{ "id": 11791839, "name": "WAKE COUNTY HOSPITAL SYSTEM, INC. and ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Plaintiffs v. SAFETY NATIONAL CASUALTY CORPORATION, Defendant", "name_abbreviation": "Wake County Hospital System, Inc. v. Safety National Casualty Corp.", "decision_date": "1997-08-05", "docket_number": "No. COA96-1038", "first_page": "33", "last_page": "44", "citations": [ { "type": "official", "cite": "127 N.C. App. 33" } ], "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": "329 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553288 ], "opinion_index": -1, "case_paths": [ "/nc/329/0330-01" ] }, { "cite": "93 N.C. App. 242", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527997 ], "opinion_index": -1, "case_paths": [ "/nc-app/93/0242-01" ] }, { "cite": "341 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "affirming dismissal of action where plaintiff failed to plead that alleged violations occurred with such frequency as to indicate a general business practice" } ], "opinion_index": 0 }, { "cite": "316 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4703812 ], "year": 1986, "pin_cites": [ { "parenthetical": "affirming dismissal of action where plaintiff failed to plead that alleged violations occurred with such frequency as to indicate a general business practice" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0372-01" ] }, { "cite": "330 S.E.2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "75 N.C. App. 104", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525020 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/75/0104-01" ] }, { "cite": "370 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "698" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 58", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524291 ], "year": 1988, "pin_cites": [ { "page": "60" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0058-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 58-63-15", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1994, "pin_cites": [ { "page": "(11)(a)" } ], "opinion_index": 0 }, { "cite": "400 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "482" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 450", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527876 ], "year": 1991, "pin_cites": [ { "page": "460-61" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0450-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 75-1.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1994, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "148 S.E.2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "551" } ], "opinion_index": 0 }, { "cite": "267 N.C. 545", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559844 ], "year": 1966, "pin_cites": [ { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/nc/267/0545-01" ] }, { "cite": "467 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "holding that an injury that is intentional or substantially certain to be the result of an intentional act is not an accident" } ], "opinion_index": 0 }, { "cite": "342 N.C. 896", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796000, 795975, 796076, 796028, 795997 ], "year": 1996, "pin_cites": [ { "parenthetical": "holding that an injury that is intentional or substantially certain to be the result of an intentional act is not an accident" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0896-04", "/nc/342/0896-01", "/nc/342/0896-03", "/nc/342/0896-05", "/nc/342/0896-02" ] }, { "cite": "464 S.E.2d 723", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "121 N.C. App. 185", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916280 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/121/0185-01" ] }, { "cite": "483 S.E.2d 170", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "parenthetical": "holding that plaintiff's claim that the City's action was substantially certain to cause injury amounted to a claim that the occurrence was not accidental, thereby removing the claim from coverage under the policy" } ], "opinion_index": 0 }, { "cite": "345 N.C. 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53929, 54148, 53884 ], "year": 1997, "pin_cites": [ { "parenthetical": "holding that plaintiff's claim that the City's action was substantially certain to cause injury amounted to a claim that the occurrence was not accidental, thereby removing the claim from coverage under the policy" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0355-02", "/nc/345/0355-01", "/nc/345/0355-03" ] }, { "cite": "477 S.E.2d 150", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867561 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0676-01" ] }, { "cite": "412 S.E.2d 318", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "330 N.C. 697", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511365 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/330/0697-01" ] }, { "cite": "434 