Appeal by defendant from orders entered 16 May 2006 by Judge
W. Osmond Smith, III in Granville County Superior Court. Heard in
the Court of Appeals 27 March 2007.
Price, Smith, Hargett, Petho & Anderson, by William Benjamin
Smith, for plaintiffs-appellees.
Carruthers & Roth, P.A., by Kenneth R. Keller, J. Patrick
Haywood, and William J. McMahon, IV, for defendant-appellant
Phoenix Fabricators and Erectors, Inc.
Defendant Phoenix Fabricators and Erectors, Inc. ("Phoenix")
appeals from the denial of its Rule 12(b)(1) motion to dismiss the
complaints of plaintiffs Jacinda Burton and Donna Davis, allegingnegligence in the death of their husbands while working for Phoenix
in North Carolina. Phoenix acknowledges that the order below is
interlocutory, but nonetheless argues that immediate appellate
review is justified based on the "exclusive remedy" workers'
compensation statute of the State of Indiana. Although Phoenix
claims that the Indiana statute grants them "immunity from suit,"
our appellate courts have held, when considering other analogous
circumstances, that a mere desire to avoid trial does not give rise
to a substantial right justifying an interlocutory appeal. We,
therefore, dismiss Phoenix's appeal.
Michael Burton and Charles Davis, plaintiffs' decedents, were
killed on 30 October 2002 while they were helping to construct an
elevated water storage tank on property owned by Granville County.
Both men were employees of Phoenix. On 10 June 2004, Jacinda
Burton, the Administratrix of the Estate of Michael Burton, and
Donna Davis, the Administratrix of the Estate of Charles Davis,
filed companion tort actions against three defendants: Phoenix, the
employer; Granville County, the property owner; and Davis, Martin,
Powell & Associates, Inc., one of the project's contractors.
According to plaintiffs, their husbands were assigned to work
on the exterior of the water tower at a height over 80 feet above
the ground without having any "fall arrest protection." While the
two men were performing their work, a crane was hoisting a section
of the structure into place. The crane failed, causing the load to
collide with the completed portion of the tower and knocking thetwo men from the tower. They fell to the ground, suffering fatal
All defendants filed motions for summary judgment.
Subsequently, Phoenix also filed a motion to dismiss both actions
pursuant to N.C.R. Civ. P. 12(b)(1), asserting that the trial court
lacked subject matter jurisdiction. Judge W. Osmond Smith, III of
Granville County Superior Court entered orders granting summary
judgment in favor of Granville County and Davis, Martin, Powell &
Associates. He denied Phoenix's motions for summary judgment and
for dismissal. Phoenix has appealed only from the orders denying
its Rule 12(b)(1) motions to dismiss for lack of subject matter
It is well established in North Carolina that "[a] trial
judge's order denying a motion to dismiss for lack of subject
matter jurisdiction is interlocutory and not immediately
appealable." Shaver v. N.C. Monroe Constr. Co.
, 54 N.C. App. 486,
487, 283 S.E.2d 526, 527 (1981). See also Teachy v. Coble Dairies,
, 306 N.C. 324, 327, 293 S.E.2d 182, 184 (1982) (approving
); Data Gen. Corp. v. County of Durham
, 143 N.C. App. 97,
100, 545 S.E.2d 243, 246 (2001) (holding that "the denial of a
motion to dismiss pursuant to Rule 12(b)(1) for lack of subject
matter jurisdiction is not immediately appealable"). As our
Supreme Court has recently acknowledged, however, interlocutory
review of such an order nonetheless may be permissible if the
appellant demonstrates that, under the circumstances of theparticular case, the order affects a substantial right that would
be jeopardized in the absence of review prior to a final
determination on the merits. Harris v. Matthews
, 361 N.C. 265,
269, 643 S.E.2d 566, 569 (2007) (permitting interlocutory appeal
when order denying motion to dismiss for lack of subject matter
jurisdiction affected first amendment right to freedom of
Phoenix bears "[t]he burden . . . to establish that a
substantial right will be affected unless [it] is allowed immediate
appeal from an interlocutory order." Embler v. Embler
, 143 N.C.
App. 162, 166, 545 S.E.2d 259, 262 (2001). Phoenix points to the
fact that it paid plaintiffs benefits under the Indiana Workers'
Compensation Act and argues: "Indiana law is absolutely clear that
once an employee or his estate collects workers' compensation
benefits, he or it relinquishes the option to pursue a civil action
against the employer. Such a receipt of benefits . . . divests the
Trial Court of subject matter jurisdiction." See
Ind. Code Ann. §
22-3-2-6 ("The rights and remedies granted to an employee subject
to IC 22-3-2 through IC 22-3-6 on account of personal injury or
death by accident shall exclude all other rights and remedies of
such employee, the employee's personal representatives, dependents,
or next of kin, at common law or otherwise, on account of such
injury or death, except for remedies available under IC 5-2-6.1.").
Phoenix contends that Indiana's "exclusive remedy" statute
provides it with "immunity from suit" and that, as a result, it is
entitled to immediate review of the denial of its 12(b)(1) motion. Phoenix analogizes this claimed right to avoid suit to other rights
this Court has already deemed sufficiently substantial to warrant
immediate appellate review, such as when a trial court denies the
defense of sovereign immunity. See Price v. Davis
, 132 N.C. App.
