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    "judges": [
      "Judges WALKER and CAMPBELL concur."
    ],
    "parties": [
      "ALLEN WAYNE SEYMOUR, JR., Plaintiff-Appellee v. LENOIR COUNTY, SANDY BOTTOM VOLUNTEER FIRE DEPARTMENT, INC., and JAMES GOFF, JR., Individually and as an Agent of SANDY BOTTOM VOLUNTEER FIRE DEPARTMENT, INC., Defendant-Appellants"
    ],
    "opinions": [
      {
        "text": "McGEE, Judge.\nAllen Wayne Seymour, Jr. (plaintiff) filed suit on 11 May 2000 against Lenoir County, Sandy Bottom Volunteer Fire Department, Inc. (defendant Fire Department), and James Goff, Jr. (defendant Goff). Plaintiff\u2019s claims arose from events which occurred on 19 May 1997, when plaintiff was employed as a volunteer firefighter with defendant Fire Department. Defendant Fire Department conducted a training exercise in which it set a house on fire. Selected members of defendant Fire Department, including plaintiff, were instructed to enter the house and conduct a search and rescue operation. When plaintiff entered the house, he was engulfed by flames and suffered severe burns and pulmonary injuries. Defendant Goff was the instructor in charge of the exercise on behalf of defendant Fire Department.\nDefendant Goff and defendant Fire Department filed a motion to dismiss for lack of subject matter jurisdiction pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(1) on 8 February 2001. Defendant Lenoir County did not join in this motion. Defendant Fire Department and defendant Goff argued that the exclusivity provision of the Workers\u2019 Compensation Act and the doctrine of sovereign immunity precluded plaintiffs claims. The motion was heard on 19 February 2001 and denied by the trial court in an order entered 12 April 2001. Defendant Fire Department and defendant Goff appeal from this order.\nI.\nDefendant Fire Department first argues the trial court erred in denying its motion to dismiss because defendant Fire Department is immune from liability under the doctrine of sovereign immunity. Defendant Fire Department contends sovereign immunity precludes plaintiffs claims because defendant Fire Department has not waived its immunity by purchasing liability insurance that provides coverage for intentional misconduct which defendant knew was substantially certain to cause serious injury or death.\nAccidents which occur in the course and scope of employment are generally subject to the exclusivity provision of the North Carolina Workers\u2019 Compensation Act. See N.C. Gen. Stat. \u00a7 97-9 and N.C. Gen. Stat. \u00a7 97-10.1 (1999). However, our Courts have created two notable exceptions to this general rule. A plaintiff may bring either a Pleasant claim or a Woodson claim for intentional acts by the employer or by a co-employee which result in injury. See Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985); and Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). We note that plaintiff\u2019s claim against defendant Fire Department is a Woodson claim. Under a Woodson claim, a plaintiff can bring a civil suit against an employer based on intentional acts where \u201can employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to employees and an employee is injured or killed by that misconductf.]\u201d Woodson, 329 N.C. at 340, 407 S.E.2d at 228.\nIn general, \u201c[w]hile provisions extending coverage will be construed broadly to find coverage, provisions excluding coverage are not favored and will be strictly construed against the insurer and in favor of the insured, again, to find coverage.\u201d Nationwide Mut. Fire Ins. Co. v. Grady, 130 N.C. App. 292, 295, 502 S.E.2d 648, 651 (1998). Defendant Fire Department admits its insurance policies cover injuries which arise out of accidents; however, defendant Fire Department contends that plaintiff alleges injuries which occurred as a result of an intentional act which defendant Fire Department knew \u201cwould be substantially certain to cause Plaintiff serious injury or death.\u201d Defendant Fire Department points to an exclusionary provision in two of defendant Fire Department\u2019s insurance policies which bars claims based on intended actions. The first policy has an exclusion which provides:\n2. Exclusions\nThis insurance does not apply to:\na. Expected or Intended Injury\n\u201cBodily injury\u201d or \u201cproperty damage\u201d expected or intended from the standpoint of the insured.