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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-1189

NORTH CAROLINA COURT OF APPEALS

Filed: 15 May 2007

BITUMINOUS CASUALTY
COMPANY as Subrogee of BRIGGS                Franklin County
SAWMILL & COMPANY, INC.                    No. 05 CVS 558
            Plaintiffs-appellants

    v .                         
                            
STAFFMARK EAST, L.L.C.
            Defendant-appellee

    Appeal by plaintiffs from judgment entered 23 May 2006 by Judge Robert H. Hobgood in Franklin County Superior Court. Heard in the Court of Appeals 11 April 2007.

    Teague, Campbell, Dennis & Gorham, L.L.P., by J. Matthew Little and Matthew W. Skidmore, for plaintiffs-appellants.

    Ogletree, Deakins, Nash, Smoak, & Stewart, P.C., by Kevin S. Joyner, for defendant-appellee.

    CALABRIA, Judge.

    Bituminous Casualty Company (“Bituminous”) and Briggs Sawmill & Company, Inc. (“Briggs”) (collectively “plaintiffs”) appeal from an order of the trial court granting summary judgment in favor of Staffmark East, L.L.C. (“Staffmark”) on the issue of Staffmark's liability under the doctrine of respondeat superior. We affirm.
    Briggs Sawmill & Company, Inc. (“Briggs”) is a North Carolina corporation that sells lumber. Bituminous provides workers' compensation liability coverage for Briggs' employees. Staffmark is a temporary staffing agency. On 26 September 2003, Staffmarkentered into a contract with Briggs to provide temporary staff to the company. The temporary employee assigned to work as a material handler for Briggs was Steve Richardson (“Richardson”).
    On 19 May 2004, after his shift ended, Richardson walked toward the break room. At the same time, Laynoina Baker (“Baker”) was walking in front of Richardson. Richardson jumped onto Baker's back and put him into a “hold.” After several minutes, when Richardson finally released the “hold,” Baker fell to the ground. As a result, Baker suffered a broken wrist requiring medical attention. Bituminous paid medical benefits and temporary total benefits to Baker on behalf of Briggs.
    Plaintiffs filed a complaint and subsequently filed an amended complaint for breach of contract against Staffmark, designating Bituminous as subrogee of Briggs' claim against Staffmark. Plaintiffs alleged that the contract required Staffmark to indemnify Briggs for any claims arising out of “[a]ny negligent act or omission or intentional misconduct on the part of Staffmark, its officers, employees (including its employees on assignment) or agents, within the scope of employment.” Both plaintiffs and Staffmark filed motions for summary judgment. On 23 May 2006, the trial court granted Staffmark's summary judgment motion and denied plaintiffs' motion for summary judgment. From the order granting summary judgment, plaintiffs appeal.
    Plaintiffs argue the trial court erred by denying its motion for summary judgment and granting Staffmark's motion for summaryjudgment because Staffmark was required by contract to indemnify plaintiffs for the damages caused by Baker's actions. We disagree.
    We review the grant of a motion for summary judgment de novo. Stafford v. County of Bladen, 163 N.C. App. 149, 151, 592 S.E.2d 711, 713 (2004). In so doing, we must consider whether the evidence viewed in the light most favorable to the non-moving party shows any genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998). Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2005).
    Contracts are interpreted according to the intent of the parties to the contract. Bueltel v. Lumber Mut. Ins. Co., 134 N.C. App. 626, 631, 518 S.E.2d 205, 209 (1999). “When a contract is in writing and free from any ambiguity which would require resort to extrinsic evidence, or the consideration of disputed fact, the intention of the parties is a question of law.” Bicycle Transit Authority v. Bell,     314 N.C. 219, 227, 333 S.E.2d 299, 304 (1985) (citations omitted). If the language of the contract is clear, the court must enforce the contract as written. State ex rel. Utils. Comm'n v. Thrifty Call, Inc., 154 N.C. App. 58, 63, 571 S.E.2d 622, 626 (2002) (citations omitted).     The contract between plaintiffs and Staffmark provided that Staffmark indemnify the plaintiffs for any claims arising out of “[a]ny negligent act or omission or intentional misconduct on the part of Staffmark, its officers, employees . . . or agents, within the scope of their employment.” Plaintiffs argue this provision subjects Staffmark to liability for Richardson's actions. Staffmark argues it is not required to indemnify plaintiffs because Richardson's actions were considered “horseplay” and “horseplay” is not considered the type of conduct that is included in the contract provision, “within the scope of employment.”
    “To be within the scope of employment, an employee, at the time of the incident, must be acting in furtherance of the principal's business and for the purpose of accomplishing the duties of his employment.” Troxler v. Charter Mandala Center, 89 N.C. App. 268, 271, 365 S.E.2d 665, 668 (1988). “If an employee departs from that purpose to accomplish a purpose of his own, the principal is not liable.” Id. “[An employer] is not liable if the employee departed, however briefly, from his duties in order to accomplish a purpose of his own, which purpose was not incidental to the work he was employed to do.” Wegner v. Delly-Land Delicatessen, Inc., 270 N.C. 62, 66-67, 153 S.E.2d 804, 808 (1967).
    In Thomas v. Poole, 45 N.C. App. 260, 262 S.E.2d 854 (1980), this Court determined the employer's liability to the plaintiff under the doctrine of respondeat superior would depend upon whether plaintiff was engaged in “horseplay” when the accident causing the injury occurred. This Court stated: “If the . . . defendant . . .engaged in “horseplay” . . . he deviated from the scope of his employment and engaged in a personal mission of his own . . . .” Id. at 265, 262 S.E.2d at 857. See also, Norman v. Porter, 197 N.C. 222, 148 S.E. 41 (1929) (the employer's son deviated from scope of employment when he threw a cartridge into a fire and it exploded injuring a customer).
    In the case before us, although Richardson was temporarily employed as a materials handler his behavior was not related to his performance as a materials handler. By injuring Baker when he jumped onto his back, Richardson acted for his own purposes and violated both Staffmark's employee rules and Briggs' general safety rules that prohibited employees from engaging in horseplay. Furthermore, in the contract between Briggs and Staffmark, Staffmark was only required to indemnify Briggs for actions by Staffmark's employees within the scope of employment in the furtherance of Staffmark's business. Because Richardson's actions were not within the scope of employment, Staffmark is not required to indemnify plaintiffs. Thus, Staffmark's refusal to indemnify plaintiffs was not a breach of contract and the trial court did not err by granting summary judgment in favor of Staffmark.
    For the foregoing reasons, the order of the trial court is affirmed.
    Affirmed.
    Judges McCULLOUGH and STROUD concur.
    Report per Rule 30(e).
    

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