{ "id": 8374787, "name": "MARY NICOLE BOONE VOGLER, Widow; MARILYN \"SUE ANN\" CLYMER, Guardian Ad Litem for KRISTIN DAKOTA VOGLER, Minor Child; and MARK BOONE, Guardian Ad Litem for MEGAN NICOLE BOONE, Minor Stepchild; of BILLY CHARLES VOGLER, Deceased Employee, Plaintiffs v. BRANCH ERECTIONS CO., INC., Employer-Defendant; RELIANCE NATIONAL INSURANCE COMPANY (now insolvent), Carrier-Defendant; NORTH CAROLINA INSURANCE GUARANTY ASSOCIATION, Defendant; CAMBRIDGE INTEGRATED SERV., Third-Party Administrator; STERLING ADMINISTRATIVE SERVICES and the GOFF GROUP, Servicing Agents", "name_abbreviation": "Vogler v. Branch Erections Co.", "decision_date": "2007-02-06", "docket_number": "No. COA06-288", "first_page": "457", "last_page": "469", "citations": [ { "type": "official", "cite": "181 N.C. App. 457" } ], "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": "615 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633355 ], "year": 2005, "pin_cites": [ { "page": "727" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0724-01" ] }, { "cite": "172 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "522" } ], "opinion_index": 0 }, { "cite": "276 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561396 ], "year": 1970, "pin_cites": [ { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0348-01" ] }, { "cite": "192 S.W.3d 687", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 8422300 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "689" } ], "opinion_index": 0, "case_paths": [ "/sw3d/192/0687-01" ] }, { "cite": "425 S.E.2d 698", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "701" } ], "opinion_index": 0 }, { "cite": "333 N.C. 258", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2547559 ], "year": 1993, "pin_cites": [ { "page": "262" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0258-01" ] }, { "cite": "162 S.E. 223", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1932, "pin_cites": [ { "parenthetical": "holding insurer obligated to pay for employer's wrongdoing in order \"to grant certain and speedy relief to injured employees or . . . their dependents\"" } ], "opinion_index": 0 }, { "cite": "202 N.C. 176", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625164 ], "year": 1932, "pin_cites": [ { "parenthetical": "holding insurer obligated to pay for employer's wrongdoing in order \"to grant certain and speedy relief to injured employees or . . . their dependents\"" } ], "opinion_index": 0, "case_paths": [ "/nc/202/0176-01" ] }, { "cite": "504 S.E.2d 815", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "legislature intended timely recovery for workers' compensation claimants" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 87", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11197331 ], "year": 1998, "pin_cites": [ { "parenthetical": "legislature intended timely recovery for workers' compensation claimants" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0087-01" ] }, { "cite": "445 S.E.2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "599" } ], "opinion_index": 0 }, { "cite": "337 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551316 ], "year": 1994, "pin_cites": [ { "page": "343" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0329-01" ] }, { "cite": "172 N.C. App. 149", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8319109 ], "year": 2005, "pin_cites": [ { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0149-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 58-48-20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(4)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-98", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 58-48-35", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2005, "pin_cites": [ { "page": "(a)(l) and (2)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 58-48-25", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 58-48-5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 58-48-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "546 S.E.2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "137" }, { "page": "139" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 55", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11433042 ], "year": 2001, "pin_cites": [ { "page": "60" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0055-01" ] }, { "cite": "606 S.E.2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "348", "parenthetical": "quotations and citations omitted" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 259", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411089 ], "year": 2004, "pin_cites": [ { "page": "263", "parenthetical": "quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0259-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-12", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 8, "opinion_index": 0 }, { "cite": "601 