{ "id": 8175641, "name": "DAVID WASHINGTON, JR., Employee, Plaintiff v. TRAFFIC MARKINGS, INC., Employer, LIBERTY MUTUAL INSURANCE CO., Carrier, Defendants", "name_abbreviation": "Washington v. Traffic Markings, Inc.", "decision_date": "2007-04-17", "docket_number": "No. COA06-1086", "first_page": "691", "last_page": "698", "citations": [ { "type": "official", "cite": "182 N.C. App. 691" } ], "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": "616 S.E.2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633465, 12633466 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/616/0231-01", "/se2d/616/0231-02" ] }, { "cite": "170 S.E. 652", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1933, "pin_cites": [ { "page": "653", "parenthetical": "internal citations omitted" }, { "page": "653", "parenthetical": "\"In the formation of a contract an offer and an acceptance are essential elements[.]\"" } ], "opinion_index": 0 }, { "cite": "205 N.C. 153", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627230 ], "weight": 2, "year": 1933, "pin_cites": [ { "page": "156", "parenthetical": "internal citations omitted" }, { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/nc/205/0153-01" ] }, { "cite": "403 S.E.2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2543042, 2543749, 2538439, 2540975, 2539765 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0576-02", "/nc/328/0576-04", "/nc/328/0576-03", "/nc/328/0576-05", "/nc/328/0576-01" ] }, { "cite": "398 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "926" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 90", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527300 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "96" }, { "page": "96" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0090-01" ] }, { "cite": "176 S.E.2d 784", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563829 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0223-01" ] }, { "cite": "506 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "726", "parenthetical": "citing Goldman v. Parkland, 277 N.C. 223, 176 S.E.2d 784 (1970); Thomas v. Overland Express, Inc., 101 N.C. App. 90, 96, 398 S.E.2d 921, 926 (1990), disc. rev. denied, 328 N.C. 576, 403 S.E.2d 522 (1991)" }, { "page": "726-27", "parenthetical": "plaintiffs contract for employment was completed in North Carolina when his former out-of-state employer telephoned him at his home in Canton, North Carolina and offered plaintiff a job in Mississippi and plaintiff immediately accepted" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 294", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11199086 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "296", "parenthetical": "citing Goldman v. Parkland, 277 N.C. 223, 176 S.E.2d 784 (1970); Thomas v. Overland Express, Inc., 101 N.C. App. 90, 96, 398 S.E.2d 921, 926 (1990), disc. rev. denied, 328 N.C. 576, 403 S.E.2d 522 (1991)" }, { "page": "296-97" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0294-01" ] }, { "cite": "359 N.C. 630", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3801255, 3804045, 3801326, 3799793, 3804892, 3794717, 3804318 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0630-06", "/nc/359/0630-04", "/nc/359/0630-07", "/nc/359/0630-03", "/nc/359/0630-01", "/nc/359/0630-05", "/nc/359/0630-02" ] }, { "cite": "610 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "pin_cites": [ { "page": "278" }, { "page": "278", "parenthetical": "emphasis supplied" }, { "page": "278", "parenthetical": "emphasis supplied" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 607", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8472077 ], "weight": 3, "pin_cites": [ { "page": "609" }, { "page": "608" }, { "page": "608" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0607-01" ] }, { "cite": "528 S.E.2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "903-04", "parenthetical": "emphasis supplied" } ], "opinion_index": 0 }, { "cite": "351 N.C. 634", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155898 ], "year": 2000, "pin_cites": [ { "page": "637", "parenthetical": "emphasis