{ "id": 11655385, "name": "DOROTHY JOHNSON and PAULA SMITH, Plaintiff-Appellants v. FIRST UNION CORPORATION and/or FIRST UNION MORTGAGE CORPORATION; KAY L. BAILEY; CIGNA PROPERTY & CASUALTY INSURANCE COMPANY and/or ESIS, INC.; ROBIN DEFFENBAUGH; INTERNATIONAL REHABILITATION ASSOCIATES, INC. (INTRACORP); and PAT EDWARDS, R.N., Defendant-Appellees", "name_abbreviation": "Johnson v. First Union Corp.", "decision_date": "1998-02-03", "docket_number": "No. COA97-211", "first_page": "450", "last_page": "461", "citations": [ { "type": "official", "cite": "128 N.C. App. 450" } ], "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": "N.C. Gen. Stat. \u00a7 97-86", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1997, "opinion_index": 0 }, { "cite": "365 S.E.2d 312", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1988, "pin_cites": [ { "page": "316-17" }, { "page": "316-17" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519986 ], "year": 1988, "pin_cites": [ { "page": "9" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0001-01" ] }, { "cite": "314 S.E.2d 268", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "271", "parenthetical": "\"conspiracy is the crime and not its execution\"" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 697", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527102 ], "year": 1984, "pin_cites": [ { "page": "700", "parenthetical": "\"conspiracy is the crime and not its execution\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0697-01" ] }, { "cite": "485 S.E.2d 853", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "854-55", "parenthetical": "quoting State v. Essick, 67 N.C. App. 697, 700, 314 S.E.2d 268, 271 (1984) (\"conspiracy is the crime and not its execution\"" }, { "page": "855", "parenthetical": "defendant may be convicted of conspiracy to commit statutory crime of larceny by an employee even though defendant, himself, is not an employee" } ], "opinion_index": 0 }, { "cite": "126 N.C. 524", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "year": 1997, "pin_cites": [ { "page": "526", "parenthetical": "quoting State v. Essick, 67 N.C. App. 697, 700, 314 S.E.2d 268, 271 (1984) (\"conspiracy is the crime and not its execution\"" }, { "page": "526-27" } ], "opinion_index": 0 }, { "cite": "354 S.E.2d 737", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "743", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 292", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169853 ], "year": 1987, "pin_cites": [ { "page": "301", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0292-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "parenthetical": "1991" }, { "parenthetical": "1991" } ], "opinion_index": 0 }, { "cite": "292 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "Unfair or Deceptive Trade Practices Act does not create action against employer for harassment and dismissal of employee following work-related injury to prevent employee from claiming workers' compensation benefits" } ], "opinion_index": 0 }, { "cite": "305 N.C. 759", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573251, 8573289, 8573226, 8573201, 8573274 ], "year": 1982, "pin_cites": [ { "parenthetical": "Unfair or Deceptive Trade Practices Act does not create action against employer for harassment and dismissal of employee following work-related injury to prevent employee from claiming workers' compensation benefits" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0759-03", "/nc/305/0759-05", "/nc/305/0759-02", "/nc/305/0759-01", "/nc/305/0759-04" ] }, { "cite": "289 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "119-20", "parenthetical": "Unfair or Deceptive Trade Practices Act does not create action against employer for harassment and dismissal of employee following work-related injury to prevent employee from claiming workers' compensation benefits" }, { "page": "120" }, { "page": "120" } ], "opinion_index": 0 }, { "cite": "56 N.C. App. 445", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521757 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "448" }, { "page": "448" }, { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/nc-app/56/0445-01" ] }, { "cite": "483 S.E.2d 173", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "483 S.E.2d 172", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53953, 54054, 53962, 53838, 53854 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0344-04", "/nc/345/0344-02", "/nc/345/0344-05", "/nc/345/0344-03", "/nc/345/0344-01" ] }, { "cite": "472 S.E.2d 358", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1996, "pin_cites": [ { "page": "363" }, { "page": "362", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11911479 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "10" }, { "page": "9" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0001-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 75-1.