S.E.2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "278", "parenthetical": "Vogler I" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 169", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8410939 ], "year": 2004, "pin_cites": [ { "page": "177", "parenthetical": "Vogler I" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0169-01" ] }, { "cite": "623 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634690, 12634691 ], "weight": 2, "year": 2005, "opinion_index": 1, "case_paths": [ "/se2d/623/0579-01", "/se2d/623/0579-02" ] }, { "cite": "615 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633355 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "728" }, { "page": "728" } ], "opinion_index": 1, "case_paths": [ "/se2d/615/0724-01" ] }, { "cite": "446 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "68", "parenthetical": "findings of fact which are not excepted to are binding on appeal" } ], "opinion_index": 1 }, { "cite": "337 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549311 ], "year": 1994, "pin_cites": [ { "page": "438", "parenthetical": "findings of fact which are not excepted to are binding on appeal" } ], "opinion_index": 1, "case_paths": [ "/nc/337/0437-01" ] }, { "cite": "360 N.C. 60", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788768, 3797185, 3792645, 3792391, 3791370, 3790892, 3791181, 3789709, 3794291, 3790036, 3789205, 3788855 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/nc/360/0479-05", "/nc/360/0060-05", "/nc/360/0068-02", "/nc/360/0060-06", "/nc/360/0060-08", "/nc/360/0060-02", "/nc/360/0060-04", "/nc/360/0060-09", "/nc/360/0060-01", "/nc/360/0060-07", "/nc/360/0060-03", "/nc/360/0490-05" ] }, { "cite": "571 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "891" } ], "opinion_index": 1 }, { "cite": "154 N.C. App. 482", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250777 ], "year": 2002, "pin_cites": [ { "page": "484" } ], "opinion_index": 1, "case_paths": [ "/nc-app/154/0482-01" ] }, { "cite": "360 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "816" } ], "opinion_index": 1 }, { "cite": "87 N.C. App. 420", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358494 ], "year": 1987, "pin_cites": [ { "page": "421" } ], "opinion_index": 1, "case_paths": [ "/nc-app/87/0420-01" ] }, { "cite": "246 S.E.2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "777" } ], "opinion_index": 1 }, { "cite": "295 N.C. 500", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564714 ], "year": 1978, "pin_cites": [ { "page": "505" } ], "opinion_index": 1, "case_paths": [ "/nc/295/0500-01" ] }, { "cite": "348 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "796" } ], "opinion_index": 1 }, { "cite": "318 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4736888 ], "year": 1986, "pin_cites": [ { "page": "380" } ], "opinion_index": 1, "case_paths": [ "/nc/318/0378-01" ] }, { "cite": "542 S.E.2d 205", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 1 }, { "cite": "351 N.C. 350", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155840, 1155802, 1155946, 1155926 ], "year": 2000, "opinion_index": 1, "case_paths": [ "/nc/351/0350-04", "/nc/351/0350-01", "/nc/351/0350-03", "/nc/351/0350-02" ] }, { "cite": "518 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "816", "parenthetical": "\"The interpretation of language used in an insurance policy is a question of law, governed by well-established rules of construction.\"" } ], "opinion_index": 1 }, { "cite": "135 N.C. App. 92", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239160 ], "year": 1999, "pin_cites": [ { "page": "94", "parenthetical": "\"The interpretation of language used in an insurance policy is a question of law, governed by well-established rules of construction.\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/135/0092-01" ] }, { "cite": "524 S.E.2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "563" } ], "opinion_index": 1 }, { "cite": "351 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155833 ], "year": 2000, "pin_cites": [ { "page": "299" } ], "opinion_index": 1, "case_paths": [ "/nc/351/0293-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-12.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 1 }, { "cite": "172 N.C. App. 149", "category": "reporters:state", "reporter": "N.C. 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Stat.", "weight": 4, "opinion_index": 1 } ], "analysis": { "cardinality": 980, "char_count": 27574, "ocr_confidence": 0.75, "pagerank": { "raw": 1.2240919645422112e-07, "percentile": 0.6021430206934845 }, "sha256": "416e91c49c14f25b5ffa27432e25d45944ec636abcb6ee26bcff66bbc3e8ebb0", "simhash": "1:e27104629abb7756", "word_count": 4302 }, "last_updated": "2023-07-14T22:19:54.793724+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge LEVINSON concurs.", "Judge TYSON dissents in a separate opinion." ], "parties": [ "MARY NICOLE BOONE VOGLER, Widow; MARILYN \u201cSUE ANN\u201d CLYMER, Guardian Ad Litem for KRISTIN DAKOTA VOGLER, Minor Child; and MARK BOONE, Guardian Ad Litem for MEGAN NICOLE BOONE, Minor Stepchild; of BILLY CHARLES VOGLER, Deceased Employee, Plaintiffs v. BRANCH ERECTIONS CO., INC., Employer-Defendant; RELIANCE NATIONAL INSURANCE COMPANY (now insolvent), Carrier-Defendant; NORTH CAROLINA INSURANCE GUARANTY ASSOCIATION, Defendant; CAMBRIDGE INTEGRATED SERV., Third-Party Administrator; STERLING ADMINISTRATIVE SERVICES and the GOFF GROUP, Servicing Agents" ], "opinions": [ { "text": "BRYANT, Judge.