{ "id": 12173204, "name": "JOHN SALVIE, Employee, Plaintiff v. MEDICAL CENTER PHARMACY OF CONCORD, INC., Employer, AIMCO MUTUAL INSURANCE COMPANY, Carrier; and/or ACTION DEVELOPMENT COMPANY, LLC, Alleged Employer, NONINSURED, and MITCHELL W. WATTS, Individually, Defendants", "name_abbreviation": "Salvie v. Medical Center Pharmacy of Concord, Inc.", "decision_date": "2014-08-05", "docket_number": "No. COA13-1279", "first_page": "489", "last_page": "495", "citations": [ { "type": "official", "cite": "235 N.C. App. 489" } ], "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": "757 S.E.2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2014, "pin_cites": [ { "page": "331, n. 1", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "699 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2010, "pin_cites": [ { "page": "660", "parenthetical": "\"[A]n appeal from an award of attorneys' fees may not be brought until the trial court has finally determined the amount to be awarded.\"" } ], "opinion_index": 0 }, { "cite": "207 N.C. App. 353", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4179725 ], "year": 2010, "pin_cites": [ { "page": "358", "parenthetical": "\"[A]n appeal from an award of attorneys' fees may not be brought until the trial court has finally determined the amount to be awarded.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/207/0353-01" ] }, { "cite": "742 S.E.2d 799", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "pin_cites": [ { "page": "801", "parenthetical": "holding that order may be final for purposes of appeal \"even when the trial court reserves for later determination collateral issues such as attorney's fees and costs\"" } ], "opinion_index": 0 }, { "cite": "366 N.C. 544", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4349150 ], "year": 2013, "pin_cites": [ { "page": "546", "parenthetical": "holding that order may be final for purposes of appeal \"even when the trial court reserves for later determination collateral issues such as attorney's fees and costs\"" } ], "opinion_index": 0, "case_paths": [ "/nc/366/0544-01" ] }, { "cite": "756 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2014, "pin_cites": [ { "page": "821", "parenthetical": "dismissing portion of appeal concerning award of attorneys' fees as interlocutory where trial court reserved ruling on amount of award and appellant failed to argue that award of attorneys' fees affected substantial right" } ], "opinion_index": 0 }, { "cite": "932 F.Supp. 132", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3462695 ], "weight": 5, "year": 1996, "pin_cites": [ { "page": "135" }, { "page": "136" }, { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/f-supp/932/0132-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-91", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "240-41" } ], "opinion_index": 0 }, { "cite": "134 S.E.2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1964, "pin_cites": [ { "page": "355" }, { "page": "355-56" }, { "page": "357-58" }, { "page": "357" }, { "page": "358", "parenthetical": "citation and quotation marks omitted" }, { "page": "360" }, { "page": "359", "parenthetical": "citation and quotation marks omitted" }, { "page": "359" } ], "opinion_index": 0 }, { "cite": "261 N.C. 234", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572741 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/261/0234-01" ] }, { "cite": "542 S.E.2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "334" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 305", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440805 ], "year": 2001, "pin_cites": [ { "page": "307" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0305-01" ] }, { "cite": "148 S.E.2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "551" } ], "opinion_index": 0 }, { "cite": "267 N.C. 545", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559844 ], "year": 1966, "pin_cites": [ { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/nc/267/0545-01" ] }, { "cite": "590 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "296" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 106", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8915005 ], "year": 2004, "pin_cites": [ { "page": "108" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0106-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-88.