{ "id": 11916829, "name": "RICHARD L. HIX and wife, JANE HIX v. WILLIAM HAROLD JENKINS", "name_abbreviation": "Hix v. Jenkins", "decision_date": "1995-02-21", "docket_number": "No. 9422SC378", "first_page": "103", "last_page": "106", "citations": [ { "type": "official", "cite": "118 N.C. App. 103" } ], "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": "21 ALR3d 845", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "325 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "247" } ], "opinion_index": 0 }, { "cite": "312 N.C. 710", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749409 ], "year": 1985, "pin_cites": [ { "page": "712-13" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0710-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 58-83-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "347 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "815", "parenthetical": "allowing recovery under the Act by a volunteer fireman" } ], "opinion_index": 0 }, { "cite": "318 N.C. 192", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738158 ], "year": 1986, "pin_cites": [ { "page": "193", "parenthetical": "allowing recovery under the Act by a volunteer fireman" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0192-01" ] }, { "cite": "70 S.E.2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "pin_cites": [ { "page": "17", "parenthetical": "meanings are found in what statutes necessarily imply as much as in what they specifically express" } ], "opinion_index": 0 }, { "cite": "235 N.C. 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624529 ], "year": 1952, "pin_cites": [ { "page": "361", "parenthetical": "meanings are found in what statutes necessarily imply as much as in what they specifically express" } ], "opinion_index": 0, "case_paths": [ "/nc/235/0359-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(2)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 356, "char_count": 6155, "ocr_confidence": 0.756, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7490388435773668 }, "sha256": "1951b2c228cc0979b961741004476237d5b94959df138e345cfb87710bb62c5c", "simhash": "1:7720a55a4628e07f", "word_count": 943 }, "last_updated": "2023-07-14T20:04:31.897721+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge EAGLES concur.", "Judge WALKER concurs with separate opinion." ], "parties": [ "RICHARD L. HIX and wife, JANE HIX v. WILLIAM HAROLD JENKINS" ], "opinions": [ { "text": "GREENE, Judge.\nRichard L. Hix and Jane Hix (plaintiffs) appeal from the trial court\u2019s order granting summary judgment in favor of William Harold Jenkins (defendant) in plaintiffs\u2019 negligence suit against defendant.\nThe evidence shows that Richard Hix (Hix) was riding with defendant on 4 November 1990, when the defendant\u2019s car was involved in an accident. Both men were volunteer firemen for the Iredell County Volunteer Fireman\u2019s Association and were responding to a fire call at the time of the accident. As a result of the accident, Hix sustained permanent injuries, including a compression fracture to his spine.\nOn 18 November 1992, Hix agreed with the Iredell County Volunteer Fireman\u2019s Association and CIGNA Insurance Company to accept $13,000 along with medical expenses as complete satisfaction of any and all claims under the North Carolina Workers\u2019 Compensation Act (the Act). On 19 October 1993, plaintiffs sued the defendant for his negligence in causing the accident and Hix\u2019s resulting injuries. The trial court granted defendant\u2019s motion for summary judgment on the grounds that Hix had received his exclusive remedy under the Act and plaintiffs are therefore barred from pursuing this negligence action against the defendant.\nThe issue is whether a volunteer fireman, injured by the negligence of a fellow volunteer fireman, at a time when both are acting in the course and scope of their duties, is barred from pursuing a negligence action against the fellow fireman.\nAlthough the plaintiffs are correct in their statement that volunteer firemen do not receive compensation for their services and are not listed as \u201cemployees\u201d in N.C. Gen. Stat. \u00a7 97-2(2), we reject their assertion that volunteer firemen should not be treated as \u201cemployees\u201d under the Act. Because the Act provides the specific calculation for the average weekly wage to be received by volunteer firemen in section 97-2(5), it is implicit that volunteer firemen are to be treated as employees under the Act. See Board of Education v. Dickson, 235 N.C. 359, 361, 70 S.E.2d 14, 17 (1952) (meanings are found in what statutes necessarily imply as much as in what they specifically express); Derebery v. Pitt County Fire Marshall, 318 N.C. 192, 193, 347 S.E.2d 814, 815 (1986) (allowing recovery under the Act by a volunteer fireman). This legislative intent is further evidenced by N.C. Gen. Stat. \u00a7 58-83-1 which provides that firemen responding to emergencies outside their normal territorial limits \u201cshall have all authority . . . including coverage under the Workers\u2019 Compensation Laws, as they have when responding to a call and while working at afire or other emergency inside the territorial limits normally served.