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 1994, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 58-63-15", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "et seq." }, { "page": "(11)" }, { "page": "(11)" } ], "opinion_index": 0 }, { "cite": "291 S.E.2d 331", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "332-33" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 346", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524365 ], "year": 1982, "pin_cites": [ { "page": "349" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0346-01" ] }, { "cite": "442 S.E.2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "discussing appellate review of 12(b)(6) motion" } ], "opinion_index": 0 }, { "cite": "335 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532101, 2527527, 2527596, 2527312, 2528350 ], "year": 1994, "pin_cites": [ { "parenthetical": "discussing appellate review of 12(b)(6) motion" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0770-05", "/nc/335/0770-02", "/nc/335/0770-03", "/nc/335/0770-04", "/nc/335/0770-01" ] }, { "cite": "435 S.E.2d 537", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "541" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 295", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521339 ], "year": 1993, "pin_cites": [ { "page": "299-300" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0295-01" ] }, { "cite": "370 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "699" }, { "page": "699-700" }, { "page": "699" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 58", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524291 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "62-63" }, { "page": "63" }, { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0058-01" ] }, { "cite": "229 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "302", "parenthetical": "discussing availability of punitive damages in suit for bad faith refusal of insurer to pay claim" } ], "opinion_index": 0 }, { "cite": "291 N.C. 105", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557369 ], "year": 1976, "pin_cites": [ { "page": "113", "parenthetical": "discussing availability of punitive damages in suit for bad faith refusal of insurer to pay claim" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0105-01" ] }, { "cite": "414 S.E.2d 22", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "27", "parenthetical": "stating the three elements of an independent claim for emotional distress in negligent hiring and retention claims" } ], "opinion_index": 0 }, { "cite": "331 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499459 ], "year": 1992, "pin_cites": [ { "page": "82", "parenthetical": "stating the three elements of an independent claim for emotional distress in negligent hiring and retention claims" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0073-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 120-20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1997, "pin_cites": [ { "parenthetical": "acts of the General Assembly effective only after passage unless otherwise expressly directed" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-88.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 1994, "opinion_index": 0 }, { "cite": "266 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "654", "parenthetical": "\"[T]he responsibility for determining the limits of statutory grants of authority to an administrative agency is a judicial function for the courts to perform.\"" } ], "opinion_index": 0 }, { "cite": "300 N.C. 267", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561043 ], "year": 1980, "pin_cites": [ { "page": "280", "parenthetical": "\"[T]he responsibility for determining the limits of statutory grants of authority to an administrative agency is a judicial function for the courts to perform.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0267-01" ] }, { "cite": "443 S.E.2d 716", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "725", "parenthetical": "quoting In re Community Association, 300 N.C. 267, 280, 266 S.E.2d 645, 654 (1980) (\"[T]he responsibility for determining the limits of statutory grants of authority to an administrative agency is a judicial function for the courts to perform.\"" }, { "page": "722", "parenthetical": "citations omitted" }, { "parenthetical": "holding that hospital's action for injunctive relief from Workers' Compensation statute not barred by exclusive remedy doctrine because relief sought differed from relief provided by Workers' Compensation Act" }, { "page": "722", "parenthetical": "discussing exclusive remedy doctrine" } ], "opinion_index": 0 }, { "cite": "336 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538759 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "214", "parenthetical": "quoting In re Community Association, 300 N.C. 267, 280, 266 S.E.2d 645, 654 (1980) (\"[T]he responsibility for determining the limits of statutory grants of authority to an administrative agency is a judicial function for the courts to perform.