{ "id": 8522128, "name": "JERRY MOORE v. UPCHURCH REALTY CO., INC. AND NATIONWIDE INSURANCE COMPANY", "name_abbreviation": "Moore v. Upchurch Realty Co.", "decision_date": "1983-05-17", "docket_number": "No. 8210IC518", "first_page": "314", "last_page": "317", "citations": [ { "type": "official", "cite": "62 N.C. App. 314" } ], "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": "242 S.E. 2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 661", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574213 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0661-01" ] }, { "cite": "238 S.E. 2d 525", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "34 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548963 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/34/0341-01" ] }, { "cite": "86 S.E. 2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "242 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608169 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/nc/242/0001-01" ] }, { "cite": "159 S.E. 2d 329", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 84", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574512 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0084-01" ] }, { "cite": "232 S.E. 2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "32 N.C. App. 516", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551898 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/32/0516-01" ] }, { "cite": "254 S.E. 2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 736", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570435, 8570469, 8570599, 8570514, 8570557 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0736-01", "/nc/296/0736-02", "/nc/296/0736-05", "/nc/296/0736-03", "/nc/296/0736-04" ] }, { "cite": "249 S.E. 2d 808", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "39 N.C. App. 210", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551024 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/39/0210-01" ] }, { "cite": "21 S.E. 2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "opinion_index": 0 }, { "cite": "222 N.C. 69", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628544 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/nc/222/0069-01" ] }, { "cite": "136 S.E. 2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "262 N.C. 248", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566740 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/262/0248-01" ] } ], "analysis": { "cardinality": 358, "char_count": 7532, "ocr_confidence": 0.791, "pagerank": { "raw": 9.398859260288918e-08, "percentile": 0.5156219532490118 }, "sha256": "b86225e64388564522b1bfe95adc0f721b67b495d47c76ec5657352a65feebdb", "simhash": "1:7ba304cb882dccdc", "word_count": 1218 }, "last_updated": "2023-07-14T22:38:59.213578+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WHICHARD and Braswell concur." ], "parties": [ "JERRY MOORE v. UPCHURCH REALTY CO., INC. AND NATIONWIDE INSURANCE COMPANY" ], "opinions": [ { "text": "WEBB, Judge.\nThe plaintiff does not argue that the Industrial Commission was in error in finding he was not an employee of Upchurch Realty Co. He argues that the defendants are estopped to deny workers\u2019 compensation coverage.\nIt has been held in this state if an insurance carrier accepts workers\u2019 compensation insurance premiums for a person, it cannot deny liability for coverage. Aldridge v. Motor Co., 262 N.C. 248, 136 S.E. 2d 591 (1964); Pearson v. Pearson, Inc., 222 N.C. 69, 21 S.E. 2d 879 (1942); Garrett v. Garrett and Garrett Farms, 39 N.C. App. 210, 249 S.E. 2d 808 (1978), cert. denied, 296 N.C. 736, 254 S.E. 2d 178 (1979); and Allred v. Woodyards, Inc., 32 N.C. App. 516, 232 S.E. 2d 879 (1977). There is no evidence in this case that the insurance carrier received any premiums for the workers\u2019 compensation coverage for the plaintiff. We do not believe the defendant insurance carrier is liable under the above cited cases or any other theory of estoppel. Equitable estoppel requires proof that the party to be estopped must have misled the party asserting the estoppel either by some words or some action or by silence. The person asserting the estoppel must have taken some action or failed to take some action to his detriment relying on the words, action or silence, and the injured party must not have been misled by his own lack of care or circumspection. See Homes, Inc. v. Bryson, 273 N.C. 84, 159 S.E. 2d 329 (1968); Peek v. Trust Co., 242 N.C. 1, 86 S.E. 2d 745 (1955); and Conner Co. v. Spanish Inns, 34 N.C. App. 341, 238 S.E. 2d 525 (1977), aff\u2019d, 294 N.C. 661, 242 S.E. 2d 785 (1978). There is no evidence in this case that Nationwide Insurance Company took any action which could have misled the plaintiff. We affirm the order of the Industrial Commission as to Nationwide.\nAs to the defendant Upchurch Realty Co., we do not believe the Industrial Commission made findings of fact which are sufficient for us to determine whether the conclusions of law were proper. The Industrial Commission found as a fact that the deductions by Upchurch from what was paid to the plaintiff were for workers\u2019 compensation insurance premiums for plaintiff\u2019s employees. This is in effect a finding that no premiums were deducted for plaintiff. This finding of fact is supported by the evidence. We do not believe, however, that this finding of fact is sufficient to support the conclusion that the defendant Upchurch is not estopped from denying compensation coverage for the plaintiff. Although the evidence is that Mr. Upchurch did not tell the plaintiff he was covered, he did discuss coverage with the plaintiff and deduct from what was paid to him an amount of money based on compensation premiums. The plaintiff testified that he thought he was covered.