{ "id": 4155388, "name": "MICHAEL SWIFT, Employee, Plaintiff v. RICHARDSON SPORTS LTD. PARTNERS, d/b/a CAROLINA PANTHERS, Employer, and LEGION INSURANCE COMPANY, c/o CAMERON M. HARRIS & COMPANY, Carrier, Defendants", "name_abbreviation": "Swift v. Richardson Sports Ltd. Partners", "decision_date": "2008-01-15", "docket_number": "No. COA07-685", "first_page": "82", "last_page": "92", "citations": [ { "type": "official", "cite": "188 N.C. App. 82" } ], "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": "613 S.E.2d 746", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633078 ], "year": 2005, "pin_cites": [ { "page": "750", "parenthetical": "citing Taylor v. J.P. Stevens Co., 307 N.C. 392, 394, 298 S.E.2d 681, 683 (1983)" } ], "opinion_index": 0, "case_paths": [ "/se2d/613/0746-01" ] }, { "cite": "644 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638312 ], "year": 2007, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/644/0232-01" ] }, { "cite": "637 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637245 ], "year": 2006, "pin_cites": [ { "page": "254", "parenthetical": "quoting Ward v. Long Beach Vol. Rescue Squad, 151 N.C. App. 717, 720, 568 S.E.2d 626, 628 (2002)" } ], "opinion_index": 0, "case_paths": [ "/se2d/637/0251-01" ] }, { "cite": "635 S.E.2d 61", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636866, 12636867 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/se2d/635/0061-01", "/se2d/635/0061-02" ] }, { "cite": "620 S.E.2d 533", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634183 ], "weight": 3, "year": 2005, "pin_cites": [ { "parenthetical": "Swift I" }, { "page": "536" }, { "page": "539" } ], "opinion_index": 0, "case_paths": [ "/se2d/620/0533-01" ] }, { "cite": "501 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "364" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 695", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11652441 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc-app/129/0695-01" ] }, { "cite": "140 S.E. 831", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1927, "pin_cites": [ { "page": "835-36" } ], "opinion_index": 0 }, { "cite": "149 Va. 560", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 2416842 ], "year": 1927, "pin_cites": [ { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/va/149/0560-01" ] }, { "cite": "185 S.E. 438", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 3, "year": 1936, "pin_cites": [ { "page": "440" }, { "page": "441" }, { "page": "440" } ], "opinion_index": 0 }, { "cite": "210 N.C. 17", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622511 ], "weight": 2, "year": 1936, "pin_cites": [ { "page": "21" }, { "page": "21" } ], "opinion_index": 0, "case_paths": [ "/nc/210/0017-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 58-48-5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "816 P.2d 61", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1991, "opinion_index": 0 }, { "cite": "62 Wash. App. 878", "category": "reporters:state", "reporter": "Wash. App.", "case_ids": [ 1712298 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/wash-app/62/0878-01" ] }, { "cite": "393 Pa.Super. 165", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 877823 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/pa-super/393/0165-01" ] }, { "cite": "608 N.E.2d 772", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "opinion_index": 0 }, { "cite": "79 Ohio App. 3d 817", "category": "reporters:state", "reporter": "Ohio App. 3d", "case_ids": [ 1670906 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "821" } ], "opinion_index": 0, "case_paths": [ "/ohio-app-3d/79/0817-01" ] }, { "cite": "885 P.2d 337", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10348514 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/p2d/885/0337-01" ] }, { "cite": "997 S.W.2d 923", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 11547852 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/sw2d/997/0923-01" ] }, { "cite": "896 F.2d 674", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10534818 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "676" } ], "opinion_index": 0, "case_paths": [ "/f2d/896/0674-01" ] }, { "cite": "Tenn. Code Ann. \u00a7 56-12-107", "category": "laws:leg_statute", "reporter": "Tenn. Code Ann.", "year": 2000, "pin_cites": [ { "page": "(b)(4)" } ], "opinion_index": 0 }, { "cite": "596 S.E.2d 31", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "47" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 339", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8897276 ], "year": 2004, "pin_cites": [ { "page": "347" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0339-01" ] }, { "cite": "298 S.E.2d 681", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "683" } ], "opinion_index": 0 }, { "cite": "307 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562490 ], "year": 1983, "pin_cites": [ { "page": "394" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0392-01" ] }, { "cite": "171 N.C. App. 112", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8435124 ], "year": 2005, "pin_cites": [ { "page": "119", "parenthetical": "citing Taylor v. J.P. Stevens Co., 307 N.C. 392, 394, 298 S.E.2d 681, 683 (1983)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0112-01" ] }, { "cite": "361 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3741607, 3737130, 3738894, 3739255, 3742617, 3740890, 3745628 ], "year": 2007, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0356-04", "/nc/361/0356-06", "/nc/361/0356-03", "/nc/361/0356-05", "/nc/361/0356-07", "/nc/361/0356-02", "/nc/361/0356-01" ] }, { "cite": "568 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "628" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 717", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9082176 ], "year": 2002, "pin_cites": [ { "page": "720" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0717-01" ] }, { "cite": "180 N.C. App. 392", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8242544 ], "year": 2006, "pin_cites": [ { "page": "395", "parenthetical": "quoting Ward v. Long Beach Vol. Rescue Squad, 151 N.C. App. 717, 720, 568 S.E.2d 626, 628 (2002)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/180/0392-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 97-88", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 11, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-88.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "opinion_index": 0 }, { "cite": "360 N.C. 545", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3790787, 3792621, 3790321, 3787794, 3791418, 3786559 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0545-03", "/nc/360/0545-05", "/nc/360/0545-01", "/nc/360/0545-06", "/nc/360/0545-02", "/nc/360/0545-04" ] }, { "cite": "173 N.C. App. 134", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353036 ], "year": 2005, "pin_cites": [ { "parenthetical": "Swift I" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0134-01" ] } ], "analysis": { "cardinality": 901, "char_count": 25405, "ocr_confidence": 0.758, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13528491429423106 }, "sha256": "3d11b5b8decb57685dc85338bab21f1985ef11b53b0e46e250a3f6596ed47273", "simhash": "1:b63b0d8f4ebb7e11", "word_count": 4008 }, "last_updated": "2023-07-14T21:34:30.605877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and JACKSON concur." ], "parties": [ "MICHAEL SWIFT, Employee, Plaintiff v. RICHARDSON SPORTS LTD. PARTNERS, d/b/a CAROLINA PANTHERS, Employer, and LEGION INSURANCE COMPANY, c/o CAMERON M. HARRIS & COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "ARROWOOD, Judge.\nRichardson Sports d/b/a Carolina Panthers (Defendant) appeals from an Order of the North Carolina Industrial Commission granting a motion by Michael Swift (Plaintiff) for attorney\u2019s fees. We reverse and remand for additional findings.\nThe factual and procedural history of this case is summarized as follows: Plaintiff, who was previously employed by Defendant as a professional football player, suffered a compensable injury in December 1999. At the time of Plaintiff\u2019s injury, Defendant\u2019s workers\u2019 compensation insurance was provided by Legion Insurance Company (Legion). Plaintiff applied for workers\u2019 compensation benefits and a hearing was conducted before a Deputy Commissioner in November 2002. On 10 March 2003 the Commissioner entered an Opinion that awarded disability and medical benefits to Plaintiff, and attorney\u2019s fees to Plaintiff\u2019s counsel. Defendant and Legion appealed to the Full Commission. On 10 October 2003 the Commission issued an Opinion and Award adopting the Opinion of the Deputy Commissioner with modifications, and left the Commissioner\u2019s award of attorney\u2019s fees undisturbed. On 30 October 2003 the Commission filed an amendment to its Opinion, for reasons unrelated to the issue of attorney\u2019s fees.