\"" }, { "page": "209" }, { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0200-01" ] } ], "analysis": { "cardinality": 968, "char_count": 26930, "ocr_confidence": 0.766, "pagerank": { "raw": 1.9985828485306397e-07, "percentile": 0.7426780480251938 }, "sha256": "015ab612c1e4fe2b9e027eb93ee5a6778a56f34efd7a2d9fc8c05ada31cb8a49", "simhash": "1:0b6b316eccdb0c54", "word_count": 4078 }, "last_updated": "2023-07-14T19:05:25.972365+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and MARTIN, John C., concur." ], "parties": [ "DOROTHY JOHNSON and PAULA SMITH, Plaintiff-Appellants v. FIRST UNION CORPORATION and/or FIRST UNION MORTGAGE CORPORATION; KAY L. BAILEY; CIGNA PROPERTY & CASUALTY INSURANCE COMPANY and/or ESIS, INC.; ROBIN DEFFENBAUGH; INTERNATIONAL REHABILITATION ASSOCIATES, INC. (INTRACORP); and PAT EDWARDS, R.N., Defendant-Appellees" ], "opinions": [ { "text": "McGEE, Judge.\nPlaintiffs appeal from the granting of defendants\u2019 motions to dismiss pursuant to N.C.R. Civ. P. 12(b)(6). Plaintiffs\u2019 complaint alleged common law fraud, unfair or deceptive trade practices, intentional infliction of emotional distress, bad faith claims practices and civil conspiracy by defendant First Union Corporation and/or First Union Mortgage Corporation (employer) and defendants Cigna Property and Casualty Company and/or Esis, Inc., and International Rehabilitation Associates, Inc. (Intracorp) (collectively insurers), in connection with the handling of their workers\u2019 compensation claims.\nIn 1992 and 1993 plaintiffs separately filed claims with the North Carolina Industrial Commission (Commission) seeking workers\u2019 compensation benefits for injuries they allegedly sustained in the course of their employment with First Union as customer representatives in the Raleigh, North Carolina office. Specifically, plaintiffs allege that they developed a \u201crepetitive motion disorder\u201d affecting their hands, arms, shoulders, and neck. The record shows that the Commission has not yet issued an opinion and award for the claim of either plaintiff.\nViewing the facts in the light most favorable to the plaintiffs, the allegations in plaintiffs\u2019 complaint show that in August 1992 Smith signed a Form 21, which obligated the insurer to pay compensation to her \u201cfor an unlimited period of \u2018necessary\u2019 weeks.\u201d In September 1992, Smith received a copy of a letter by Robin Deffenbaugh (Deffenbaugh), claims adjustor for the insurers, stating that further medical treatment in her case was no longer authorized by insurers because Smith\u2019s physician had withdrawn his opinion that her injury was caused by activities performed in the course of her employment. Smith then obtained counsel, who upon investigation, informed her that the Form 21 Agreement she had signed was not contained in the Commission\u2019s file. Shortly thereafter, Smith advised the Commission of the insurers\u2019 failure to submit the executed Form 21 to the Commission for approval. By letter dated 3 March 1993 Smith was notified by the Commission that it had received a Form 21 which appeared to have been materially altered by defendants. The Commission also informed plaintiff that the possibility of fraud in connection with the alteration of the Form 21 could warrant the setting aside or the voiding of the Form 21. Plaintiff was further notified that defendants had failed to file other reports with the Commission required by law.\nSmith alleged in her complaint that:\ndefendants, through their agent and employee Deffenbaugh, with the intent to deceive plaintiff Smith, her attorney and the Industrial Commission, altered material terms of the Form 21 she had signed, by whiting out and changing its agreement to pay compensation for an unlimited period of \u201cnecessary\u201d weeks, to \u201c7 6/7\u201d weeks, a limited period which conformed to the date her physician\u2019s diagnosis was canceled, and returned the altered Form 21 to the Industrial Commission for approval and filing.\nSmith further alleged that by providing her physician with a videotape inaccurately depicting her work-related activities at First Union, the insurers intentionally misrepresented her work-related activities in order to cause her physician to withdraw his opinion that she was disabled. The videotape was produced by the insurers, through their agents and employees, Deffenbaugh and Pat Edwards, a rehabilitation nurse acting as the agent of all defendants in the provision of medical case management services to both plaintiffs in connection with their workers\u2019 compensation claims. According to plaintiffs, \u201c[t]he video did not accurately illustrate the actual repetitive, high-speed activities plaintiffs and other CSRs had performed on a daily basis.