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    "judges": [
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    "parties": [
      "RICARDO DIAZ, Employee, Plaintiff v. JERRY MARK SMITH, d/b/a SMITH\u2019S HOME REPAIR, Employer, TRAVELERS INDEMNITY COMPANY, Carrier, Defendants"
    ],
    "opinions": [
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        "text": "HUNTER, Robert C., Judge.\nPlaintiff Ricardo Diaz appeals from the Industrial Commission\u2019s opinion and award in which it awarded plaintiff workers\u2019 compensation benefits, but concluded that defendant-employer Jerry Mark Smith\u2019s workers\u2019 compensation insurance policy had been effectively cancelled by defendant-carrier Travelers Indemnity Company. We agree with plaintiff\u2019s contention that the Commission applied the notice requirements of the incorrect statute in determining whether Smith\u2019s insurance policy was properly cancelled. Accordingly, the Commission\u2019s opinion and award is reversed and remanded.\nFacts\nSmith began Smith\u2019s Home Repair in the summer of 2006. After submitting an application with the North Carolina Rate Bureau, Smith obtained a workers\u2019 compensation insurance policy with Travelers as ah assigned risk policy. Because Smith could not afford to pay his premium in full, he financed the premium through a third party known as Monthly Payment Plan, Inc. (\u201cMPP\u201d). MPP\u2019s financing agreement included a power of attorney provision authorizing MPP to cancel Smith\u2019s policy if he failed to make timely payments. Smith signed neither the Travelers\u2019 policy nor the MPP financing agreement; both were signed in Smith\u2019s name by his insurance agent, David Cantwell. An acknowledgment page, not normally contained in \u201cregular policies,\u201d was included at the end of Smith\u2019s policy with Travelers, notifying him that, pursuant to the power of attorney clause in the financing agreement, MPP could cancel his policy for non-payment.\nIn November 2006, MPP cancelled Smith\u2019s policy for non-payment of premiums. The policy was reinstated, however, after MPP received Smith\u2019s monthly premium payment. After Smith failed to make his premium payment for January 2007, MPP sent Smith a letter dated 2 January 2007, titled \u201cTen Day Notice,\u201d advising Smith that \u201cunless payment is made within ten days from the date of th[e] letter,\u201d his workers\u2019 compensation policy would be \u201ccancelled through the use of [the] power of attorney that [he] signed.\u201d MPP sent copies of this letter by regular mail to Smith\u2019s correct address in Asheville, North Carolina, as well as to Cantwell\u2019s office. Both Smith and Cantwell received their respective copy of the letter.\nAfter MPP did not receive payment from Smith, MPP sent a \u201cNotice of Cancellation\u201d letter, dated 15 January 2007, notifying Smith of MPP\u2019s intent to cancel his policy through the power of attorney provision in the finance agreement. Copies of this notice were sent to Smith\u2019s address and Cantwell\u2019s; both received the notice. A copy of the notice of intent also was sent to Travelers, notifying the insurer of MPP\u2019s intent to cancel Smith\u2019s policy through its power of attorney.\nBy certified mail, Traveler\u2019s sent a letter headed \u201cNotice of Cancellation \u2014 Nonpayment of Premium Financed Policy,\u201d explaining that MPP had \u201cexercised its right to cancel th[e] policy as provided in its agreement with [Smith], due to [Smith]\u2019s delinquent payment status.\u201d Although the notice of cancellation stated that it was \u201cissue[d]\u201d on 1 February 2007, it back-dated the cancellation to be effective 25 January 2007. Travelers\u2019 notice of cancellation was sent to Smith at the last known address in its file, which was not Smith\u2019s then-current address. Smith did not receive the notice; the certified letter was returned undelivered to Travelers on 12 February 2007.\nAfter conducting an audit on 5 March 2007, Travelers returned $317.00 in unearned premiums to MPP. MPP issued Smith a refund check of $225.00. Plaintiff cashed the check without contacting anyone but his insurance agent for an explanation of the refund.\nPlaintiff began working for Smith around 17 April 2007 as a framer and roofer, working approximately 40 hours a week at $10.00 an hour. On 20 July 2007, plaintiff fell off the roof on which he was working and injured his left arm. Plaintiff was seen in Mission Hospital\u2019s emergency room, where x-rays showed that he had fractured his left humerus and dislocated his left elbow. His elbow was splinted and reduced. On 1 August 2007, plaintiff underwent \u201copen reduction, internal fixation of the humerus, and exploration of the radial nerve.