\nDefendant and Legion appealed both the original and amended Opinions of the Commission. This Court issued an opinion on 5 April 2005. Following a rehearing, it issued a superceding opinion on 6 September 2005, affirming in part and reversing in part. Swift v. Richardson Sports, Ltd., 173 N.C. App. 134, 620 S.E.2d 533 (2005) (Swift I), disc. review denied, 360 N.C. 545, 635 S.E.2d 61 (2006). In Swift I, this Court overruled Defendant\u2019s arguments challenging the Commission\u2019s \u201cfinding that plaintiff sustained a compensable injury by accident arising out of and in the course of his employment[,]\u201d Id. at 138, 620 S.E.2d at 536, its admission of certain evidence, and the Commission\u2019s award of 299 weeks of workers\u2019 compensation benefits. The Court reversed the Commission\u2019s ruling on the issue of Defendants\u2019 entitlement to credit for amounts paid after Plaintiff\u2019s injury, and \u201cremanded to the Commission for the entry of an appropriate award which allows for a dollar-for-dollar credit.\u201d Id. at 143, 620 S.E.2d at 539.\nRegarding attorney\u2019s fees, this Court noted that the Commission awarded attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 97-88.1, which requires that before awarding attorney\u2019s fees, \u201cthe Commission must determine that a hearing \u2018has been brought, prosecuted, or defended without reasonable ground.\u2019 \u201d Id. (quoting N.C. Gen. Stat. \u00a7 97-88.1). The Court held that the \u201copinion and award sheds no light whatsoever upon this questionf,]\u201d and remanded \u201cthis issue to the Full Commission for the entry of additional findings of fact and conclusions of law on the issue of attorney fees[.]\u201d Id. The opinion directed that the Commission should \u201cstate the statute it relied upon in making the award and should make the necessary findings of fact and conclusions of law supporting the award.\u201d Id.\nIn sum, this Court upheld the Commission\u2019s award of 299 weeks of workers\u2019 compensation benefits, and rejected Defendants\u2019 arguments regarding compensability, admission of certain evidence, and the number of weeks\u2019 compensation. The Court reversed the Commission\u2019s calculation of the credit to which Defendants were entitled and its award of attorney\u2019s fees.\nAt the same time an arbitration proceeding was occurring under the NFL Collection Barganing Agreement. Pursuant to this arbitration and the settlement thereof, on 14 August 2006 the Tennessee Insurance Guaranty Association (TIGA) paid Plaintiff and his counsel $207,194.34. On 23 August 2006 Plaintiff filed a motion for attorney\u2019s fees and for approval of Plaintiff\u2019s attorney\u2019s fees contract, pursuant to N.C. Gen. Stat. \u00a7\u00a7 97-88 and 97-90 (2005). On 6 February 2007 the Commission approved Plaintiffs attorney\u2019s fees contract and awarded Plaintiff\u2019s counsel attorney\u2019s fees of $69,064.78, pursuant to N.C. Gen. Stat. \u00a7 97-88. Defendant has appealed from this order.\nStandard of Review\nOn appeal from the Industrial Commission:\nOur review of the Commission\u2019s opinion and award is limited to determining whether competent evidence of record supports the findings of fact and whether the findings of fact, in turn, support the conclusions of law. If there is any competent evidence supporting the Commission\u2019s findings of fact, those findings will not be disturbed on appeal despite evidence to the contrary. However, \u201c[t]he Commission\u2019s conclusions of law are reviewed de novo.\u201d\nRose v. City of Rocky Mount, 180 N.C. App. 392, 395, 637 S.E.2d 251, 254 (2006) (quoting Ward v. Long Beach Vol. Rescue Squad, 151 N.C. App. 717, 720, 568 S.E.2d 626, 628 (2002)), disc. review denied, 361 N.C. 356, 644 S.E.2d 232 (2007) (citations omitted).