{ "id": 8520707, "name": "ROY STEPHEN POSTELL v. B&D CONSTRUCTION CO. and NON-INSURED CARRIER and JAMES L. MOSLEY", "name_abbreviation": "Postell v. B&D Construction Co.", "decision_date": "1992-01-07", "docket_number": "No. 9010IC977", "first_page": "1", "last_page": "13", "citations": [ { "type": "official", "cite": "105 N.C. App. 1" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "380 S.E.2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "561" }, { "page": "531" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 557", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527574 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/94/0557-01" ] }, { "cite": "329 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "454" }, { "page": "330", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "313 N.C. 450", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720084 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0450-01" ] }, { "cite": "29 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "pin_cites": [ { "page": "140" } ], "opinion_index": 0 }, { "cite": "224 N.C. 11", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8594820 ], "year": 1944, "pin_cites": [ { "page": "16" } ], "opinion_index": 0, "case_paths": [ "/nc/224/0011-01" ] }, { "cite": "322 S.E.2d 554", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "quoting Hayes v. Eton College, 224 N.C. 11, 16, 29 S.E.2d 137, 140 (1944)" } ], "opinion_index": 0 }, { "cite": "312 N.C. 492", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4751333, 4759813, 4759654, 4754447, 4756432 ], "year": 1984, "pin_cites": [ { "parenthetical": "quoting Hayes v. Eton College, 224 N.C. 11, 16, 29 S.E.2d 137, 140 (1944)" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0492-05", "/nc/312/0492-04", "/nc/312/0492-01", "/nc/312/0492-02", "/nc/312/0492-03" ] }, { "cite": "316 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "669", "parenthetical": "quoting Hayes v. Eton College, 224 N.C. 11, 16, 29 S.E.2d 137, 140 (1944)" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 205", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526008 ], "year": 1984, "pin_cites": [ { "page": "211-212", "parenthetical": "quoting Hayes v. Eton College, 224 N.C. 11, 16, 29 S.E.2d 137, 140 (1944)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0205-01" ] }, { "cite": "364 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "437" }, { "page": "438" } ], "opinion_index": 0 }, { "cite": "321 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2571983 ], "year": 1988, "pin_cites": [ { "page": "383" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0380-01" ] }, { "cite": "73 S.E.2d 488", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1952, "pin_cites": [ { "page": "494" }, { "page": "494" } ], "opinion_index": 0 }, { "cite": "236 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626252 ], "weight": 2, "year": 1952, "pin_cites": [ { "page": "443" }, { "page": "443" } ], "opinion_index": 0, "case_paths": [ "/nc/236/0435-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-19", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 1985, "pin_cites": [ { "page": "(5)" }, { "page": "(5)" } ], "opinion_index": 0 }, { "cite": "146 S.E.2d 447", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1966, "pin_cites": [ { "page": "522" }, { "page": "450" } ], "opinion_index": 0 }, { "cite": "266 N.C. 519", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561359 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/266/0519-01" ] }, { "cite": "347 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "817" } ], "opinion_index": 0 }, { "cite": "318 N.C. 192", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738158 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0192-01" ] }, { "cite": "266 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "678" }, { "page": "678" } ], "opinion_index": 0 }, { "cite": "300 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561147 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "331" }, { "page": "331" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0329-01" ] } ], "analysis": { "cardinality": 983, "char_count": 26002, "ocr_confidence": 0.736, "pagerank": { "raw": 3.3379788733605254e-07, "percentile": 0.8739899507654694 }, "sha256": "1e270cab048bb82f511e0c300f9b28c3afe3c6d32f23e6d2063b6fd74ef43687", "simhash": "1:5525d7e09686165d", "word_count": 4189 }, "last_updated": "2023-07-14T19:24:40.355340+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Johnson concur." ], "parties": [ "ROY STEPHEN POSTELL v. B&D CONSTRUCTION CO. and NON-INSURED CARRIER and JAMES L. MOSLEY" ], "opinions": [ { "text": "WYNN, Judge.