\nThe North Carolina Insurance Guaranty Association (NCIGA) (defendant-appellee/cross-appellant) and Branch Erections, Co., Inc. (Branch) (defendant-appellant/cross-appellee) appeal from an Opinion and Award, entered 27 July 2005 by the North Carolina Industrial Commission (Commission).\nOn 23 March 2000, Billy Charles Vogler (plaintiff-decedent) suffered a compensable workplace injury by accident when he fell twenty feet to the ground after being struck by a crane. Plaintiff died as a result of the injuries sustained in the accident. In Vogler I, the Opinion and Award of the Full Commission granting plaintiff 10% additional compensation was reversed and remanded by this Court which held the Commission \u201cabused its discretion by declining to receive the policy as evidence and by failing to take into account the terms of the [insurance] policy [between Branch and Reliance].\u201d Vogler v. Branch Erections Co., 166 N.C. App. 169, 177, 601 S.E.2d 273, 278 (2004) (Vogler I).\nThe present case is before this Court on appeal by both parties from the Commission\u2019s 27 July 2005 Opinion and Award which concluded: (1) the insurance policy between Branch and Reliance National Insurance Company provides for NCIGA to pay plaintiff the 10% increase in compensation awarded pursuant to N.C. Gen. Stat. \u00a7 97-12; and (2) NCIGA could seek reimbursement from Branch. Both defendants appeal.\nNCIGA argues the Commission erred in determining NCIGA was obligated to pay the 10% additional workers\u2019 compensation awarded to plaintiff. Branch argues the Commission erred in holding that NCIGA is entitled to seek reimbursement from Branch for the 10% additional compensation awarded to plaintiff.\nOpinions and awards of the Commission are reviewed to determine whether competent evidence exists to support the Commission\u2019s findings of fact, and whether the findings of fact support the Commission\u2019s conclusions of law. Bondurant v. Estes Express Lines, Inc., 167 N.C. App. 259, 263, 606 S.E.2d 345, 348 (2004) (quotations and citations omitted). If supported by competent evidence, the Commission\u2019s findings are binding on appeal even when there exists evidence to support findings to the contrary. Allen v. Roberts Elec. Contrs., 143 N.C. App. 55, 60, 546 S.E.2d 133, 137 (2001). The Commission\u2019s conclusions of law are reviewed de novo. Id. at 63, 546 S.E.2d at 139. For the reasons stated herein, we affirm the decision of the Commission.\nNCIGA Appeal\nOn appeal NCIGA argues the Commission erred in determining NCIGA was obligated to pay the additional 10% awarded to plaintiff. Specifically, NCIGA challenges the Commission\u2019s finding that the additional 10% increase to plaintiff\u2019s workers\u2019 compensation award was a \u201ccovered claim.\u201d In the alternative, NCIGA contends it should not be required to pay the additional compensation, asserting it constitutes \u201cpunitive and exemplary damages.\u201d\nThe purpose of the North Carolina Insurance Guaranty Association Act (Guaranty Act), N.C. Gen. Stat. \u00a7 58-48-1 et seq. is:\nto provide a mechanism for the payment of covered claims under certain insurance policies, to avoid excessive delay in payment, and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies, and to provide an association to assess the cost of such protection among insurers.\nN.C. Gen. Stat. \u00a7 58-48-5 (2005) (emphasis added). All liability insurance companies licensed to conduct business in North Carolina are members of NCIGA. See N.C. Gen. Stat. \u00a7 58-48-25 (2005). When a member insurer becomes insolvent, NCIGA assumes responsibility for defending and paying covered claims against the insolvent company. NCIGA has a statutory liability limit of $300,000.00. See N.C. Gen. Stat. \u00a7 58-48-35 (2005). Furthermore, North Carolina General Statutes, Section 97-98 provides:\nNo policy of insurance against liability arising under this Article shall be issued unless it contains the agreement of the insurer that it will promptly pay to the person entitled to same all benefits conferred by this Article ....\nN.C. Gen. Stat. \u00a7 97-98 (2005).\nIn the present case, NCIGA challenges the following findings of the Commission:\n11. [] The policy specifically requires the employer to be responsible for any payment in excess of the benefits regularly provided by the Workers\u2019 Compensation Act, including those imposed due to the employer\u2019s.failure to comply with a health or safety law or regulation.