supplied" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0634-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-36", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "opinion_index": 0 } ], "analysis": { "cardinality": 661, "char_count": 15172, "ocr_confidence": 0.749, "pagerank": { "raw": 4.856319230494445e-08, "percentile": 0.3053450220456868 }, "sha256": "9c13194e4830dae620a4cf9aa042a02d1d7a166d3c5ab660f42a97002af07525", "simhash": "1:29b478c9952e5ec6", "word_count": 2323 }, "last_updated": "2023-07-14T22:32:14.097428+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and JACKSON concur." ], "parties": [ "DAVID WASHINGTON, JR., Employee, Plaintiff v. TRAFFIC MARKINGS, INC., Employer, LIBERTY MUTUAL INSURANCE CO., Carrier, Defendants" ], "opinions": [ { "text": "TYSON, Judge.\nTraffic Markings, Inc. (\u201cTraffic Markings\u201d) and Liberty Mutual Insurance Co. (collectively, \u201cdefendants\u201d) appeal from the Full Commission\u2019s (\u201cthe Commission\u201d) opinion and award that concluded the Commission has jurisdiction over David Washington, Jr.\u2019s (\u201cplaintiff\u2019) workers\u2019 compensation claim. We affirm.\nI. Background\nOn 26 June 2003, plaintiff suffered a work-related injury to his lower back while lifting a fifty-pound bag of reflective beads in Conway, South Carolina. Plaintiff was employed by Traffic Markings for \u201ca couple of weeks\u201d when he suffered this injury.\nPlaintiff received benefits under the South Carolina Workers\u2019 Compensation Act. On 7 January 2004, after denial of certain medical treatment by the South Carolina workers\u2019 compensation insurance carrier, plaintiff filed a workers\u2019 compensation claim in North Carolina. Defendants denied plaintiff\u2019s claim on jurisdictional grounds.\nA hearing was held before a deputy commissioner on 10 January 2005. The sole issue was whether the Commission possessed jurisdiction over plaintiff\u2019s workers\u2019 compensation claim.\nA. Plaintiff\u2019s Testimony\nPlaintiff lives in Durham, North Carolina and learned about a job opening with Traffic Markings through an advertisement in the Durham Herald Sun newspaper. Plaintiff called the telephone number listed in the advertisement and was instructed to come to Raleigh, North Carolina to complete a job application.\nOn 17 March 2003, plaintiff met with Richard Ridley (\u201cRidley\u201d) in Raleigh. Ridley gave plaintiff a job application, which plaintiff filled out and returned to Ridley. Ridley informed plaintiff he needed to submit to and pass a drug test and provide Traffic Markings with his updated North Carolina Department of Motor Vehicles driving record. Ridley also made copies of plaintiffs North Carolina Class A commercial driver\u2019s license and his social security card.\nOn 18 March 2003, plaintiff presented for a drug test at Concentra on Miami Boulevard in Research Triangle Park, North Carolina. Plaintiff returned a drug screening form and an updated driving record to Ridley in Raleigh. Ridley requested, and plaintiff attended, a safety meeting in Morrisville, North Carolina on 21 March 2003.\nApproximately twenty people were present at the meeting, including old and new Traffic Markings\u2019s employees and a representative from an insurance company. Timothy Langevin (\u201cLangevin\u201d), the head of operations for Traffic Markings, conducted the safety meeting. Plaintiff received a packet of documents, including Traffic Markings\u2019s drug-free workplace policy. Plaintiff also ordered a company uniform at the safety meeting and later picked up the uniform at the Traffic Markings office in Raleigh. '\nPlaintiff\u2019s drug screen was performed at Laboratory Corporation of America in Research Triangle Park, North Carolina. The results of the screen were negative. Plaintiff\u2019s drug screen showed a report date of 20 March 2003 and print date of 24 March 2003.\nPlaintiff\u2019s first day of work with Traffic Markings was 30 March 2003. Plaintiff reported to work in Raleigh, North Carolina and was dispatched by Ridley to Roanoke, Virginia. Plaintiff testified he: (1) drove a truck from Raleigh to the Virginia state line; (2) drove back to Raleigh; and (3) drove another truck the entire route to Roanoke. Plaintiff returned back to North Carolina within a few days, due to inclement weather.