\u201d\nPlaintiff was released by his doctor to return to sedentary work, without any use of his left arm, on 17 September 2007. On that day, plaintiff filed his claim for workers\u2019 compensation benefits. Defendants denied plaintiff\u2019s claim \u201cfor lack of coverage\u201d on 28 September 2007. Plaintiff did not return to work until 3 January 2008, when he started working for another employer at the same or greater average weekly wage. Plaintiff\u2019s doctor assigned a 20% permanent partial impairment rating to his left arm, with lifting restrictions of no more than 40 pounds with his left arm.\nAfter conducting an evidentiary hearing on plaintiffs claim on 29 May 2008, the deputy commissioner entered an opinion and award on 23 December 2008, in which he concluded that plaintiff had sustained a compensable injury on 20 July 2007, and, as a result, was entitled to disability as well as ongoing medical benefits. The deputy commissioner also determined that Travelers had failed to comply with the notice requirements of N.C. Gen. Stat. \u00a7 58-36-105 (2009) in attempting to cancel Smith\u2019s workers\u2019 compensation policy. Thus, the deputy commissioner concluded, Travelers\u2019 cancellation was ineffective and the policy was \u201cin full effect\u201d on 20 July 2007.\nDefendants appealed to the Full Commission, which issued an amended opinion and award on 19 March 2010, in which the Commission upheld the deputy commissioner\u2019s conclusion that plaintiff was entitled to disability and medical benefits as a result his compensable injury. The Commission ruled, however, that N.C. Gen. Stat. \u00a7 58-36-105 did not govern the cancellation of Smith\u2019s policy and that \u201cDefendant Smith\u2019s policy was effectively and properly cancelled pursuant to the power of attorney held by MPP and in accordance with \u00a7 58-35-85.\u201d Based on this determination, the Commission held that Smith, not Travelers, was liable for plaintiff\u2019s benefits. Plaintiff timely appealed to this Court.\nI\nBefore reaching plaintiff\u2019s argument for reversal of the Commission\u2019s opinion and award, we address Travelers\u2019 contention that plaintiff, as he was awarded all workers\u2019 compensation benefits that he claimed, is not a \u201cparty aggrieved\u201d by the Commission\u2019s decision. The Workers\u2019 Compensation Act provides that an appeal from an opinion and award of the Industrial Commission is subject to the \u201csame terms and conditions as govern appeals from the superior court to the Court of Appeals in ordinary civil actions.\u201d N.C. Gen. Stat. \u00a7 97-86 (2009); Ratchford v. C.C. Mangum, Inc., 150 N.C. App. 197, 199, 564 S.E.2d 245, 247 (2002). Under N.C. Gen. Stat. \u00a7 1-271 (2009), \u201c \u2018[a]ny party aggrieved\u2019 is entitled to appeal in a civil action.\u201d Moody v. Sears Roebuck & Co., 191 N.C. App. 256, 262-63, 664 S.E.2d 569, 574 (2008). A \u201cparty aggrieved\u201d is one whose legal rights have been denied or directly and injuriously affected by the action of the trial tribunal. Selective Ins. Co. v. Mid-Carolina Insulation Co., 126 N.C. App. 217, 219, 484 S.E.2d 443, 445 (1997). If the party seeking appeal is not an aggrieved party, the party lacks standing to challenge the lower tribunal\u2019s action and any attempted appeal must be dismissed. Culton v. Culton, 327 N.C. 624, 626, 398 S.E.2d 323, 325 (1990), superseded by statute on other grounds as recognized in In re J.A.A., 175 N.C. App. 66, 72-73, 623 S.E.2d 45, 49 (2005).\nGenerally, when an employee has been awarded the benefits to which he or she claimed entitlement under the Workers\u2019 Compensation Act, the employee is not aggrieved and lacks standing to appeal the Industrial Commission\u2019s decision. See Henke v. First Colony Builders, Inc., 126 N.C. App. 703, 705, 486 S.E.2d 431, 432 (concluding claimant, who had been \u201cgranted workers\u2019 compensation benefits, as well as attorney\u2019s fees\u201d was not aggrieved by Commission\u2019s denial of request for interest to be included in payment to her attorney as \u201c[pjlaintiff suffer[ed] no direct legal injury in the denial of interest payments to her attorney\u201d), appeal dismissed, disc, review denied, and cert. denied, 347 N.C. 266, 493 S.E.2d 455 (1997). Plaintiff acknowledges that the Commission\u2019s decision awards him all the benefits he requested, but contends that he is a \u201cparty aggrieved\u201d in that \u201c[t]he decision by the Full Commission adversely affects [his] ability to collect his monetary benefits and all but negates his ability to receive further treatment.