Frugard v. Pritchard

450 S.E.2d 744 (1994)

338 N.C. 508

Barbara C. FRUGARD, v. Calvin Lee PRITCHARD, William Mastoras, t/a M & M Produce Company, Daniel Foster, and Wilson Pest Control, Inc.

No. 479PA93.

Supreme Court of North Carolina.

December 9, 1994.

*745 Clark & Stant, P.C. by Stephen C. Swain, Virginia Beach, VA, for plaintiff-appellant.

Tuggle Duggins & Meschan, Greensboro, P.A. by J. Reed Johnston, Jr. and Denis E. Jacobson, for William Mastoras, t/a M & M Produce Co., defendant-appellee.

Womble Carlyle Sandridge & Rice by Clayton M. Custer, Winston-Salem, for Daniel Foster and Wilson Pest Control, Inc., defendants-appellees.

WEBB, Justice.

We agree with the Court of Appeals that it was error to exclude evidence of the worker's compensation payments made to the plaintiff in Virginia. The accident occurred in North Carolina and the substantive law of this state governs. Braxton v. Anco Electric Inc., 330 N.C. 124, 409 S.E.2d 914 (1991). The law of the forum, in this case North Carolina, governs as to the admissibility of evidence. Tennessee Carolina Transportation, Inc. v. Strick Corp., 283 N.C. 423, 196 S.E.2d 711 (1973). 1 Brandis and Broun, North Carolina Evidence § 1 (4th ed. (1993)). The defendants argue that N.C.G.S. § 97-10.2(e) applies to this case and it makes the evidence admissible. That section says in part, "[t]he amount of compensation... paid or payable on account of such injury or death shall be admissible in evidence in any proceeding against the third party." The plaintiff argues, relying on Leonard v. Johns-Manville Sales Corp., 309 N.C. 91, 305 S.E.2d 528 (1983), that this section does not apply.

We held in Johns-Manville that N.C.G.S. § 97-10.2(e) did not apply in that case so that the defendant could not assert a certain defense to a wrongful death claim when the defense was based on a worker's compensation payment under the law of another state. We said that this section applied only to worker's compensation claims made under the laws of this state. We held, however, that the defense could be asserted, based on the common law of this state.

The plaintiff argues, based on our holding in Johns-Manville, that N.C.G.S. § 97-10.2(e) does not apply to worker's compensation claims paid in other states and that this section does not allow the admission of this evidence. She argues that we must look to the case law in this state to determine the admissibility of the evidence and that Spivey v. Babcock & Wilcox Company, 264 N.C. 387, 141 S.E.2d 808 (1965), makes this evidence inadmissible.

In Spivey, a case decided before N.C.G.S. § 97-10.2(e) was amended to allow the admission of evidence of worker's compensation payments in an action against a third party, *746 we interpreted the section to hold that such evidence was not admissible. Spivey has now been overruled by the amendment to this section. The plaintiff argues that Spivey is still viable in cases involving out-of-state worker's compensation claims because the section does not apply to such claims.

Spivey does not govern because N.C.G.S. § 97-10.2(e) applied in that case and it does not apply in this case. The question we face in this case is whether we should hold that under our case law, evidence of out-of-state worker's compensation payments is not admissible when by statute evidence of in-state payments is admissible. We can see nothing in the distinction between these two situations that makes a difference. We believe we should have a uniform rule. We hold that evidence of out-of-state worker's compensation payments is admissible in actions against third parties. N.C.G.S. § 97-10.2(e) provides that when evidence of worker's compensation payments is introduced in an action against a third party, the court must instruct the jury that the amount of the worker's compensation payments will be deducted from the amount of the damages awarded the plaintiff. In order to put evidence of worker's compensation payments introduced under the rule of this case on the same footing with evidence which is introduced pursuant to N.C.G.S. § 97-10.2(e), we hold that the court must give the same instruction in cases in which such evidence is introduced under the rule of this case.

Although we hold that it was error not to have admitted evidence of the worker's compensation payments in Virginia, we also hold this was invited error which does not require a new trial. A party may not complain of action which he induced. Brown v. Griffin, 263 N.C. 61, 138 S.E.2d 823 (1964); Darden v. Bone, 254 N.C. 599, 119 S.E.2d 634 (1961). In this case, the plaintiff's motion in limine was granted to exclude evidence of the Virginia worker's compensation payments. Later in the trial, the plaintiff tendered this evidence and the defendants objected to its admission and the objection was sustained. The defendants cannot now complain of the exclusion of the evidence when they objected to its admission.

The defendants contend that the circumstances under which they objected to the testimony did not invite error. They say that the case was tried on the theory that the evidence would not be admitted and this assumption caused them to use a strategy they would not have used if they had known the evidence of worker's compensation would be admitted. The defendants say the plaintiff tendered this evidence as she finished her testimony and it would not have been fair to them to admit it at that time, giving them the right to object without inviting error.

The defendants say that the plaintiff tried the case on the theory that plaintiff had been a hardworking person all her life who would find work if she were physically able to do so. She had several witnesses who testified to this effect. She also introduced evidence that she had been devastated financially by the accident. The plaintiff also had a witness who testified she was attempting to locate a job for her at a charge of $57.00 per hour. The defendants say that by not letting the jury know that plaintiff was receiving worker's compensation payments of $344.00 per week and the job hunter was being paid by the compensation carrier, they could not show the plaintiff was malingering and she was not hurt as much as she claimed.

The difficulty with the defendants' argument is that they have not shown how the trial strategy was such that the introduction of the evidence of the worker's compensation payments would have not been of as much benefit to defendants if introduced when the plaintiff tendered it as it would have been if offered earlier in the trial. The defendants had a chance to put the evidence to the jury, but refused to do so. They cannot now complain.

For the reasons stated in this opinion, we reverse the Court of Appeals and remand to that court for remand to Superior Court, Forsyth County for the reinstatement of the judgment entered in superior court.

REVERSED AND REMANDED.