{ "id": 9185178, "name": "MICHAEL LEMLY, Employee, Plaintiff v. COLVARD OIL COMPANY, Employer, and FEDERATED MUTUAL INSURANCE COMPANY, Carrier, Defendants", "name_abbreviation": "Lemly v. Colvard Oil Co.", "decision_date": "2003-04-01", "docket_number": "No. COA01-1529", "first_page": "99", "last_page": "105", "citations": [ { "type": "official", "cite": "157 N.C. App. 99" } ], "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": "532 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "232" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 582", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080888 ], "year": 2000, "pin_cites": [ { "page": "587-88" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0582-01" ] }, { "cite": "464 S.E.2d 711", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "714" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 180", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916228 ], "year": 1995, "pin_cites": [ { "page": "184" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0180-01" ] }, { "cite": "553 S.E.2d 36", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 75", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138408, 138459, 138366, 138463 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0075-04", "/nc/354/0075-02", "/nc/354/0075-03", "/nc/354/0075-01" ] }, { "cite": "548 S.E.2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "500" } ], "opinion_index": 0 }, { "cite": "353 N.C. 690", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135733 ], "year": 2001, "pin_cites": [ { "page": "692" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0690-01" ] }, { "cite": "487 S.E.2d 550", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "346 N.C. 280", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139620, 139372, 139535, 139646, 139327 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/346/0280-03", "/nc/346/0280-01", "/nc/346/0280-04", "/nc/346/0280-05", "/nc/346/0280-02" ] }, { "cite": "482 S.E.2d 544", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "546" } ], "opinion_index": 0 }, { "cite": "125 N.C. 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App. 423", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11358836 ], "year": 2001, "pin_cites": [ { "page": "427", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0423-01" ] }, { "cite": "537 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 830", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132227, 132133, 132136, 132152, 132318 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0830-01", "/nc/350/0830-02", "/nc/350/0830-03", "/nc/350/0830-04", "/nc/350/0830-05" ] }, { "cite": "513 S.E.2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "77" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 505", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238919 ], "year": 1999, "pin_cites": [ { "page": "507" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0505-01" ] } ], "analysis": { "cardinality": 565, "char_count": 12962, "ocr_confidence": 0.754, "pagerank": { "raw": 1.924251083432347e-07, "percentile": 0.7334006731666596 }, "sha256": "a5635ff2a0d035cfd0c5702cb1a6bcf61b29bb0579469539f65f9b0d6275c9b9", "simhash": "1:9f142bea5c996bcc", "word_count": 2011 }, "last_updated": "2023-07-14T16:54:20.581695+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and GEER concur." ], "parties": [ "MICHAEL LEMLY, Employee, Plaintiff v. COLVARD OIL COMPANY, Employer, and FEDERATED MUTUAL INSURANCE COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "EAGLES, Chief Judge.\nColvard Oil Company and Federated Mutual Insurance Company (\u201cdefendants\u201d) appeal from an opinion and award of the full Commission concluding that a memorandum of settlement arising out of a mediated settlement conference was not enforceable as a compromise settlement agreement and awarding Michael Lemly (\u201cplaintiff\u2019) total disability benefits. After careful consideration of the briefs and record, we reverse and remand.\nThe plaintiff worked for defendant Colvard Oil Company (\u201cColvard Oil\u201d) as a truck driver. On 6 May 1997, the plaintiff was hauling gravel when tree limbs became entangled in the bed of his truck. The plaintiff \u201cwrestle [d]\u201d with a tarp covering the bed of his truck. As the plaintiff lifted a tree limb from the bed of the truck, he \u201cfelt a real sharp pain\u201d in his back and \u201ca real bad burning sensation.