\u201d\nAlthough the parties fail to point to any North Carolina authority \u2014 and we have found none \u2014 directly on point, other appellate courts that have addressed this issue have held that an employee is \u201caggrieved\u201d by a workers\u2019 compensation tribunal\u2019s determination regarding workers\u2019 compensation insurance coverage. See, e.g., Shope v. Workmen\u2019s Comp. Appeals Bd., 21 Cal. App. 3d 774, 777, 98 Cal. Rptr. 768, 770 (1971) (\u201cPetitioner was affected by the decision of the Board determining that he had no recovery against Carrier and that he would have to look for recompense to an employer who was no longer in business and whose financial ability to pay the award was problematical. We, therefore, hold that petitioner has standing to have this court review the Board\u2019s determination as to the insurance coverage.\u201d); Associated Theaters v. Industrial Acc. Commission, 57 Cal. App. 105, 107, 206 P. 665, 666 (1922) (holding that employee was a \u201cparty aggrieved\u201d entitled to seek review of industrial accident commission\u2019s determination that employee\u2019s injury was outside the scope of employer\u2019s insurance coverage and thus could recover only from employer); In re Hughes, 273 P.2d 450, 454 (Okla. 1954) (holding that where benefits for injuries to employee was awarded against employer by an order of the state\u2019s industrial commission relieving insurer from liability and there was a possibility that employer would not be able to satisfy award due to lack of assets, employee was a \u201cparty aggrieved\u201d with standing to challenge order). Although not controlling, see Morton Bldgs., Inc. v. Tolson, 172 N.C. App. 119, 127, 615 S.E.2d 906, 912 (2005) (\u201c[W]hile decisions from other jurisdictions may be instructive, they axe not binding on the courts of this State.\u201d), we find these authorities persuasive and conclude that plaintiff is a \u201cparty aggrieved\u201d by the Commission\u2019s determination that Smith\u2019s workers\u2019 compensation insurance was properly cancelled.\nThis conclusion is, moreover, consistent with the long-standing principle that courts \u201cmust construe the Workers\u2019] Compensation Act liberally so as to effectuate its human purpose of providing compensation for injured employees.\u201d Roper v. J.R Stevens & Co., 65 N.C. App. 69, 73, 308 S.E.2d 485, 488 (1983), disc. review denied, 310 N.C. 309, 312 S.E.2d 652 (1984); see also Hughes, 273 P.2d at 454 (\u201cWe think that, under the proper interpretation of our Workmen\u2019s Compensation Law, which we are bound to liberally construe in favor of the employee, when the protection of industrial insurance contemplated in the Act is denied such employee by a final order of the State Industrial Commission he certainly is an \u2018aggrieved\u2019 party....\u201d).\nII\nTurning to plaintiff\u2019s contention on appeal, he argues that the Commission erroneously applied N.C. Gen. Stat. \u00a7 58-35-85 (2009), which provides the procedures for cancelling an insurance policy financed by a premium finance agreement, in determining whether Smith\u2019s workers\u2019 compensation insurance policy was effectively can-celled. Plaintiff contends that the procedures set out in N.C. Gen. Stat. \u00a7 58-36-105 for cancelling workers\u2019 compensation insurance policies governed the cancellation of Smith\u2019s insurance policy. Because, plaintiff argues, Travelers failed to follow N.C. Gen. Stat. \u00a7 58-36-105\u2019s requirements in cancelling Smith\u2019s policy, the cancellation was ineffective and Smith\u2019s workers\u2019 compensation policy was in effect on the date of his compensable injury.\nIssues involving statutory interpretation are questions of law, reviewed de novo on appeal. In re Ernst & Young, LLP, 363 N.C. 612, 616, 684 S.E.2d 151, 154 (2009); see also Oxendine v. TWL, Inc., 184 N.C. App. 162, 164, 645 S.E.2d 864, 865 (2007) (reviewing de novo determination of which of two competing statutes controlled in workers\u2019 compensation case).\nN.C. Gen. Stat. \u00a7 58-36-105, titled \u201cCertain workers\u2019 compensation insurance policy cancellations prohibited,\u201d provides in pertinent part:\n(a) No policy of workers\u2019 compensation insurance or employers\u2019 liability insurance written in connection with a policy of workers\u2019 compensation insurance shall be cancelled by the insurer before the expiration of the term or anniversary date stated in the policy and without the prior written consent of the insured, except for any one of the following reasons:\n(1) Nonpayment of premium in accordance with the policy terms.