\nWe believe there should be findings of fact as to whether by his action Mr. Upchurch misled plaintiff as to the status of his workers\u2019 compensation insurance, whether this caused the plaintiff not to procure coverage for himself, and whether the plaintiff was misled by his own lack of care and circumspection.\nWe affirm as to Nationwide Insurance Company. We reverse and remand as to Upchurch Realty Co. for additonal findings of fact. The Industrial Commission may take further evidence if it so desires.\nAffirmed in part; reversed and remanded in part.\nJudges WHICHARD and Braswell concur.", "type": "majority", "author": "WEBB, Judge." } ], "attorneys": [ "Morgan, Bryan, Jones and Johnson, by Robert C. Bryan, for plaintiff appellant.", "Young, Moore, Henderson and Alvis, by George M. Teague, for defendant appellees." ], "corrections": "", "head_matter": "JERRY MOORE v. UPCHURCH REALTY CO., INC. AND NATIONWIDE INSURANCE COMPANY\nNo. 8210IC518\n(Filed 17 May 1983)\n1. Master and Servant \u00a7 81\u2014 workers\u2019 compensation coverage \u2014 no estoppel of carrier to deny\nDefendant insurance carrier was not estopped to deny workers\u2019 compensation coverage for plaintiff painter where the carrier received no premium for workers\u2019 compensation coverage for plaintiff and took no action which could have, misled plaintiff.\n2. Master and Servant \u00a7 49\u2014 workers\u2019 compensation coverage \u2014estoppel of employer to deny \u2014 necessity for findings\nWhere the evidence showed that plaintiff contracted to paint houses for defendant realty company and that defendant\u2019s president discussed workers\u2019 compensation coverage with plaintiff and deducted from the sum owed plaintiff an amount for workers\u2019 compensation premiums for plaintiffs employees but not for plaintiff, the Industrial Commission should have determined whether defendant was estopped to deny workers\u2019 compensation coverage to plaintiff upon the basis of findings as to whether the action of defendant\u2019s president misled plaintiff as to the status of his workers\u2019 compensation insurance, whether this caused plaintiff not to procure coverage for himself, and whether plaintiff was misled by his own lack of care and circumspection.\nAppeal by plaintiff from order of North Carolina Industrial Commission entered 15 February 1982. Heard in the Court of Appeals 12 April 1983.\nThe plaintiff appeals from an Industrial Commission order denying him workers\u2019 compensation benefits. The evidence before the Deputy Commissioner was that the plaintiff had an oral agreement with Upchurch Realty Co., a housing construction firm, under the terms of which the plaintiff painted houses which were built by Upchurch. The plaintiff hired workers to help him do the painting. He did not procure workers\u2019 compensation insurance for himself or for those who helped him.\nBryan Upchurch, the president of Upchurch Realty Co., testified that he had a discussion with the plaintiff in regard to workers\u2019 compensation insurance and the plaintiff told him he did not have such insurance. Mr. Upchurch testified further: \u201cI then told him that until he got workmen\u2019s compensation, I was going to take out either three or four percent of the gross payment.\u201d Mr. Upchurch testified at one point that the deductions were for labor done by the plaintiff\u2019s employees and not for the plaintiff. Mr. Upchurch testified he made the deductions \u201cto cover anything that I might have to pay.\u201d The plaintiff testified he talked to Mr. Upchurch in regard to the insurance and Mr. Up-church told him he would have to procure workers\u2019 compensation insurance. The plaintiff also testified that he thought the three percent deducted from the amount paid to him was for workers\u2019 compensation insurance and that he was covered. None of the money withheld from the plaintiff was delivered to the defendant Nationwide.\nThe plaintiff\u2019s hand was injured by accident while the plaintiff was painting a house for defendant Upchurch Realty Co.\nThe Deputy Commissioner who heard the case found among other facts that plaintiff was never told by Mr. Upchurch that he was covered by insurance, and that since plaintiff had not obtained coverage, Mr. Upchurch advised him that until he obtained coverage, he would deduct three percent from the gross amount owed to the plaintiff to provide workers\u2019 compensation for plaintiffs employees. The Deputy Commissioner also found as a fact that Mr. Upchurch calculated the percentage to be deducted \u201cby estimating the portion of the total amount he paid plaintiff which was attributable to plaintiff\u2019s helpers.\u201d The Deputy Commissioner concluded that plaintiff was not an employee of Upchurch Realty Co., and the defendants were not estopped to deny workers\u2019 compensation coverage to plaintiff. The Deputy Commissioner denied the plaintiff\u2019s claim.\nThe full Commission affirmed the opinion of the Deputy Commissioner. The plaintiff appealed.\nMorgan, Bryan, Jones and Johnson, by Robert C. Bryan, for plaintiff appellant.\nYoung, Moore, Henderson and Alvis, by George M. Teague, for defendant appellees." }, "file_name": "0314-01", "first_page_order": 346, "last_page_order": 349 }