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "holding that employer's conduct did not rise to the level of proof required for a Woodson claim sufficient for a claim of negligent hiring where the plaintiff was injured by the negligence of a co-worker" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 125", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520430 ], "year": 1993, "pin_cites": [ { "parenthetical": "holding that employer's conduct did not rise to the level of proof required for a Woodson claim sufficient for a claim of negligent hiring where the plaintiff was injured by the negligence of a co-worker" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0125-01" ] }, { "cite": "424 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "395" } ], "opinion_index": 0 }, { "cite": "333 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2548756 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0233-01" ] }, { "cite": "361 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "321 N.C. 121", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569390, 2569806, 2567892, 2569080, 2568474 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/321/0121-04", "/nc/321/0121-05", "/nc/321/0121-01", "/nc/321/0121-03", "/nc/321/0121-02" ] }, { "cite": "359 S.E.2d 16", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "86 N.C. App. 550", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12136917 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/86/0550-01" ] }, { "cite": "364 S.E.2d 186", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "88 N.C. App. 577", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358631 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/88/0577-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-10.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "opinion_index": 0 }, { "cite": "346 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "holding that sexual harassment did not arise out of the employment for a waitress because it was not a risk to which an employee is exposed because of the nature of the employment" } ], "opinion_index": 0 }, { "cite": "317 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4780326, 4777709, 4778478, 4779983, 4776954 ], "year": 1986, "pin_cites": [ { "parenthetical": "holding that sexual harassment did not arise out of the employment for a waitress because it was not a risk to which an employee is exposed because of the nature of the employment" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0334-03", "/nc/317/0334-02", "/nc/317/0334-05", "/nc/317/0334-01", "/nc/317/0334-04" ] }, { "cite": "340 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "holding that sexual harassment did not arise out of the employment for a waitress because it was not a risk to which an employee is exposed because of the nature of the employment" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 483", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521761 ], "year": 1986, "pin_cites": [ { "parenthetical": "holding that sexual harassment did not arise out of the employment for a waitress because it was not a risk to which an employee is exposed because of the nature of the employment" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0483-01" ] }, { "cite": "386 S.E.2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "holding that a causal relation existed between the employment and the assault of a resort employee who was kidnaped and assaulted by a guest of the resort" } ], "opinion_index": 0 }, { "cite": "325 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488046 ], "year": 1989, "pin_cites": [ { "parenthetical": "holding that a causal relation existed between the employment and the assault of a resort employee who was kidnaped and assaulted by a guest of the resort" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0702-01" ] }, { "cite": "377 S.E.2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "holding that a causal relation existed between the employment and the assault of a resort employee who was kidnaped and assaulted by a guest of the resort" } ], "opinion_index": 0 }, { "cite": "233 S.E.2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "531" } ], "opinion_index": 0 }, { "cite": "292 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569857 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0399-01" ] }, { "cite": "407 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1991, "pin_cites": [ { "parenthetical": "holding that misconduct by an employer which is substantially certain to cause injury to an employee is actionable at common law, notwithstanding the exclusivity provisions of the Workers' Compensation Act" }, { "page": "337" }, { "page": "226" } ], "opinion_index": 0 }, { "cite": "393 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 595", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307304, 5305804, 5304910, 5308787, 5305112 