\nPlaintiff stayed at motels while working out of town. Plaintiff stated he occasionally drove back to North Carolina from out-of-state jobs to obtain needed supplies or equipment from a warehouse located in Raleigh. At other times, supplies were shipped directly to the job site.\nPlaintiff testified that he: (1) lives in North Carolina; (2) reported to work in North Carolina; (3) was dispatched for work from North Carolina; (4) ended his work in North Carolina; and (5) received his direct deposit pay stub in North Carolina. Plaintiff also testified the tracks used on the job were returned and kept in North Carolina. The trucks were also maintained and serviced in North Carolina, unless a vehicle required repair at an out-of-state job site.\nB. Defendants\u2019 Testimony\nLangevin testified he works at Traffic Markings\u2019s headquarters in Franklin, Massachusetts. Traffic Markings is a pavement marking company. Langevin oversees the entire company\u2019s operations as its operations manager. Langevin testified Traffic Markings performs work in the Northeast and down the east coast from New York to Georgia.\nLangevin described Traffic Markings\u2019s hiring process. The company searches for employees by placing advertisements in newspapers. Potential employees respond and are requested to complete an application. An interview and a drug screen is conducted. At the interview, Traffic Markings distributes employee handbooks, information on the company\u2019s safety policy and its \u201chazardous communication program.\u201d The company also requests a driving record from the state in which the potential employee resides. The potential employee is also asked to complete a W-4 and 1-9. A copy is made of the person\u2019s social security card. A nurse practitioner in Massachusetts is contacted to telephone potential employees and discuss the job\u2019s demands. This information is collected and sent to Langevin in Massachusetts. Langevin is the final decision maker on which applicants Traffic Markings will offer employment in all states.\nLangevin performs the entire hiring process in the Northeast. In southern states, Langevin only performs the paperwork portion of the hiring process and approves potential new employees. Langevin testified Ridley is the person who places advertisements in the newspapers, interviews the potential employees, and actually offers the job to the potential employee once notified by Langevin to do so.\nLangevin testified that plaintiff was hired after his application and testing was completed. Langevin did not remember the exact date plaintiff\u2019s paperwork was completed. Langevin informed Ridley, \u201cI have all [plaintiff\u2019s] stuff in and set him up to work.\u201d Langevin testified Ridley would have telephoned plaintiff and said, \u201cCome to work.\u201d When asked if plaintiff would have accepted the job in North Carolina, Langevin responded, \u201cHe would have accepted, yes.\u201d\nTraffic Markings\u2019s president, contracts manager, and operations manager are located in Massachusetts. Langevin testified Traffic Markings\u2019s entire office staff including accounts payable, accounts receivable, and payroll is located in Massachusetts.\nLangevin also testified about Traffic Markings\u2019s office in Raleigh, North Carolina at the time plaintiff was hired. Traffic Markings rented a small building with an office and storage area.\nLangevin testified, after reviewing the company\u2019s time entry reports, plaintiff worked \u201cninety-five percent of the time\u201d outside of North Carolina.\nRidley testified Langevin makes the ultimate decision to hire a potential employee. Ridley explained he processed some of the initial paperwork for plaintiff\u2019s application for employment and sent the information to Langevin in Massachusetts. After Langevin decided to hire plaintiff, Ridley telephoned from Raleigh to plaintiff in Durham and notified him that, \u201cThere\u2019s a crew heading out of town. Be in the shop at six a.m., and pack a bag.\u201d Plaintiff responded and appeared for work that day in Raleigh.