\u201d The following day, the plaintiff went to the emergency room and then to his family physician.\nDefendants filed a Form 60 dated 5 June 1997 admitting plaintiffs right to compensation and began paying plaintiff temporary total disability benefits. Plaintiff participated in physical therapy and received treatment from several doctors until he was cleared to return to light duty work in January 1998. Plaintiff returned to work for Colvard Oil on 26 January 1998 at a filling station subject to work restrictions. After work on 26 January, the plaintiff \u201ccould barely walk\u201d and he proceeded to the emergency room. Dr. Mark Scott, a physician in the emergency room, advised the plaintiff to remain out of work. Dr. Charles Branch, Jr., a neurosurgeon, performed surgery on the plaintiffs back in May 1998. Plaintiff has not returned to work since 26 January 1998.\nThe Industrial Commission ordered the parties to participate in a mediated settlement conference which occurred on 12 August 1998. At the conclusion of the conference, the parties all signed a \u201cMemorandum of Settlement\u201d which stated:\nThe Parties agree that:\n1. Defendants shall pay claimant $40,000.00 in settlement of this claim; and\n2. Claimant shall pay out of the settlement proceeds all unpaid medical bills and satisfy all medical liens; and\n3. Claimant shall execute clincher setting out above terms and other standard language. Upon approval by [the Industrial Commission], settlement will be paid.\n4. Defendants shall pay all mediation fees.\nThe day after the mediation, the defendants sent the plaintiff a clincher agreement. The plaintiff did not execute the clincher agreement and filed a Form 33 dated 15 September 1998 seeking a hearing because of \u201cthe Defendants refus[al] to provide necessary medical treatment.\u201d Defendants filed a Form 24 on 12 October 1998 seeking to terminate or suspend payment of benefits and moved to \u201cRequire Compliance with Mediated Settlement.\u201d\nIn an opinion and award, the Deputy Commissioner denied defendants\u2019 motion to enforce the settlement agreement. The Deputy Commissioner awarded plaintiff temporary total disability compensation from 28 January 1998 through 26 May 1999 and permanent partial disability compensation for a period of seventy-five weeks. The plaintiff and defendants appealed.\nThe full Commission concluded that the signed settlement agreement was \u201cnot enforceable as a Compromise Settlement Agreement.\u201d The full Commission awarded the plaintiff temporary total disability benefits from 28 January 1998 through 26 May 1999 and ongoing total disability benefits \u201cuntil further order of the Commission.\u201d Defendants appeal.\nOn appeal, defendants contend that the full Commission erred in refusing to allow defendants to stop paying disability benefits to the plaintiff because plaintiff wrongfully refused light duty work and that the full Commission erred in failing to enforce the settlement agreement. After careful consideration, we agree.\nDefendants first contend that the full Commission erred by failing to enforce the settlement agreement. Defendants argue that the parties participated in a Commission ordered mediation which resulted in an agreement to settle, signed by both parties. The plaintiff agreed to execute a clincher agreement which would set out the terms of the settlement. Defendants argue that the plaintiff has not alleged that the clincher agreement contained terms different than what was agreed to at the mediation. We agree.\n\u201c[0]ur role in reviewing decisions of the Commission is strictly limited to the two-fold inquiry of (1) whether there is competent evidence to support the Commission\u2019s findings of fact; and (2) whether these findings of fact justify the Commission\u2019s conclusions of law.\u201d Foster v. Carolina Marble & Tile Co., 132 N.C. App. 505, 507, 513 S.E.2d 75, 77, disc. review denied, 350 N.C. 830, 537 S.E.2d 822 (1999). \u201cThe Commission\u2019s findings will not be disturbed on appeal if they are supported by competent evidence even if there is contrary evidence in the record. However, the Commission\u2019s conclusions of law are reviewable de novo by this Court.