\n(b) Any cancellation permitted by subsection (a) of this section is not effective unless written notice of cancellation has been given by registered or certified mail, return receipt requested, to the insured not less than 15 days before the proposed effective date of cancellation.... Whenever notice of intention to cancel is required to be given by registered or certified mail, no cancellation by the insurer shall be effective unless and until such method is employed and completed. . . .\nN.C. Gen. Stat. \u00a7 58-36-105(a)-(b). N.C. Gen. Stat. \u00a7 58-35-85 sets out the procedure for cancellation of an insurance policy by an insurance premium finance company:\nWhen an insurance premium finance agreement contains a power of attorney or other authority enabling the insurance premium finance company to cancel any insurance contract or contracts listed in the agreement, the insurance contract or contracts shall not be cancelled unless the cancellation is effectuated in accordance with the following provisions:\n(1) Not less than 10 days\u2019 written notice is sent by personal delivery, first-class mail, electronic mail, or facsimile transmission to the last known address of the insured or insureds shown on the insurance premium finance agreement of the intentof the insurance premium finance company to cancel his or their insurance contract or contracts unless the defaulted installment payment is received. Notification thereof shall also be provided to the insurance agent.\n(2) After expiration of the 10-day period, the insurance premium finance company shall send the insurer a request for cancellation and shall send notice of the requested cancellation to the insured by personal delivery, first-class mail, electronic mail, electronic transmission, or facsimile transmission at his last known address as shown on the records of the insurance premium finance company and to the agent. . . .\n(3) Upon receipt of a copy of the request for cancellation notice by the insurer, the insurance contract shall be cancelled with the same force and effect as if the request for cancellation had been submitted by the insured, without requiring the return of the insurance contract or contracts.\n(4) All statutory, regulatory, and contractual restrictions providing that the insured may not cancel the insurance contract unless the insurer first satisfies the restrictions by giving a prescribed notice to a governmental agency, the insurance carrier, an individual, or a person designated to receive the notice for said governmental agency, insurance carrier, or individual shall apply where cancellation is effected under the provisions of this section.\nN.C. Gen. Stat. \u00a7 58-35-85(l)-(4).\nWhile the title to N.C. Gen. Stat. \u00a7 58-36-105 explicitly provides that the statute applies to workers\u2019 compensation insurance policies, this Court, in Graves v. ABC Roofing Company, 55 N.C. App. 252, 253-55, 284 S.E.2d 718, 718-19 (1981), held that N.C. Gen. Stat. \u00a7 58-35-85\u2019s predecessor, N.C. Gen. Stat. \u00a7 58-60, applied to workers\u2019 compensation policies as well. Thus, both N.C. Gen. Stat. \u00a7 58-36-105 and N.C. Gen. Stat. \u00a7 58-35-85 appear to be applicable in this case. The Supreme Court has set out the principles of statutory construction applicable when two statutes overlap:\n\u201cWhere there is one statute dealing with a subject in general and comprehensive terms, and another dealing with a part of the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, with a view to giving effect to a consistent legislative policy; but, to the extent of any necessary repugnancy between them, the special statute, or the one dealing with the common subject matter in a minute way, will prevail over the general statute, . . . unless it appears that the legislature intended to make the general act controlling; and this is true a fortiori when the special act is later in point of time, although the rule is applicable without regard to the respective dates of passage.\u201d\nNational Food Stores v. Board of Alcoholic Control, 268 N.C. 624, 628-29, 151 S.E.2d 582, 586 (1966) (quoting 82 C.J.S. Statutes \u00a7 369 (1953)).\nPlaintiff contends, and we agree, that N.C. Gen. Stat. \u00a7 58-35-85 deals with the cancellation of insurance policies in more \u201cgeneral and comprehensive terms\u201d than N.C. Gen. Stat. \u00a7 58-36-105, as it applies to any insurance policy financed through a premium finance agreement that includes a power of attorney provision \u2014 irrespective of whether it is, for example, a life, automobile, homeowners\u2019, or workers\u2019 compensation insurance policy. N.C. Gen. Stat. \u00a7 58-36-105, in contrast, specifically, and \u201cin a more minute and definite way,\u201d addresses the cancellation of workers\u2019 compensation insurance policies. See Oxendine, 184 N.C. App. at 166, 645 S.E.2d at 866 (holding \u00a7 58-36-105, which \u201capplies specifically to workers\u2019 compensation insurance,\u201d controlled over more general statute providing that fraudulent misrepresentations in \u201cany application for a policy of insurance\u201d may preclude recovery).