\n12. When an insurer becomes insolvent, the Guaranty Act . . . requires that NCIGA:\n(1) Be obligated to the extent of the covered claims . .. [and]\n(2) Be deemed the insurer to the extent of [NCIGA\u2019s] obligation on the covered claims ... as if the insurer had not become insolvent. N.C. Gen. Stat. \u00a7 58-48-35(a)(l) and (2) (2003).\n13. [] NCIGA is obligated [pursuant to the statutory definition of a covered claim] to pay claims only to the extent of a covered claim, which does not include any amount in excess of what the insolvent insurer would be required to pay.\n14. The insurance policy between defendant-employer and Reliance provides in Part One, Section F, as follows:\nF. Payments You [employer] Must Make You [employer] are responsible for any payments in excess of the benefits regularly provided by the workers\u2019 compensation law including those required because:\n1. Of your serious and willful misconduct;\n. . .\n3. You fail to comply with a health or safety law or regulation;\n15.Based upon the clear language of the insurance policy between defendant-employer and Reliance, and therefore NCIGA as the successor to Reliance, the' Commission finds that the policy provides for payment by the carrier of any 10% increase in compensation awarded pursuant to N.C. Gen. Stat. \u00a7 97-12 and for the carrier to then seek reimbursement by defendant-employer.\nNCIGA challenges the Commission\u2019s conclusions:\n8. [B]ased upon a clear reading of [N.C. Gen. Stat. \u00a7 97-12], the 10% additional compensation awarded ... is compensation and does not constitute exemplary or punitive damages.\n9. Therefore, the additional compensation is part of a covered claim and must be paid by NCIGA, but is subject to reimbursement by defendant-employer, pursuant to the terms of the workers\u2019 compensation policy.\n(Emphasis in original).\nNCIGA argues the Commission erred in finding plaintiff\u2019s claim met the definition of a \u201ccovered claim\u201d as defined by N.C. Gen. Stat. \u00a7 58-48-20. A \u201ccovered claim\u201d is:\nan unpaid claim, including one of unearned premiums, which is in excess of fifty dollars ($50.00) and arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this Article applies as issued by an insurer, if such insurer becomes an insolvent insurer ....\nN.C. Gen. Stat. \u00a7 58-48-20(4) (2005); See Bowles v. BCJ Trucking Servs., 172 N.C. App. 149, 153, 615 S.E.2d 724, 727 (2005); and Hales v. North Carolina Ins. Guar. Ass\u2019n, 337 N.C. 329, 343, 445 S.E.2d 590, 599 (1994).\nThe Branch-Reliance insurance policy provided that the insurer \u201cwill pay promptly when due the benefits required of [Branch] by the workers\u2019 compensation law.\u201d The policy also states \u201cterms of this insurance that conflict with the workers\u2019 compensation law are changed by this statement to conform to that law.\u201d Plaintiff\u2019s workers\u2019 compensation claim, as a result of Branches\u2019 conduct, arose out of and was within the provisions contemplated by the \u201cWorkers\u2019 Compensation and Employers\u2019 Liability Insurance Policy.\u201d When Reliance became insolvent, NCIGA became liable to compensate plaintiff under the terms of the Branch-Reliance insurance policy. This is clearly a covered claim as contemplated by N.C.G.S. \u00a7 58-48-20 such that NCIGA was required to compensate plaintiff (claimant) in order \u201cto avoid financial loss to claimants or policyholders because of the insolvency of an insurer.\u201d N.C.G.S. \u00a7 58-48-5 (2005). The N.C. Workers\u2019 Compensation Act states \u201c[w]hen the injury or death is caused by the willful failure of the employer to comply with any statutory requirement or any lawful order of the Commission, compensation shall be increased ten percent (10%).\u201d N.C. Gen. Stat. \u00a7 97-12 (2005). See Felmet v. Duke Power Co., 131 N.C. App. 87, 504 S.E.2d 815 (1998) (legislature intended timely recovery for workers\u2019 compensation claimants); see also Cabe v. Parker-Graham-Sexton, Inc., 202 N.C. 176, 162 S.E. 223 (1932) (holding insurer obligated to pay for employer\u2019s wrongdoing in order \u201cto grant certain and speedy relief to injured employees or . . . their dependents\u201d). It is well-settled that, where \u201cthe language of the statute is clear and is not ambiguous, we must conclude that the legislature intended the statute to be implemented according to the plain meaning of its terms.\u201d Hyler v. GTE Prods. Co., 333 N.C. 258, 262, 425 S.E.2d 698, 701 (1993).\nIn the instant case, the Commission reviewed the Branch-Reliance insurance policy and made specific findings of fact, including the finding that the clear language of the insurance \u201cpolicy provides for payment ... of any 10% increase in compensation awarded pursuant to N.C. Gen. Stat. \u00a7 97-12. . . .