{
  "id": 3822177,
  "name": "THE TRAVELERS INDEMNITY COMPANY, Plaintiff v. WALL, WALL & KNUDSON, LTD., Defendant",
  "name_abbreviation": "Travelers Indemnity Co. v. Wall, Wall & Knudson, Ltd.",
  "decision_date": "2011-03-01",
  "docket_number": "No. COA10-292",
  "first_page": "265",
  "last_page": "268",
  "citations": [
    {
      "type": "official",
      "cite": "210 N.C. App. 265"
    }
  ],
  "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": "N.C. Gen. Stat. \u00a7 58-36-1",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
      "weight": 2,
      "year": 2009,
      "pin_cites": [
        {
          "page": "(1)",
          "parenthetical": "North Carolina Rate Bureau created"
        },
        {
          "page": "(1)"
        }
      ],
      "opinion_index": 0
    }
  ],
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  "last_updated": "2023-07-14T21:51:45.819483+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges STEELMAN and ERVIN concur."
    ],
    "parties": [
      "THE TRAVELERS INDEMNITY COMPANY, Plaintiff v. WALL, WALL & KNUDSON, LTD., Defendant"
    ],
    "opinions": [
      {
        "text": "BRYANT, Judge.\nNotwithstanding its Rule 54(b) certification, where the trial court\u2019s ruling on partial summary judgment was not a final order as to a party or claim, and when there is no contention or showing that a substantial right would be affected absent immediate review, this interlocutory appeal must be dismissed.\nDefendant Wall, Wall and Knudson, LTD., (Wall) a temporary employment agency, appeals from a trial court order granting plaintiff Travelers Indemnity Company (Travelers) partial summary judgment as to three out of five of Wall\u2019s defenses to the claim asserted in Travelers\u2019 complaint. The trial court certified the matter for immediate appeal pursuant to Rule 54(b).\nOn 24 September 2008, Travelers filed a complaint in Mecklenburg County Superior Court alleging that Wall failed to pay premiums totaling $811,619.00 pursuant to two insurance policies covering workers compensation claims. On 3 December 2008, Wall filed an answer alleging several defenses: (1) the experience rating modification number used to calculate Wall\u2019s premium was incorrect; (2) defendant\u2019s change in business ownership did not affect the experience modification rating; (3) Travelers improperly assessed an \u201cARAP\u201d charge; (4) Travelers improperly changed the classifications codes for almost half of Wall\u2019s employees resulting in a higher premium; and (5) defenses of estoppel, waiver and laches bar any recovery sought by Travelers.\nOn 25 September 2009, Travelers filed a motion to dismiss and for summary judgment directed to Wall\u2019s defenses arguing that Wall had not exhausted its administrative remedies and had not alleged that the class codes, as applied to Wall\u2019s employees, were incorrect. In response, Wall alleged that, while the North Carolina Rate Bureau assigned the experience rating modification number, the rating was calculated by the National Counsel of Compensation Insurance (NCCI), which was not subject to the Administrative Procedure Act (APA). Therefore, in contesting the calculation of the experience rating modification number, there were no administrative remedies to exhaust.\nFollowing a hearing on 4 November 2009, the trial court granted in part and denied in part Travelers\u2019 motion for summary judgment. Travelers\u2019 motion, as to Wall\u2019s defenses 1 through 3, was granted; Travelers\u2019 motion as to Wall\u2019s defense number 4 \u2014 that Travelers improperly changed the classification code \u2014 was denied.\n[The trial court] finds that it is entering final judgment against [Wall\u2019s] defenses due to lack of jurisdiction and for lack of proper parties before the Court, and there is no just reason for delay. The Court also finds that such final judgment against such defenses affects a substantial right of [Wall].\nThe trial court certified the matter for immediate appeal pursuant to Rule 54(b). Wall appeals based solely on the trial court\u2019s Rule 54(b) certification.\nOn appeal, Wall argues that the experience rating modification number, as calculated by NCCI, an insurance trade organization which assigns experience modification ratings to various employers for workers compensation purposes, was erroneous. Further, Wall argues that the NCCI is not subject to the APA; therefore, in effect, Wall has exhausted any remedies available to contest NCCI\u2019s calculation of the experience rating modification number under the APA. On these grounds, Wall argues that the trial court erred in determining that it lacked jurisdiction to address Wall\u2019s defenses and erred in dismissing Wall\u2019s defenses. Because, notwithstanding the 54(b) certification, we determine that the trial court\u2019s Rule 54(b) certification is ineffective and that Wall has not claimed that a substantial right is affected that would be lost absent immediate review, we dismiss this appeal as interlocutory.