\u201d Plaintiffs alleged that \u201cdefendants, through use of the inaccurate video . . . willfully deceived\u201d plaintiffs and their physician, and as a result caused the physician to \u201cwithdraw his diagnosis that [plaintiffs\u2019] injuries were work-related because [plaintiffs\u2019] work activity as depicted in the video could not have caused a repetitive motion disorder.\u201d Smith also alleged that Edwards had \u201cconspired with the employer and carrier in a plan to discredit her claim.\u201d\nJohnson was first employed by First Union in the same office as Smith from 1986 to 1989, and later for eighteen months from June 1991 until January 1993. In January 1992 Johnson developed a repetitive motion disorder and later filed, a claim with the Commission for disability arising from this disorder. In March 1993, by letter from the Commission, she learned that her claim had been rejected on the basis of the same inaccurate video previously sent to Smith\u2019s physician. In November 1993, insurers informed Johnson that based on the inaccurate videotape, her physician had withdrawn his diagnosis that her injury was work-related. Because of this, defendants would not voluntarily accept her claim for compensation and continued medical treatment. Johnson then joined Smith in filing the 25 March 1996 complaint on the basis that defendants acted with the intent to deceive her physician through use of a videotape which inaccurately portrayed the work-related duties of both she and Smith.\nI. Exclusive remedy doctrine\nThe first issue before this Court is whether the Workers\u2019 Compensation Act (Act) provides the exclusive remedy for acts of fraud committed in the handling of workers\u2019 compensation claims. We first examine the scope of the Commission\u2019s authority under the applicable statutes pertaining to fraud under the Act. Charlotte-Mecklenburg Hospital Auth. v. N.C. Industrial Comm., 336 N.C. 200, 214, 443 S.E.2d 716, 725 (1994) (quoting In re Community Association, 300 N.C. 267, 280, 266 S.E.2d 645, 654 (1980) (\u201c[T]he responsibility for determining the limits of statutory grants of authority to an administrative agency is a judicial function for the courts to perform.\u201d).\nWe note that the alleged fraudulent acts occurred prior to the General Assembly\u2019s enactment of the Workers\u2019 Compensation Reform Act of 1994, N.C. Gen. Stat. \u00a7 97-88.2 (1994); thus, this statute does not govern the case currently before this Court. N.C. Gen. Stat. \u00a7 120-20 (Cum. Supp. 1997) (acts of the General Assembly effective only after passage unless otherwise expressly directed). This statute required the Commission to \u201crefer all cases of suspected fraud and all violations related to workers\u2019 compensation claims, by or against insurers or self-funded employers, to the Department of Insurance.\u201d N.C.G.S. \u00a7 97-88.2. The applicable statute, as amended in 1995, now confers this authority upon the Commission by requiring it to:\n(1) Perform investigations regarding all cases of suspected fraud and all violations related to workers\u2019 compensation claims, by or against insurers or self-funded employers, and refer possible criminal violations to the appropriate prosecutorial authorities;\n(2) Conduct administrative violation proceedings; and\n(3) Assess and collect civil penalties and restitution.\nN.C. Gen. Stat. \u00a7 97-88.2 (Cum. Supp. 1997).\nThis case is governed by law as it existed prior to the passage of N.C. Gen. Stat. \u00a7 97-88.2. There was no comparable statute existing at the time the fraudulent acts allegedly occurred to empower the Industrial Commission to penalize insurers and employers for attempting to fraudulently deprive injured employees of their benefits. The Commission\u2019s power to remedy the effects of fraud involving \u201csettlements made by and between the employee and the employer, \u201d such as a Form 21 Agreement, was limited to setting aside the agreement tainted by fraud pursuant to N.C. Gen. Stat. \u00a7 97-17 (1991) (emphasis added). This statute provides that if there has been error due to fraud, misrepresentation, undue influence or mutual mistake, \u201cthe Industrial Commission may set aside such agreement.\u201d N.C.G.S. \u00a7 97-17.\n\u201c[W]hen an effective administrative remedy exists, that remedy is exclusive.\u201d See Charlotte-Mecklenburg Hospital Authority, 336 N.C. at 209, 443 S.E.2d at 722 (citations omitted). However, when the relief sought differs from the statutory remedy provided, the administrative remedy will not bar a claimant from pursuing an adequate remedy in civil court. Id. (holding that hospital\u2019s action for injunctive relief from Workers\u2019 Compensation statute not barred by exclusive remedy doctrine because relief sought differed from relief provided by Workers\u2019 Compensation Act).