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0595-03", "/nc/326/0595-04", "/nc/326/0595-01", "/nc/326/0595-05", "/nc/326/0595-02" ] }, { "cite": "386 S.E.2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "96 N.C. App. 635", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524064 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/96/0635-01" ] }, { "cite": "346 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4697093, 4703166 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0386-02", "/nc/316/0386-01" ] }, { "cite": "340 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 688", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720126 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0688-01" ] }, { "cite": "428 S.E.2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "109 N.C. App. 451", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525721 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/109/0451-01" ] }, { "cite": "329 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553288 ], "weight": 2, "pin_cites": [ { "parenthetical": "holding that misconduct by an employer which is substantially certain to cause injury to an employee is actionable at common law, notwithstanding the exclusivity provisions of the Workers' Compensation Act" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0330-01" ] }, { "cite": "93 N.C. App. 242", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527997 ], "pin_cites": [ { "parenthetical": "holding that a causal relation existed between the employment and the assault of a resort employee who was kidnaped and assaulted by a guest of the resort" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0242-01" ] } ], "analysis": { "cardinality": 904, "char_count": 25903, "ocr_confidence": 0.738, "pagerank": { "raw": 3.4060708048701316e-07, "percentile": 0.8777175812180555 }, "sha256": "c15a9fc38586934fe0cc86f6970593735b26c6cbc5e7211d7d5f0e5680cb9edd", "simhash": "1:4b005660ac7f0c1e", "word_count": 4103 }, "last_updated": "2023-07-14T19:43:16.540119+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and McGEE concur.", "Judge Cozort concurred in this opinion on or before 31 July 1997." ], "parties": [ "WAKE COUNTY HOSPITAL SYSTEM, INC. and ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Plaintiffs v. SAFETY NATIONAL CASUALTY CORPORATION, Defendant" ], "opinions": [ { "text": "MARTIN, John C., Judge.\nWake County Hospital System, Inc., (\u201cthe Hospital\u201d) brought this action to recover under an insurance policy issued by defendant Safety National Casualty Corporation (\u201cSafety\u201d). Defendant answered, denying that its policy provided coverage for the claim asserted by the Hospital. Defendant\u2019s motion to join St. Paul Fire and Marine Insurance Company (\u201cSt. Paul\u201d) as a party plaintiff was granted. After discovery, all parties moved for summary judgment.\nThe materials before the trial court established the following:\nDefendant Safety issued its \u201cSpecific Excess and Aggregate Excess Workers\u2019 Compensation Insurance Agreement\u201d to the Hospital, providing coverage for \u201cLoss sustained . . . because of liability imposed ... by the Workers\u2019 Compensation or Employers\u2019 Liability Laws of: [North Carolina] ... on account of bodily injury or occupational disease due to Occurrences taking place ... to Employees....\u201d The policy was excess coverage to the Hospital\u2019s self-insured retention of $225,000 and provided coverage of $500,000. The policy was in force at all times pertinent to this action.\nIn addition, at all times pertinent to this action, the Hospital was covered by two policies issued by St. Paul. One policy was a general liability policy providing coverage of $1,000,000 for a \u201ccovered bodily injury\u201d \u201ccaused by an event\u201d and excluding from coverage bodily injury which was \u201cexpected or intended by a protected person,\u201d \u201cbodily injury to any employee arising out of and in the course of . . . employment,\u201d and any obligation under the workers\u2019 compensation laws. The other St. Paul policy was an Umbrella Excess policy with a coverage limit of $10,000,000 providing excess coverage for claims covered by listed underlying policies, including both the Safety policy and the St. Paul general liability policy.\nOn 8 August 1990, Kimberly Crews was employed as a social worker by the Hospital. As she was leaving work on that date, she was abducted in the Hospital\u2019s parking lot by Michael Sexton, a Hospital employee who worked in the laundry. Sexton forced Mrs. Crews to drive him to a location away from the Hospital, where he raped and murdered her. Sexton was subsequently convicted of kid-naping, rape, and murder. On 10 July 1992, Mrs. Crews\u2019 husband, who was the administrator of her estate, and her minor child brought an action (\u201cthe Crews lawsuit\u201d) against the Hospital seeking compensatory and punitive damages for her wrongful death and for infliction of emotional distress. The complaint in the Crews lawsuit alleged that the Hospital negligently hired, supervised, and retained Michael Sexton without regard to his violent propensities and that the Hospital\u2019s gross negligence subjected Mrs. Crews and other employees to an unreasonable risk and a substantial certainty of serious injury.