\nFacts\nPlaintiff, Roy Stephen Postell (\u201cPostell\u201d) was injured on May 19,1988, when a sixteen penny nail penetrated his eye as he worked on the framing of a house. At the time of the accident, Postell worked for B&D Construction Corporation (\u201cB&D\u201d), a company owned by Bob and Doris Rhyne. Bob Rhyne (\u201cRhyne\u201d) on behalf of B&D, had contracted with James Mosley (\u201cMosley\u201d) to build the Mosley house on the work site.\nPostell filed a claim against B&D on July 1, 1988, and against Mosley for the same injuries on August 17,1988. Neither defendant had acquired workers\u2019 compensation insurance. In May of 1989, Deputy Commissioner Edward Garner, Jr., after conducting a hearing on this matter, held Bob Rhyne \u201cpersonally and jointly and severally liable to the plaintiff along with B&D Corporation and Mr. James Mosley\u201d for the injuries sustained by Postell. (The Deputy Commissioner made certain findings and conclusions with respect to Doris Rhyne but did not conclude that she was liable to the plaintiff.) The Deputy Commissioner further computed the plaintiffs rate of compensation at $135.94 per week based upon a determination that his average weekly wage was $203.91. From this award, all parties appealed to the Full Industrial Commission (\u201cCommission\u201d): the defendants, on the determination of liability; and the plaintiff, on the limited issue of average weekly wage computation.\nOn appeal, the Commission released Mosley from liability, but upheld the finding of liability on the part of Rhyne, individually, and B&D. The Commission also upheld the computation of Postell\u2019s average weekly wage. From the ruling of the Commission, the parties appealed to this Court.\nI.\nPostell\u2019s Appeal\nA. Computation of the Average Weekly Wage\nThe role of this Court in reviewing an appeal from the Industrial Commission is limited to a determination of (1) whether the findings of fact are supported by competent evidence, and (2) whether the conclusions of law are supported by the findings. Barham v. Food World, 300 N.C. 329, 331, 266 S.E.2d 676, 678 (1980).\nPostell first assigns error to the Commission\u2019s adoption of the Deputy Commissioner\u2019s computation of his average weekly wage. He contends that the Commission erred in determining his average weekly wage in that it was calculated using an incorrect method thus resulting in a lower wage than he earned actually.\nThe North Carolina Supreme Court in Dereberry v. Pitt County Fire Marshall, 318 N.C. 192, 347 S.E.2d 814 (1986), set forth certain considerations that must be taken into account when determining average weekly wage. The Court held that average weekly wage should be based upon the measure of the injured employee\u2019s earning capacity. Id. The Court also noted that the average weekly wage must be determined by calculating \u201cthe amount which the injured employee would be earning were it not for the injury.\u201d Id. at 197, 347 S.E.2d at 817.\nMoreover, in Joyner v. Oil Co., 266 N.C. 519, 146 S.E.2d 447 (1966), the Supreme Court addressed the issue of wage computation for a seasonal employee. There, the Court held that the work in question did not provide work in each of the 52 weeks of the year; some weeks the job was non-existent. \u201cFairness to the employer requires that we take into consideration both peak and slack periods.\u201d Id. at 522, 146 S.E.2d at 450.\nTo determine Postell\u2019s compensation rate in this case, the Deputy Commissioner relied upon the statutory methods of calculating average weekly wage set out in N.C. Gen. Stat. \u00a7 97-2(5) (1985). Within this statute, there are four different methods to calculate average weekly wage:\n[EJarnings of an injured employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury, . . . divided by 52; but if the injured employee lost more than 7 consecutive calendar days at one or more times during such periods, the earnings for the remainder of such 52 weeks shall be divided by the number of weeks after the time so lost has been deducted.\nWhere the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed; provided results fair and just to both parties will be thereby obtained.