\nWe hold that the remedy provided by N.C.G.S. \u00a7 97-17 is not effective as it does not adequately address the plaintiffs\u2019 injuries. First, plaintiffs have alleged injuries beyond the mere loss of workers\u2019 compensation benefits, including emotional distress arising from defendants\u2019 fraudulent actions, see Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992) (stating the three elements of an independent claim for emotional distress in negligent hiring and retention claims). They also seek punitive damages not provided for by N.C.G.S. \u00a7 97-17 which only empowers the Commission to set aside the tainted agreement. It is well-settled that the \u201cpunishment of... intentional wrongdoing,\u201d including acts of fraud, is \u201cwell within North Carolina\u2019s policy underlying its concept of punitive damages.\u201d Newton v. Insurance Co., 291 N.C. 105, 113, 229 S.E.2d 297, 302 (1976) (discussing availability of punitive damages in suit for bad faith refusal of insurer to pay claim). This Court has ruled it is error to dismiss a claim for punitive damages arising from a claim for bad faith refusal of insurer to pay benefits when the claim alleges that an insurer acted in \u201cwilful, wanton and in conscious disregard of [its] duty to pay plaintiff\u2019s insurance claim.\u201d Von Hagel v. Blue Cross and Blue Shield, 91 N.C. App. 58, 62-63, 370 S.E.2d 695, 699 (1988).\nFor these reasons, we hold that N.C. General Statute \u00a7 97-17 is not an effective remedy for plaintiffs\u2019 additional injuries beyond the loss of workers\u2019 compensation benefits; thus, the exclusive remedy doctrine does not apply to bar plaintiffs\u2019 civil action. See Charlotte- Mecklenburg Hosp. Auth., 336 N.C. at 209, 443 S.E.2d at 722 (discussing exclusive remedy doctrine).\nII. Sufficiency of allegations\nNext we examine whether, in viewing the plaintiffs\u2019 allegations as true, the plaintiffs have stated claims for which relief can be granted. Miller v. Nationwide Mutual Ins. Co., 112 N.C. App. 295, 299-300, 435 S.E.2d 537, 541 (1993), disc. review denied, 335 N.C. 770, 442 S.E.2d 519 (1994) (discussing appellate review of 12(b)(6) motion).\na.Intentional infliction of emotional distress claim\nIn order to survive a 12(b)(6) motion against an insurer for intentional infliction of emotional distress in refusing to pay an insurance claim, the complaint must allege that defendant insurer demonstrated \u201ccalculated intentional conduct causing emotional distress directed toward\u201d the plaintiff. Von Hagel, 91 N.C. App. at 63, 370 S.E.2d at 699-700. Plaintiffs have met this requirement as they alleged that the defendants\u2019 \u201cfraudulent misrepresentations and concealment of facts . . . were done with the intent to inflict anxiety and distress\u201d upon them. Thus this claim was improperly dismissed.\nb.Bad faith refusal of insurer to pay benefits\nTo state a claim for bad faith refusal to pay insurance benefits, plaintiff must allege that the insurer has acted in bad faith by refusing to settle or negotiate with the plaintiff and that the insurers\u2019 actions have been a misuse of power and authority tantamount to outrageous conduct reflecting a reckless and wanton disregard of the plaintiff\u2019s rights under the insurance policy. Dailey v. Integon Ins. Corp., 57 N.C. App. 346, 349, 291 S.E.2d 331, 332-33 (1982).\nAfter reviewing plaintiffs\u2019 complaint, we hold that the allegations are sufficient to satisfy these requirements. The trial court erred in dismissing these claims for relief as the complaint contains allegations that the insurers materially altered the Form 21 agreement and produced an inaccurate video of plaintiffs\u2019 job duties to deceive plaintiffs\u2019 physicians that plaintiffs\u2019 injuries were not work-related. Von Hagel, 91 N.C. App. at 63, 370 S.E.2d at 699.\nc.Unfair or Deceptive Trade Practices\nPlaintiffs also alleged that the \u201cactions and conduct of defendants through their respective agents and employees . . . constitute unfair or deceptive trade practices as defined by N.C. Gen. Stat. \u00a7 58-63-15 et seq. and 75-1.1 et seq.\u201d and as a result they \u201chave sustained damages as a proximate result\u201d of these practices. N.C. Gen. Stat. \u00a7 58-63-15(11) (1994) specifically states that it does not \u201cof itself create any cause of action in favor of any person other than the [Insurance] Commissioner.\u201d Accordingly, the claim for relief brought by the plaintiffs under this statute was properly dismissed. However, N.C. Gen. Stat. \u00a7 75-1.1 (1994) creates a \u201cremedy \u2018in the nature of a private action\u2019 for the conduct described by and in [N.C. Gen. Stat.] \u00a7 58-63-15(11).\u201d Murray v. Nationwide Mutual Ins. Co., 123 N.C. App. 1, 10, 472 S.E.2d 358, 363 (1996), disc. review denied, 345 N.C. 344, 483 S.E.2d 172 (1997), and disc. review denied, 345 N.C. 344, 483 S.E.2d 173 (1997).\nN.C. General Statute \u00a7 58-63-15(ll)i. (1994) states that to attempt \u201cto settle claims on the basis of an application which was altered without notice to, or knowledge or consent of, the insured\u201d is an unfair claim settlement practice when \u201ccommitt[ed] or performed] with such frequency as to indicate a general business practice.