\nOn 24 May 2005, the deputy commissioner entered an opinion and award that concluded the Commission has jurisdiction over plaintiff\u2019s claim pursuant to N.C. Gen. Stat. \u00a7 97-36. Defendants appealed to the Full Commission. On 11 April 2006, the Full Commission entered an opinion and award that affirmed the deputy commissioner\u2019s decision. The Full Commission concluded:\nPlaintiff\u2019s June 26, 2003, South Carolina accident is compensable under the North Carolina Workers\u2019 Compensation Act because: plaintiff\u2019s accident would entitle him to compensation if it had happened in North Carolina; the contract of employment between plaintiff and defendant-employer was made within North Carolina; and, at the time of the accident, plaintiff\u2019s principle place of employment was within North Carolina. N.C. Gen. Stat. \u00a7 97-36.\nDefendants appeal.\nII. Issue\nDefendants argue the Commission did not possess jurisdiction over plaintiff\u2019s workers\u2019 compensation claim pursuant to N.C. Gen. Stat. \u00a7 97-36.\nTTT. Standard of Review\nOur Supreme Court has stated:\nAs a general rule, the Commission\u2019s findings of fact are conclusive on appeal if supported by any competent evidence. It is well settled, however, that the Commission\u2019s findings of jurisdictional fact are not conclusive on appeal, even if supported by competent evidence. The reviewing court has the right, and the duty, to make its own independent findings of such jurisdictional facts from its consideration of all the evidence in the record.\nPerkins v. Arkansas Trucking Servs., Inc., 351 N.C. 634, 637, 528 S.E.2d 902, 903-04 (2000) (emphasis supplied) (internal citations and quotations omitted); see Davis v. Great Coastal Express, 169 N.C. App. 607, 609, 610 S.E.2d 276, 278 (\u201c[T]he Commission\u2019s findings of jurisdictional fact are not conclusive on appeal, even if supported by competent evidence.\u201d) (internal quotation omitted), disc. rev. denied, 359 N.C. 630, 616 S.E.2d 231 (2005).\nIV. N.C. Gen. Stat. \u00a7 97-36\nN.C. Gen. Stat. \u00a7 97-36 (2005) contains the factors to determine if an employee, who is injured in an accident outside of North Carolina, is entitled to compensation. N.C. Gen. Stat. \u00a7 97-36 provides:\nWhere an accident happens while the employee is employed elsewhere than in this State and the accident is one which would entitle him ... to compensation if it had happened in this State, then the employee . . . shall be entitled to compensation (i) if the contract of employment was made in this State, (ii) if the employer\u2019s principal place of business is in this State, or (iii) if the employee\u2019s principal place of employment is within this State[.]\n(Emphasis supplied).\n\u201cBecause plaintiff\u2019s accident occurred in South Carolina, North Carolina has jurisdiction over plaintiff\u2019s workers\u2019 compensation claim only if one of the three provisions in N.C.G.S. \u00a7 97-36 applies.\u201d Davis, 169 N.C. App. at 608, 610 S.E.2d at 278 (emphasis supplied).\nIn order for the Commission to assert jurisdiction over plaintiff\u2019s claim, the jurisdictional facts must show either: (1) plaintiff\u2019s \u201ccontract for employment was made in this State;\u201d (2) defendants\u2019 \u201cprincipal place of business is in this State;\u201d or (3) plaintiff\u2019s \u201cprincipal place of employment [was] within this State.\u201d N.C. Gen, Stat. \u00a7 97-36. Neither party asserts defendants\u2019 principal place of business is located in North Carolina. Plaintiff must prove either: (1) his contract for employment was made in North Carolina or (2) his principal place of employment was within North Carolina. Id.\nA. Plaintiff\u2019s Contract for Employment\nDefendants argue the last act that created an employment relationship between plaintiff and Traffic Markings occurred in Massachusetts and assert plaintiff\u2019s contract for employment was not made in North Carolina. We disagree.\n\u201cTo determine where a contract for employment was made, the Commission and the courts of this state apply the \u2018last act\u2019 test.