\nPreliminarily, we address Plaintiff\u2019s argument that an employer\u2019s liability under N.C. Gen. Stat. \u00a7 97-88 is an issue that Defendant waived by failing to raise it on its previous appeal to this Court. In the Commission\u2019s October 2003 Opinion, from which Defendant originally appealed, the Commission awarded attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 97-88.1 (2005). Accordingly, the applicability of N.C. Gen. Stat. \u00a7 97-88 to the facts of this case was not pertinent to the appeal, and Defendant did not waive review by failing to raise it on its first appeal.\nThe Commission\u2019s Opinion awards attorney\u2019s fees under N.C. Gen. Stat. \u00a7 97-88, which provides in pertinent part that:\nIf the Industrial Commission at a hearing on review or any court before which any proceedings are brought on appeal under this Article, shall find that such hearing or proceedings were brought by the insurer and the Commission or court by its decision orders the insurer to make, or to continue payments of benefits, including compensation for medical expenses, to the injured employee, the Commission or court may further order that the cost to the injured employee of such hearing or proceedings including therein reasonable attorney\u2019s fee to be determined by the Commission shall be paid by the insurer as a part of the bill of costs.\n\u201cThis Court reviews the Commission\u2019s ruling on a motion for attorney\u2019s fees for an abuse of discretion.\u201d Cox v. City of Winston-Salem, 171 N.C. App. 112, 119, 613 S.E.2d 746, 750 (2005) (citing Taylor v. J.P. Stevens Co., 307 N.C. 392, 394, 298 S.E.2d 681, 683 (1983)). However, although the Commission acts in its discretion in deciding whether to award attorney\u2019s fees under N.C. Gen. Stat. \u00a7 97-88, its Opinion must contain sufficient findings of fact for this Court to resolve appellate issues. Hodges v. Equity Grp., 164 N.C. App. 339, 347, 596 S.E.2d 31, 47 (2004) (\u201cAs the Commission did not render any findings regarding [an issue pertinent to attorney\u2019s fees], this cause must be remanded to the Commission for further findings of fact and an entry of attorney\u2019s fees award reflective of [the Commission\u2019s findings on the issue.]\u201d\nIn the instant case, the Commission\u2019s Opinion stated, in relevant part, the following:\nThe Full Commission filed an Opinion and Award in the above captioned case . . . after the defendant appealed the award of the Deputy Commissioner below. . . . [A]n amended Opinion and Award was entered for the Full Commission on October 30, 2003. The case was appealed by the defense to the North Carolina Court of Appeals which issued its [first] decision on April 5, 2005[,] . . . [and a superceding] decision on September 6, 2005. . . . The case was remanded back to the Court of Appeals which in turn remanded the case to the Industrial Commission.\nPlaintiff[] filed a motion for attorney\u2019s fees and costs pursuant to N.C. Gen. Stat. \u00a7 97-88. Plaintiff\u2019s attorney submitted itemization of 187.5 total hours spent on appellate issues in this case. Considering the fact that the defense appealed and lost on both the issue of compensability, degree of disability and entitlement to medical compensation, further considering the risk of defense of such an appeal and the substantial time spent in defending the risk along with the skill and expertise of the plaintiff\u2019s counsel good cause exists for taxing the defense with plaintiff\u2019s attorney\u2019s fees otherwise due to be paid by the plaintiff.\nIn the Commission\u2019s discretion, plaintiff\u2019s counsel is allowed reasonable attorney\u2019s fees for defendants\u2019 appeal of this matter and plaintiff\u2019s motion for attorney\u2019s fees is hereby GRANTED. In light of the circumstances of this case, as well as the nature and extent of services provided, the Commission in its discretion finds that a reasonable attorney\u2019s fee to be taxed is $69,064.78. Therefore, pursuant to N.C. Gen. Stat. \u00a7 97-88, defendants shall pay plaintiff a reasonable attorney\u2019s fee of $69,064.78 as part of the costs of the appeal.\nPlaintiff also has moved for Commission approval of a fee contract entered into by the parties[, that] ... provides, from the date the record was filed at the Court of Appeals, for an attorney\u2019s fee of %33 1/3 of compensation awarded. This fee contract is reasonable under these circumstances and is hereby APPROVED and an attorney\u2019s fee of 33 1/3% of the benefits payable to plaintiff is awarded to plaintiff\u2019s counsel.