\nA second insurance policy owned by defendant Fire Department states the policy will cover \u201cbodily injury or property damage which ... is caused by an occurrence.\u201d The policy defines occurrence as \u201can accident. . . which results in bodily injury or property damage which is neither expected nor intended from the standpoint of the insured.\u201d Both policies contain essentially the same exclusion.\nPlaintiff contends that in order for an \u201cact to be excluded under the \u2018expected and intended\u2019 exclusion [of an insurance policy], both the act and the resultant harm must have been intended.\u201d Nationwide, 130 N.C. App. at 295-96, 502 S.E.2d at 651. Plaintiff further contends that while defendant Goff\u2019s \u201cact\u201d of ordering plaintiff into the burning house was intended, there is no evidence which shows defendant Goff or anyone connected with defendant Fire Department intentionally injured plaintiff. Our Supreme Court has held that \u201cin order to avoid coverage on the basis of the exclusion for expected or intended injuries in the insurance policy . . . the insurer must prove that the injury itself was expected or intended by the insured. Merely showing the act was intentional will not suffice.\u201d N. C. Farm Bureau Mut. Ins. Co. v. Stox, 330 N.C. 697, 706, 412 S.E.2d 318, 324 (1992). However, our Supreme Court continued that\nwhere the term \u201caccident\u201d is not specifically defined in an insurance policy, that term does include injury resulting from an intentional act, if the injury is not intentional or substantially certain to be the result of the intentional act.\nN.C. Farm Bureau Mut. Ins. Co. v. Stox, 330 N.C. 697, 709, 412 S.E.2d 318, 325 (1992) (second emphasis added). Thus, although it is possible for injury from an intentional act to be within the definition of an accident, that is not the situation where the injury is \u201csubstantially certain to be the result of the intentional act.\u201d Id. Because plaintiff alleged that defendant Fire Department engaged in intentional acts which were \u201csubstantially certain to cause Plaintiff serious injury or death,\u201d these acts do not meet the definition of an \u201caccident.\u201d Thus, we conclude plaintiff did not allege injuries by accident or as a result of an occurrence and the insurance policies at issue do not provide coverage for plaintiff\u2019s claim. Consequently, defendant Fire Department has not waived its sovereign immunity. We reverse the trial court\u2019s denial of defendant Fire Department\u2019s motion to dismiss for lack of subject matter jurisdiction.\nII.\nDefendant Goff argues the trial court erred in denying his motion to dismiss because plaintiff\u2019s claims against him are barred by the exclusivity provision of the North Carolina Workers\u2019 Compensation Act. As discussed above, our Courts have created two exceptions to the exclusivity provision of the Workers\u2019 Compensation Act. A Pleasant claim may be brought against co-employees and will cover intentional acts which are willful or wantonly negligent. A Woodson claim may be brought against employers but carries a stricter standard of intentional acts which the employer knew or should have known would cause serious injury or death. Plaintiff has elected to bring a Pleasant claim against defendant Goff. Plaintiff alleges defendant Goff\u2019s actions were willful and wanton. The \u201cWorkers\u2019 Compensation Act does not shield a co-employee from common law liability for willful, wanton and reckless negligence.\u201d Pleasant, 312 N.C. at 716, 325 S.E.2d at 249. However, defendant Goff contends he is an officer of a corporation and not a \u201cco-employee\u201d of plaintiff, and therefore subject to the stricter standard articulated in Woodson. Since plaintiff has alleged only willful and wanton behavior, defendant Goff contends plaintiff\u2019s claim is barred by the exclusivity provision of the Workers\u2019 Compensation Act. We disagree.\nIn Woodson, our Supreme Court held that when corporate employers could not be held liable, neither could their corporate officers and directors because \u201cin the workers\u2019 compensation context, corporate officers and directors are treated the same as their corporate employer vis-a-vis application of the exclusivity principle.