\u201d Those findings of fact, based on competent evidence in the record, support the Commission\u2019s conclusions of law that the additional compensation is a part of a covered claim to be paid by NCIGA. This assignment of error is overruled.\nNCIGA argues- in the alternative that the Commission erred in finding it was obligated to pay the additional 10% compensation because such payment constituted \u201cpunitive and exemplary damages.\u201d We are unpersuaded by NCIGA\u2019s alternative argument.\nResolution of this issue revolves around the language used in \u201cSection F\u201d of the Branch-Reliance irisurance policy which excludes coverage for an insured\u2019s intentional failure to comply with a health or safety statute, and whether that language overrides the statutory requirements of section 97-12 which allows for a 10% increase in compensation when such a violation occurs. This appears to be an issue of first impression in the appellate courts of North Carolina. However, there is strong persuasive authority from the Kentucky courts which have examined this precise issue. In a case involving the identical language used in \u201cSection F\u201d of the Branch-Reliance insur-anee policy and a statute analogous to N.C. Gen. Stat. \u00a7 97-12, the Kentucky court held:\nThere is no indication that the 15% increase in compensation required by KRS 342.165(1) was intended to fall outside the framework of workers\u2019 compensation benefits. Even if the [insurance] contract did apply, we do not believe the 15% increase in compensation could be considered in \u201cexcess\u201d of workers\u2019 compensation benefits, as provided in [Section F. of] the [] contract.\nAIG/AIU Ins. Co. v. S. Akers Mining Co., 2004 Ky. App. LEXIS 338, - S.W.3d -, (Ky. Ct. App. 2004). In affirming the lower court, the Kentucky Supreme Court made clear that the Kentucky statute, similar to N.C. Gen. Stat. \u00a7 97-12, \u201cauthorizes an increase or decrease in compensation if an \u2018intentional failure\u2019 to comply with the safety regulation [] contributes to causing an accident, implying only that the increase or decrease serves to compensate the party that benefits from it for the effects of the opponent\u2019s misconduct.\u201d AIG/AIU Ins. Co. v. S. Akers Mining Co., 192 S.W.3d 687, 689, 2006 Ky. LEXIS 8, - S.W.3d - (Ky. Jan. 19, 2006). The Kentucky Supreme Court held that \u201cthe employer\u2019s insurance carrier is liable for any increase in benefits under KRS 342.165(1) despite a contractual term to the contrary.\u201d Id. The court went on to acknowledge that the consequence of the 15% increase under the Kentucky statute may appear to penalize the employer or the carrier, but that, unlike other statutes where punitive damages are explicitly mentioned, the statute at issue did not explicitly mention punitive damages, only an increase in compensation.\nWe are strongly persuaded by the reasoning of the Kentucky courts as N.C. Gen. Stat. \u00a7 97-12 is very similar to the Kentucky statute and the provision in \u201cSection F\u201d of the Branch-Reliance contract is the same as the provision in the Kentucky contract. While the effect of the 10% increase may appear to penalize NCIGA, \u00a7 97-12 does not explicitly mention punitive damages, but in fact says \u201ccompensation shall be increased ten percent.\u201d The language of the insurance policy does not preclude NCIGA\u2019s liability for the increase. NCIGA is obligated to pay the additional 10% compensation. This assignment of error is overruled.\nBranch Appeal\nBranch claims the Commission erred in holding that NCIGA is entitled to seek reimbursement from Branch for the 10% additional compensation awarded to plaintiff for Branches\u2019 willful violations of OSHA regulations under North Carolina statute and the terms of the Branch-Reliance policy. Where there is no ambiguity in a policy\u2019s language, the courts must apply the plain meaning of the policy language and enforce the policy as written. Wachovia Bank & Tr. Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 354, 172 S.E.2d 518, 522 (1970).\nBased on the specific findings and conclusions of the Commission,- the policy expressly included the right to seek reimbursement if the insurer had to pay amounts \u201cin excess of the benefits regularly provided by the workers\u2019 compensation law including those required because: [] you fail to comply with a health or safety law or regulation.\u201d Branch has received the benefits of the insurance policy as NCIGA has paid the workers\u2019 compensation benefits to date, exclusive of the additional 10% compensation. Thus, according to the plain language of the policy the Commission correctly concluded that the \u201cadditional 10% amount is subject to reimbursement by [Branch], as provided by the insurance policy,\u201d where Branch has been found to have wilfully violated the OSHA regulations and must therefore reimburse NCIGA for any compensation attributed to such conduct. This assignment of error is overruled.