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 } ], "analysis": { "cardinality": 666, "char_count": 15654, "ocr_confidence": 0.726, "pagerank": { "raw": 6.380125665320789e-08, "percentile": 0.3952527734242421 }, "sha256": "f42c48bb2cc64cc0d329d433443153986cc4526cd8a4b1c813a4e59f816c35f8", "simhash": "1:816245880c9a401d", "word_count": 2485 }, "last_updated": "2023-07-14T16:54:11.341648+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and STROUD concur." ], "parties": [ "JOHN SALVIE, Employee, Plaintiff v. MEDICAL CENTER PHARMACY OF CONCORD, INC., Employer, AIMCO MUTUAL INSURANCE COMPANY, Carrier; and/or ACTION DEVELOPMENT COMPANY, LLC, Alleged Employer, NONINSURED, and MITCHELL W. WATTS, Individually, Defendants" ], "opinions": [ { "text": "DAVIS, Judge.\nAIMCO Mutual Insurance Company (\u201cAIMCO\u201d) appeals from the Opinion and Award of the North Carolina Industrial Commission dismissing its claims and awarding Action Development Company, LLC (\u201cAction Development\u201d) and Mitchell Watts (\u201cMr. Watts\u201d) attorneys\u2019 fees. On appeal, AIMCO contends that the Commission erred in (1) concluding that it lacked jurisdiction over AIMCO\u2019s claims; and (2) awarding attorneys\u2019 fees to Action Development and Mr. Watts pursuant to N.C. Gen. Stat. \u00a7 97-88.1. After careful review, we affirm in part and dismiss the appeal in part.\nFactual Background\nOn 20 January 2004, John Salvie (\u201cPlaintiff\u2019) suffered a compensa-ble injury by accident to his back while delivering medical equipment. Medical Center Pharmacy of Concord, Inc. (\u201cMedical Center Pharmacy\u201d) filed a Form 60 admitting Plaintiff\u2019s right to compensation and paid temporary total disability benefits to him. Plaintiff subsequently settled his claim with AIMCO, Medical Center Pharmacy's insurance carrier, in an Agreement of Final Settlement and Release on 5 January 2011. The Industrial Commission approved the settlement by order filed 31 January 2012. Plaintiff\u2019s right to workers\u2019 compensation benefits is not at issue in this case, and he is not a party to this appeal.\nAIMCO initiated the present action in the Industrial Commission by filing a Form 33 request for a hearing on whether AIMCO\u2019s admission of liability for Plaintiff\u2019s workers\u2019 compensation benefits had been caused by either (1) mutual mistake of the parties; or (2) fraud or misrepresentation on the part of Medical Center Pharmacy or its owner, Mr. Watts. AIMCO also sought a determination as to whether Plaintiff was a joint or lent employee of Action Development or of Mr. Watts individually. AIMCO alleged that because Plaintiff performed most of his work for Action Development and was jointly employed by Action Development and Medical Center Pharmacy at the time of his injury, Action Development was \u201cjointly liable for the workers\u2019 compensation benefits paid [to Plaintiff] under the legal theory of \u2018lent\u2019 employment.\u201d\nThe matter came on for hearing on 25 June 2012 before Deputy Commissioner Adrian Phillips. Deputy Commissioner Phillips filed an opinion and award on 17 January 2013 concluding that (1) the Commission lacked jurisdiction \u201cover what is now a dispute between an insurer, AIMCO, and its insured regarding premium fraud\u201d; (2) Action Development was not subject to the Workers\u2019 Compensation Act because it did not employ the requisite number of employees; and (3) Action Development and Mr. Watts were entitled to attorneys\u2019 fees pursuant to N.C. Gen. Stat. \u00a7 97-88.1. AIMCO appealed to the Full Commission, and on 9 August 2013, the Commission entered its Opinion and Award affirming Deputy Commissioner Phillips\u2019 decision. AIMCO gave timely notice of appeal to this Court.\nAnalysis\nI. Jurisdiction of the Industrial Commission\nAIMCO argues that the Industrial Commission erred in determining that it lacked jurisdiction over AIMCO\u2019s claims against Action Development and Mr. Watts. We disagree.\nThe Industrial Commission is not a court of general jurisdiction. Rather, it is a quasi-judicial administrative board created to administer the Workers\u2019 Compensation Act and has no authority beyond that conferred upon it by statute. Cornell v. W. & S. Life Ins. Co., 162 N.C. App. 106, 108, 590 S.E.2d 294, 296 (2004). The Workers\u2019 Compensation Act specifically \u201crelates to the rights and liabilities of employee and employer by reason of injuries and disabilities arising out of and in the course of the employment relation. Where that relation does not exist the Act has no application.