\" [Emphasis added.] Finally, although section 97-2(2) does not specifically include volunteer firemen in the definition of \u201cemployee,\u201d neither does it exclude volunteer firemen from that definition. See N.C.G.S. \u00a7 97-2(2) (1991) (specifically excluding people \u201cperforming voluntary service as a ski patrolman\u201d from the provisions of the Act).\nBecause volunteer firemen are treated as \u201cemployees\u201d under the Act, volunteer firemen are foreclosed from bringing a common law negligence action against a fellow member, N.C.G.S. \u00a7 97-9 to -10.1 (1991), for injuries sustained in the course and scope of their duties as a volunteer fireman, unless the member seeking compensation was intentionally injured by the fellow member. See Pleasant v. Johnson, 312 N.C. 710, 712-13, 325 S.E.2d 244, 247 (1985). Accordingly, plaintiffs are barred from pursuing their action in negligence against defendant, and the trial court correctly granted summary judgment for the defendant.\nAffirmed.\nJudge EAGLES concur.\nJudge WALKER concurs with separate opinion.", "type": "majority", "author": "GREENE, Judge." }, { "text": "Judge Walker\nconcurring.\nI agree with the majority that the legislature intended volunteer firemen to be treated as employees under the Workers\u2019 Compensation Act and to provide them with workers\u2019 compensation benefits even though a true employer-employee relationship does not exist between volunteer firemen and their volunteer fireman\u2019s association. However, I recognize that workers\u2019 compensation benefits may not fully compensate plaintiff for his injuries but I believe it is for the legislature to address the circumstances in which a volunteer fireman can, as here, bring a negligence action against his fellow employee.", "type": "concurrence", "author": "Judge Walker" } ], "attorneys": [ "Teague, Campbell, Dennis & Gorham, by James B. Wheless, Jr. andJ. Matthew Little, andPressly & Thomas, P.A., by Edwin A. Pressly, for the plaintiff-appellants.", "Willardson, Lipscomb & Bender, L.L.P., by William F. Lipscomb, for defendant-appellee." ], "corrections": "", "head_matter": "RICHARD L. HIX and wife, JANE HIX v. WILLIAM HAROLD JENKINS\nNo. 9422SC378\n(Filed 21 February 1995)\nWorkers\u2019 Compensation \u00a7\u00a7 25, 65 (NCI4th)\u2014 volunteer fireman \u2014 employee for workers\u2019 compensation purposes \u2014 negligence action against fellow firemen precluded\nAlthough volunteer firemen are not listed as \u201cemployees\u201d in N.C.G.S. \u00a7 97-2(2), it is implicit that they are to be treated as employees under the Workers\u2019 Compensation Act because N.C.G.S. \u00a7 97-2(5) provides the specific calculation for the average weekly wage to be received by volunteer firemen, and N.C.G.S. \u00a7 58-83-1 provides that volunteer firemen responding to emergencies outside their normal- territorial limits shall have all authority \u201cincluding coverage under the Workers\u2019 Compensation Laws as they have when responding to a call and while working at a fire or other emergency inside the territorial limits normally served.\u201d Therefore, volunteer firemen are foreclosed from bringing a common law negligence action against a fellow member for injuries sustained in the course and scope of their duties as firemen unless the member seeking compensation was intentionally injured by the fellow member.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 62 et seq., 181.\nRight to maintain direct action against fellow employee for injury or death covered by workmen\u2019s compensation. 21 ALR3d 845.\nJudge Walker concurring.\nAppeal by plaintiffs from order entered 2 February 1994 in Iredell County Superior Court by Judge Jerry R. Tillett. Heard in the Court of Appeals 12 January 1995.\nTeague, Campbell, Dennis & Gorham, by James B. Wheless, Jr. andJ. Matthew Little, andPressly & Thomas, P.A., by Edwin A. Pressly, for the plaintiff-appellants.\nWillardson, Lipscomb & Bender, L.L.P., by William F. Lipscomb, for defendant-appellee." }, "file_name": "0103-01", "first_page_order": 135, "last_page_order": 138 }