\nThe Hospital placed both St. Paul and Safety on notice when the Crews lawsuit was filed. St. Paul issued a reservation of rights letter and agreed to provide the Hospital with a defense. Safety also issued a reservation of rights letter, but under the terms of its policy, Safety had no obligation to provide a defense.\nAt a settlement conference conducted in connection with the Crews lawsuit, the Hospital and St. Paul indicated their willingness, in principle, to contribute to a settlement in the amount of $1,000,000, even if Safety declined to participate. When Safety announced that it would not participate in the settlement, the Hospital and St. Paul entered into a Loan Receipt and Non-Waiver Agreement, pursuant to which the Hospital contributed its self-insured retention of $225,000 and St. Paul contributed $275,000, the amount for which it would be liable if Safety contributed its limits of $500,000. Of the remaining $500,000, the Hospital paid $250,000 and St. Paul \u201cloaned\u201d the Hospital the remaining $250,000 to be repaid from any amounts recovered in this action. Safety agreed that if the Hospital elected to proceed with a settlement of the underlying action, Safety would not raise as a defense in any later litigation the absence of consent under the Safety policy.\nAfter completing settlement of the Crews lawsuit, the Hospital filed the present action alleging that Safety owes $500,000 under its policy, and that its denial of coverage constitutes an unfair and deceptive practice. The trial court granted Safety\u2019s motion for summary judgment. Plaintiffs appeal.\nA party moving for summary judgment must establish that there is no genuine issue of material fact and that the party is entitled to judgment as a matter of law. N.C. Gen. Stat. \u00a7 1A-1, Rule 56; Glover v. First Union National Bank, 109 N.C. App. 451, 428 S.E.2d 206 (1993). There are no disputed issues of fact in this case; resolution of the issue of Safety\u2019s coverage involves questions of law, properly resolved by summary judgment. Waste Management v. Peerless Insurance Co., 315 N.C. 688, 340 S.E.2d 374, reh\u2019g denied, 316 N.C. 386, 346 S.E.2d 134 (1986); Duke University v. St. Paul Fire and Marine Insurance Co., 96 N.C. App. 635, 386 S.E.2d 762, disc. review denied, 326 N.C. 595, 393 S.E.2d 876 (1990).\nI.\nIn their first argument, plaintiffs contend the Safety policy provides coverage for the Hospital\u2019s liability in this case. They argue that the policy provides coverage for liability imposed under \u201cEmployers\u2019 Liability Laws,\u201d language which is sufficiently broad to include liability for negligent hiring, supervision and retention, and liability imposed pursuant to Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991) (holding that misconduct by an employer which is substantially certain to cause injury to an employee is actionable at common law, notwithstanding the exclusivity provisions of the Workers\u2019 Compensation Act). Defendant contends that, no matter which analysis we choose to apply to determine the basis for the Hospital\u2019s liability to the Crews plaintiffs, the end result is that the Safety policy does not provide coverage to the Hospital. We agree with defendant.\nA.\nBecause the policy was a \u201cSpecific Excess and Aggregate Excess Workers\u2019 Compensation Insurance Agreement,\u201d we must first determine whether the Hospital had liability under the Workers\u2019 Compensation Act for the injuries to Mrs. Crews. In order for an injury to be compensable under the Workers\u2019 Compensation Act, a claimant must prove: \u201c(1) [t]hat the injury was caused by an accident; (2) that the injury arose out of the employment; and (3) that the injury was sustained in the course of employment.\u201d See Gallimore v. Marilyn\u2019s Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977).\nIn North Carolina, courts have consistently held that an intentional assault in the work place by a fellow employee or third party is an accident that occurs in the course of employment, but does not arise out of the employment unless a job-related motivation or some other causal relation between the job and the assault exists. Gallimore, 292 N.C. 399, 233 S.E.2d 529 (holding that the death of an employee at a shopping mall who was kidnaped in the parking lot by a third party did not arise out of the employment because the risk of assault was common to the neighborhood, not peculiar to the employment); Culpepper v. Fairfield Sapphire Valley, 93 N.C. App. 242, 377 S.E.2d 777, affirmed, 325 N.C. 702, 386 S.E.2d 174 (1989) (holding that a causal relation existed between the employment and the assault of a resort employee who was kidnaped and assaulted by a guest of the resort); Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 340 S.E.2d 116, disc. review denied, 317 N.C. 334, 346 S.E.2d 140 (1986) (holding that sexual harassment did not arise out of the employment for a waitress because it was not a risk to which an employee is exposed because of the nature of the employment).