Clark v Chavis, et al
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-234 NORTH CAROLINA COURT OF APPEALS Filed: 20 September 2011 PAUL CLARK, Employee, Plaintiff v. North Carolina Industrial Commission I.C. File No. W08094 CARL CHAVIS d/b/a CJ CHAVIS TRUCKING, Employer, TRAVELERS INDEMNITY COMPANY, Carrier, Defendants. Appeal by plaintiff from opinion and award entered October 2010 by the North Carolina Industrial Commission. 28 Heard in the Court of Appeals 29 August 2011. George Ligon, Jr., for plaintiff-appellant. Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Shelley W. Coleman and M. Duane Jones, for defendants-appellees. MARTIN, Chief Judge. In 2006, defendant-employer Carl Chavis owned and operated two businesses: business. a trucking business and a firewood splitting Plaintiff Paul Clark began working for Mr. Chavis in late September 2006, splitting wood at his home. Mr. Chavis did -2not know at the beginning of each week whether he would need plaintiff to split wood the following Saturday; he would let plaintiff know each week whether he would need him to work. Plaintiff was paid in cash. Mr. Chavis defendant carried Travelers a workers Indemnity compensation Company. However, policy that with policy only covered employees of Mr. Chavis s trucking business, CJ Chavis Trucking. His listed on the policy. firewood splitting business was not Plaintiff did no work for the trucking business. The third consecutive Saturday that plaintiff split logs for Mr. Chavis was 14 October 2006. was splitting wood while Otis Plaintiff testified that he King, the only other person working for Mr. Chavis, was stacking split wood on the truck. Mr. King then returned to the wood splitter without plaintiff realizing he had returned. Mr. King pulled down the lever of the wood splitting machine unexpectedly, amputating plaintiff s ring finger and breaking his thumb. Mr. Chavis thereafter, cover the functional took plaintiff exposed and plaintiff underwent bone, and cosmetically to Urgent surgery to to Care. close his try to make the acceptable as possible. Shortly wounds, hand as In May -32007, he was referred to Anesthesia Pain Group at Rex Hospital for pain management. hand. He has had three surgeries to repair his Plaintiff has not worked since the accident. Plaintiff retained legal counsel a few days after the accident and, on 10 April 2008, filed a claim in Wake County Superior Court against both Mr. Chavis and Mr. King. Plaintiff claims that during the civil discovery process for that case, Mr. Chavis never disclosed that he carried two years any after workers compensation coverage. On 5 March 2009, over the accident, plaintiff filed a Form 18 Notice to Employer seeking workers compensation benefits for the injury. On 3 April 2009, defendants filed a Form 61 denying plaintiff s claim, alleging that the two-year statute of limitations for filing claims had expired and that the workers compensation policy did not cover the type of work performed by plaintiff. On 22 June 2009, defendants filed a motion to dismiss plaintiff s claim for lack of jurisdiction pursuant to N.C.G.S. § 97-24, which was later denied. The action was subsequently heard by Deputy Commissioner Baddour testified on 8 with September respect 2009. to the At manner the in hearing, which the plaintiff accident -4occurred, as well as the long-term experiences because of the accident. effects that he still When asked whether he had asked Mr. Chavis if he had any insurance or any provisions or what he was going to do for [him,] plaintiff testified that he thought that we would have an agreement about working out some kind of way that, that he didn t examination, asked Mr. . . . he could help me out, which he told me have no plaintiff Chavis compensation. if workman s testified he should [sic] that file he a comp. never claim On cross- specifically under workers According to plaintiff, Mr. Chavis did not tell plaintiff to not file a workers compensation claim, and did not tell him that the statute of limitations was two or three years, or anything else in regard to workers compensation. Mr. Chavis also testified at the hearing. He testified that there was nothing mentioned about no workman s [sic] comp or nothing and that he had told [plaintiff] that [he] didn t have no testified [sic] that insurance he did that not would even cover really him. think Mr. Chavis about [his Traveler s workers compensation policy] at the time, and that s why [he] didn t file [the claim] under workman s [sic] comp. On 9 April 2010, the Deputy Commissioner denied plaintiff s claim on the basis that plaintiff was not employed in the type -5of work covered by Mr. Chavis workers compensation policy. Defendant appealed to the Full Commission. the Full Commission agreed with the On 28 October 2010, Deputy Commissioner s finding that Mr. Chavis policy only covers employees of his trucking business and that plaintiff did not perform any duties for the trucking business. The Commission additionally concluded that because the claim had not been filed within the applicable two-year time limit prescribed by N.C.G.S. § 97-24, the Commission lacked jurisdiction and subsequently dismissed the case. Plaintiff appeals. ______________________ Plaintiff argues that the facts of this case mandate that the doctrine of equitable estoppel be applied in order to override the two-year statute of limitations. The doctrine of equitable by estoppel arises when a party, his acts, representations, or silence when he should speak, intentionally, or through culpable negligence, induces a person to believe certain facts exist, and that person reasonably relies on and acts on those beliefs to his detriment. N.C. 510, 513, 39 S.E.2d 384, 387 (1946). to stop a defendant from unjustly Long v. Trantham, 226 The doctrine is used benefitting from his own -6wrongful conduct. Freidland v. Gales, 131 N.C. App. 802, 806- 07, 509 S.E.2d 793, 796 (1998). Appellate review of an award from the Commission is generally limited to two issues: Industrial (i) whether the findings of fact are supported