Freeman v. SCM Corp.

311 S.E.2d 75, 66 N.C. App. 341, 1984 N.C. App. LEXIS 2866

• Court: Court of Appeals of North Carolina
• Decided: February 7, 1984
• Docket: No. 8320SC85
• Status: Published

Opinions

ARNOLD, Judge.

The crux of plaintiffs appeal is her contention that the trial court erred in granting defendant’s motion to dismiss for lack of subject matter jurisdiction. She claims that since her injuries were not caused by “accident,” her claim was not barred by G.S. 97-10.1.

G.S. 97-10.1 provides as follows:

If the employee and the employer are subject to and have complied with the provisions of this Article, then the rights and remedies herein granted to the employee, his dependents, next of kin, or personal representative shall exclude all other rights and remedies of the employee, his dependents, next of kin, or representative as against the employee at common law or otherwise on account of such injury or death.

It is plaintiffs contention that her injuries were the result of gross negligence and intentional acts on the part of defendant. Since the Workers’ Compensation Act contemplates recoverable injuries as being those which result from “accident” under G.S. 97-2, she claims that she is now entitled to recover damages from defendant employer in addition to any workmen’s compensation benefits she may have received. Plaintiff indeed may have been injured by defendant’s gross negligence, rather than by accident. However, she is still precluded from maintaining an action against defendant.

Plaintiff relies heavily on the case of Andrews v. Peters, 55 N.C. App. 124, 284 S.E. 2d 748 (1981), to support her claim for relief. In Andrews, this Court held that the Workers’ Compensation Act was not the exclusive remedy for an employee intentionally injured by a fellow employee. In the case at bar, however, any liability on the part of defendant employer appears to be more the result of gross negligence than any intentional act, despite plaintiffs catch-all assertion to the contrary. Moreover, plaintiff was not injured by the intentional tort of a fellow employee, as occurred in Andrews.

In fact, the court in Andrews distinguished a claim against a fellow employee from a claim against an employer, stating that “[o]ur courts . . . have barred injured employees covered by the act from bringing negligence actions against their employers” (citations omitted), but adding that “^'Jurisdictions differ as to whether such immunity should extend to co-employees.” Id. at 126, 284 S.E. 2d at 749.

Plaintiff has been compensated by the payment of workmen’s compensation benefits. She cannot now maintain a separate action against her employer for additional compensation. Having already selected one avenue of recovery, plaintiff is precluded from maintaining a tort action. The trial court’s order granting defendant’s motion to dismiss for lack of subject matter júrisdiction is

Affirmed.

Judge JOHNSON concurs. Judge Phillips dissents.