\nWe must determine whether a causal relation exists in this case between Ms. Crews\u2019 job and the assault such that the death arose out of the employment and is compensable under the Workers\u2019 Compensation Act. Here, the evidence indicates that Mrs. Crews was abducted from the employee parking lot, she was assaulted and killed on an adjacent street, she was carrying work materials, and the assailant was a co-employee. The case of Culpepper v. Fairfield Sapphire Valley, supra, is illustrative. In Culpepper, plaintiff was a cocktail waitress at a resort who was on her way home from work when she noticed a driver having car trouble on the side of the road leading to the resort. She recognized the driver as a resort guest and given her employer\u2019s instructions to be courteous to resort guests, she stopped in order to assist the guest. She was kidnaped and assaulted by the driver. In holding that plaintiff\u2019s injuries were compensable under the Workers\u2019 Compensation Act, the Court concluded that there was a causal relation between plaintiff\u2019s employment and the assault such that the plaintiff\u2019s injuries arose out of her employment. In addition, the Court stated that \u201ccourse of employment\u201d included the employer\u2019s premises and may extend to adjacent premises or roads. Id. Following the reasoning in Culpepper, we believe the facts here are sufficient to show a causal relationship between Mrs. Crews\u2019 employment and her death. Thus, Mrs. Crews\u2019 death was compensable under the Workers\u2019 Compensation Act. Discovery materials established that death benefits in the amount of $176,500 would be payable to Mrs. Crews\u2019 estate under the Workers\u2019 Compensation Act, an amount within the Hospital\u2019s self-insured retention. Therefore, Safety\u2019s excess coverage would not apply.\nThe Hospital contends, however, that Mrs. Crews\u2019 estate was entitled to maintain an action outside the Workers\u2019 Compensation Act for negligent hiring and retention, and that the Hospital\u2019s liability in such an action is covered under the language of the Safety policy providing coverage for the Hospital\u2019s liability imposed by \u201cEmployers\u2019 Liability Laws.\u201d Under the Workers\u2019 Compensation Act, an employee\u2019s remedies are exclusive as against the employer where the injury is caused by an accident arising out of and in the course of employment. N.C. Gen. Stat. \u00a7 97-10.1 (1991). Thus, the exclusivity provision of the Act precludes a claim for ordinary negligence, even when the employer\u2019s conduct constitutes willful or wanton negligence. McAllister v. Cone Mills Corp., 88 N.C. App. 577, 364 S.E.2d 186 (1988); Stack v. Mecklenburg County, 86 N.C. App. 550, 359 S.E.2d 16, disc. review denied, 321 N.C. 121, 361 S.E.2d 597 (1987). However, an exception to this exclusivity exists for claims meeting the stringent proof standards of Woodson, 329 N.C. 330, 407 S.E.2d 222. Woodson permits a plaintiff to pursue both a workers\u2019 compensation suit and a civil suit against an employer in those narrowly limited cases where injury or death \u201cwas the result of intentional conduct by [an] employer which the employer knew was substantially certain to cause serious injury or death....\u201d Id. at 337, 407 S.E.2d at 226. Willful and wanton negligence alone is not enough to establish a Woodson claim; a higher degree of negligence is required. Pendergrass v. Card Care, Inc., 333 N.C. 233, 424 S.E.2d 391 (1993). \u201cThe conduct must be so egregious as to be tantamount to an intentional tort.\u201d Id. at 239, 424 S.E.2d at 395.