasi), who does business as Tri-Star Amoco Food Shop (Tri-
Star Amoco), and against Erwin Oil Company (Erwin Oil) as a
statutory employer pursuant to N.C. Gen. Stat. § 97-19 (2002). The
workers' compensation case was stayed while plaintiff proceeded
with a tort action against both Abbasi and Erwin Oil. Plaintiff
dismissed his workers' compensation and civil claims against Abbasi
after reaching a settlement with that employer's general liabilityinsurance carrier. He also dismissed his civil suit against Erwin
Oil. Plaintiff's workers' compensation claim against Erwin Oil was
heard before the deputy commissioner on 10 September 2003. On 15
April 2004, the deputy commissioner issued an opinion and award
finding that N.C. Gen. Stat. § 97-19 did not apply to plaintiff's
employment. Plaintiff appealed to the Full Commission, which
issued a decision denying plaintiff's claim on 23 November 2005.
Plaintiff appeals. We reverse and remand.
The evidence tends to show the following facts. On 6 August
1999, plaintiff was shot in the neck by an armed assailant while
working as a cashier for Abbasi at Tri-Star Amoco. Plaintiff
sustained serious injury from the shooting. Erwin Oil Company is
a jobber, or wholesaler, of petroleum; Erwin Oil buys gasoline
from a producer, such as Amoco, and resells it. Erwin Distributing
Corporation owns the real estate upon which Tri-Star Amoco is
located and it leases that real estate to Erwin Oil. Erwin Oil
owns the underground tanks and pumps or equipment connected to
those tanks. Abbasi leases the convenience store and equipment
from Erwin Oil and operates the store with his own employees.
Erwin Oil supplies Abbasi with gasoline on consignment for sale at
Tri-Star Amoco and Abbasi receives a commission per gallon of
gasoline sold. Abassi's role is known in the industry as a jobber-
dealer. At the time of plaintiff's injury, Erwin Oil had a
jobber contract with Amoco to purchase gasoline. Most of the
gasoline sold by Erwin Oil is distributed to the public through gas
station/convenience stores, although Erwin Oil does have somecommercial accounts as well.
Plaintiff argues that the Commission erred in finding and
concluding that Erwin Oil was not a statutory employer within the
meaning of N.C. Gen. Stat. § 97-19. We agree. N.C. Gen. Stat. §
97-19 provides, in pertinent part, that
[a]ny principal contractor, intermediate
contractor, or subcontractor who shall sublet
any contract for the performance of any work
without requiring from such subcontractor or
obtaining from the Industrial Commission a
certificate . . . stating that such
subcontractor has complied with G.S. 97-93
hereof, shall be liable . . . to the same
extent as such subcontractor would be if he
were subject to the provisions of this Article
for the payment of compensation and other
benefits . . . on account of the injury or
death of any employee of such subcontractor
due to an accident arising out of and in the
course of the performance of the work covered
by such subcontract.
It is undisputed that Abbasi did not have workers'
compensation insurance for his employees and that he did not
provide such a certificate to Erwin Oil. The Commission found and
concluded that Erwin Oil was not a contractor, Abbasi was not a
subcontractor, and that N.C. Gen. Stat. § 97-19 did not apply.
Whether a defendant is a statutory employer within the meaning of
N.C. Gen. Stat. § 97-19 is a jurisdictional matter. Cook v.
Norvell-Mackorell Real Estate Co.
, 99 N.C. App. 307, 309, 392
S.E.2d 758, 759 (1990). We review this issue de novo
Findings of jurisdictional fact made by the
Industrial Commission are not conclusive, even
when supported by competent evidence. It is
incumbent upon this Court to review the
evidence of record and make independent
findings of fact with regard to plaintiff's
employment status.Youngblood v. North State Ford Truck Sales
, 321 N.C. 380, 383, 364
S.E.2d 433, 437 (1988) (internal citations and quotation marks
In determining that N.C. Gen. Stat. § 97-19 did not apply
here, the Commission concluded that Erwin Oil was not an original
or principal contractor because it had not undertaken for another
to do something, the performance of which he has in whole or in
part sublet to another. Evans v. Tabor City Lumber Co.,
111, 117, 59 S.E.2d 612, 616 (1950). G.S. § 97-19, by its own
terms, cannot apply unless there is first a contract for the
performance of work which is then sublet. Cook
, 99 N.C. App. at
310, 392 S.E.2d at 760. The Commission concluded that although
Erwin Oil had a jobber contract with Amoco, this contract did not
require Erwin Oil to re-sell the gasoline or perform any other
duties, and thus Abbasi was not performing any duties for Erwin Oil
that were required by Erwin Oil's contract with Amoco. However,
our review of the evidence, especially the plain language of the
contract, leads us to the opposite conclusion.
At the time of the hearing in this matter, Erwin Oil owned
over twenty stores, some of which were managed directly by Erwin
Oil, and some of which were owned by Erwin Oil but run by others.
At the time of plaintiff's injury, Erwin Oil had a branded jobber
contract with Amoco which included the following pertinent
2. . . . Amoco agrees to sell and Jobber
agrees to purchase and receive Amoco's
currently offered and available branded
petroleum products . . . * * *
5(d) . . . At all times and at each retail
site, including Jobber-Dealer sites, Jobber
shall offer for sale, or cause to be offered
for sale, representative amounts of each grade
of Amoco-based gasoline, currently offered to
Jobber, necessary to satisfy public demand.
* * *
8(a) . . . Jobber shall use its best efforts
to market the Products covered by this
Contract and develop its . . . area.