\nThe Commission\u2019s Opinion adequately finds certain essential facts. It states its statutory basis (\u00a7 97-88); enumerates factors the Commission considered in exercising its discretion (counsel\u2019s skill, the time spent, the outcome of Defendant\u2019s appeal); and specifies that attorney\u2019s fees are awarded for appellate costs (Plaintiff\u2019s contract provides for attorney\u2019s fees \u201cfrom the date the record on appeal was filed.\u201d). Nonetheless, we conclude that the Commission\u2019s findings and conclusions are insufficient to allow us to resolve several other appellate issues presented by the facts of this case.\nFor example; Defendant argues that \u00a7 97-88 did not authorize the Commission to award attorney\u2019s fees, on the grounds that the statute requires the Commission to find that the proceedings at issue were \u201cbrought by the insurer.\u201d It appears from the record that attorney\u2019s fees were awarded on remand from this Court of an appeal taken by Defendant and its insurer, Legion from the Commission\u2019s Opinion and Award of October 2003. However, the Opinion fails to include the specific finding required under \u00a7 97-88 that \u201cthat such hearing or proceedings were brought by the insurer[.]\u201d\nAnother issue raised on appeal is the identity of the entity ordered to pay attorney\u2019s fees. N.C. Gen. Stat. \u00a7 97-88 authorizes the Commission to tax attorney\u2019s fees to the insurer. In the instant case, the Commission ordered \u201cdefendants\u201d to pay the attorney\u2019s fee. The Commission\u2019s use of the plural form, defendants, suggests that the Commission intended to order more than one defendant to pay fees. However, there are three possible \u201cdefendants\u201d to whom the Commission might have been referring: Defendant, Legion, and TIGA.\nDefendant and Legion are listed as party defendants on the case caption. However, Legion was in liquidation at the time the Commission\u2019s Opinion was entered and proceedings against it were therefore stayed. TIGA appears to have paid for Legion\u2019s liability in this case, but was not listed as a party on the case caption. Defendant argues that after proceedings against Legion were stayed \u201cthere was only one defendant\u201d and \u201cno viable \u2018insurer\u2019 to pay an award of attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 97-88[,]\u201d which necessarily rendered the Commission\u2019s order one \u201ccompelling the payment of Plaintiff\u2019s attorney\u2019s fees by the employer.\u201d However, the record indicates that, although TIGA is no longer listed as a formal party on the case caption, TIGA paid for Legion\u2019s liability upon Legion\u2019s insolvency and thus may have functioned as a \u201cviable insurer.\u201d\nFollowing the Commission\u2019s entry of an Opinion and Award in October 2003, Defendants filed notice of appeal on 13 November 2003. The notice of appeal was filed by Defendant, Legion, and TIGA, which was designated in the case caption as \u201calso appearing on behalf of Defendant-appellants.\u201d On 10 February 2004 Defendant filed a motion asking to add TIGA as an additional party. In its motion, Defendant stated that Legion had gone into liquidation proceedings, but that TIGA had \u201cnotified defense counsel of its agreement to fund this claim[.]\u201d The Commission granted Defendant\u2019s motion on 11 February 2004, adding TIGA as a party to the appeal. However, on 19 February 2004 Defendant filed a motion for reconsideration of their motion, asking to remove TIGA as a named party. Defendant informed the Commission that TIGA had \u201cagreed to accept the financial responsibility of this claim\u201d but asserted that TIGA \u201ccannot be named as a specific party to this lawsuit. In Tennessee, the case caption always remains as is, with the insolvent carrier listed as the carrier.\u201d Thus, Defendant\u2019s request to the Commission represented that, although TIGA would continue to provide coverage on the risk, certain technical requirements of Tennessee statutory law required TIGA to be removed from the case caption. However, the Commission\u2019s summary grant of Defendant\u2019s request fails to include any findings or conclusions about TIGA\u2019s relationship to Legion, or why the Commission granted Defendant\u2019s request to remove TIGA as a named party.