\nEmployees have not been permitted to recover damages from an employer in a Woodson claim for injury or death resulting from negligent hiring or retention. Bynum v. Fredrickson Motor Express Corp., 112 N.C. App. 125, 434 S.E.2d 241 (1993) (holding that employer\u2019s conduct did not rise to the level of proof required for a Woodson claim sufficient for a claim of negligent hiring where the plaintiff was injured by the negligence of a co-worker). Here, the only allegations contained in the complaint in the Crews lawsuit that could possibly be construed as asserting a Woodson claim were that the Hospital hired a laundry employee with a relatively minor criminal record, and failed to fire that employee even though it had knowledge that he had engaged in sexual relations with other hospital employees at work, knew that he had a violent temper, and had knowledge of his alleged but unproven altercations with female co-employees in which no one was injured. Though these allegations may be sufficient to allege that the Hospital was negligent in hiring and retaining Sexton, the allegations are insufficient to allege conduct on the part of the Hospital substantially certain to cause injury or death and, therefore, do not meet the stringent requirements of Woodson. Without a Woodson claim, workers\u2019 compensation is the only remedy available in this case; any other action is barred as a matter of law. Since there is no other claim asserted in the Crews lawsuit by which the Hospital may be held liable under \u201cEmployers\u2019 Liability Laws,\u201d there is no coverage provided by the Safety policy.\nMoreover, even if we assume arguendo that a Woodson claim could survive dismissal, Safety would still not be liable for coverage under its policy. The Safety policy provides coverage only for losses sustained due to an \u201coccurrence.\u201d Occurrence is defined as an \u201caccident,\u201d but accident is not defined within the terms of the policy.\nIn N.C. Farm Bureau Mut. Ins. Co. v. Stox, 330 N.C. 697, 412 S.E.2d 318 (1992), the Supreme Court makes it clear that conduct sufficient to support a Woodson claim cannot be deemed an \u201caccident\u201d and, therefore, cannot constitute an \u201coccurrence\u201d within the meaning of the Safety policy. This holding that the degree of intent required to establish a Woodson claim could not constitute an \u201caccident\u201d was confirmed by the Court\u2019s decisions in Lyles v. City of Charlotte, 344 N.C. 676, 477 S.E.2d 150 (1996), reh\u2019g denied, 345 N.C. 355, 483 S.E.2d 170 (1997) (holding that plaintiff\u2019s claim that the City\u2019s action was substantially certain to cause injury amounted to a claim that the occurrence was not accidental, thereby removing the claim from coverage under the policy) and Russ v. Great American Ins. Companies, 121 N.C. App. 185, 464 S.E.2d 723 (1995), disc. review denied, 342 N.C. 896, 467 S.E.2d 905 (1996) (holding that an injury that is intentional or substantially certain to be the result of an intentional act is not an accident).\nIn view of these cases, if Mrs. Crews\u2019 estate could have met the stringent requirements for a Woodson claim by showing that the Hospital\u2019s negligent conduct was \u201csubstantially certain to cause death or serious injury,\u201d under Stox such conduct would not be accidental and, therefore, not an \u201coccurrence\u201d within the meaning of the Safety policy.\nB.\nIf we assume arguendo that Mrs. Crews\u2019 death was not compensable under the Workers\u2019 Compensation Act, we must determine whether Safety provided coverage for the Hospital\u2019s liability under an ordinary negligence claim. We hold that it would not.\nAn employee may certainly bring a common law action for personal injury against his or her employer where the injury is not connected to the employment.\nThe Workmen\u2019s Compensation Act relates to the rights and liabilities of employee and employer by reason of injuries ... arising out of and in the course of the employment relationship. . . . The Act does not, however, take away any common law right of the employee, even as against the employer, provided the right be one which is disconnected with the employment and pertains to the employee, not as an employee but as a member of the public (citations omitted).\nBryant v. Dougherty, 267 N.C. 545, 548, 148 S.E.2d 548, 551 (1966). Thus, if Mrs. Crews\u2019 estate contended and established that her death was due to the Hospital\u2019s negligent breach of some duty owed her, not as an employee but as a member of the public, it could maintain an action at common law to recover for such negligence. In such event, however, the claim would not be covered by the Safety policy because the Hospital\u2019s liability would not flow from its capacity as an employer and, therefore, would not arise under \u201cEmployers\u2019 Liability Laws.\u201d Moreover, as acknowledged by St. Paul in discovery, in such a case, the St. Paul general liability policy would provide \u201cdollar one\u201d coverage, with limits sufficient to satisfy the entire settlement in this case.\nThus, defendant has met the burden of establishing that there is no genuine issue of material fact and, accordingly, defendant\u2019s motion for summary judgment on plaintiff\u2019s breach of contract claim was properly allowed.\nII.\nPlaintiffs next contend that Safety committed an unfair and deceptive practice because it sold the Hospital a policy that deceptively represented that it provided coverage under \u201cEmployers\u2019 Liability Laws\u201d without warning that it would subsequently take the position that the policy did not provide coverage for the Hospital\u2019s liability against \u201cthe right of employees to bring common law actions against employers that are not barred by the exclusivity provisions of the Workers\u2019 Compensation Act.