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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 February 2007
GLEN B. MOORE,
NORTH CAROLINA INDUSTRIAL
COVENANT TRANSPORT, INC., I.C. No. 383755
REGAL INSURANCE COMPANY
Appeal by plaintiff from Opinion and Award of the
Industrial Commission entered 31 October 2005 by Commissioner
Dianne C. Sellers. Heard in the Court of Appeals 30 October 2006.
Raymond M. Marshall for plaintiff-appellant.
Brown, Crump, Vanore & Tierney LLP, by Andrew A. Vanore, III
and W. John Cathcart, Jr., for defendant-appellee.
Glen B. Moore (plaintiff) appeals from an Opinion and Award
of the North Carolina Industrial Commission (the Commission)
dismissing plaintiff's claim for lack of jurisdiction. We affirm.
Plaintiff, a resident of Lexington, North Carolina, requested
an employment application from Covenant Transport, Inc.
(defendant), a Tennessee Corporation, which he completed and
returned to defendant's headquarters in Chattanooga, Tennessee.
After receiving the completed application, defendant invitedplaintiff to travel to Chattanooga for an orientation. When
plaintiff arrived at defendant's corporate headquarters, he was
required to complete another employment application. While in
Chattanooga, plaintiff was also required to complete additional
paperwork, submit to a physical examination and drug screening, and
complete a three-day orientation. After plaintiff completed all of
the requirements, defendant offered plaintiff a position as an
over-the-road truck driver. Plaintiff accepted the position and
was driven to Arkansas where he began his first assignment.
On 5 November 2003, plaintiff was injured when the tractor-
trailer he was driving flipped over on its side as plaintiff was
turning onto an exit within the city limits of Moriarty, New
Mexico. Since he suffered injuries as a result of the accident, he
filed a claim with defendant. Plaintiff was placed on a light-
duty, clerical assignment. After working on light-duty for
approximately one week, plaintiff returned to his home in
Lexington, North Carolina. Before returning home, plaintiff was
informed by an employee of defendant that he was required to stay
in Tennessee in order to receive treatment and compensation for his
On 26 November 2003, plaintiff filed a worker's compensation
claim with the North Carolina Industrial Commission. Plaintiff's
claim was denied for lack of jurisdiction and plaintiff requested
a hearing. Deputy Commissioner Adrian A. Phillips heard
plaintiff's case and concluded that the Commission had jurisdiction
to hear plaintiff's claim. Defendant appealed and the FullCommission concluded on 31 October 2005 that the Commission did not
have jurisdiction to hear plaintiff's claim. Plaintiff appeals.
Generally, [t]he standard of review on appeal to this Court
from an award by the Commission is whether there is any competent
evidence in the record to support the Commission's findings and
whether those findings support the Commission's conclusions of
law. Oliver v. Lane Co., Inc., 143 N.C. App. 167, 170, 544 S.E.2d
606, 608 (2001). However, when an appellate court reviews findings
of jurisdictional fact entered by the Commission, the reviewing
court is required to make its own independent findings of
jurisdictional fact from its consideration of all the evidence in
the record. Perkins v. Arkansas Trucking Servs., Inc., 351 N.C.
634, 637, 528 S.E.2d 902, 904 (2000) (internal quotations omitted).
Under N.C. Gen. Stat. § 97-36, the Commission may have
jurisdiction over injuries arising out of accidents that occurred
outside of North Carolina if (i) the contract of employment was
made in this State, (ii) the employer's principal place of business
is in this State, or (iii) the employee's principal place of
employment is within this State. N.C. Gen. Stat. § 97-36 (2005).
Although plaintiff assigned error to the Commission's finding that
defendant's principal place of business was in Tennessee, plaintiff
did not present an argument in support of this contention.
