{
  "id": 8554749,
  "name": "BARBARA C. WESTMORELAND v. SAFE BUS, INC.",
  "name_abbreviation": "Westmoreland v. Safe Bus, Inc.",
  "decision_date": "1974-02-06",
  "docket_number": "No. 7421DC23",
  "first_page": "632",
  "last_page": "634",
  "citations": [
    {
      "type": "official",
      "cite": "20 N.C. App. 632"
    }
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  "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": "141 S.E. 2d 808",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1965,
      "opinion_index": 0
    },
    {
      "cite": "264 N.C. 387",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8573458
      ],
      "year": 1965,
      "opinion_index": 0,
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        "/nc/264/0387-01"
      ]
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    {
      "cite": "166 S.E. 2d 649",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1969,
      "opinion_index": 0
    },
    {
      "cite": "275 N.C. 229",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8558328
      ],
      "year": 1969,
      "opinion_index": 0,
      "case_paths": [
        "/nc/275/0229-01"
      ]
    },
    {
      "cite": "129 S.E. 2d 589",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1963,
      "opinion_index": 0
    },
    {
      "cite": "259 N.C. 88",
      "category": "reporters:state",
      "reporter": "N.C.",
      "year": 1963,
      "opinion_index": 0
    }
  ],
  "analysis": {
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    "pagerank": {
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    "simhash": "1:9252bf23949b865e",
    "word_count": 681
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  "last_updated": "2023-07-14T15:39:00.958655+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Campbell and Baley concur."
    ],
    "parties": [
      "BARBARA C. WESTMORELAND v. SAFE BUS, INC."
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nDefendant, among other things, contends that the District Court has no authority to entertain an action predicated upon the Workmen\u2019s Compensation Act. We agree. In an action of the type now before us, the Industrial Commission can award an attorney\u2019s fee not to exceed \u201cone third of the amount obtained or recovered of the third party,\u201d G.S. 97-10.2 (F) (l)b, provided (1) the employer has filed a written admission of liability for benefits with the Industrial Commission or (2) an award final in nature in favor of the employee has been entered by the Commission, G.S. 97-10.2 (F) (1).\nPlaintiff, having no express or implied contract with the defendant, bottoms her claim in the present case upon the aforementioned statutes; however, these statutes do not confer any authority upon the District Court to order an employer to pay attorney\u2019s fees. This action is within the exclusive province of the Industrial Commission, Cox v. Transportation Co., 259 N.C. 88, 129 S.E. 2d 589 (1963); therefore, the District Court\u2019s award of attorney\u2019s fees was improper. Byers v. Highway Comm,., 275 N.C. 229, 166 S.E. 2d 649 (1969); Spivey v. Wilcox Company, 264 N.C. 387, 141 S.E. 2d 808 (1965).\nFor the reasons stated herein the order of the District Court is\nReversed.\nJudges Campbell and Baley concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Westmoreland and Sawyer by Barbara C. Westmoreland for plaintiff appellee.",
      "Erwin and Hayes by Richard C. Erwin and Roland H. Hayes for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "BARBARA C. WESTMORELAND v. SAFE BUS, INC.\nNo. 7421DC23\n(Filed 6 February 1974)\nMaster and Servant \u00a7 99\u2014 Workmen\u2019s Compensation claim \u2014 award of attorney\u2019s fees \u2014 no jurisdiction in district court\nAn action to recover pursuant to G.S. 97-10.2 (F) (l)b of the Workmen\u2019s Compensation Act a sum representing legal fees allegedly owed to plaintiff by defendant was within the exclusive province of the Industrial Commission, and the district court\u2019s award of attorney fees was improper.\nAppeal by defendant from Henderson, Judge, 23 July 1973 Session of District Court held in Forsyth County.\nThis is a civil action wherein the plaintiff, Barbara C. Westmoreland, attorney, seeks to recover pursuant to G.S. 97-10.2 (F) (l)b of the Workmen\u2019s Compensation Act the sum of $416.00 from defendant, Safe Bus, Inc. The amount which plaintiff claims represents certain legal fees allegedly owned to plaintiff by defendant.\nThe pleadings establish the following uncontrovered facts: On 21 November 1970, Mrs. Frances J. Mason, an employee of defendant, was injured when the company bus she was driving collided with a vehicle driven by a person not a party to this suit. Mrs. Mason was temporarily totally disabled and unable to work from 21 November 1970 until June 1971 and during this period the defendant, a self-insured company, paid $1,248.00 to Mrs. Mason pursuant to the Workmen\u2019s Compensation Act. Thereafter, plaintiff was retained by - Mrs. Mason to represent her in a claim against Charles Dillard and William Claybrooks, Jr. (the alleged third party tortfeasors) for the personal injuries suffered in the accident of 21 November 1970. Ultimately, the employee\u2019s claim against the third party tortfeasors was settled for a total of $7,500; however, the liability insurance carrier for the third party tortfeasors, having been notified by defendant of its subrogation claim, paid $1,248.00 to defendant and $6,252.00 to Mrs. Mason.\nAfter employee\u2019s claim against the third party tortfeasors was settled, plaintiff, the employee\u2019s attorney, effecting the settlement, requested the Industrial Commission to award her a fee equal to one-third of the amount of the recovery paid by the liability insurance carrier to the defendant, employer.\nNeither party having given notice to the Industrial Commission of the injury or any of the proceedings resulting in the settlement of the claim, the Industrial Commission refused to make \u201cany ruling in the case.\u201d\nWhile admitting the factual allegations of the complaint, the defendant denied any liability and moved to dismiss.\nPlaintiff moved for judgment on the pleadings pursuant to G.S. 1A-1, Rule 12(c), Rules of Civil Procedure, and this, motion was allowed. From a judgment on the pleadings that plaintiff recover of defendant $416.00, the defendant appealed.\nWestmoreland and Sawyer by Barbara C. Westmoreland for plaintiff appellee.\nErwin and Hayes by Richard C. Erwin and Roland H. Hayes for defendant appellant."
  },
  "file_name": "0632-01",
  "first_page_order": 660,
  "last_page_order": 662
}