\u201d Thus, plaintiffs assert, the policy was illusory. We reject these contentions.\n\u201cUnfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.\u201d N.C. Gen. Stat. \u00a7 75-1.1(a) (1994). To support an unfair trade practice claim, a plaintiff must show: \u201c(1) an unfair or deceptive act or practice, or an unfair method of competition, (2) in or affecting commerce, (3) which proximately caused actual injury to the plaintiff or to his business.\u201d Spartan Leasing v. Pollard, 101 N.C. App. 450, 460-61, 400 S.E.2d 476, 482 (1991).\nAlthough not specifically pleaded, the Hospital argues that Safety misrepresented the coverage provided by its policy, in violation of G.S. \u00a7 58-63-15(1) and G.S. \u00a7 58-63-15(ll)(a), statutes which define acts as unfair acts and practices in the insurance business. Initially we note that, to state a claim for an unfair and deceptive practice under G.S. \u00a7 58-63-15(1 l)(a), a party must allege that the defendant insurer engaged in the prohibited conduct \u201cwith such frequency as to indicate a general business practice.\u201d N.C. Gen. Stat. \u00a7 58-63-15(11)(a) (1994); Von Hagel v. Blue Cross & Blue Shield, 91 N.C. App. 58, 60, 370 S.E.2d 695, 698 (1988). In their complaint, plaintiffs Hospital and St. Paul made no such allegations against Safety. Beasley v. National Savings Life Ins. Co., 75 N.C. App. 104, 330 S.E.2d 207 (1985), disc. review improv. allowed, 316 N.C. 372, 341 S.E.2d 338 (1986) (affirming dismissal of action where plaintiff failed to plead that alleged violations occurred with such frequency as to indicate a general business practice).\nEven if an unfair and deceptive practice was properly alleged, plaintiffs\u2019 showing at summary judgment is insufficient to show a genuine issue of material fact and to survive entry of summary judg-ment in defendant\u2019s favor. The Safety policy was labeled a \u201cSpecific Excess and Aggregate Excess Workers\u2019 Compensation Insurance Agreement.\u201d It provided coverage in excess of the Hospital\u2019s $225,000 self-insured retention obligation. The Hospital\u2019s Executive Vice-President stated in his deposition that the Hospital bought the Safety policy for the purpose of having excess workers\u2019 compensation coverage. The policy provides narrow coverage, but narrow coverage in and of itself is not illusory or deceptive. There is no evidence that Safety misrepresented the extent of the coverage provided by the policy. Accordingly, we find that summary judgment was properly granted in defendant\u2019s favor as to the Hospital\u2019s claim for unfair and deceptive practices.\nThe order of the trial court is\nAffirmed.\nJudges COZORT and McGEE concur.\nJudge Cozort concurred in this opinion on or before 31 July 1997.", "type": "majority", "author": "MARTIN, John C., Judge." } ], "attorneys": [ "Smith Helms Mulliss & Moore, L.L.P., by Martin N. Erwin for plaintiff-appellants.", "Robinson Maready Lawing & Comerford, L.L.R, by Robert J. Lawing and Jane C. Jackson for defendant-appellee." ], "corrections": "", "head_matter": "WAKE COUNTY HOSPITAL SYSTEM, INC. and ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Plaintiffs v. SAFETY NATIONAL CASUALTY CORPORATION, Defendant\nNo. COA96-1038\n(Filed 5 August 1997)\n1. Workers\u2019 Compensation \u00a7 132 (NCI4th)\u2014 assault by fellow employee \u2014 action by employer under excess workers\u2019 compensation policy \u2014 causal relationship to job\nThe trial court properly granted summary judgment for defendant-insurer, Safety, on plaintiff\u2019s breach of contract claim where an employee of plaintiff-Hospital was abducted, raped, and murdered by another employee; the victim\u2019s estate and family brought an action against the Hospital seeking damages for wrongful death and infliction of emotional distress arising from the Hospital negligently hiring, supervising, and retaining the employee who committed the crime without regard to his violent propensities; the Hospital notified both St. Paul, which had issued to the Hospital a general liability policy and an umbrella excess policy, and this defendant, Safety, which had issued a \u201cSpecific Excess and Aggregate Excess Workers\u2019 Compensation Insurance Agreement\u201d; and, as a result of a settlement in which it did not participate, the Hospital filed this action for the amount allegedly owed under Safety\u2019s policy. The courts in North Carolina have consistently held that an intentional assault in the workplace by a fellow employee or third party is an accident that occurs in the course of employment but does not arise out of the employment unless a job related motivation or some other causal relation between the job and the assault exists. Following the reasoning of Culpepper v. Fairfield Sapphire Valley, 93 N.C. App. 242, the facts are sufficient to show a causal relationship between Mrs. Crews\u2019 employment and her death; however, discovery materials established that death benefits payable under the Workers\u2019 Compensation Act were within the Hospital\u2019s self-insured retention and Safety\u2019s excess coverage would not apply.