\nIn support of its assertion that TIGA could not be listed as a party to the appeal, Defendant cited only Tennessee Code Ann. \u00a7 56-12-107(c)(1) and (2) (2000), which provides in pertinent part:\n(1) Any action relating to or arising out of this part against the association shall be brought in a court in this state. Such court shall have exclusive jurisdiction over any action relating to or arising out of this part against the association^]\n(2) Exclusive venue in any action brought against the association is in the circuit or chancery court in Davidson County; provided, that the association may waive such venue as to a specific action.\n(emphasis added). Defendant asserted that this statute \u201cprohibits [TIGA] from being named as a party to a suit unless the venue of the suit is in Davidson County, Tennessee.\u201d But, Defendant did not articulate why its appeal from an award of workers\u2019 compensation benefits in North Carolina constituted an action \u201crelating to or arising out of [the Tennessee Insurance Guaranty Statute]\u201d or was an action brought \u201cagainst the association^]\u201d Nor does the Opinion contain findings in this regard. Moreover, we note that under Tenn. Code Ann. \u00a7 56-12-107(b)(4) (2000), TIGA has the \u201cright to intervene as a party before any court that has jurisdiction over an insolvent insurer as defined by this part[.]\u201d\nAdditionally, cases from other jurisdictions have identified TIGA as a party in cases not brought in Tennessee. Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass\u2019n, 896 F.2d 674 (2d Cir. 1990); General Elec. Co. v. Cal. Ins. Guar. Ass\u2019n, 997 S.W.2d 923 (Tex. Ct. App. 1999); Colaiannia v. Aspen Indem. Corp., 885 P.2d 337, (Colo. Ct. App. 1994); Maytag Corp. v. Tennessee Ins. Guaranty Ass\u2019n, 79 Ohio App. 3d 817, 608 N.E.2d 772 (1992). Accordingly, without findings and conclusions, Defendant\u2019s bare citation of the referenced statute does not clarify the basis for the Commission\u2019s granting Defendant\u2019s request to remove TIGA from the case caption. This issue is significant, because much of Defendant\u2019s argument rests on the proposition that TIGA had to be removed as a named party.\nDefendant\u2019s arguments also assume that, upon its removal as a named party on the case caption, TIGA could no longer be considered a viable \u201cinsurer\u201d in the case. However, Defendant cites no authority for this proposition, and the record shows that TIGA continued to provide risk coverage for Defendant, notwithstanding its removal from the case caption. On 14 August 2006 TIGA issued a check payable to Plaintiff in the amount of $207,194.34. The statement accompanying the check lists Defendant as \u201cinsured\u201d and Plaintiff as \u201cclaimant.\u201d\nAs a Guaranty Association, TIGA may have been liable for payment of attorney\u2019s fees, and the Commission may have meant Legion and TIGA as the \u201cdefendants\u201d referenced in its Opinion. Generally:\n[Guaranty Associations] are unincorporated associations created in various states throughout the country pursuant to their state statutes based upon the Post-Assessment Property and Liability Insurance Guaranty Association Model Act (the Model Act). The purpose of the Model Act is to protect policyholders and claimants . . . against the insolvency of a local insurer[.] . . . The Guaranty Associations are comprised of all insurance companies who are authorized to write casualty and property insurance policies in the particular state.\nRhulen Agency, 896 F.2d at 676. Regarding TIGA, the Tennessee Court of Appeals has stated:\nTIGA is a creature of statute established for the express purpose of avoiding \u201cfinancial loss to claimants or policyholders because of the insolvency of an insurer.\u201d ... The statutes also provide that TIGA \u201cbe deemed the insurer to the extent of its 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.