\nWhere, by reason of a shortness of time during which the employee has been in the employment of his employer or the casual nature or terms of his employment, it is impractical to compute the average weekly wages as above defined, regard shall be had to the average weekly amount which during the 52 weeks previous to the injury was being earned by a person of the same grade and character employed in the same class of employment in the same locality or community.\nBut where for exceptional reasons the foregoing would be unfair, either to the employer or employee, such other method of computing the average weekly wages may be resorted to as will most nearly approximate the amount which the injured employee would be earning were it not for the injury.\nId.\nRelying upon these statutory considerations, the Deputy Commissioner made the following pertinent findings of fact and conclusions of law:\nFindings of Fact\nThe plaintiff earned a total of $1,409.50 during a four-week period for his hourly services. These payments were made directly by defendant, James Mosley, on his personal checking account on April 29, 1988 for 50 hours at $8.00 per hour; on May 6, 1988 for 50 hours at $9.00 per hour; on May 13, 1988 for 32 hours at $9.00 per hour and on May 20, 1988 for 33.5 hours at $9.00 per hour.\nThe plaintiff was not continuously employed or continuously engaged as an independent contractor during the 52-week period preceding his eye injury.\nConclusions of Law\nThe employment period prior to the plaintiff\u2019s injury was a period of less than 52 weeks, and the fair and equitable manner of computing his earnings yields an average weekly wage of $203.91. G.S. \u00a7 97-2(5).\nThe plaintiff\u2019s compensation rate for all relevant periods under the North Carolina Workers\u2019 Compensation Act is $135.94. G.S. \u00a7 97-29.\nThe Commission fully adopted these findings and conclusions of law. On appeal, upon applying the statutory methods for calculating average weekly wage as well as the considerations of the above stated case law, we note initially that the first method of computation is not applicable to the computation of wages for Postell because he worked less than 52 weeks on the job site.\nThe second method was not used to calculate Postell\u2019s average weekly wage for two reasons: the job itself was temporary in nature and would end upon completion of the framing, and basing an average weekly wage on a four week time period would result in an inequity for his employer. The record indicates that Postell worked sporadically in the carpentry business; as such, calculations under this method would be mere speculation of what he would have earned had he not been injured.\nUnder the third statutory method, to calculate Postell\u2019s average weekly wage would require comparing Postell\u2019s work with an employee of the \u201csame grade and character ... in the same locality or community\u201d as required by \u00a7 97-2(5). There is competent evidence to support the Deputy Commissioner\u2019s finding that this was impractical because Postell\u2019s employment did not afford the same type of work throughout the year. To find a similarly skilled carpenter doing framing work on a house similar to Mosley\u2019s, 52 weeks before Postell\u2019s injury, would work an impracticability in calculating average weekly wage for purposes of the statute.\nFinally, N.C. Gen. Stat. \u00a7 97-2(5) includes a \u201ccatch-all\u201d provision, to be used when warranted by \u201cexceptional circumstances.\u201d The Commission upheld the computation of Postell\u2019s average weekly wage under this provision stating that, \u201c[t]he Deputy Commissioner\u2019s finding as to plaintiff\u2019s average weekly wage, based on plaintiff\u2019s actual earning record during 1986,1987 and 1988, appears to best reflect plaintiff\u2019s actual earnings.\u201d The Commission also held this was a \u201cfair and equitable manner\u201d of computation. We agree with the Commission that these findings are supported by competent evidence.\nThe Commission further agreed with the Deputy Commissioner that the findings supported the conclusion of law that Postell\u2019s average weekly wage was $203.91. This figure encompassed plaintiff\u2019s earnings, which totalled $7545.00 for 1988, excluding Postell\u2019s dates of temporary total disability (May 19,1988-September 3,1988; 15 weeks). Dividing $7545.00 by 259 days of available work, the amount Postell earned daily was approximately $29.13. This amount multiplied by 7 days is equivalent to $203.91.