Pursuant to N.C. R. App. P. 28(b)(6) we need not address this
assignment of error to determine whether the Commission has
jurisdiction to hear plaintiff's claim, but we will only consider
whether the employment contract was formed in the state of NorthCarolina or whether North Carolina was plaintiff's principal place
Contract of Employment
Plaintiff contends that the Commission erred by concluding
that his employment contract with defendant was formed in Tennessee
rather than in North Carolina. We disagree.
To determine where a contract for employment was made, the
Commission and the courts of this state apply the 'last act' test.
Murray v. Ahlstrom Indus. Holdings, Inc., 131 N.C. App. 294, 296,
506 S.E.2d 724, 726 (1998). [F]or a contract to be made in North
Carolina, the final act necessary to make it a binding obligation
must be done here. Thomas v. Overland Express, Inc., 101 N.C.
App. 90, 96, 398 S.E.2d 921, 925 (1990).
Plaintiff argues that the employment contract was formed in
North Carolina when plaintiff completed an employment application
and mailed it to defendant. Plaintiff relies primarily upon Murray
in support of his argument. In Murray, the plaintiff, a North
Carolina resident, had been previously employed by the defendant.
Murray, 131 N.C. App. at 295, 506 S.E.2d at 725. A few months
after the plaintiff completed the initial contract, the defendant
contacted the plaintiff via telephone and offered him another
position in Mississippi. Id. After negotiations, the defendant's
agent told the plaintiff that he was hired, and the plaintiff made
arrangements to move to Mississippi. Id. When the plaintiff
arrived in Mississippi, he was required to complete administrative
paperwork before beginning the job. Id. However, because theplaintiff was a rehire, he did not have to submit to a physical,
drug test, or go to the local employment security office. Id. The
plaintiff was subsequently injured at work and filed a claim with
the North Carolina Industrial Commission. Id. at 295, 506 S.E.2d
at 726. In deciding whether the Commission had jurisdiction over
plaintiff's worker's compensation claim, this Court concluded the
record clearly showed the plaintiff accepted the defendant's offer
of employment during the telephone conversation with defendant's
agent and the paperwork was merely a consummation of the
employment agreement and not the last act required to make a
binding employment contract. Id. at 297, 506 S.E.2d at 726-27.
The case before us is distinguishable from Murray and is more
similar to Thomas in which this Court held that the Commission did
not have jurisdiction to hear the plaintiff's claim. Thomas, 101
N.C. App. at 98, 398 S.E.2d at 927. In Thomas, the plaintiff
responded to an employment ad listed in the local newspaper. Id.
at 94, 398 S.E.2d at 924. After receiving an employment
application from the plaintiff, the defendant contacted the
plaintiff requesting his presence in Indiana and informed him of a
flight reservation to Indiana. Id. Upon arrival, the plaintiff
was required to complete a physical and a road test. Id. While
the plaintiff was still in Indiana, defendant informed the
plaintiff that he had been hired as a driver. Id. On the same
day, the plaintiff signed employment papers and agreed to become an
employee of defendant. Id. This Court held that the last actfor purposes of conferring jurisdiction occurred in Indiana. Id.,
101 N.C. App. at 97, 398 S.E.2d at 926.
In the case before us, plaintiff responded to an employment ad
by contacting defendant and requesting an application. After
completing the application and mailing it to defendant, plaintiff
was told by defendant to travel to Tennessee and was wired a bus
ticket. Upon arrival, plaintiff was required to complete
additional paperwork as well as pass physical and drug examinations
and a three-day orientation. After he completed all of the
paperwork and tests necessary for employment, plaintiff accepted
the position he was offered as an over-the-road truck driver with
defendant. Our review of the record indicates that the last act
culminating in a binding employment agreement occurred in Tennessee
and as a result, the Commission was without jurisdiction to hear
Employee's Principal Place of Business
Plaintiff next argues that his principal place of business was
in North Carolina, and as such, the Commission had jurisdiction to
hear his claim. Plaintiff relies upon Perkins
v. Arkansas Trucking
, 351 N.C. 634, 528 S.E.2d 902 (2000), in which our
Supreme Court held that the Commission had jurisdiction to hear the
plaintiff's worker's compensation claim because the plaintiff's
principal place of business was in North Carolina. Id.
at 638, 528
S.E.2d at 904.