\u201d Murray v. Ahlstrom Indus. Holdings, Inc., 131 N.C. App. 294, 296, 506 S.E.2d 724, 726 (1998) (citing Goldman v. Parkland, 277 N.C. 223, 176 S.E.2d 784 (1970); Thomas v. Overland Express, Inc., 101 N.C. App. 90, 96, 398 S.E.2d 921, 926 (1990), disc. rev. denied, 328 N.C. 576, 403 S.E.2d 522 (1991)). \u201c[F]or a contract to be made in North Carolina, the final act necessary to make it a binding obligation must be done here.\u201d Thomas, 101 N.C. App. at 96, 398 S.E.2d at 926 (citing Goldman, 277 N.C. 223, 176 S.E.2d 784).\nOur Supreme Court has stated:\nIn the formation of a contract an offer and an acceptance are essential elements; they constitute the agreement of the parties. The offer must be communicated, must be coihplete, and must be accepted in its exact terms. Mutuality of agreement is indispensable; the parties must assent to the same thing in the same sense, idem re et sensu, and their minds must meet as to all the terms.\nDodds v. Trust Co., 205 N.C. 153, 156, 170 S.E. 652, 653 (1933) (internal citations omitted).\nUndisputed testimony in the record shows: (1) Langevin made the final decision to hire plaintiff in Massachusetts; (2) Langevin telephoned Ridley in North Carolina and informed him, \u201cI have all [plaintiff\u2019s] stuff in and set him up to workQ;\u201d (3) Ridley telephoned plaintiff at home in North Carolina and stated, \u201cThere\u2019s a crew heading out of town. Be in the shop at six a.m., and pack a bag[];\u201d and (4) on 30 March 2003, plaintiff reported to work in Raleigh, North Carolina and was dispatched to Roanoke, Virginia by Ridley. Traffic Markings offered plaintiff a job when Ridley in Raleigh, North Carolina telephoned him in Durham, North Carolina. Plaintiff accepted the job on 30 March 2003 when he reported for work in Raleigh, North Carolina. Plaintiff\u2019s contract for employment was completed in North Carolina upon this offer and acceptance. Murray, 131 N.C. App. at 296-97, 506 S.E.2d at 726-27 (plaintiffs contract for employment was completed in North Carolina when his former out-of-state employer telephoned him at his home in Canton, North Carolina and offered plaintiff a job in Mississippi and plaintiff immediately accepted); see Dodds, 205 N.C. at 156, 170 S.E. at 653 (\u201cIn the formation of a contract an offer and an acceptance are essential elements[.]\u201d).\nPlaintiffs acceptance of employment in North Carolina was the \u201clast act\u201d that created his contract for employment with Traffic Markings. N.C. Gen. Stat. \u00a7 97-36 confers the Commission\u2019s jurisdiction over plaintiff\u2019s claim.\nV. Conclusion\n\u201cBecause plaintiff\u2019s accident occurred in South Carolina, North Carolina has jurisdiction over plaintiff\u2019s workers\u2019 compensation claim only if one of the three provisions in N.C.G.S. \u00a7 97-36 applies.\u201d Davis, 169 N.C. App. at 608, 610 S.E.2d at 278 (emphasis supplied). We hold plaintiff\u2019s contract for employment was created in North Carolina. The Commission\u2019s opinion and award is affirmed.\nAffirmed.\nJudges HUNTER and JACKSON concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Susan B. Kilzer, for plaintiff-appellee.", "Cranfill, Sumner & Hartzog, L.L.P., by Roy G. Pettigrew, for defendants-appellants." ], "corrections": "", "head_matter": "DAVID WASHINGTON, JR., Employee, Plaintiff v. TRAFFIC MARKINGS, INC., Employer, LIBERTY MUTUAL INSURANCE CO., Carrier, Defendants\nNo. COA06-1086\n(Filed 17 April 2007)\nWorkers\u2019 Compensation\u2014 jurisdiction \u2014 South Carolina accident \u2014 multi-state employer\nThe Industrial Commission had jurisdiction over a workers\u2019 compensation claim arising from an accident in South Carolina while plaintiff was working for a company which performs work on much of the East Coast'. Plaintiff\u2019s contract of employment was created in North Carolina, one of the three provisions for jurisdiction in N.C.G.S. \u00a7 97-36.\nAppeal by defendants from opini\u00f3n and award entered 11 April 2006 by Commissioner Thomas J. Bolch for the North Carolina Industrial Commission. Heard in the Court of Appeals 21 March 2007.'\nSusan B. Kilzer, for plaintiff-appellee.\nCranfill, Sumner & Hartzog, L.L.P., by Roy G. Pettigrew, for defendants-appellants." }, "file_name": "0691-01", "first_page_order": 723, "last_page_order": 730 }