\nFurthermore, we agree that this computation, found by the Deputy Commissioner and adopted by the Commission, supports the conclusion of law that Postell\u2019s average weekly wage was indeed $203.91. Therefore, the plaintiff\u2019s assignment of error is overruled.\nB. C\u00f3-contractor Status\nPlaintiff next assigns error to the Commission\u2019s reversal of the Deputy Commissioner\u2019s determination that Mosley was a joint or co-general contractor on the work site within the meaning of the Workers\u2019 Compensation Act. Again, the role of this Court is to determine whether the findings of fact are supported by competent evidence and whether the conclusions of law are supported by the findings. See generally, Barham, 300 N.C. at 331, 266 S.E.2d at 678.\nThe Deputy Commissioner made the following pertinent findings of fact and conclusions of law:\nFindings of Fact\nIn 1986 both defendant Mosley and Rhyne worked in the same building for Celenese Corporation and they began to discuss with one another the prospect of defendant Mosley building a house at some point.\nThe land at Balmoral Circle was purchased by defendant Mosley.\nDefendant Mosley and Rhyne never entered into a written contract for the construction of the house.\nRhyne and defendant Mosley were in joint control of the residential project at Balmoral Circle.\nRhyne and defendant Mosley were co-contractors and co-employers in the Balmoral Circle project.\nConclusions of Law\nThe defendant, James Mosley, was a co-general contractor and co-employer of the plaintiff, Steve Postell.\nThe last two findings of fact listed above were modified by the Commission to eliminate Mosley\u2019s name from the findings. The Commission deleted also the conclusion of law listed above.\nThe plaintiff contends that Mosley was not merely an owner of the house being built, which would indicate that he was exempt from liability, but that his conduct rose to a level sufficient to characterize him as a general contractor. The Commission disagreed and found that Mosley was not a co-general contractor. As such, the Commission concluded that Mosley was not bound by the provisions within the Act because, \u201c[a]n owner cannot be a contractor within the meaning of \u00a7 97-19. The liable party is one. who shall sublet a contract.\u201d Plaintiff asserts that this finding was \u201cillogical and contrary to the philosophy of the North Carolina Workers\u2019 Compensation Act.\u201d We find this argument to be without merit.\nN.C. Gen. Stat. \u00a7 97-19 (1985 & Supp. 1990) sets forth the controlling provision on this issue. It provides in pertinent part that:\nAny principal contractor, intermediate contractor, or subcontractor who shall sublet any contract for the performance of any work without requiring from such subcontractor or obtaining from the Industrial Commission a certificate, issued by the Industrial Commission, stating that such subcontractor has complied with G.S. 97-93 hereof, shall be liable, irrespective of whether such subcontractor has regularly in service less than four employees in the same business within this State, to the same extent as such subcontractor would be if he were subject to the provisions of this Article for the payment of compensation and other benefits under this Article on account of the injury or death of any employee of such subcontractor, any principal or partner of such subcontractor or any employee of such subcontractor due to an accident arising out of and in the course of the performance of the work covered by such subcontract.\nFurther, in Greene v. Spivey, our Supreme Court held,\nThe manifest purpose of this statute, enacted as an amendment to the original Workmen\u2019s Compensation Act, is to protect employees of irresponsible and uninsured subcontractors by imposing ultimate liability on principal contractors, intermediate contractors, or subcontractors, who presumably being financially responsible, have it within their power, in choosing subcontractors, to pass upon their financial responsibility and insist upon appropriate compensation protection for their workers.\n236 N.C. 435, 443, 73 S.E.2d 488, 494 (1952).\nIn the case at bar, there was evidence that Mosley was not previously engaged in construction work and had no expertise in that field. Rhyne introduced Mosley to B&D\u2019s subcontractor, McMickle; Mosley approved of McMickle and asked Rhyne to have him start right away.