\nAffirmed.\nJudge LEVINSON concurs.\nJudge TYSON dissents in a separate opinion.\n. On 3 October 2001, Reliance \u201cwas declared insolvent in an order of liquidation\u201d and the North Carolina Insurance Guaranty Association (NCIGA) assumed its statutory obligations in connection with this claim.\n. Paragraph A of the policy states \u201c[t]his workers\u2019 compensation insurance applies to bodily injury by accident [which] includes death.\u201d\n. In pertinent part, this language is taken from the \u201cPart One Workers\u2019 Compensation\u201d portion of the standard contract issued by the National Council on Compensation Insurance and approved for use in all states, except Michigan:\nF. Payments You [employer] Must Make\nYou [employer] are responsible for any payments in excess of the benefits regularly provided by the workers\u2019 compensation law including those required because:\n1. Of your serious and willful misconduct;\n. . .\n3. You fail to comply with a health or safety law or regulation;\n4. The referenced Kentucky statute states:\nIf an accident is caused in any degree by the intentional failure of the employer to comply with any specific statute or lawful administrative regulation made thereunder, communicated to the employer and relative to installation or maintenance of safety appliances or methods, the compensation for which the employer would otherwise have been liable under this chapter shall be increased thirty percent (30%) in the amount of each payment....\nKRS 342.165(1) (2005) (emphasis added).", "type": "majority", "author": "BRYANT, Judge." }, { "text": "TYSON, Judge,\ndissenting.\nThe majority\u2019s opinion affirms the decision of the Commission and concludes: (1) \u201cthe additional compensation [under N.C. Gen. Stat. \u00a7 97-12] is a part of a covered claim to be paid by NCIGA;\u201d (2) \u201cthe additional 10% compensation... [does not] constitute^ \u201cpunitive and exemplary damages;\u201d and (3) \u201cwhere Branch has been found to have wilfully violated the OSHA regulations [they] must therefore reimburse NCIGA for any compensation attributed to such conduct.\u201d\nThe insurance contract between Branch and Reliance provides Branch is to be responsible for \u201cpayments in excess of the benefits regularly provided by the workers\u2019 compensation law including those required [if]: 3. [Branch] fail[s] to comply with a health or safety law or regulation.\u201d Uncontested findings of fact show Branch\u2019s failure to comply with twenty OSHA regulations proximately caused decedent\u2019s death. Branch, not the Guaranty Association, is responsible for the additional ten percent compensation provided under N.C. Gen. Stat. \u00a7 97-12.1 respectfully dissent.\nI. Construction of Insurance Contracts\n\u201c[A]n insurance policy is a contract and its provisions govern the rights and duties of the parties thereto.\u201d Gaston County Dyeing Machine Co. v. Northfield Ins. Co., 351 N.C. 293, 299, 524 S.E.2d 558, 563 (2000); see also Allstate Ins. Co. v. Chatterton, 135 N.C. App. 92, 94, 518 S.E.2d 814, 816 (1999) (\u201cThe interpretation of language used in an insurance policy is a question of law, governed by well-established rules of construction.\u201d), disc. rev. denied, 351 N.C. 350, 542 S.E.2d 205 (2000). The language in the policy is to be construed as written \u201cwithout rewriting the contract or disregarding the express language used.\u201d Fidelity Bankers Life Ins. Co. v. Dortch, 318 N.C. 378, 380, 348 S.E.2d 794, 796 (1986). \u201c[T]he goal of construction is to arrive at the intent of the parties when the policy was issued.\u201d Woods v. Insurance Co., 295 N.C. 500, 505, 246 S.E.2d 773, 777 (1978).\nWhere \u201cthe language of a contract is plain and unambiguous, the construction of the agreement is a matter of law for the court.\u201d W. S. Clark & Sons, Inc. v. Ruiz, 87 N.C. App. 420, 421, 360 S.E.2d 814, 816 (1987). \u201cThe Commission\u2019s conclusions of law are reviewable de novo.\u201d Arnold v. Wal-Mart Stores, Inc., 154 N.C. App. 482, 484, 571 S.E.2d 888, 891 (2002).\nIn Bowles v. BCJ Trucking Servs., Inc., this Court held the Guaranty Association \u201cstepped into the shoes of the insurance company found to be insolvent and is deemed the insurer having \u2018all rights, duties, and obligations of the insolvent insurer as if the insurer had not become insolvent.\u2019 \u201d 172 N.C. App. 149, 155, 615 S.E.2d 724, 728 (emphasis original) (quoting N.C. Gen. Stat. \u00a7 58-48-35(a)(2)), disc. rev. denied, 360 N.C. 60, 623 S.E.2d 579 (2005).