\u201d\nTenn. Ins. Guar. Ass\u2019n v. Ctr. Ins. Co., 2005 Tenn. App. lexis 340 (Tenn. Ct. App. 2005) (quoting Tenn. Code Ann. \u00a7 \u00a7 56-12-102, and 107(a)(2) (2000)). Thus, the \u201cguaranty association is designed to place claimants in the same positions they would have been in if the liability insurer had not become insolvent. Once an insurer is declared insolvent, the association steps into the shoes of the insurance company with all of the rights, duties and obligations of the insolvent insurer to the extent those obligations are defined by statute. TIGA is deemed to be the insurer to the extent of its statutory obligation on the claim.\u201d Maytag Corp, 79 Ohio App. 3d at 821, 608 N.E.2d at 775 (citing Luko v. Lloyd\u2019s of London, 393 Pa.Super. 165, 573 A.2d 1139 (1990); and Washington Ins. Guar. Assn. v. Mullins, 62 Wash. App. 878, 816 P.2d 61 (1991)).\nN.C. Gen. Stat. \u00a7 58-48-5 (2005), states in pertinent part:\nThe purpose of [th\u00e9 N.C. Insurance Guaranty Association] is to provide a mechanism for the payment of covered claims under certain insurance policies . . . and to avoid financial loss to claimants or policyholders because of the insolvency of an insurerf.]\nAccordingly, under either Tennessee or North Carolina law, it is possible that the Commission intended to impose the attorney\u2019s fees on the insurer and used the plural form \u201cdefendants\u201d to encompass both the original insurer, Legion, as well as TIGA, the entity that assumed responsibility for Legion\u2019s obligations. However, the Commission failed to make findings or conclusions regarding (1) the basis for the Commission\u2019s allowing the removal of TIGA from the case caption; or (2) TIGA\u2019s liability for attorney\u2019s fees.\nThe parties also present arguments on whether an employer can ever be liable for payment of attorney\u2019s fees under N.C. Gen. Stat. \u00a7 97-88. Plaintiff argues that North Carolina case law holds that if an employer fails to maintain workers\u2019 compensation insurance at all times, it becomes liable for obligations that would normally fall to the insurer. For example, in Roberts v. Coal Co., 210 N.C. 17, 21, 185 S.E. 438, 440 (1936), the North Carolina Supreme Court considered whether \u201cthe employer under the Workmen\u2019s Compensation Act should be relieved of liability for the compensation to his injured employee by reason of the insolvency of his insurance carrier\u201d and concluded that:\nThe liability of the employer under the award is primary. He, by contract, may secure liability insurance for his protection, but his obligation to the injured employee is unimpaired. . . . \u201cInto the construction of every act must be read the purpose of the Legislature, and the underlying purpose in this instance . . . was to give relief to workmen'. This relief [is] . . . charged against the employer.\u201d . . . The statute requires the employer to insure and keep insured his liability[.] . . . [Manifestly the insolvency of the insurer should not relieve the insured, nothing else appearing.\nId. at 21, 185 S.E. at 441 (quoting C. & O. R. R. v. Palmer, 149 Va. 560, 572, 140 S.E. 831, 835-36 (1927)). On the other hand, Defendant relies on the statutory language specifying that attorney\u2019s fees be paid by the \u201cinsurer.\u201d However, because the Commission does not state clearly whether it is imposing attorney\u2019s fees on TIGA or Defendant we do not reach the issue of whether Defendant could be liable for attorney\u2019s fees.\nWe note that Defendant also argues that the Commission erred by entering its Opinion and Award in violation of a stay order. Again, the relevance of this argument depends on whether the Commission was imposing attorney\u2019s fees against Legion, TIGA, Defendant, or more than one of these. We note, however, that in Tucker v. Workable Company, 129 N.C. App. 695, 501 S.E.2d 360 (1998), the Commission awarded Plaintiff workers\u2019 compensation benefits, attorney\u2019s fees, and a penalty against Defendant\u2019s insolvent insurer. Defendant appealed and argued that the Commission\u2019s award was entered in violation of a previously issued stay order that stayed \u201call litigation and other proceedings against [Defendant\u2019s insolvent insurer.]