\nSubsequently, McMickle hired Postell, set the amount of his pay and they began work. Postell set his own hours, provided his own tools and was guided in his work by the blueprints of the house and occasionally, some instruction from McMickle. Postell testified that he assumed that Rhyne had the authority to discharge him. These findings of fact were supported by competent evidence. Furthermore, the Commission\u2019s conclusion of law that Mosley was not a co-general contractor supports these findings. Accordingly, this assignment of error is overruled.\nC. Employment Relationship\nPlaintiff\u2019s final assignment of error is that the Commission erred by finding that Mosley was not an employer of Postell. We disagree. The Commission\u2019s findings of fact and conclusions of law set out in the preceding section are also pertinent to this issue.\nIn order for Postell to maintain an action against Mosley for workers\u2019 compensation, he must be \u201cin fact and in law, an employee of the party from whom compensation is claimed.\u201d Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 383, 364 S.E.2d 433, 437 (1988). Our Supreme Court has illuminated several factors that are indicative of an employee/employer relationship. They include whether the person employed:\n(a) is engaged in an independent business; (b) is to have independent use of his special skill, knowledge or training in the execution of the work; (c) is doing a specified piece of work at a fixed price ... or upon a quantitative basis; (d) is not subject to discharge because he adopts one method of doing work rather than another; (e) is not in the regular employ of the other contracting party; (f) is free to use such assistants as he may think proper; (g) has full control over such assistants; and (h) selects his own time.\nDoud v. K&G Janitorial Service, 69 N.C. App. 205, 211-212, 316 S.E.2d 664, 669, disc. review denied, 312 N.C. 492, 322 S.E.2d 554 (1984) (quoting Hayes v. Eton College, 224 N.C. 11, 16, 29 S.E.2d 137, 140 (1944)).\nMoreover, in Youngblood, the Court concluded that, \u201c[n]o particular one of these factors is decisive in itself. Each is but a sign which must be considered with all the other indicia and circumstances to determine the true status of the parties.\u201d Id. at 385, 364 S.E.2d at 438.\nAfter a careful review of the record of this case, we uphold the Commission\u2019s finding that Mosley was not an employer of Postell, and in so finding we note that the evidence supported the following:\n1. Postell, since 1986 has earned a living as an independent carpenter.\n2. Postell testified that he had to use his skill and training in order to \u201cget the product the way he [the customer] wants it.\u201d\n3. The hours worked by Postell were not set by Mosley but the general contractor on the job site.\n4. Postell testified that he brought and used his own tools to the job site.\n5. Postell did not work full time for Mosley and testified that he intended to leave the site when the frame work was done to work with his father on another project.\nWe conclude that competent evidence existed for the finding by the Commission that Mosley was not the employer of Postell. Accordingly, we overrule plaintiff\u2019s final assignment of error.\nII.\nDefendant\u2019s Appeal\nThe defendant, Rhyne, assigns error to the Commission\u2019s determination that he is personally liable for the omission of B&D to obtain workers\u2019 compensation insurance. In order to impose personal liability on Rhyne, owner of one-half of B&D, the Commission concluded that it was necessary to \u201cpierce the corporate veil\u201d of B&D.\nIn Glenn v. Wagner, 313 N.C. 450, 329 S.E.2d 326 (1985), the Supreme Court reiterated that North Carolina recognizes the \u201cinstrumentality rule\u201d as the basis for disregarding the corporate entity or \u201cpiercing the corporate veil.\u201d That rule, in the context of this case, would hold that where one exercises actual control over a corporation operating the latter as a mere instrumentality or tool, then that controlling individual is liable for the torts of the corporation thus controlled. \u201cIn such instances, the separate identities . . . may be disregarded.\u201d Id. at 454, 329 S.E.2d at 330 (citations omitted).