\u201d Case law has further required that for a plaintiff to prevail on a claim for unfair or deceptive trade practices, plaintiff must demonstrate the existence of three factors: \u201c(1) an unfair or deceptive act or practice, or unfair method of competition, (2) in or affecting commerce, and (3) which proximately caused actual injury to the plaintiff or his business.\u201d Murray, 123 N.C. App. at 9, 472 S.E.2d at 362 (citations omitted). When \u201can insurance company engages in conduct manifesting an inequitable assertion of power or position,\u201d including conduct which can be characterized as \u201cunethical,\u201d that \u201cconduct constitutes an unfair trade practice.\u201d Id. In this case the alleged alteration of the Form 21 agreement and the misrepresentation of plaintiffs\u2019 work duties to plaintiffs\u2019 physicians by the insurer are actions which meet this definition. Thus the plaintiffs\u2019 claim for relief on these grounds was improperly dismissed against the insurers.\nWe next address whether a cause of action exists under N.C. Gen. Stat. \u00a7 75-1.1 et seq. against defendant employer. This Court has previously held that \u201cemployer-employee relationships do not fall within the intended scope of [N.C. Gen. Stat. \u00a7 75-1.1].\u201d Buie v. Daniel International, 56 N.C. App. 445, 448, 289 S.E.2d 118, 119-20, disc. review denied, 305 N.C. 759, 292 S.E.2d 574 (1982) (Unfair or Deceptive Trade Practices Act does not create action against employer for harassment and dismissal of employee following work-related injury to prevent employee from claiming workers\u2019 compensation benefits). The policy behind this statutory construction is that \u201c[e]mployment practices fall within the purview of other statutes adopted for that express purpose.\u201d Buie, 56 N.C. App. at 448, 289 S.E.2d at 120. However, in this case, the fraudulent actions allegedly committed involved conduct occurring after plaintiffs were no longer employed by the employer, and related to the settlement of the claims, not the accidents giving rise to the claims. Thus, this conduct does not fall within the scope of the employer-employee relationship governed by the Workers\u2019 Compensation Act. See N.C. Gen. Stat. \u00a7 97-2 (2) (1991) (defining \u201cemployee\u201d); see also N.C. Gen. Stat. \u00a7 97-2 (6) (1991) (defining compensable \u201cinjury\u201d as one \u201cby accident arising out of and in the course of the employment\u201d). As discussed above, there is no other effective available remedy to penalize employers\u2019 fraudulent conduct in regard to workers\u2019 compensation claims under the Workers\u2019 Compensation Act; we thus hold that this case is not controlled by Buie, 56 N.C. App. at 448, 289 S.E.2d at 120, and a cause of action against the employer exists under N.C. Gen. Stat. \u00a7 75-1.1.\nWe note, however, that this Court cannot ascertain from the complaint alone which actions were committed by the employer as plaintiffs\u2019 complaint consistently refers to actions of the \u201cdefendants\u201d without clarification as to whether \u201cdefendants\u201d include the employer. However, because this case was dismissed on a motion upon the pleadings, we hold that the allegations against First Union were sufficient to survive the 12(b)(6) motion, and thus the trial court improperly dismissed the claims against the employer.\nd. Civil conspiracy\nA claim for damages resulting from a conspiracy to defraud exists where there is an agreement between two or more persons to defraud a party, and as a result of acts done in furtherance of, and pursuant to the agreement, that party is damaged. Fox v. Wilson, 85 N.C. App. 292, 301, 354 S.E.2d 737, 743 (1987) (citations omitted). \u201cIn such a case, all of the conspirators are liable, jointly and severally, for the act of any one of them done in furtherance of the agreement.\u201d Id. A \u201cconspiracy is an offense independent of the unlawful act which is its purpose.\u201d State v. Saunders, 126 N.C. 524, 526, 485 S.E.2d 853, 854-55 (1997) (quoting State v. Essick, 67 N.C. App. 697, 700, 314 S.E.2d 268, 271 (1984) (\u201cconspiracy is the crime and not its execution\u201d). Therefore, parties may be liable for conspiring to commit a statutory violation which they could not, because of their status, otherwise violate if acting alone. See Saunders, 126 N.C. at 526-27, 485 S.E.2d at 855 (defendant may be convicted of conspiracy to commit statutory crime of larceny by an employee even though defendant, himself, is not an employee).\nIn this case, the plaintiffs have alleged that the\nactions and conduct of defendants through their respective agents and employees . . . included overt acts committed by defendants Edwards, Deffenbaugh and other agents and employees of defendants, pursuant to a common agreement between them in furtherance of common objectives ... to fraudulently and wrongfully deprive plaintiffs of workers\u2019 compensation benefits, medical treatment. . . and to intentionally defraud the [Commission] . . . constitutes a civil conspiracy among defendants.