\u201d This Court held:\nThis argument is without merit because the Full Commission did not decide issues relating to defendant employer\u2019s insolvent insurance carrier IAEA. The only issues determined by the Full Commission were those between plaintiff employee and defendant employer. Additionally, the Full Commission could proceed against the employer Able Body because . . . even though the insurance carrier is insolvent, the employer remains primarily liable to an employee for a workers\u2019 compensation award . . . [and] \u201chis obligation to the injured employee is unimpaired.\u201d . . . Thus, the Full Commission did not violate the stay order[.]\nId. at 699-700, 501 S.E.2d at 364 (quoting Roberts, 210 N.C. at 21, 185 S.E. at 440).\nWe conclude that the Commission\u2019s Order for\u2019payment of attorney\u2019s fees must be reversed and remanded for additional findings and conclusions addressing (1) whether the insurer was a party to the appeal from the Deputy Commissioner; (2) the basis for the Commission\u2019s granting Defendant\u2019s request to remove TIGA from the case caption; (3) TIGA\u2019s liability for attorney\u2019s fees following the insolvency of Legion; (4) the identity of the entities the Commission ordered to pay attorney\u2019s fees; and (5) TIGA\u2019s relationship, to Defendant and to the insolvent insurer.\nDefendant has also argued that the Commission erred by failing to conduct an evidentiary hearing. On remand, the Commission should conduct a hearing, if necessary, in order to resolve any genuine issues of fact arising from the issues presented.\nReversed and Remanded.\nJudges TYSON and JACKSON concur.", "type": "majority", "author": "ARROWOOD, Judge." } ], "attorneys": [ "R. James Lore, for Plaintiff-Appellee.", "Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Hatcher B. Kincheloe and Shannon P. Metcalf, for Defendant-Appellants." ], "corrections": "", "head_matter": "MICHAEL SWIFT, Employee, Plaintiff v. RICHARDSON SPORTS LTD. PARTNERS, d/b/a CAROLINA PANTHERS, Employer, and LEGION INSURANCE COMPANY, c/o CAMERON M. HARRIS & COMPANY, Carrier, Defendants\nNo. COA07-685\n(Filed 15 January 2008)\n1. Appeal and Error\u2014 preservation of issues \u2014 issue not raised in prior appeal \u2014 not waived\nDefendant did not waive review of the employer\u2019s liability for attorney fees in a workers\u2019 compensation case by not raising it in a prior appeal. The opinion from which the original appeal was taken awarded attorney fees pursuant to N.C.G.S. \u00a7 97-88.1, so that the applicability of N.C.G.S. \u00a7 97-88 to the facts of this case was not pertinent to the appeal.\n2. Workers\u2019 Compensation\u2014 attorney fees \u2014 findings\u2014not sufficient\nAlthough the Industrial Commission acts in its discretion in a workers\u2019 compensation case in deciding whether to award attorney fees under N.C.G.S. \u00a7 97-88, its opinion must contain sufficient findings of fact for the court to resolve appellate issues. The Commission\u2019s findings and conclusions here are not sufficient to allow resolution of several appellate issues presented by the facts of this case, including the identity of the entity ordered to pay attorney fees.\n3. Workers\u2019 Compensation\u2014 attorney fees \u2014 placement of liability \u2014 order not clear\nThe issue of whether an employer can ever be liable for payment of attorney fees under N.C.G.S. \u00a7 97-88 was not reached because the Industrial Commission did not' state clearly whether it was imposing attorney fees on TIGA (Tennessee Insurance Guaranty Association) or on defendant-employer.\n4. Workers\u2019 Compensation\u2014 attorney fees \u2014 entity responsible \u2014 further findings needed\nA workers\u2019 compensation case was remanded for further findings where defendant argued that the Industrial Commission erred by entering its Opinion and Award in violation of a stay order against an insolvent insurer, but the relevance of the argument depends on whether the Commission was imposing attorney fees against an insolvent insurer (Legion), the insurance guaranty association (TIGA), defendant employer, or more than one of these.\nAppeal by Defendant from an Order entered 6 February 2007 by the North Carolina Industrial Commission. Heard in the Court of Appeals 29 November 2007.\nR. James Lore, for Plaintiff-Appellee.\nHedrick, Eatman, Gardner & Kincheloe, L.L.P., by Hatcher B. Kincheloe and Shannon P. Metcalf, for Defendant-Appellants." }, "file_name": "0082-01", "first_page_order": 112, "last_page_order": 122 }