\u201d Bryant v. Dougherty, 267 N.C. 545, 548, 148 S.E.2d 548, 551 (1966).\nWhen reviewing an Opinion and Award, the jurisdictional facts found by the Commission are not conclusive even if there is evidence in the record to support such findings. Terrell v. Terminix Servs., Inc., 142 N.C. App. 305, 307, 542 S.E.2d 332, 334 (2001). Instead, \u201creviewing courts are obliged to make independent findings of jurisdictional facts based upon consideration of the entire record.\u201d Id.\nHere, it is undisputed that \u2014 as the Commission determined in finding of fact 26 \u2014 \u201cPlaintiff does not have a stake in the current case.\u201d Therefore, because AIMCO\u2019s claim does not implicate the rights of Plaintiff (the injured employee) and instead merely seeks a determination of whether Action Development or Mr. Watts should be required to reimburse AIMCO for some portion of the benefits already paid to Plaintiff, we affirm the Commission\u2019s determination that it lacked jurisdiction over the matter.\nIn so holding, we are guided by our Supreme Court\u2019s decision in Clark v. Gastonia Ice Cream Co., 261 N.C. 234, 134 S.E.2d 354 (1964). In Clark, an employee filed a workers\u2019 compensation claim against his employer, Gastonia Ice Cream Company (\u201cthe Company\u201d), claiming that he had suffered a compensable injury by accident on 3 May 1960. Id. at 234, 134 S.E.2d at 355. The Company asserted that on the date of the employee\u2019s injury it was covered by an insurance policy issued by Lumbermens Mutual Casualty Company (\u201cLumbermens\u201d) and moved for Lumbermens to be made a party to the proceeding. Id. at 234-35, 134 S.E.2d at 355-56. The Company introduced evidence at the hearing before the deputy commissioner tending to show that Lumbermens had agreed to issue a policy beginning 20 April 1960 despite the fact that the written policy stated that the policy period was from 9 May 1960 to 1 June 1961. Id. at 237,134 S.E.2d at 357-58. After concluding that the employee had suffered a compensable injury, the Commission determined that it possessed jurisdiction to determine the respective liabilities of the Company and Lumbermens and concluded that the Company was not covered by the policy on the date the employee\u2019s injury occurred. Id. at 237, 134 S.E.2d at 357.\nOur Supreme Court held that the Commission lacked jurisdiction to determine the rights and liabilities between the Company and Lumbermens and set aside the Commission\u2019s findings and conclusions on that issue. Id. The Court explained that the Commission is an administrative board with \u201climited jurisdiction created by statute and confined to its terms,\u201d and consequently, whether the Commission had jurisdiction over the Company\u2019s action to recover from Lumbermens the payments it was required to make to the employee \u201cdepend[ed] solely upon whether such jurisdiction was conferred by statute.\u201d Id. at 238, 134 S.E.2d at 358 (citation and quotation marks omitted).\nThe Supreme Court then determined that N.C. Gen. Stat. \u00a7 97-91 \u2014 which gives the Commission jurisdiction to decide questions arising under the Workers\u2019 Compensation Act \u2014 did not confer upon the Commission jurisdiction over an indemnity dispute that was not germane to the employee\u2019s right to compensation. The Court reasoned that questions arising under the Act \u201cwould seem to consist primarily, if not exclusively, of questions for decision in the determination of rights asserted by or on behalf of an injured employee or his dependents.\u201d Id. at 240-41, 134 S.E.2d at 360. The Court explained that, as a general rule,\nwhen it is ancillary to the determination of the employee\u2019s rights, the . . . [C]ommission has authority to pass upon a question relating to the insurance policy, including fraud in procurement, mistake of the parties, reformation of the policy, cancellation, and construction of extent of coverage. ... On the other hand, when the rights of the employee in a pending claim are not at stake, many commissions disavow jurisdiction and send the parties to the courts for relief. This may occur when the question is purely one between two insurers, one of whom alleges that he has been made to pay an undue share of an award to a claimant, the award itself not being under attack. Or it may occur when the insured and insurer have some dispute entirely between themselves about the validity or coverage of the policy or the sharing of the admitted liability.