\n2. Workers\u2019 Compensation \u00a7 132 (NCI4th)\u2014 assault by coworker \u2014 allegations of negligent hiring \u2014 workers\u2019 compensation \u2014 exclusivity provisions\nNo coverage was provided to plaintiff-Hospital under an excess workers\u2019 compensation insurance policy where an employee was abducted, raped, and murdered by another employee, the workers\u2019 compensation coverage did not apply, and the hospital contended that the estate was entitled to maintain an action outside the Workers\u2019 Compensation Act for negligent hiring and retention under policy language concerning \u201cEmployers\u2019 Liability Laws.\u201d The exclusivity provision of the Workers\u2019 Compensation Act precludes a claim for ordinary negligence, with an exception for claims meeting the stringent proof standards of Woodson v. Rowland, 329 N.C. 330, but employees have not been permitted to recover damages from an employer in a Woodson claim for injury or death resulting from negligent hiring or retention. Although the allegations here may be sufficient to allege that the Hospital was negligent in hiring, firing and retaining the employee who committed the crime, they do not meet the requirements of Woodson. Even assuming a Woodson claim that could survive dismissal, this policy provides coverage only for losses sustained due to an \u201coccurrence,\u201d which is defined as an \u201caccident.\u201d \u201cAccident\u201d is not defined, but it is clear that conduct sufficient to support a Woodson claim cannot be deemed an \u201caccident\u201d; therefore such conduct cannot constitute an occurrence within the meaning of this policy.\n3. Insurance \u00a7 949 (NCI4th)\u2014 excess workers\u2019 compensation coverage \u2014 negligent hiring and retention\nCoverage was not provided under an excess workers\u2019 compensation policy for the employer-hospital\u2019s liability under an ordinary negligence claim by the estate of an employee who was abducted, raped, and murdered by another employee. An employee may bring a common law action for personal injury against his or her employer where the injury is not connected to the employment, but the claim would not be covered by this policy because the hospital\u2019s liability would not flow from its capacity as an employer and therefore would not arise under \u201cEmployers\u2019 Liability Laws\u201d under the policy. Moreover, the general liability policy from the other insurer, St. Paul, would provide coverage with limits sufficient to satisfy the entire settlement in this case.\n4. Unfair Competition or Trade Practices \u00a7 39 (NCI4th)\u2014 excess workers\u2019 compensation insurance coverage \u2014 no coverage of common law actions \u2014 no unfair practices\nAn insurer (Safety) did not commit an unfair and deceptive trade practice by selling a policy to plaintiff-Hospital representing that the policy provided coverage under \u201cEmployers\u2019 Liability Laws\u201d without warning that it would subsequently take the position that the policy did not provide coverage against common law actions that are not barred by the exclusivity provisions of the Workers\u2019 Compensation Act. Although not specifically pleaded, the Hospital argues that Safety misrepresented its coverage in violation of statutes which define unfair acts and practices in the insurance industry, but they did not make the necessary allegation that Safety engaged in prohibited conduct with such frequency as to indicate a general business practice. Even if an unfair and deceptive practice was properly alleged, the policy was labeled a \u201cSpecific Excess and Aggregate Excess Workers\u2019 Compensation Insurance Agreement\u201d and the Hospital\u2019s executive vice-president stated in his deposition that the Hospital bought the policy for the purpose of having excess workers\u2019 compensation coverage. The policy provides narrow coverage, but narrow coverage in and of itself is not illusory or deceptive. There is no evidence that Safety misrepresented the extent of the coverage provided by the policy.\nAppeal by plaintiffs from order entered 22 May 1996 by Judge Julius A. Rousseau, Jr., in Guilford County Superior Court. Heard in the Court of Appeals 30 April 1997.\nSmith Helms Mulliss & Moore, L.L.P., by Martin N. Erwin for plaintiff-appellants.\nRobinson Maready Lawing & Comerford, L.L.R, by Robert J. Lawing and Jane C. Jackson for defendant-appellee." }, "file_name": "0033-01", "first_page_order": 69, "last_page_order": 80 }