{
  "id": 11914938,
  "name": "GAIL G. LENNON, Widow, and ABRIL LENNON, Alleged Dependent of ALLEN B. LENNON, Deceased Employee, Plaintiffs v. CUMBERLAND COUNTY, Employer, Self-Insured, Defendant",
  "name_abbreviation": "Lennon v. Cumberland County",
  "decision_date": "1995-06-20",
  "docket_number": "No. COA94-985",
  "first_page": "319",
  "last_page": "322",
  "citations": [
    {
      "type": "official",
      "cite": "119 N.C. App. 319"
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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      "reporter": "S.E.2d",
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      "pin_cites": [
        {
          "parenthetical": "where our Court held that the deceased's stepchildren, a class identified in North Carolina General Statutes \u00a7 97-2(12) but having no legal right of support from their stepparent, must have been factually dependent upon the deceased employee to be entitled to a share of death benefits"
        }
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      "reporter": "N.C. App.",
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      "year": 1985,
      "pin_cites": [
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          "parenthetical": "where our Court held that the deceased's stepchildren, a class identified in North Carolina General Statutes \u00a7 97-2(12"
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      "reporter": "S.E.2d",
      "weight": 3,
      "year": 1972,
      "pin_cites": [
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          "page": "303"
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        {
          "page": "283"
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    {
      "cite": "281 N.C. 300",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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      "year": 1972,
      "opinion_index": 0,
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  "last_updated": "2023-07-14T17:09:59.579385+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges GREENE and MARTIN, JOHN C. concur."
    ],
    "parties": [
      "GAIL G. LENNON, Widow, and ABRIL LENNON, Alleged Dependent of ALLEN B. LENNON, Deceased Employee, Plaintiffs v. CUMBERLAND COUNTY, Employer, Self-Insured, Defendant"
    ],
    "opinions": [
      {
        "text": "JOHNSON, Judge.\nThis case was submitted upon written stipulated facts and affidavits without an evidentiary hearing by the agreement of the parties before the Industrial Commission. The issue to be resolved was whether Abril Lennon (the minor plaintiff) was entitled to receive benefits until she was eighteen years old, or entitled to receive benefits for 400 weeks, as a result of the death of Allen Lennon (the deceased employee). The deceased employee was a Cumberland County Sheriffs Deputy who was killed in a work-related motor vehicle accident on 11 August 1992. At the time of his death, the deceased employee and his wife were in the process of adopting the minor plaintiff, a one year old child who had been living with them since she was ten days old.\nThe deputy commissioner concluded that the minor plaintiff was not a \u201cdependent child\u201d for purposes of North Carolina General Statutes \u00a7 97-38 (1991). Based on this, but finding that the minor plaintiff was a person wholly dependent upon the earnings of the deceased employee, the deputy commissioner found that the minor plaintiff was entitled to benefits for 400 weeks from the deceased employee\u2019s death. The Full Commission affirmed the deputy commissioner\u2019s ruling that the minor plaintiff was not a \u201cdependent child,\u201d noting that the intention to adopt in the future is not \u201cthe equivalent of a Final Order of Adoption.\u201d From that ruling, plaintiffs appeal to our Court.\nPlaintiffs argue on appeal that the Full Commission erred when it determined the minor plaintiff was not a \u201cdependent child.\u201d Plaintiffs argue that the minor plaintiff was entitled to receive wage benefits as a result of the deceased employee\u2019s death until she reaches age eighteen because she is a dependent child within the meaning of North Carolina General Statutes \u00a7 97-38.\nNorth Carolina General Statutes \u00a7 97-38 states in pertinent part:\nCompensation payments due on account of death shall be paid for a period of 400 weeks from the date of the death of the employee; provided, however, after said 400-week period in case of a widow or widower who is unable to support herself or himself because of physical or mental disability as of the date of death of the employee, compensation payments shall continue during her or his lifetime or until remarriage and compensation payments due a dependent child shall be continued until such child reaches the age of 18.