556, 558-59, 512 S.E.2d 783, 785 (1999) (recognizing "that appeals
raising issues of governmental or sovereign immunity affect a
substantial right sufficient to warrant immediate appellate
This Court has, however, previously rejected similar attempts
by appellants to cast their litigation defenses in the mold of an
"immunity" in order to obtain immediate appellate review of an
adverse ruling. For example, in Allen v. Stone
, 161 N.C. App. 519,
522, 588 S.E.2d 495, 497 (2003), the "defendant argue[d] the Rule
41(a)(1) two-dismissal rule creates a 'right to be free from the
burdens of litigation' giving rise to a 'conditional immunity from
suit,' such that denial of a motion to dismiss grounded on Rule
41(a)(1) likewise affects a substantial right and is immediately
appealable." We expressly "decline[d] to adopt defendant's
interpretation of Rule 41(a)(1) as creating a 'conditional immunity
from suit'" and held that we could "discern no substantial right
that would be affected absent immediate appellate review." Id.
See also Robinson v. Gardner
, 167 N.C. App. 763, 768, 606 S.E.2d
449, 452 (again rejecting argument that two-dismissal rule under
Rule 41(a)(1) "creates a form of immunity that supports an
interlocutory appeal"), disc. review denied
, 359 N.C. 322, 611
S.E.2d 417 (2005). In Lee v. Baxter
, 147 N.C. App. 517, 519, 556 S.E.2d 36, 37
(2001), the appellant took a similar approach, "argu[ing] that the
statute of repose gives a defendant a 'vested right' not to be sued
and is therefore similar to the defense of immunity, which is
considered a substantial right." Again, we rejected the
contention, noting that "[u]nlike a claim for immunity, [the
appellant's] right to raise the statute of repose defense will not
be lost if we do not review the case prior to a final judgment
since [the appellant] may raise the issue on appeal from a final
at 520, 556 S.E.2d at 37. See also Thompson v.
Norfolk S. Ry. Co.
, 140 N.C. App. 115, 121, 535 S.E.2d 397, 401
(2000) (holding that an interlocutory "order denying a party's
motion to dismiss based on a statute of limitation does not effect
[sic] a substantial right and is therefore not appealable"). The
Court in Lee
continued: "The only loss [the appellant] will suffer
will be the time and expense of trial. We note, however, that
avoiding the time and expense of trial is not a substantial right
justifying immediate appeal." 147 N.C. App. at 520, 556 S.E.2d at
37-38. See also Allen
, 161 N.C. App. at 522, 588 S.E.2d at 497
(holding that "avoidance of a trial, no matter how tedious or
unnecessary, is not a substantial right entitling an appellant to
In this case, we find that Phoenix's "exclusive remedy"
defense under the Indiana Workers' Compensation Act is, with
respect to an interlocutory appeal, materially indistinguishable
from defenses based on the two-dismissal rule or a statute ofrepose. Upon the trial court's final resolution of all of
plaintiffs' claims, Phoenix will be entitled to appeal, if
necessary, the issue it currently asks this Court to review. In
the meantime, however, Phoenix's desire to avoid a trial on the
merits does not warrant immediate appellate intervention "no matter
how tedious or unnecessary" a trial may be. Id.
Phoenix also points to decisions allowing an interlocutory
appeal from an order denying a motion to compel arbitration. See
Futrelle v. Duke Univ.
, 127 N.C. App. 244, 247, 488 S.E.2d 635, 638
(recognizing that interlocutory order denying arbitration may be
immediately appealed because it involves a substantial right that
might be lost if appeal is delayed), disc. review denied
, 347 N.C.
398, 494 S.E.2d 412 (1997). Those decisions are, however, based on
the public policy favoring arbitration and the fact that "the right
to arbitration would effectively be lost if appeal is delayed"
until after the litigation was complete. Id.
Here, an appeal
following final judgment would still permit Phoenix to avoid
liability to plaintiffs, a primary benefit of the "exclusive
remedy" statute. This appeal should, therefore, be dismissed.
Alternatively, Phoenix asks this Court to review the order
below pursuant to a petition for writ of certiorari under N.C.R.
App. P. 21(a)(1). We note initially that Phoenix has not complied
with the requirements for a petition for writ of certiorari set out
in N.C.R. App. P. 21(c). See State v. McCoy
, 171 N.C. App. 636,
638-39, 615 S.E.2d 319, 321 (refusing to review otherwise belated
appeal pursuant to Rule 21 because request in footnote ofappellant's brief that brief be treated as an alternative petition
for writ of certiorari did not meet requirements of Rule 21(c)),
, 360 N.C. 73, 622 S.E.2d 626 (2005). Second,
Phoenix has not pointed to any "manifest injustice" or compelling
need "to expedite decision in the public interest," as required in
order for this Court to suspend the requirements of Rule 21 under
Rule 2 of the Rules of Appellate Procedure. See, e.g.
, Brown v.
City of Winston-Salem
, 171 N.C. App. 266, 269, 614 S.E.2d 599, 601
("Rule 2 of the North Carolina Rules of Appellate Procedure permits
this Court to suspend or vary the requirements of the Rules '[t]o
prevent manifest injustice to a party, or to expedite decision in
the public interest.' We exercise our authority under Rule 2 to
consider the parties' appeals as petitions for certiorari
, and we
to review the trial court's interlocutory order."
(alteration in original)), cert. denied
, 360 N.C. 60, 621 S.E.2d
176 (2005). Finally, even if we were to treat Phoenix's brief as
a petition for writ of certiorari, Phoenix has not shown that the
circumstances of this case are such that immediate appellate review
is necessary. Accordingly, we decline to review this case pursuant
to a petition for writ of certiorari.
Chief Judge MARTIN and Judge WYNN concur.
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