\nId. at 239-40, 134 S.E.2d at 359 (citation and quotation marks omitted). The Supreme Court concluded that the Workers\u2019 Compensation Act neither expressly nor impliedly gives the Commission jurisdiction to decide matters that are purely between an employer and its insurer and that do not impact the rights of the injured employee. Id. at 240,134 S.E.2d at 359.\nThis principle was further applied in TIG Ins. Co. v. Deaton, Inc., 932 F.Supp. 132 (W.D.N.C. 1996). In that case, TIG Insurance Company (\u201cTIG\u201d), one of the insurance carriers for an injured employee\u2019s employer, filed an action against the employer seeking the recovery of benefits that TIG had paid to the injured employee. Id. at 135. The employer moved to dismiss the claim, arguing that the North Carolina Industrial Commission had exclusive jurisdiction to hear the case. Id. at 136. Citing Clark, the federal district court rejected the employer\u2019s argument, stating that\n[i]n the case at bar, the dispute is essentially over who must pay [the employee\u2019s] claim, not whether or how much [the employee] will be paid. Therefore, this dispute is not \u201cancillary to the determination of the employee\u2019s right\u201d but wholly distinct from it. There is no indication in the record that a decision in this case will in any way effect whether or how much [the employee] will receive on his claim. Thus it appears to this Court that, under the previous rulings of the North Carolina Supreme Court, the Industrial Commission does not have any jurisdiction to hear this case, let alone exclusive jurisdiction.\nId. at 137.\nWe find the reasoning in TIG persuasive and a correct application of our Supreme Court\u2019s decision in Clark. As in TIG, the insurance provider here, AIMCO, is seeking the reimbursement of benefits that it paid to an injured employee, Plaintiff. Plaintiff\u2019s right to workers\u2019 compensation benefits (and the amount of benefits to which he is entitled) has already been decided and the dispute now is \u201cover who must pay [Plaintiff\u2019s] claim.\u201d Id. As such, we hold that the Commission properly concluded that it did not possess jurisdiction over this dispute.\nII. Attorneys\u2019 Fees\nAIMCO next argues that the Commission erred in concluding that it brought the present claim without reasonable grounds in violation of N.C. Gen. Stat. \u00a7 97-88.1 such that Action Development and Mr. Watts were entitled to the recovery of attorneys\u2019 fees. However, although the Commission concluded that an award of attorneys\u2019 fees was appropriate, it has not yet ordered the specific amount to be awarded. In its Opinion and Award, the Commission stated as follows:\nAIMCO Mutual Insurance Company shall pay attorney\u2019s fees to counsel for Action Development Company, LLC and Mitchell Watts. Counsel for Action Development Company, LLC and Mitchell Watts shall submit to the Full Commission an Affidavit and itemized statement of time expended defending AIMCO\u2019s claim for assessment of a reasonable attorney\u2019s fee.\nConsequently, this portion of the appeal is interlocutory. See Medlin v. N.C. Specialty Hosp., LLC, _ N.C. App. _, _, 756 S.E.2d 812, 821 (2014) (dismissing portion of appeal concerning award of attorneys\u2019 fees as interlocutory where trial court reserved ruling on amount of award and appellant failed to argue that award of attorneys\u2019 fees affected substantial right).\nWe note that the unresolved issue of the specific amount of attorneys\u2019 fees to be awarded does not render AIMCO\u2019s entire appeal interlocutory. See Duncan v. Duncan, 366 N.C. 544, 546, 742 S.E.2d 799, 801 (2013) (holding that order may be final for purposes of appeal \u201ceven when the trial court reserves for later determination collateral issues such as attorney\u2019s fees and costs\u201d). However, we have previously held that this Court will not consider an appeal of an attorneys\u2019 fees award until the specific amount of the award has been determined by the trial tribunal. See Triad Women\u2019s Center, P.A. v. Rogers, 207 N.C. App. 353, 358, 699 S.E.2d 657, 660 (2010) (\u201c[A]n appeal from an award of attorneys\u2019 fees may not be brought until the trial court has finally determined the amount to be awarded.