, the plaintiff was a resident of North
Carolina who worked as a truck driver for the defendant, an
Arkansas corporation. Id.
The plaintiff was assigned an areaconsisting of twelve to thirteen states. Approximately eighteen to
twenty percent of his stops were in North Carolina. Id.
plaintiff's stops were scheduled as close to his residence in North
Carolina as possible and scheduled to prevent him from driving with
an empty truck. Id.
Our Supreme Court, in holding that
plaintiff's principal place of employment was North Carolina,
noted, [t]he record reflects, however, that no state, standing
alone, had the same degree of significant contacts to plaintiff's
employment as North Carolina. Perkins
, 351 N.C. at 638, 528
S.E.2d at 904.
is similar to the case before us, we do not
find it controlling. We find the more recent case of Davis v.
Great Coastal Exp.
, 169 N.C. App. 607, 610 S.E.2d 276 (2005),
review denied by
359 N.C. 630, 616 S.E.2d 231 (2005), more
analogous to the case sub judice
in which this Court, using the
reasoning of the Supreme Court in Perkins
, held that the
plaintiff's principal place of employment was not
, the plaintiff was employed by a Virginia trucking
This Court found persuasive the fact that
approximately eighteen percent of the plaintiff's stops were made
in Virginia whereas only approximately ten percent of his stops
were made in North Carolina. We stated:
, the evidence in this case does
not demonstrate that no other state had the
same degree of significant contacts to
plaintiff's employment as North Carolina. To
the contrary, the evidence in the present case
shows that Virginia had more significant
contacts to plaintiff's employment than North
, 169 N.C. App. at 611, 610 S.E.2d at 279 (internal quotations
In the present case, only four percent of the 41,996 miles
driven by plaintiff were driven through North Carolina. More
importantly, only approximately eight percent of plaintiff's
assignments were completed in North Carolina while plaintiff
completed approximately eighteen percent of his assignments in
Georgia and approximately fourteen percent of his assignments in
California. Further, defendant maintained a terminal in
Greensboro, North Carolina, however, plaintiff did not have any
contact with the Greensboro terminal. Plaintiff did not receive
assignments from the Greensboro terminal but received his
assignments from defendant's headquarters in Tennessee via an
onboard computer in his truck. Plaintiff did not pick up
shipments, or drop off shipments at the Greensboro terminal.
Further, plaintiff did not receive paychecks at the Greensboro
terminal but his paychecks were issued from defendant's
headquarters in Tennessee. Also during plaintiff's time off from
work, he did not park his truck at the Greensboro terminal. Like
, the evidence in this case shows that, standing alone,
plaintiff had a more significant degree of contact with a state
other than North Carolina during his employment with defendant.
, 169 N.C. App. at 611, 610 S.E.2d 279. Although
plaintiff argues that there was no significant contact with
Tennessee, defendant's principal place of business, the reasoning
of our Supreme Court in Perkins
did not consider whether thedefendant's principal place of business was also the plaintiff's
principal place of employment, but whether there were any other
states, standing alone, that had more significant contacts with
plaintiff than North Carolina. See Perkins
, 351 N.C. at 638, 528
S.E.2d at 904. Therefore, the Commission did not err by concluding
it did not have jurisdiction to hear plaintiff's claim for worker's
compensation. The Opinion and Award of the Commission is affirmed.
Because plaintiff failed to present arguments as to his
remaining assignments of error, they are deemed abandoned pursuant
to N.C. R. App. P. 28(b)(6) (2005).
Chief Judge MARTIN and Judge TYSON concur.
Report per Rule 30(e).
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