by competent evidence, and (ii) whether the conclusions of law are justified by the findings of fact. Chambers v. Transit Mgmt., 360 N.C. 609, 611, 636 S.E.2d 553, 555 (2006) (citing Clark v. Wal-Mart, 360 N.C. 41, 42-43, 619 S.E.2d 491, 492 (2005)). The facts found by the Commission are conclusive upon appeal to this Court when they are supported by competent evidence, even when there is evidence to support contrary findings. Pittman v. Int l Paper Co., 132 N.C. App. 151, 156, 510 S.E.2d 705, 709, aff d, 351 N.C. 42, 519 S.E.2d 524 (1999) (emphasis added) (citing Lineback v. Wake Cty. Bd. of Comm rs, 126 N.C. App. 678, 680, 486 S.E.2d 252, 254 (1997)). Also, the Commission is the sole judge of the credibility of the witnesses and the weight to be given to their testimony, and may reject disbelief a of witness that testimony witness. entirely Id. (internal if warranted quotation by marks omitted). Plaintiff Commission s challenges findings of [p]ortions facts Nos. 8 of and the 9 as Industrial not being -7supported by competent evidence in the record. The challenged findings state: 8. Although plaintiff does not dispute that his claim was not filed with the Commission within two years of the accident, he alleges that defendants are estopped from pleading the two-year limitation as a defense. Plaintiff admitted at the Deputy Commissioner s hearing that he did not ask Mr. Chavis whether Mr. Chavis had workers compensation coverage or whether plaintiff should file a workers compensation claim. Further, plaintiff admitted that Mr. Chavis never gave him advice concerning how long plaintiff had to file a claim and that Mr. Chavis did not discourage him from filing a workers compensation claim. 9. Plaintiff s uncle suggested that plaintiff file a claim for his injury against Mr. Chavis homeowners insurance carrier, which was Nationwide Insurance. After plaintiff made this suggestion to Mr. Chavis, Mr. Chavis believed his homeowners insurance might cover plaintiff s injury. Mr. Chavis testified that he did not believe his workers compensation coverage would apply to plaintiff s injury and that he did not even think about the coverage. In challenging these findings, plaintiff argues the Commission erred because Mr. Chavis admittedly did not tell plaintiff about his workers compensation policy and, because he claimed that he forgot that he had a policy, he told plaintiff that he did not have any insurance that would cover him. -8Here, there was competent evidence presented to support the Commission s finding of fact number eight that Mr. Chavis did nothing to induce plaintiff to believe anything availability of workers compensation coverage. about the As noted above, plaintiff admitted that he never asked Mr. Chavis whether he should file a workers compensation claim, that Mr. Chavis never provided any advice to him as to how long he had to file a workers compensation claim, and that Mr. Chavis did discourage him from filing a workers compensation claim. not Also, plaintiff testified that he had been continuously represented by counsel since shortly after the accident. Challenged finding of fact number nine is also supported by the evidence. At trial, Mr. Chavis testified that he had taken insurance out for his trucking and hauling business and had not requested insurance coverage for any other part of his income. He also explained that he had attempted to file a claim under his homeowner s insurance because plaintiff had told him that he had been advised by his uncle that this might be a possibility. We will not, therefore, as plaintiff appears to request, reweigh the evidence and determine the credibility of the witnesses. Both of the challenged findings of fact are supported by -9competent evidence and therefore plaintiff s contentions have no merit. Even had there been no evidence to support the two properly challenged findings of fact, the denial of plaintiff s claim would be affirmed because other unchallenged findings of fact support the Commission s conclusion that estoppel was not does not challenge the appropriate in this case. In his initial brief, Commission s findings compensation policy of plaintiff fact only covers that Mr. employees Chavis workers of trucking his business and that plaintiff did not perform any duties for Mr. Chavis trucking business. Additionally, plaintiff did not challenge the Commission s finding that he retained an attorney days after the accident and despite any knowledge of the existence of any workers compensation insurance coverage, [he] should have preserved his workers compensation claim by filing a claim with the Industrial Commission. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (noting that unchallenged findings of fact are binding on appeal). Plaintiff argues for the first time in his reply brief that the Commission employee. erred by finding that he was not a covered However, as this argument was not among those issues -10argued in plaintiff s initial brief, we will not consider it now. See Hardin v. KCS Int l, Inc., 199 N.C. App. 687, 707-08, 682 S.E.2d 726, 740 (2009) (citing Oates v. N.C. Dep t of Corr., 114 N.C. App. 597, 600, 442 S.E.2d 542, 544 (1994) (holding that this Court will not entertain what amounts to a new argument presented in th[e] reply brief ); Golden Rule Ins. Co. v. Long, 113 N.C. App. 187, 199, 439 S.E.2d 599, 606 (concluding appellant s reply brief could not resurrect an abandoned claim where appellant had not raised the issue in the initial brief), appeal dismissed and disc. review denied, 335 N.C. 555, 439 S.E.2d 145 (1993); Animal Prot. Soc y of Durham, Inc. v. State, 95 N.C. App. 258, 269, 382 S.E.2d 801, 808 (1989) (declining to address a constitutional argument first raised in a reply brief because [t]he reply brief [is] intended to be a vehicle for responding to matters raised in the appellees brief; it was not intended to be and may not serve as a means for raising entirely new matters )). Affirmed. Judges BRYANT and CALABRIA concur. Report per Rule 30(e).
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