The contract further requires Erwin Oil to operate one or more bulk
storage plants, and to operate a sufficient number of tank trucks
to efficiently perform its delivery functions. Thus, under the
contract, Erwin Oil was required to market and sell Amoco products
necessary to satisfy public demand, using its best efforts to
market the Products. Erwin Oil could not successfully fulfill
these contractual obligations to Amoco without access to retail
outlets, such as Tri-Star Amoco, through which to market gasoline
to the general public. Furthermore, the addendum to the lease
between Erwin Oil and Abbasi states that:
Lessee agrees to maintain this location up to
AMOCO's IMAGE STANDARDS and to operate the
facility open to the public 18 hours per day,
7 days a week. Lessee agrees to furnish
ERWIN OIL COMPANY, INC., on a daily basis,
accurate and current inventory and sales
figures of all petroleum products sold and
received at this location. Lessee agrees to
notify ERWIN OIL COMPANY, INC., immediately
[sic] of any unauthorized discharge of
petroleum product such as a leak or a spill.
Failure to comply with any or all of the
provisions of this addendum will give the
lessor the right to cancel this lease at
That Erwin Oil and Abbasi had a landlord/tenant relationship doesnot preclude them from also having a contractor/sub-contractor
relationship. As the documents between Erwin Oil and Abbasi
required Abbasi to maintain and to operate the gas pumps seven
days a week, we conclude that in those agreements lies a contract
for Abbassi to perform work Erwin was required to do -- to market
and sell gasoline to meet public demand. Thus, we conclude that
Erwin Oil is a statutory employer pursuant to N.C. Gen. Stat. § 97-
19. Abbasi, as the owner of a gas station and convenience store,
was in the business of selling gasoline and sundries to the public.
Accordingly, we vacate the Commission's opinion and award and
remand for additional findings of fact, in accordance with this
opinion, regarding plaintiff's injuries and defendant's liability.
Reversed and remanded.
Judge CALABRIA concurs.
Judge HUNTER dissents in a separate opinion.
The judges participated and submitted this opinion for filing
prior to 1 January 2007.
HUNTER, Judge, dissenting.
I disagree with the majority's conclusion that Erwin Oil was
plaintiff's statutory employer pursuant to section 97-19 of the
North Carolina General Statutes. The majority's reasoning in this
case would greatly expand the definition of a statutory employer
beyond its intended scope. I therefore respectfully dissent.
The Commission concluded that section 97-19 did not apply to
the instant case. I agree with the Commission's conclusion. Themajority recognizes that G.S. § 97-19, by its own terms, cannot
apply unless there is first a contract for the performance of work
which is then sublet. Cook v. Norvell-Mackorell Real Estate Co.,
99 N.C. App. 307, 310, 392 S.E.2d 758, 760 (1990) (emphasis added).
Consequently, G.S. § 97-19 may apply as between two independent
contractors, one of whom is a subcontractor to the other; but it
does not apply as between a principal, i.e., an owner, and an
independent contractor. Id.
In the instant case, the evidence tends to show that Erwin
Oil, a petroleum wholesaler, purchased gasoline from various
producers, including Amoco. Erwin Oil in turn leased a convenience
store, Tri-Star Amoco, and equipment to Abbasi, who independently
operated the store. Erwin Oil also supplied Abbasi with gasoline
on consignment for sale at Tri-Star Amoco, and Abbasi received a
commission per gallon of gasoline sold at Tri-Star Amoco. Erwin
Oil was the owner of the gasoline sold at Tri-Star Amoco. The
primary purpose of the contract between Erwin Oil and Amoco was an
agreement to purchase gasoline. Although the majority is correct
that the contract between Erwin Oil and Amoco also required Erwin
Oil to 'offer for sale, or cause to be offered for sale,
representative amounts of each grade of Amoco-based gasoline,
currently offered to [Erwin Oil], necessary to satisfy public
demand[,]' this was not a task then sublet to Abbasi. The
majority points to an addendum in the lease agreement requiring
Abbasi to maintain the Tri-Star Amoco location according to
AMOCO's IMAGE STANDARDS and to operate the facility open to thepublic 18 hours per day, 7 days a week. (Emphasis added.)
Contrary to the majority's broad interpretation regarding gasoline
pumps, the addendum language is silent as to any specific
requirement regarding the sale or marketing of gasoline. The lease
agreement between Erwin Oil and Abbasi does not require Abbasi to
perform any task required by the contract between Erwin Oil and
Amoco. Erwin Oil clearly owned the gasoline offered for sale at
Tri-Star Amoco, for which Abbasi merely received a commission.
Erwin Oil owned the premises which Abbasi leased. Thus, Abbasi was
not a subcontractor for Erwin Oil. Rather, the nature of the
relationship between Erwin Oil and Abbasi was that of an owner and
an independent contractor.
As Erwin Oil did not sublet its duties to Abbasi, Abbasi was
not a subcontractor, nor was Erwin Oil a principal contractor. See
Mayhew v. Howell, 102 N.C. App. 269, 273, 401 S.E.2d 831, 834
(Industrial Commission properly found that the defendant
homebuilding company did not sublet any contract for the
performance of work to framers and that defendant was not a
'principal contractor' with regard to subdivision under
construction but the 'owner'), affirmed per curiam, 330 N.C. 113,
408 S.E.2d 853 (1991). Section 97-19 therefore does not apply, and
Erwin Oil cannot be considered plaintiff's statutory employer. The
majority's interpretation would make Erwin Oil a statutory employer
of every employee hired by any independent contractor leasing
property owned by Erwin Oil where Amoco gasoline is sold. I
believe this interpretation far exceeds the intended scope ofsection 97-19, and I would affirm the opinion and award of the
Commission denying plaintiff's claim for benefits.
*** Converted from WordPerfect ***