\nAs plaintiff notes, the Commission relied upon North Carolina General Statutes \u00a7 97-2(12) (Cum. Supp. 1994) for the definition of \u201cchild,\u201d which states:\nWhen used in this Article, unless the context otherwise requires\u2014\n(12) Child, Grandchild, Brother, Sister. \u2014 The term \u201cchild\u201d shall include a posthumous child, a child legally adopted prior to the injury of the employee, and a stepchild or acknowledged illegitimate child dependent upon the deceased, but does not include married children unless wholly dependent upon him. . . . \u201cChild[]\u201d . . . include[s] only persons who at the time of the death of the deceased employee are under 18 years of age. (Emphasis added.)\nNotwithstanding the definition found in North Carolina General Statutes \u00a7 97-2(12), plaintiffs note that the deputy commissioner found that the minor plaintiff was wholly dependent on the deceased employee\u2019s earnings for support. Plaintiffs argue that North Carolina General Statutes \u00a7 97-2(12) does not act as an absolute limit on the persons who may be considered \u201cdependent child[ren].\u201d Plaintiffs assert that because North Carolina General Statutes \u00a7 97-2(12) provides \u201c[t]he term \u2018child\u2019 shall include ...\u201d (emphasis added), the word \u201cshall\u201d permits other persons to be included within the meaning of \u201cchild\u201d under appropriate circumstances, and that the provision is not an exclusive definition. Plaintiffs argue that \u201cthe lack of adoption is not a bar to a factual finding of dependency.\u201d\nPlaintiffs cite Stevenson v. City of Durham, 281 N.C. 300, 188 S.E.2d 281 (1972) in support of their position that North Carolina General Statutes \u00a7 97-2(12) does not act as an absolute limit on the persons who may become \u201cdependent childfren]\u201d under North Carolina General Statutes \u00a7 97-38. Plaintiffs argue that the language of North Carolina General Statutes \u00a7 97-38 establishes an intent to provide benefits to someone in the minor plaintiffs position until they reach the age of eighteen, and, quoting Stevenson, note that \u201c[t]he primary rule of statutory construction is that the intent of the legislature controls the interpretation of a statute. In seeking to discover this intent, the courts should consider the language of the statute, the spirit of the act, and what the act seeks to accomplish.\u201d Id. at 303, 188 S.E.2d at 283. In Stevenson, our Supreme Court reconciled an interpretation of the term \u201cnext of kin\u201d with two statutes in pari materia. However, we find Stevenson distinguishable from the instant matter in that the statute in question in that case contained its own definition of \u201cnext of kin.\u201d\nBased on a plain reading of North Carolina General Statutes \u00a7 97-2(12), we disagree with plaintiffs. We believe the Commission properly looked to North Carolina General Statutes \u00a7 97-2(12) for the definition of \u201cchild.\u201d In the instant case, where the adoption proceedings had begun but were not finalized, the minor plaintiff was not \u201ca child legally adopted prior to the injury of the employee[.]\u201d Compare Winstead v. Derreberry, 73 N.C. App. 35, 326 S.E.2d 66 (1985) (where our Court held that the deceased\u2019s stepchildren, a class identified in North Carolina General Statutes \u00a7 97-2(12) but having no legal right of support from their stepparent, must have been factually dependent upon the deceased employee to be entitled to a share of death benefits).\nAs the Full Commission acknowledged below, \u201cthis is a situation which engenders sympathy\u201d; however, for reasons outlined above, we find that the Full Commission did not err when it determined the minor plaintiff was not a \u201cdependent child.\u201d\nAffirmed.\nJudges GREENE and MARTIN, JOHN C. concur.",
        "type": "majority",
        "author": "JOHNSON, Judge."
      }
    ],
    "attorneys": [
      "Beaver, Holt, Richardson, Stemlicht, Burge & Glazier, P.A., by Mark A. Stemlicht, for plaintiff's-appellants.",
      "Teague, Campbell, Dennis & Gorham, by George W. Dennis III and Karen K. Prather, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "GAIL G. LENNON, Widow, and ABRIL LENNON, Alleged Dependent of ALLEN B. LENNON, Deceased Employee, Plaintiffs v. CUMBERLAND COUNTY, Employer, Self-Insured, Defendant\nNo. COA94-985\n(Filed 20 June 1995)\nWorkers\u2019 Compensation \u00a7 273 (NCI4th)\u2014 adoption proceeding not finalized \u2014 child not entitled to benefits\nWhere adoption proceedings had begun but were not finalized, the minor plaintiff was not a child legally adopted prior to the injury of the employee and thus was not a \u201cdependent child\u201d entitled to benefits under the Workers\u2019 Compensation Act until she reached the age of eighteen. N.C.G.S. \u00a7 97-2(12); N.C.G.S. \u00a7 97-38.\nAm Jur 2d, Workers\u2019 Compensation \u00a7 214.\nAppeal by plaintiffs from Opinion and Award entered 20 May 1994 by the North Carolina Industrial Commission. Heard in the Court of Appeals 23 May 1995.\nBeaver, Holt, Richardson, Stemlicht, Burge & Glazier, P.A., by Mark A. Stemlicht, for plaintiff's-appellants.\nTeague, Campbell, Dennis & Gorham, by George W. Dennis III and Karen K. Prather, for defendant-appellee."
  },
  "file_name": "0319-01",
  "first_page_order": 353,
  "last_page_order": 356
}