\nTo \u201cpierce the corporate veil\u201d the Commission utilized the three part test for determining whether a corporation was being used as an instrument set out in Glenn and later restated in Harrelson v. Soles, 94 N.C. App. 557, 380 S.E.2d 528 (1989). The Court in Harrelson stated that liability may be imposed on an individual controlling a corporation as an \u201cinstrumentality\u201d when he had:\n(1) Control, . . . complete domination, ... of policy and business practice in respect to the transaction attacked so that the corporate entity . . . had at the time no separate mind, will or existence of its own; and\n(2) Such control must have been used ... to perpetrate the violation of a statutory or other positive legal duty ... in contravention of the plaintiff\u2019s legal rights; and\n(3) The aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of.\nId. at 561, 380 S.E.2d at 531.\nThe Commission adopted the following findings of fact found by the Deputy Commissioner to support the conclusion that the three prong test set forth in Glenn and Harrelson has been met:\nFindings of Fact\nRhyne or Mrs. Rhyne, either personally or in their corporate capacity, either knew or should have known of the requirements of Chapter 97 of the North Carolina Workers\u2019 Compensation Act.\nThe personal monies of Bob Rhyne were co-mingled with the assets of B&D Corporation through loans at times and he would reimburse himself whenever the company would generate some level of profit.\n[I]n the current pending workers\u2019 compensation case, it is apparent that Rhyne as president of B&D Corporation also used the corporate structure to avoid personal liability for his failure to procure the required North Carolina Workers\u2019 Compensation coverage for employees of his corporation.\nMoreover, the Commission considered the following factors determinative in concluding that it was necessary to pierce the corporate veil: nonpayment of dividends; insolvency of the debtor corporation (due to its liability to plaintiff); siphoning of funds by the dominant shareholders; nonfunctioning of other officers or directors; and, inadequate capitalization in light of the scope of its operations and compensation paid to its employee/shareholders.\nBased upon this evidence, the Commission adopted the first conclusion of law found by the Deputy Commissioner and added the second conclusion of law, both of which are set forth below:\nConclusions of Law\nB&D Corporation is a sham and grossly or \u201cthinly incorporated.\u201d B&D Corporation has been saddled with disproportionate heavy debts for the personal gain of its sole shareholder, Bob Rhyne and it is not entitled to the immunity conferred by the corporate laws of this state.\nThat Robert F. (Bob) Rhyne, through his domination of defendant B&D Construction Company, Inc., caused said corporation to neglect and fail to perform its statutory duty to the plaintiff to obtain workers\u2019 compensation insurance covering the subject injury, and thereby caused plaintiff to unjustly suffer the inability to swiftly recover compensation benefit due him under the Act; and therefore, said Robert F. (Bob) Rhyne is personally liable as the alter ego of said defendant corporation.\nWe find that there was competent evidence for the Commission\u2019s finding that Rhyne exercised complete control over B&D and that the corporation was a \u201csham.\u201d Moreover, the record further supports the conclusion that Rhyne had a statutory duty under the Workers\u2019 Compensation Act to procure insurance, he should have known of the statutory duty, and his failure to do so was the proximate cause of Postell\u2019s injuries.\nThe purpose of the Act is to provide workers with protection from those who have it within their power to \u201cinsist upon appropriate compensation.\u201d See Greene, 236 N.C. at 443, 73 S.E.2d at 494. Rhyne, not only did not insist on appropriate compensation, he provided no compensation at all and confessed ignorance of the law when asked about the requirements of the Act. We find that the Commission\u2019s findings of fact are supported by competent evidence and its conclusions of law are supported by the findings. For these reasons, the defendant\u2019s assignment of error is overruled.\nFor the foregoing reasons, we agree with the findings of the Full Industrial Commission computing the plaintiff\u2019s average weekly wage at $203.91 and with the finding that Mosley was neither a co-general contractor nor an employer. With regard to the defendant, we uphold the finding that Rhyne is liable personally and that such liability is joint and several with that of B&D. Therefore, the Commission\u2019s decision is,\nAffirmed.