\nWe hold that plaintiffs have alleged a prima facie case against all defendants, and thus dismissal of the conspiracy claim was improper.\nIII. Doctrine of primary jurisdiction\nFinally we determine the appropriate procedure to dispose of cases involving underlying workers\u2019 compensation claims not yet resolved by the Industrial Commission. In N.C. Chiropractic Assoc. v. Aetna Casualty & Surety Co., 89 N.C. App. 1, 9, 365 S.E.2d 312, 316-17 (1988), a case similar to the one before us, this Court applied the doctrine of primary jurisdiction. Under this doctrine, when it appears that \u201c[s]ome aspects of plaintiffs\u2019 claims are clearly within the Industrial Commission\u2019s jurisdiction,\u201d as are the plaintiffs\u2019 claims for loss of workers\u2019 compensation benefits, \u201cand resolution of these aspects could possibly also determine the resolution of plaintiffs\u2019 claims under the common [and statutory] law,\u201d the trial court should consider staying the claims before it until the Commission resolves the related claims. Id. at 9, 365 S.E.2d at 316-17. Prior to the determination of their workers\u2019 compensation claims before the Commission, the plaintiffs in N.C. Chiropractic Association filed a complaint in state court alleging unfair or deceptive trade practices and malicious interference with contractual rights involving workers\u2019 compensation claims. Id. Because of the common factual issues between the plaintiffs\u2019 claims and the underlying workers\u2019 compensation claims, the trial court refrained from exercising its jurisdiction to resolve the civil claims until after the Commission had resolved the workers\u2019 compensation claims. Id. (citations omitted).\nSimilarly, in the case before us, common factual issues exist between the civil claims and the claims for workers\u2019 compensation pending before the Commission which are more appropriately resolved by the Commission. First, with respect to the allegations that the Form 21 was fraudulently altered, the rules promulgated by the Commission govern, and it is the Commission\u2019s duty to determine whether such rules and procedures were violated. N.C. Gen. Stat. \u00a7 97-86 (Cum. Supp. 1997). For this reason, the Commission is also the appropriate tribunal to make the factual determinations as to whether the video accurately portrayed plaintiffs\u2019 work environment. Id. Until the Commission determines whether these actions by the defendants comply with its rules and procedures, it would be difficult for the trial court to determine whether such conduct is \u201cextreme or outrageous,\u201d or determine if the claims were handled with bad faith or fraudulent intent. Thus, we stay these claims pending the issuance of the opinion and award for both plaintiffs.\nIn summary, we affirm the trial court\u2019s dismissal of the plaintiffs\u2019 claim for relief under N.C. Gen. Stat. \u00a7 58-63-15(11), and reverse the order granting the 12(b)(6) dismissal on all plaintiffs\u2019 other claims against defendant insurers and defendant employer and remand this case to the trial court with instructions to stay these claims until the Industrial Commission has ruled on the plaintiffs\u2019 underlying workers\u2019 compensation claims.\nAffirmed in part, reversed in part, and remanded.\nChief Judge ARNOLD and MARTIN, John C., concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Charles R. Hassell, Jr., for plaintiff-appellants.", "Smith, Anderson, Blount, Dorsett, Mitchell & Jemigan, L.L.P., by Robin K. Vinson, for defendant-appellees First Union Corporation, First Union Mortgage Corporation, and Kay L. Bailey.", "Yates, McLamb & Weyher, L.L.P., by Derek M. Crump and Travis K. Morton, for defendant-appellees CIGNA Property & Casualty Insurance Company, Esis, Inc., Robin Deffenbaugh, International Associates, Inc., and Pat Edwards, R.N.", "Maupin, Taylor & Ellis, P.A., by Elizabeth D. Scott, for defendant-appellees, International Rehabilitation Associates, Inc. (Intracorp), and Pat Edwards, R.N." ], "corrections": "", "head_matter": "DOROTHY JOHNSON and PAULA SMITH, Plaintiff-Appellants v. FIRST UNION CORPORATION and/or FIRST UNION MORTGAGE CORPORATION; KAY L. BAILEY; CIGNA PROPERTY & CASUALTY INSURANCE COMPANY and/or ESIS, INC.; ROBIN DEFFENBAUGH; INTERNATIONAL REHABILITATION ASSOCIATES, INC. (INTRACORP); and PAT EDWARDS, R.N., Defendant-Appellees\nNo. COA97-211\n(Filed 3 February 1998)\n1. Workers\u2019 Compensation \u00a7 57 (NCI4th)\u2014 fraud in claims settlement \u2014 Act not exclusive remedy\nThe exclusive remedy doctrine did not apply to bar plaintiffs\u2019 civil action for acts of fraud allegedly committed in the handling of plaintiffs\u2019 workers\u2019 compensation claims where the Industrial Commission\u2019s power to remedy the effects of fraud at the time the fraudulent acts allegedly occurred was limited to setting aside an agreement tainted by fraud pursuant to N.C.G.S. \u00a7 97-17; plaintiffs have alleged injuries beyond the mere loss of workers\u2019 compensation benefits, including emotional distress, and also seek punitive damages; and the remedy provided by N.C.G.S. \u00a7 97-17 thus does not adequately address plaintiffs\u2019 alleged injuries.