\nTravelers nonetheless points to this Court\u2019s holding in Graves, 55 N.C. App. at 255, 284 S.E.2d at 719, that the insurer \u201cfailed to follow the procedure[s]\u201d set out in N.C. Gen. Stat. \u00a7 58-60 \u2014 the predecessor statute to N.C. Gen. Stat. \u00a7 58-35-85 \u2014 in cancelling the insured\u2019s workers\u2019 compensation insurance and thus the insured\u2019s policy was in effect at the time of the employee\u2019s compensable injury. Graves, however, was decided in 1981, 20 years before N.C. Gen. Stat. \u00a7 58-36-105\u2019s enactment in 2001. See 2001 N.C. Sess. Laws 241 \u00a7 2. Consistent with well-established principles of statutory interpretation, we presume that the General Assembly was aware in 2001 of N.C. Gen. Stat. \u00a7 58-35-85\u2019s applicability to workers\u2019 compensation insurance policies in light of Graves\u2019 holding, and that the legislature\u2019s failure to include any reference to N.C. Gen. Stat. \u00a7 58-35-85, to premium finance agreements, or to power of attorney provisions in the language of N.C. Gen. Stat. \u00a7 58-36-105 was purposeful. See State ex rel. Cobey v. Simpson, 333 N.C. 81, 90, 423 S.E.2d 759, 763 (1992) (explaining that \u201c[t]o ascertain legislative intent,\u201d courts must \u201cpresume that the legislature acted with full knowledge of prior and existing law and its construction by the courts\u201d).\nWe hold, therefore, that the Commission erred in concluding that \u201cDefendant Smith\u2019s policy was effectively and properly cancelled pursuant to the power of attorney held by MPP and in accordance with \u00a7 58-35-85.\u201d Travelers makes no argument in its brief that if, as we have held, N.C. Gen. Stat. \u00a7 58-36-105 is controlling, Travelers complied with that statute\u2019s requirements in cancelling Smith\u2019s workers\u2019 compensation insurance policy. Nor did the Commission, having ruled that N.C. Gen. Stat. \u00a7 58-35-85 was the governing statute, address whether Travelers complied with N.C. Gen. Stat. \u00a7 58-36-105. We, therefore, reverse and remand this case to the Commission for further proceedings to determine whether Travelers complied with N.C. Gen. Stat. \u00a7 58-36-105 in attempting to cancel Smith\u2019s workers\u2019 compensation insurance policy.\nReversed and remanded.\nChief Judge MARTIN and Judge THIGPEN concur.",
        "type": "majority",
        "author": "HUNTER, Robert C., Judge."
      }
    ],
    "attorneys": [
      "The Olive Law Firm, PA, by Juan A. Sanchez, for plaintiff-appellant.",
      "Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Kelli A. Bums and M. Duane Jones, for defendant-appellee Travelers Indemnity Company."
    ],
    "corrections": "",
    "head_matter": "RICARDO DIAZ, Employee, Plaintiff v. JERRY MARK SMITH, d/b/a SMITH\u2019S HOME REPAIR, Employer, TRAVELERS INDEMNITY COMPANY, Carrier, Defendants\nNo. COA10-694\n(Filed 5 April 2011)\n1. Parties\u2014 aggrieved party \u2014 employee awarded all claimed workers\u2019 compensation benefits\nPlaintiff employee was an aggrieved party in a workers\u2019 compensation case even though he was awarded all workers\u2019 compensation benefits that he claimed because the award affected his ability to collect his monetary benefits and all but negated his ability to receive further treatment.\n2. Workers\u2019 Compensation\u2014 requirements for cancellation of policy \u2014 power of attorney\nThe Industrial Commission erred in a workers\u2019 compensation case by concluding that defendant\u2019s policy was effectively and properly cancelled under a power of attorney held by a third party and in accordance with N.C.G.S. \u00a7 58-35-85. The case was reversed and remanded to the Commission for further proceedings to determine whether defendant insurance carrier complied with N.C.G.S. \u00a7 58-36-105.\nAppeal by plaintiff from opinion and award entered 19 March 2010 by the North Carolina Industrial Commission. Heard in the Court of Appeals 10 January 2011.\nThe Olive Law Firm, PA, by Juan A. Sanchez, for plaintiff-appellant.\nHedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Kelli A. Bums and M. Duane Jones, for defendant-appellee Travelers Indemnity Company."
  },
  "file_name": "0688-01",
  "first_page_order": 696,
  "last_page_order": 705
}