\nJudges Arnold and Johnson concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ ". Lore & McClearen, by R. Edwin McClearen and F. Scott Templeton, for plaintiff-appellant and plaintiff-appellee, Roy Stephen Postell.", "Shelley Blum for defendant-appellant, B&D Construction Company.", "Casey & Bishop, by Jeffrey L. Bishop, for defendant-appellee, James L. Mosley." ], "corrections": "", "head_matter": "ROY STEPHEN POSTELL v. B&D CONSTRUCTION CO. and NON-INSURED CARRIER and JAMES L. MOSLEY\nNo. 9010IC977\n(Filed 7 January 1992)\n1. Master and Servant \u00a7 71 (NCI3d) \u2014 workers\u2019 compensation\u2014 average weekly wage \u2014 method of computation\nPursuant to the \u201ccatch-all\u201d provision of N.C.G.S. \u00a7 97-2(5), the Industrial Commission properly computed the average weekly wage of plaintiff, a carpenter who worked sporadically, by taking his total earnings for the year in which the injury occurred, excluding plaintiffs dates of temporary total disability, dividing by the total days of available work, and multiplying by seven.\nAm Jur 2d, Workmen\u2019s Compensation \u00a7\u00a7 368, 369, 378.\n2. Master and Servant \u00a7 48 (NCI3d)\u2014 workers\u2019 compensation\u2014 owner of house not co-general contractor\nThe Industrial Commission properly concluded that defendant owner was not a joint or co-general contractor on the work site when plaintiff sustained an injury compensable under the Workers\u2019 Compensation Act, since the evidence tended to show that defendant was not engaged in construction prior to the project in question and had no expertise in that field; one of the principals in defendant construction company introduced defendant to the company\u2019s subcontractor; the subcontractor hired plaintiff and set the amount of his pay; plaintiff set his own hours, provided his own tools, and was guided in his work by the blueprints and occasionally some instruction from the subcontractor; and plaintiff testified that he assumed that the principal had the authority to discharge him.\nAm Jur 2d, Workmen\u2019s Compensation \u00a7\u00a7 128, 129.\n3. Master and Servant \u00a7 50 (NCI3d) \u2014 workers\u2019 compensation\u2014 plaintiff as employee or independent contractor\nIn an action to recover under the Workers\u2019 Compensation Act the Industrial Commission properly found that defendant owner was not an employer of plaintiff where the evidence tended to show that for two years prior to the accident in question plaintiff had earned a living as an independent carpenter; the hours worked by plaintiff were not set by defendant owner but by the general contractor on the job site; plaintiff testified that he brought and used his own tools to the job site; and plaintiff testified that he intended to leave the work site in question when the framework was done to work with his father on another project.\nAm Jur 2d, Workmen\u2019s Compensation \u00a7\u00a7 168-170.\n4. Master and Servant \u00a7 48 (NCI3d); Corporations \u00a7 115 (NCI4th) \u2014 failure of corporation president to obtain workers\u2019 compensation insurance \u2014 corporate veil pierced \u2014 president personally liable\nThe Industrial Commission did not err in determining that defendant Rhyne was personally liable for defendant corporation\u2019s failure to obtain workers\u2019 compensation insurance, since the Commission pierced the corporate veil upon finding that defendant or his wife knew or should have known of the requirements of the Workers\u2019 Compensation Act; defendant Rhyne as president of defendant corporation also used the corporate structure to avoid personal liability for his failure to procure workers\u2019 compensation coverage for employees of his corporation; the personal monies of defendant were commingled with the assets of the corporation; there was no payment of dividends; the corporation was insolvent due to its liability to plaintiff; the dominant shareholders siphoned funds; other officers or directors were nonfunctioning; and the corporation was undercapitalized in light of the scope of its operations and compensation paid to its employee/shareholders.\nAm Jur 2d, Corporations \u00a7\u00a7 43-46, 51.\nAPPEAL by plaintiff, Roy Stephen Postell, and defendant, B&D Construction Co., from Opinion and Award of the North Carolina Industrial Commission entered 4 May 1990.\n. Lore & McClearen, by R. Edwin McClearen and F. Scott Templeton, for plaintiff-appellant and plaintiff-appellee, Roy Stephen Postell.\nShelley Blum for defendant-appellant, B&D Construction Company.\nCasey & Bishop, by Jeffrey L. Bishop, for defendant-appellee, James L. Mosley." }, "file_name": "0001-01", "first_page_order": 29, "last_page_order": 41 }