Sneed v. Carolina Power & Light Co.

300 S.E.2d 563 (1983)

Jacqueline U. SNEED v. CAROLINA POWER & LIGHT COMPANY.

No. 8210SC386.

Court of Appeals of North Carolina.

March 15, 1983.

*564 Perry, Kittrell, Blackburn & Blackburn by George T. Blackburn, II, Henderson, for plaintiff-appellant.

Fred D. Poisson, Raleigh, for defendant-appellee.

EAGLES, Judge.

Plaintiff challenges the granting of defendant's Rule 12(b)(1), (6) and (7) motions to dismiss contending that the claim of a wife for loss of consortium, where her injured husband is entitled to compensation under the Workers Compensation Act, is not barred by the provisions of G.S. 97-10.1. We disagree.

Jurisdiction lies in the trial court for "all actions for personal injuries due to negligence, except insofar as it has been deprived of such jurisdiction by statute." Bryant v. Doughterty, 267 N.C. 545, 549-50, 148 S.E.2d 548, 552 (1966). Here the trial court has been deprived of jurisdiction by the clear language of G.S. 97-10.1:

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 employer at common law or otherwise on account of such injury or death.

Appellant contends that the statute's enumeration of "the employee, his dependents, next of kin, or personal representative" does not include his wife and that her claim therefore survives. We do not agree. Numerous cases from other jurisdictions with similarly phrased statutes have held that a spouse's claim for loss of consortium is barred. Napier v. Martin, 194 Tenn. 105, 107, 250 S.W.2d 35, 36 (1952) (construing Williams Code, Sec. 6859 "his personal representative, dependents, or next of kin, at common law or otherwise...."); Massey v. Thiokol Chemical Corp., 368 F. Supp. 668, 676 (S.D.Ga.1973) (construing Georgia Code § 114-103 "his personal representative, parents, dependents or next of kin at common law or otherwise...."); Coddington v. City of Lewiston, 96 Idaho 135, 137, 525 P.2d 330, 332 (1974) (construing Indiana Code § 72-203 "his personal representatives, dependents or next of kin at common law or otherwise"); England v. Dana Corp., 428 F.2d 385, 386 (7th Cir.1970) (construing Burns Annotated Indiana Statutes § 40-1206 "his personal representative, parents, dependents, or next of kin, at common law or otherwise"). See also Annotated 36 A.L. R.3d 900, 929 § 7 (1971).

The statute is clear and unambiguous and requires the result that plaintiff cannot maintain an action for loss of consortium resulting from injuries to plaintiff's spouse when those injuries are compensable under the Workers Compensation Act.

We reject appellant's contention that the provisions of Chapter 97 are violative of the Constitution of North Carolina, Article I, Section 18, as a taking of property without due process of law. The constitutionality of *565 Chapter 97 has been upheld by our Supreme Court and similar acts have been upheld by the Supreme Court of the United States. Lee v. American Enka Corporation, 212 N.C. 455, 193 S.E. 809 (1937); R.E. Sheehan Co. v. Shuler, 265 U.S. 371, 44 S. Ct. 548, 68 L. Ed. 1061 (1924).

Furthermore, it is clear that the General Assembly may abolish common law remedies and create statutory remedies in their place to attain permissible legislative objectives. Silver v. Silver, 280 U.S. 117, 50 S. Ct. 57, 74 L. Ed. 221 (1929).

In response to the Rule 12(b)(7) motion to dismiss, appellant argues that compulsory joinder of the plaintiff's claim with her husband's claim before the Industrial Commission is not mandated by Nicholson v. Hugh Chatham Memorial Hospital, 300 N.C. 295, 266 S.E.2d 818 (1980). Nicholson dealt with the problem of potential double recovery for the same injuries by victim and spouse and required mandatory joinder of claims for loss of consortium with pending claims of the injured spouse through whom loss of consortium is claimed. Although joinder of this action with the pending Workers Compensation Act claim of the plaintiff's spouse would be impossible as the statute is now written, dismissal pursuant to Nicholson is appropriate.

To hold as plaintiff contends would effectively circumvent the purpose of the Workers Compensation Act to assure injured employees compensation without proof of negligence, while limiting employers' total liability for the injury suffered by the employee. We hold that a claim for consortium by the spouse of an employee injured on the job, where the employee's injury is compensable under Chapter 97, cannot be maintained.

For the reasons stated, we hold that the trial court's order dismissing the complaint is affirmed.

Affirmed.

VAUGHN, C.J., and WEBB, J., concur.