Vogler v. Branch Erections Co., Inc.

640 S.E.2d 419, 181 N.C. App. 457, 2007 N.C. App. LEXIS 365
CourtCourt of Appeals of North Carolina
DecidedFebruary 6, 2007
DocketCOA06-288
StatusPublished
Cited by2 cases

This text of 640 S.E.2d 419 (Vogler v. Branch Erections Co., Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vogler v. Branch Erections Co., Inc., 640 S.E.2d 419, 181 N.C. App. 457, 2007 N.C. App. LEXIS 365 (N.C. Ct. App. 2007).

Opinions

BRYANT, Judge.

The North Carolina Insurance Guaranty Association (NCIGA) (defendant-appellee/cross-appellant) and Branch Erections, Co., Inc. (Branch) (defendant-appellant/cross-appellee) appeal from an Opinion and Award, entered 27 July 2005 by the North Carolina Industrial Commission (Commission).

On 23 March 2000, Billy Charles Vogler (plaintiff-decedent) suffered a compensable workplace injury by accident when he fell twenty feet to the ground after being struck by a crane. Plaintiff died as a result of the injuries sustained in the accident. In Vogler I, the Opinion and Award of the Full Commission granting plaintiff 10% additional compensation was reversed and remanded by this Court which held the Commission “abused its discretion by declining to receive the policy as evidence and by failing to take into account the terms of the [insurance] policy [between Branch and Reliance1].” Vogler v. Branch Erections Co., 166 N.C. App. 169, 177, 601 S.E.2d 273, 278 (2004) (Vogler I).

The present case is before this Court on appeal by both parties from the Commission’s 27 July 2005 Opinion and Award which concluded: (1) the insurance policy between Branch and Reliance National Insurance Company provides for NCIGA to pay plaintiff the 10% increase in compensation awarded pursuant to N.C. Gen. Stat. § 97-12; and (2) NCIGA could seek reimbursement from Branch. Both defendants appeal.

NCIGA argues the Commission erred in determining NCIGA was obligated to pay the 10% additional workers’ compensation awarded to plaintiff. Branch argues the Commission erred in holding that NCIGA is entitled to seek reimbursement from Branch for the 10% additional compensation awarded to plaintiff.

[459]*459Opinions and awards of the Commission are reviewed to determine whether competent evidence exists to support the Commission’s findings of fact, and whether the findings of fact support the Commission’s conclusions of law. Bondurant v. Estes Express Lines, Inc., 167 N.C. App. 259, 263, 606 S.E.2d 345, 348 (2004) (quotations and citations omitted). If supported by competent evidence, the Commission’s findings are binding on appeal even when there exists evidence to support findings to the contrary. Allen v. Roberts Elec. Contrs., 143 N.C. App. 55, 60, 546 S.E.2d 133, 137 (2001). The Commission’s conclusions of law are reviewed de novo. Id. at 63, 546 S.E.2d at 139. For the reasons stated herein, we affirm the decision of the Commission.

NCIGA Appeal

On appeal NCIGA argues the Commission erred in determining NCIGA was obligated to pay the additional 10% awarded to plaintiff. Specifically, NCIGA challenges the Commission’s finding that the additional 10% increase to plaintiff’s workers’ compensation award was a “covered claim.” In the alternative, NCIGA contends it should not be required to pay the additional compensation, asserting it constitutes “punitive and exemplary damages.”

The purpose of the North Carolina Insurance Guaranty Association Act (Guaranty Act), N.C. Gen. Stat. § 58-48-1 et seq. is:

to provide a mechanism for the payment of covered claims under certain insurance policies, to avoid excessive delay in payment, and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies, and to provide an association to assess the cost of such protection among insurers.

N.C. Gen. Stat. § 58-48-5 (2005) (emphasis added). All liability insurance companies licensed to conduct business in North Carolina are members of NCIGA. See N.C. Gen. Stat. § 58-48-25 (2005). When a member insurer becomes insolvent, NCIGA assumes responsibility for defending and paying covered claims against the insolvent company. NCIGA has a statutory liability limit of $300,000.00. See N.C. Gen. Stat. § 58-48-35 (2005). Furthermore, North Carolina General Statutes, Section 97-98 provides:

No policy of insurance against liability arising under this Article shall be issued unless it contains the agreement of the insurer [460]*460that it will promptly pay to the person entitled to same all benefits conferred by this Article ....

N.C. Gen. Stat. § 97-98 (2005).

In the present case, NCIGA challenges the following findings of the Commission:

11. [] The policy specifically requires the employer to be responsible for any payment in excess of the benefits regularly provided by the Workers’ Compensation Act, including those imposed due to the employer’s.failure to comply with a health or safety law or regulation.
12. When an insurer becomes insolvent, the Guaranty Act . . . requires that NCIGA:
(1) Be obligated to the extent of the covered claims . .. [and]
(2) Be deemed the insurer to the extent of [NCIGA’s] obligation on the covered claims ... as if the insurer had not become insolvent. N.C. Gen. Stat. § 58-48-35(a)(l) and (2) (2003).
13. [] NCIGA is obligated [pursuant to the statutory definition of a covered claim] to pay claims only to the extent of a covered claim, which does not include any amount in excess of what the insolvent insurer would be required to pay.
14. The insurance policy between defendant-employer and Reliance provides in Part One, Section F, as follows:
F. Payments You [employer] Must Make You [employer] are responsible for any payments in excess of the benefits regularly provided by the workers’ compensation law including those required because:
1. Of your serious and willful misconduct;
. . .
3. You fail to comply with a health or safety law or regulation;
15.Based upon the clear language of the insurance policy between defendant-employer and Reliance, and therefore NCIGA as the successor to Reliance, the' Commission finds that the pol[461]*461icy provides for payment by the carrier of any 10% increase in compensation awarded pursuant to N.C. Gen. Stat. § 97-12 and for the carrier to then seek reimbursement by defendant-employer.

NCIGA challenges the Commission’s conclusions:

8. [B]ased upon a clear reading of [N.C. Gen. Stat. § 97-12], the 10% additional compensation awarded ... is compensation and does not constitute exemplary or punitive damages.
9. Therefore, the additional compensation is part of a covered claim and must be paid by NCIGA, but is subject to reimbursement by defendant-employer, pursuant to the terms of the workers’ compensation policy.

(Emphasis in original).

NCIGA argues the Commission erred in finding plaintiff’s claim met the definition of a “covered claim” as defined by N.C. Gen. Stat. § 58-48-20. A “covered claim” is:

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Related

Flowers v. M-Tec Corp.
North Carolina Industrial Commission, 2008
Vogler v. Branch Erections Co., Inc.
640 S.E.2d 419 (Court of Appeals of North Carolina, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
640 S.E.2d 419, 181 N.C. App. 457, 2007 N.C. App. LEXIS 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vogler-v-branch-erections-co-inc-ncctapp-2007.