\n2. Intentional Mental Distress \u00a7 2 (NCI4th)\u2014 refusal to pay insurance claim \u2014 sufficiency of complaint\nPlaintiff employees\u2019 complaint properly alleged intentional infliction of emotional distress for defendant insurers\u2019 refusal to pay an insurance claim where plaintiffs\u2019 complaint alleged that defendants\u2019 \u201cfraudulent misrepresentation and concealment of facts . . . were done with the intent to inflict anxiety and distress upon them.\u201d\n3. Insurance \u00a7 1042 (NCI4th)\u2014 bad faith refusal to pay insurance benefits \u2014 statement of claim\nThe trial court erred in dismissing plaintiffs\u2019 claims against defendant insurers for bad faith refusal to pay insurance benefits to plaintiffs who alleged they became disabled due to a motion disorder while employed by defendant, First Union, where plaintiffs alleged that defendants materially altered a Form 21 agreement and produced an inaccurate video of plaintiffs\u2019 job duties to deceive plaintiffs\u2019 physicians that plaintiffs\u2019 injuries were not work-related.\n4. Insurance \u00a7 11 (NCI4th)\u2014 unfair settlement statute \u2014 no individual claims\nPlaintiffs\u2019 claim under the unfair insurance claim settlement statute, N.C.G.S. \u00a7 58-63-15(11), was properly dismissed because the statute creates a cause of action only in favor of the Insurance Commissioner.\n5. Insurance \u00a7 11 (NCI4th)\u2014 workers\u2019 compensation \u2014 unfair or deceptive practice \u2014 statement of claim\nPlaintiffs stated a claim for unfair or deceptive trade practices against defendant workers\u2019 compensation insurers where they alleged that defendants altered a Form 21 agreement and misrepresented plaintiffs\u2019 work duties to plaintiffs\u2019 physicians. N.C.G.S. \u00a7\u00a7 58-63-15(ll)i, 75-1.1.\n6. Workers\u2019 Compensation \u00a7 57 (NCI4th)\u2014 fraud in settlement of claims \u2014 unfair practice action not barred\nAlleged fraudulent conduct by defendant employer in the settlement of plaintiffs\u2019 workers\u2019 compensation claims did not fall within the scope of the employer-employee relationship governed by the Workers\u2019 Compensation Act where the fraudulent actions occurred after plaintiffs were no longer employed by defendant and did not relate to the accidents giving rise to the claims; thus, plaintiffs were not barred from bringing actions under the unfair or deceptive trade practices statute based upon such alleged fraud. N.C.G.S. \u00a7 75-1.1.\n7. Conspiracy \u00a7 10 (NCI4th)\u2014 civil conspiracy \u2014 sufficiency of complaint\nPlaintiffs stated a claim for civil conspiracy against defendant employer, defendant workers\u2019 compensation insurers, and their agents and employees where plaintiffs alleged that the employer and insurers, through their agents and employees, entered into a common agreement in furtherance of common objectives to fraudulently deprive plaintiffs of workers\u2019 compensation benefits and medical treatment and to defraud the Industrial Commission.\n8. Workers\u2019 Compensation \u00a7 104 (NCI4th)\u2014 civil actions\u2014 stay pending workers\u2019 compensation determination \u2014 doctrine of primary jurisdiction\nPlaintiffs\u2019 civil actions arising from the allegedly fraudulent handling of their workers\u2019 compensation claims by defendant employer, defendant compensation insurers, and their agents and employees will be stayed under the doctrine of primary jurisdiction pending the Industrial Commission\u2019s determination of plaintiffs\u2019 underlying workers\u2019 compensation claims.\nAppeal by plaintiffs from order entered 18 September 1996 by Judge Henry V. Barnette, Jr., in Wake County Superior Court. Heard in the Court of Appeals 9 October 1997.\nCharles R. Hassell, Jr., for plaintiff-appellants.\nSmith, Anderson, Blount, Dorsett, Mitchell & Jemigan, L.L.P., by Robin K. Vinson, for defendant-appellees First Union Corporation, First Union Mortgage Corporation, and Kay L. Bailey.\nYates, McLamb & Weyher, L.L.P., by Derek M. Crump and Travis K. Morton, for defendant-appellees CIGNA Property & Casualty Insurance Company, Esis, Inc., Robin Deffenbaugh, International Associates, Inc., and Pat Edwards, R.N.\nMaupin, Taylor & Ellis, P.A., by Elizabeth D. Scott, for defendant-appellees, International Rehabilitation Associates, Inc. (Intracorp), and Pat Edwards, R.N." }, "file_name": "0450-01", "first_page_order": 486, "last_page_order": 497 }