\nPursuant to Rule 54(b),\nWhen more than one claim for relief is presented in an action . . . the court may enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment. Such judgment shall then be subject to review by appeal or as otherwise provided by these rules or other statutes. In the absence of entry of such a final judgment, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and shall not then be subject to review either by appeal or otherwise except as expressly provided by these rules or other statutes.\nN.C. R. Civ. P. 54(b) (2009).\nHere, the trial court dismissed three of the five defenses Wall asserted in response to Travelers\u2019s complaint. Those defenses that were dismissed clearly assert Wall\u2019s objection to the experience rating modification number applied. The trial court\u2019s ruling seems to reflect its concern that, at least as to the North Carolina Rate Bureau, Wall has yet to exhaust its remedies pursuant to the APA. See generally N.C. Gen. Stat. \u00a7 58-36-1(1) (2009) (North Carolina Rate Bureau created); N.C. Gen. Stat. \u00a7 150B-1 et seq. (Administrative Procedure Act). Further, the trial court\u2019s ruling regarding each of the proper parties reflects a concern that NCCI, whom Wall asserts improperly calculated its experience rating modification number, should have been made a party to this action. However, Wall\u2019s fourth (4) defense \u2014that Travelers improperly changed classification codes \u2014 appears to be directly related to defenses two thru five, as Wall alleges the changes in classification codes occurred after issuance of the policies at issue in the case. Therefore, since the trial court\u2019s order did not resolve Traveler\u2019s claim against Wall, the trial court\u2019s decision was not a final order, and, as such, we cannot give deference to the Rule 54(b) certification. In addition, Wall has neither contended nor shown that the trial court\u2019s order affects a substantial right. Accordingly, this appeal is dismissed.\nThough we make no assertion as to the outcome of a separate proceeding, we suggest that the trial court hold the matter in abeyance and allow Wall to seek recourse on the underlying question of whether the experience rating modification number was incorrectly determined pursuant to the review provided for under our General Statutes.\nDismissed.\nJudges STEELMAN and ERVIN concur.\n. The trial court did not rule on Wall\u2019s defense number 5 \u2014 estoppel, waiver and laches.\n. Under N.C. Gen. Stat. \u00a7 58-36-1(1), it is the function of the North Carolina Rate Bureau, \u201c(1) [t]o assume the functions formerly performed by the North Carolina Fire Insurance Rating Bureau, the North Carolina Automobile Rate Administrative Office, and the Compensation Rating and Inspection Bureau of North Carolina, with regard to the promulgation of rates, ... for workers\u2019 compensation and employers\u2019 liability insurance written in connection therewith except for insurance excluded from the Bureau\u2019s jurisdiction in G.S. 58-36-1(3).\u201d\n. Administrative Procedure Act, Policy and Scope. \u201cThis Chapter establishes a uniform system of administrative rule making and acjjudicatory procedures for agencies.\u201d N.C. Gen. Stat. \u00a7 150B-1 (2009).\n.Wall\u2019s fifth defense \u2014 estoppel, waiver and laches \u2014 remains before the trial court.",
        "type": "majority",
        "author": "BRYANT, Judge."
      }
    ],
    "attorneys": [
      "Strauch Fitzgerald & Green, P.C., by Andrew L. Fitzgerald, for plaintiff-appellee.",
      "Giordano, Gordan & Bums, P.L.L.C., by Marc R. Gordon, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "THE TRAVELERS INDEMNITY COMPANY, Plaintiff v. WALL, WALL & KNUDSON, LTD., Defendant\nNo. COA10-292\n(Filed 1 March 2011)\nAppeal and Error\u2014 interlocutory orders and appeals \u2014 Rule 54(b) certification \u2014 failure to exhaust administrative remedies\nAn appeal from a partial summary judgment involving workers\u2019 compensation insurance rates was dismissed as not being from a final order, despite the trial court\u2019s Rule 54(b) certification. Defendant had not exhausted its administrative remedies and the issue upon which summary judgment was not granted was directly related to the other issues.\nAppeal by defendant from judgment entered 18 November 2009 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 29 September 2010.\nStrauch Fitzgerald & Green, P.C., by Andrew L. Fitzgerald, for plaintiff-appellee.\nGiordano, Gordan & Bums, P.L.L.C., by Marc R. Gordon, for defendant-appellant."
  },
  "file_name": "0265-01",
  "first_page_order": 273,
  "last_page_order": 276
}