\nThe Guaranty Association can assert all rights and defenses Reliance could have asserted under the insurance contract. \u201cThe agreement did not create a new contract for insurance coverage but solely substituted a new party[.]\u201d Id. In Bowles, the insurance company substituted the employer in the workers\u2019 compensation insurance contract. 172 N.C. App. at 155, 615 S.E.2d at 728.\nThe Guaranty Association\u2019s liability is limited by statute. Under N.C. Gen. Stat. \u00a7 58-48-25(a)(l)-(2) (2005), the Guaranty Association shall:\n(1) Be obligated to the extent of the covered claims existing prior to the determination of insolvency and arising within 30 days after the determination of insolvency, or before the policy expiration date if less than 30 days after the determination, or before the insured replaces the policy or causes its cancellation, if he does so within 30 days of the determination. This obligation includes only the amount of each covered claim that is in excess of fifty dollars ($50.00) and is less than three hundred thousand dollars ($300,000.00)_\n(2) Be deemed the insurer to the extent of the Association\u2019s obligation on the covered claims and to such extent shall have all rights, duties, and obligations of the insolvent insurer as if the insurer had not become insolvent.\nA \u201ccovered claim\u201d means:\n(4) [A]n unpaid claim, including one of unearned premiums, which is in excess of fifty dollars ($50.00) and arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this Article applies as issued by an insurer, if such insurer becomes an insolvent insurer after the effective date of this Article and (i) the claimant or insured is a resident of this State at the time of the insured event; or (ii) the property from which the claim arises is permanently located in this State.\nN.C. Gen. Stat. \u00a7 58-48-20(4) (2005).\nIt is uncontested that Branch and Reliance entered into an insurance contract which states:\nB. [Reliance will pay] \u2014 [Reliance] will pay promptly when due the benefits required of you by the workers\u2019 compensation law.\n. . . .\nF. Payments [Branch] Must Make \u2014 [Branch is] responsible for any payments in excess of the benefits regularly provided by the workers\u2019 compensation law including those required because:\n1: of [Branch\u2019s] serious and willful misconduct-,\n. . . .\n3. [Branch] fail[s] to comply with a health or safety law or regulation-, or\n. . . .\nIf [Reliance] makes any payments in excess of the benefits regularly provided by the workers\u2019 compensation law on [Branch\u2019s] behalf, [Branch] will reimburse [Reliance] promptly.\n(Emphasis supplied). The Commission entered the following uncontested and binding findings of fact:\n6. . . .[on] October 3, 2001, Reliance was declared insolvent in an order of liquidation entered in Pennsylvania. Following the insolvency of Reliance, the North Carolina Insurance Guaranty Association (\u201cNCIGA\u201d) assumed its statutory obligations in connection with this claim pursuant to the Insurance Guaranty Association Act (\u201cGuaranty Act\u201d).\n. . . .\n1. On March 23, 2000, decedent suffered a compensable injury by accident while in the course and scope of his employment with defendant-employer when a crane broke loose from its platform and fell, striking decedent and causing him to fall 20 feet to the ground. As a direct result of said injury by accident, decedent was killed.\n. . . .\n3. OSHA performed an investigation of decedent\u2019s March 23, 2000 death by accident and cited defendant-employer for 20 violations of OSHA regulations, all characterized as \u201cserious.\u201d The OSHA investigator was of the opinion and the Commission finds that the violations were the proximate cause of decedent\u2019s death.\n4. The OSHA report indicated that defendant-employer\u2019s records showed a failure to inspect the crane turret bolts for two years prior to this incident, even though OSHA regulations require a daily inspection of the same when in use. Decedent\u2019s death was caused by the crane falling on him as he was working on.a section of a communications tower erected 18 feet above ground.\n5. The OSHA inspector found that the failure to have the crane .and other equipment inspected resulted in defendant-employer\u2019s failure to discover worn, cracked, and rusty bolts on the turret which caused the crane to fall on decedent. The inspector further stated: \u201cAccording to the crane operator he heard a snap, then the crane boom started to fall, striking the employee [decedent] on the top leg of the tower section. The csho [Safety/Health Compliance Officer] observed that the bolts holding the upper and lower portions of the turret had sheared off. Upon closer examination many bolts showed signs of rust, indicative of cracks. Turret bolts could also be turned by hand, and the csho removed twenty two bolts using no tools. Maintenance records for the crane indicated that in the last two years the crane had not been inspected. Crane operators were not trained. Operators did not inspect the crane prior to, and during use. Severity is high due to death from crushing. Probability is also high due to the continuous use of the crane. NOTE: VIOLATION WAS PROXIMATE CAUSE OF ACCIDENT.