\u201d). Otherwise, as we explained in Triad,\nwe would be required to visit the attorneys\u2019 fees issue twice: one appeal addressing, in the abstract, whether [the party] may recover attorneys\u2019 fees at all and, if we upheld the first order, a second appeal addressing the appropriateness of the actual monetary award.\nId. Accordingly, while we possess jurisdiction over the first issue raised by AIMCO in this appeal, we must dismiss for lack of appellate jurisdiction the portion of AIMCO\u2019s appeal challenging the Industrial Commission\u2019s determination that an award of attorney\u2019s fees was appropriate. Id.\nConclusion\nFor the reasons stated above, we (1) affirm the Industrial Commission\u2019s Opinion and Award concluding that it lacked jurisdiction over AIMCO\u2019s claims; and (2) dismiss the portion of AIMCO\u2019s appeal challenging the Commission\u2019s conclusion that Action Development and Mr. Watts were entitled to recover attorneys\u2019 fees.\nAFFIRMED IN PART; DISMISSED IN PART.\nJudges CALABRIA and STROUD concur.\n. Action Development is a real estate holding company and \u2014 like Medical Center Pharmacy \u2014 is owned by Mr. Watts.\n. \u201cWith regard to matters of North Carolina state law, neither this Court nor our Supreme Court is bound by the decisions of federal courts, including the Supreme Court of the United States, although in our discretion we may conclude that the reasoning of such decisions is persuasive.\u201d Davis v. Urquisa,_N.C. App._,_, n. 1, 757 S.E.2d 327, 331, n. 1 (2014) (citation and quotation marks omitted).\n. Because we conclude that the Commission lacked jurisdiction based on the fact that Plaintiff\u2019s rights under the Workers\u2019 Compensation Act were not at stake, we do not reach the issue of whether Action Development employed the requisite number of employees to be subject to the Act.", "type": "majority", "author": "DAVIS, Judge." } ], "attorneys": [ "Prather Law Firm, P.C., by J.D. Prather, for defendant-appellant.", "Smith Law Firm, P.C., by John Brem Smith, for defendants-appellees Medical Center Pharmacy, LLC and Action Development Company, LLC." ], "corrections": "", "head_matter": "JOHN SALVIE, Employee, Plaintiff v. MEDICAL CENTER PHARMACY OF CONCORD, INC., Employer, AIMCO MUTUAL INSURANCE COMPANY, Carrier; and/or ACTION DEVELOPMENT COMPANY, LLC, Alleged Employer, NONINSURED, and MITCHELL W. WATTS, Individually, Defendants\nNo. COA13-1279\nFiled 5 August 2014\n1. Workers\u2019 Compensation\u2014jurisdiction\u2014dispute over who must pay plaintiff\u2019s claim\nThe Industrial Commission did not err in a workers\u2019 compensation case by determining that it lacked jurisdiction over a dispute between an insurer and its insured regarding premium fraud. Plaintiffs right to workers\u2019 compensation benefits and the amount of benefits to which he was entitled had already been decided and the dispute was over who must pay plaintiff\u2019s claim.\n2. Appeal and Error\u2014interlocutory orders and appeals\u2014attorney fees award\u2014Industrial Commission\u2014amount of award not yet determined\nThe Court of Appeals lacked jurisdiction to hear appellant insurance company\u2019s argument that the Industrial Commission erred in its determination that an award of attorney fees was appropriate. The Commission had not yet determined the specific amount to be awarded and the Court will not consider an appeal of an attorney fees award until the specific amount of the award has been determined by the trial tribunal.\nAppeal by defendant AIMCO Mutual Insurance Company from Opinion and Award entered 9 August 2013 by the North Carolina Industrial Commission. Heard in the Court of Appeals 6 March 2014.\nPrather Law Firm, P.C., by J.D. Prather, for defendant-appellant.\nSmith Law Firm, P.C., by John Brem Smith, for defendants-appellees Medical Center Pharmacy, LLC and Action Development Company, LLC." }, "file_name": "0489-01", "first_page_order": 499, "last_page_order": 505 }