\u201d Woodson, 329 N.C. at 347, 407 S.E.2d at 232. As a result, in order for a corporate officer to be held liable, the officer must have engaged in intentional misconduct which the officer knew was substantially certain to cause serious injury or death. Defendant Goff contends plaintiff has only asserted that defendant Goff was willfully and wantonly negligent; therefore, plaintiff has not met the Woodson standard. However, we fail to see how defendant Goff holds a position in the Sandy Bottom Volunteer Fire Department, Inc. which would equate to a corporate officer position of shareholder, president, vice-president, or secretary. Similar to the defendant in Pleasant, defendant Goff is more of a co-employee of plaintiff than an employer of plaintiff. We hold defendant Goff should be held to the same standard as a co-employee. As a result, under Pleasant, plaintiff can bring a civil action against defendant Goff as a co-employee by alleging willful and wantonly negligent behavior while also maintaining an action under the Workers\u2019 Compensation Act.\nDefendant Goff also seeks to escape liability by claiming to be a public official and, under Jones v. Kearns, 120 N.C. App. 301, 462 S.E.2d 245 (1995), immune from personal liability for mere negligence in the performance of his duties. However, in order to be considered a public official, the position must have been statutorily or constitutionally created. See Block v. County of Person, 141 N.C. App. 273, 540 S.E.2d 415 (2000). Defendant Goff has pointed this Court to no statute or constitutional provision creating the position he filled. We overrule this assignment of error, and we affirm the trial court\u2019s denial of defendant Goff\u2019s motion to dismiss.\nAffirmed in part and reversed in part.\nJudges WALKER and CAMPBELL concur.",
        "type": "majority",
        "author": "McGEE, Judge."
      }
    ],
    "attorneys": [
      "Davis & McCabe, P.A., by John M. McCabe; and Timothy D. Welbom, P.A., by Timothy D. Welbom, for plaintiff-appellee.",
      "Cranfill, Sumner & Hartzog, L.L.P., by Edward C. LeCarpentier III, for defendant-appellants."
    ],
    "corrections": "",
    "head_matter": "ALLEN WAYNE SEYMOUR, JR., Plaintiff-Appellee v. LENOIR COUNTY, SANDY BOTTOM VOLUNTEER FIRE DEPARTMENT, INC., and JAMES GOFF, JR., Individually and as an Agent of SANDY BOTTOM VOLUNTEER FIRE DEPARTMENT, INC., Defendant-Appellants\nNo. COA01-972\n(Filed 20 August 2002)\n1. Immunity\u2014 sovereign \u2014 insurance purchased \u2014 intentional acts excluded \u2014 no waiver\nDefendant volunteer fire department did not waive its sovereign immunity through the purchase of insurance where plaintiff-fireman was injured when he was ordered into a burning building during a training exercise and brought a Woodson claim which alleged intentional acts substantially certain to cause injury or death which were not covered by defendant\u2019s insurance.\n2. Workers\u2019 Compensation\u2014 exclusivity \u2014 volunteer fire department instructor \u2014 co-employee\nA volunteer fireman\u2019s claim against an instructor was not barred by the exclusivity provision of the Workers\u2019 Compensation Act where plaintiff brought a Pleasant claim by alleging that the instructor was willful and wanton in ordering him into a burning building during a training exercise, but the instructor contended that he was an officer in the corporation and that the stricter Woodson standard applied. The instructor was more plaintiff\u2019s co-employee than employer.\n3. Immunity\u2014 public official \u2014 position not created by statute or constitution\nAn instructor of volunteer firemen was not a public official entitled to personal immunity where his position was not statutorily or constitutionally created.\nAppeal by defendants from an order entered 12 April 2001 by Judge Benjamin G. Alford in Superior Court, Lenoir County. Heard in the Court of Appeals 24 April 2002.\nDavis & McCabe, P.A., by John M. McCabe; and Timothy D. Welbom, P.A., by Timothy D. Welbom, for plaintiff-appellee.\nCranfill, Sumner & Hartzog, L.L.P., by Edward C. LeCarpentier III, for defendant-appellants."
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  "file_name": "0464-01",
  "first_page_order": 492,
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