\u201d\n. . . .\n8. The OSHA inspection revealed and the Commission finds that defendant-employer knew or should have been aware of the safety hazards that existed at the job site because the violations were in plain view. Defendant-employer failed to conduct inspections of the crane, rigging equipment, fall protection and general worksite conditions, which resulted in the fatality on March 23, 2000.\nSee State v. Watkins, 337 N.C. 437, 438, 446 S.E.2d 67, 68 (1994) (findings of fact which are not excepted to are binding on appeal).\nBranch and Reliance contracted and agreed that Branch would be responsible for \u201cany payments . . . required because 1. [Branch\u2019s] serious and wilful misconduct. . . [or] 3. [Branch\u2019s] fail[ure] to comply with a health or safety law or regulation.\u201d The Commission\u2019s uncontested findings of fact show Branch\u2019s twenty OSHA regulation violations proximately caused decedent\u2019s death. The Commission properly concluded decedent is entitled to an additional 10% compensation because of Branch\u2019s willful failure to comply with OSHA regulations. N.C. Gen. Stat. \u00a7 97-12.\nUnder the contract, Branch, as employer, is responsible for payments in excess of benefits regularly provided by the workers\u2019 compensation law. The Commission erred when it concluded the \u201cadditional compensation is part of a covered claim and must be paid by NCIGA.\u201d\nII. Conclusion\nThe contract between Branch and Reliance plainly and unambiguously states Branch is to be responsible for excess payments because of Branch\u2019s \u201cserious and wilful conduct\u201d and \u201cfail[ure] to comply with a health or safety law or regulation.\u201d Branch is solely responsible for the additional ten percent compensation allowed under N.C. Gen. Stat. \u00a7 97-12.\nThe Commission erred when it concluded \u201cthe additional compensation [provided in N.C. Gen. Stat. \u00a7 97-12] is part of a covered claim and must be paid by NCIGA.\u201d I vote to reverse the Commission\u2019s order. I respectfully dissent.", "type": "dissent", "author": "TYSON, Judge," } ], "attorneys": [ "J. Randolph Ward for defendant-appellant/cross-appellee Branch Erections, Co., Inc.", "Nelson, Mullins, Riley & Scarborough, LLP, by Christopher Blake, for defendant-appellee/cross-appellant North Carolina Insurance Guaranty Association." ], "corrections": "", "head_matter": "MARY NICOLE BOONE VOGLER, Widow; MARILYN \u201cSUE ANN\u201d CLYMER, Guardian Ad Litem for KRISTIN DAKOTA VOGLER, Minor Child; and MARK BOONE, Guardian Ad Litem for MEGAN NICOLE BOONE, Minor Stepchild; of BILLY CHARLES VOGLER, Deceased Employee, Plaintiffs v. BRANCH ERECTIONS CO., INC., Employer-Defendant; RELIANCE NATIONAL INSURANCE COMPANY (now insolvent), Carrier-Defendant; NORTH CAROLINA INSURANCE GUARANTY ASSOCIATION, Defendant; CAMBRIDGE INTEGRATED SERV., Third-Party Administrator; STERLING ADMINISTRATIVE SERVICES and the GOFF GROUP, Servicing Agents\nNo. COA06-288\n(Filed 6 February 2007)\n1. Workers\u2019 Compensation\u2014 additional compensation for safety violations \u2014 statutory and policy language\nThe North Carolina Insurance Guaranty Association was obligated to pay an additional 10% on a workers\u2019 compensation claim where N.C.G.S. \u00a7 97-12 allowed the increase when a health or safety violation occurred, the policy which NCIGA assumed when the issuing company was declared insolvent provided that the insurer would pay the benefits required by the workers\u2019 compensation law, and the policy also included language that provided coverage for an insured\u2019s intentional failure to comply with a health and safety statute.\n2. Workers\u2019 Compensation\u2014 additional compensation for willful safety violations \u2014 liability of employer\nThe Industrial Commission did not err by concluding that the North Carolina Insurance Guaranty Association was entitled under the plain language of a workers\u2019 compensation policy to seek reimbursement from the employer (Branch) of a 10% addition to plaintiff\u2019s compensation imposed for willful violations of OSHA regulations and paid by NCIGA.\nJudge Tyson dissenting.\nAppeals by defendants from an Opinion and Award entered 27 July 2005 by the Industrial Commission. Heard in the Court of Appeals 20 September 2006.\nJ. Randolph Ward for defendant-appellant/cross-appellee Branch Erections, Co., Inc.\nNelson, Mullins, Riley & Scarborough, LLP, by Christopher Blake, for defendant-appellee/cross-appellant North Carolina Insurance Guaranty Association." }, "file_name": "0457-01", "first_page_order": 489, "last_page_order": 501 }