Westmoreland v. Safe Bus, Inc.

Court of Appeals of North Carolina

Westmoreland v. Safe Bus, Inc.

202 S.E.2d 605, 20 N.C. App. 632, 1974 N.C. App. LEXIS 2509

CourtCourt of Appeals of North Carolina

DecidedFebruary 6, 1974

DocketNo. 7421DC23

StatusPublished

Cited by3 cases

This text of 202 S.E.2d 605 (Westmoreland v. Safe Bus, 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.

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Westmoreland v. Safe Bus, Inc., 202 S.E.2d 605, 20 N.C. App. 632, 1974 N.C. App. LEXIS 2509 (N.C. Ct. App. 1974).

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Opinion

HEDRICK, Judge.

Defendant, among other things, contends that the District Court has no authority to entertain an action predicated upon the Workmen’s Compensation Act. We agree. In an action of the type now before us, the Industrial Commission can award an attorney’s fee not to exceed “one third of the amount obtained or recovered of the third party,” G.S. 97-10.2 (F) (l)b, provided (1) the employer has filed a written admission of liability for benefits with the Industrial Commission or (2) an award final in nature in favor of the employee has been entered by the Commission, G.S. 97-10.2 (F) (1).

Plaintiff, having no express or implied contract with the defendant, bottoms her claim in the present case upon the aforementioned statutes; however, these statutes do not confer any authority upon the District Court to order an employer to pay attorney’s fees. This action is within the exclusive province of the Industrial Commission, Cox v. Transportation Co., 259 N.C. 88, 129 S.E. 2d 589 (1963); therefore, the District Court’s award of attorney’s fees was improper. Byers v. Highway Comm,., 275 N.C. 229, 166 S.E. 2d 649 (1969); Spivey v. Wilcox Company, 264 N.C. 387, 141 S.E. 2d 808 (1965).

For the reasons stated herein the order of the District Court is

Reversed.

Judges Campbell and Baley concur.

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HEDRICK, Judge.

Defendant, among other things, contends that the District Court has no authority to entertain an action predicated upon the Workmen’s Compensation Act. We agree. In an action of the type now before us, the Industrial Commission can award an attorney’s fee not to exceed “one third of the amount obtained or recovered of the third party,” G.S. 97-10.2 (F) (l)b, provided (1) the employer has filed a written admission of liability for benefits with the Industrial Commission or (2) an award final in nature in favor of the employee has been entered by the Commission, G.S. 97-10.2 (F) (1).

Plaintiff, having no express or implied contract with the defendant, bottoms her claim in the present case upon the aforementioned statutes; however, these statutes do not confer any authority upon the District Court to order an employer to pay attorney’s fees. This action is within the exclusive province of the Industrial Commission, Cox v. Transportation Co., 259 N.C. 88, 129 S.E. 2d 589 (1963); therefore, the District Court’s award of attorney’s fees was improper. Byers v. Highway Comm,., 275 N.C. 229, 166 S.E. 2d 649 (1969); Spivey v. Wilcox Company, 264 N.C. 387, 141 S.E. 2d 808 (1965).

For the reasons stated herein the order of the District Court is

Reversed.

Judges Campbell and Baley concur.

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202 S.E.2d 605, 20 N.C. App. 632, 1974 N.C. App. LEXIS 2509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westmoreland-v-safe-bus-inc-ncctapp-1974.

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