\u201d Hawley v. Wayne Dale Constr., 146 N.C. App. 423, 427, 552 S.E.2d 269, 272, disc. review denied, 355 N.C. 211, 558 S.E.2d 868 (2001) (citations omitted).\nHere, the full Commission found that:\nThe parties participated in a mediated settlement conference pursuant to an Order of the Commission dated 25 March 1998. On 12 August 1998, the mediation was held and an agreement was reached between the parties. The parties signed a handwritten memorandum of the settlement, pending the execution by plaintiff of a clincher agreement. While returning home from the conference, plaintiff determined that he did not wish to follow through with the agreement, and did not prepare a clincher agreement.\n(Emphasis added.) The full Commission then concluded that \u201c[t]he handwritten Memorandum of Settlement signed by the parties on 12 August 1998 is not enforceable as a Compromise Settlement Agreement under Industrial Commission Rule 502.\u201d\nPursuant to G.S. \u00a7 97-80(c), \u201c[t]he Commission may order parties to participate in mediation.\u201d The duties of the parties if an agreement is reached in the mediation are:\n(d) Finalizing agreement. If an agreement is reached in the mediation conference, the parties shall reduce the agreement to writing, specifying all the terms of their agreement bearing on the resolution of the dispute before the Industrial Commission, and sign it along with their counsel. By stipulation of the parties and at their expense, the agreement may be electronically or steno-graphically recorded. All agreements for payment of compensation shall be submitted in proper form for Industrial Commission approval, and shall be filed with the Commission within 20 days of the conclusion of the mediation conference.\nMediated Settlement and Neutral Evaluation Conferences R. of N.C. Indus. Comm\u2019n 4(d), 2003 Ann. R. (N.C.) 866. \u201cAll compromise settlement agreements must be submitted to the Industrial Commission for approval. Only those agreements deemed fair and just and in the best interest of all parties will be approved.\u201d Workers\u2019 Comp. R. of N.C. Indus. Comm\u2019n 502(1), 2003 Ann. R. (N.C.) 834. \u201cA \u2018clincher\u2019 or compromise agreement is a form of voluntary settlement used in contested or disputed cases.\u201d Ledford v. Asheville Housing Authority, 125 N.C. App. 597, 599, 482 S.E.2d 544, 546, disc. review denied, 346 N.C. 280, 487 S.E.2d 550 (1997). The settlement agreement \u201cmust contain specified language or its equivalent\u201d to be approved by the Industrial Commission. Id.; see also Workers\u2019 Comp. R. of N.C. Indus. Comm\u2019n 502(2), 2003 Ann. R. (N.C.) 834.\nCompromise settlement agreements, including mediated settlement agreements, \u201care governed by general principles of contract law.\u201d Chappell v. Roth, 353 N.C. 690, 692, 548 S.E.2d 499, 500, reh\u2019g denied, 354 N.C. 75, 553 S.E.2d 36 (2001). \u201cIt is a well-settled principle of contract law that a valid contract exists only where there has been a meeting of the minds as to all essential terms of the agreement.\u201d Northington v. Michelotti, 121 N.C. App. 180, 184, 464 S.E.2d 711, 714 (1995). \u201cTo be enforceable, the terms of a contract must be sufficiently definite and certain.\u201d Miller v. Rose, 138 N.C. App. 582, 587-88, 532 S.E.2d 228, 232 (2000).\nHere, at the mediation the parties signed a written \u201cMemorandum of Settlement.\u201d Plaintiff, plaintiff\u2019s attorney, defendants\u2019 attorney, and a representative of defendant Federated Mutual Insurance Company all signed this memorandum. The memorandum began with the language \u201c[t]he parties agree that: (1) Defendants shall pay claimant $40,000.00 in settlement of this claim.\u201d It further stated that the \u201c[c]laimant shall pay out of the settlement proceeds all unpaid medical bills and satisfy all medical liens\u201d and that \u201c [defendants shall pay all mediation fees.\u201d The memorandum also stated that \u201c[c]laimant shall execute clincher setting out above terms and other standard language. Upon approval by [the Industrial Commission], settlement will be paid.\u201d\nThe language of this signed memorandum indicates that the parties agreed to settle this matter for $40,000.00 and provides for the payment of plaintiff\u2019s unpaid medical bills and medical liens. It references a clincher agreement that \u201c[plaintiff] shall execute.\u201d The defendants, in accordance with the signed \u201cMemorandum of Settlement,\u201d prepared a clincher agreement and sent it to the plaintiff the day after the mediation. This clincher agreement contained the standard terms required by Rule 502(2) of the Workers\u2019 Compensation Rules of the North Carolina Industrial Commission.\nIn addition, the \u201cReport of Mediator\u201d states that the \u201cparties reached: X agreement on all issues.\u201d It further states that the \u201c[i]ssues settled to be disposed of by: X clincher.\u201d Defendants\u2019 \u201cMotion to Require Compliance with Mediated Settlement\u201d provides that:\n4. On 12 August 1998 mediation occurred which resulted in a mediated settlement agreement. . . .\n5. On 12 August 1998, as a result of mediation, the parties settled all issues between them. A written memorandum of this agreement prepared at mediation is attached ... to this Motion.\n6. As a result of this settlement agreement, the undersigned attorney for Employer and Carrier prepared a Clincher Agreement and mailed it to Employee\u2019s attorney. In early September telephone conversations occurred between attorneys for the parties indicating that Employee would not go through with the settlement. On 15 September 1998 Employee\u2019s attorney wrote attorney for Employer and Carrier a letter ... indicating that his client would not go through with settling this claim and that he was, in fact, filing an additional Form 33.\n\u201cPlaintiff\u2019s Response\u201d to this motion stated that \u201c[p]laintiff does not dispute the facts as set forth in the Defendant\u2019s Motion.\u201d\nWhile the better practice would be for the parties to execute a clincher agreement which contains all the required terms and language at the conclusion of the mediated settlement conference if an agreement is reached, the signed \u201cMemorandum of Settlement\u201d here fully complies with Rule 502(2) of the Workers\u2019 Compensation Rules and is a valid compromise settlement agreement subject to approval by the Industrial Commission pursuant to Rule 502(1).\nBecause we have concluded that the written \u201cMemorandum of Settlement\u201d is a valid compromise settlement agreement, we need not address defendants\u2019 remaining assignments of error.\nAccordingly, the opinion and award of the full Commission is reversed and the matter remanded to the full Commission in order for the full Commission to consider its approval of the mediated settlement agreement pursuant to Rule 502(1) of the Workers\u2019 Compensation Rules, i.e., is the agreement \u201cdeemed fair and just and in the best interest of all parties.\u201d\nReversed and remanded.\nJudges MARTIN and GEER concur.", "type": "majority", "author": "EAGLES, Chief Judge." } ], "attorneys": [ "Crosswhite, Edwards & Crosswhite, by Joseph N. Crosswhite, for plaintiff-appellee.", "Ball Barden & Bell, P.A., by Thomas R. Bell, for defendant-appellants." ], "corrections": "", "head_matter": "MICHAEL LEMLY, Employee, Plaintiff v. COLVARD OIL COMPANY, Employer, and FEDERATED MUTUAL INSURANCE COMPANY, Carrier, Defendants\nNo. COA01-1529\n(Filed 1 April 2003)\nWorkers\u2019 Compensation\u2014 mediated settlement conference\u2014 memorandum of settlement \u2014 clincher agreement\nThe Industrial Commission erred in a workers\u2019 compensation case by concluding that a memorandum of settlement arising out of a mediated settlement conference was not enforceable as a compromise settlement agreement and by awarding plaintiff employee total disability benefits, because: (1) the parties signed the written memorandum of settlement at the mediation, and plaintiff agreed to execute a clincher agreement which would set out the terms of the settlement; and (2) plaintiff has not alleged that the clincher agreement contained terms different than what was agreed to at the mediation.\nAppeal by defendants from opinion and award entered 5 September 2001 by the North Carolina Industrial Commission. Heard in the Court of Appeals 10 February 2003.\nCrosswhite, Edwards & Crosswhite, by Joseph N. Crosswhite, for plaintiff-appellee.\nBall Barden & Bell, P.A., by Thomas R. Bell, for defendant-appellants." }, "file_name": "0099-01", "first_page_order": 131, "last_page_order": 137 }