{
  "id": 8523361,
  "name": "ESMOND H. CAPPS, Widow and Guardian Ad Litem for ROBBY WAYNE EVANS, Minor Child; SUSAN WATKINS, Guardian Ad Litem for GEORGE F. CAPPS, JR., Minor Child of GEORGE F. CAPPS, Deceased Employee, Plaintiffs v. STANDARD TRUCKING COMPANY, Employer, ROYAL INSURANCE COMPANY, Carrier, Defendants",
  "name_abbreviation": "Capps v. Standard Trucking Co.",
  "decision_date": "1985-10-15",
  "docket_number": "No. 8510IC32",
  "first_page": "448",
  "last_page": "450",
  "citations": [
    {
      "type": "official",
      "cite": "77 N.C. App. 448"
    }
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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."
  },
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    {
      "cite": "326 S.E. 2d 66",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 1985,
      "pin_cites": [
        {
          "page": "72"
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    {
      "cite": "73 N.C. App. 35",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8521641
      ],
      "weight": 2,
      "year": 1985,
      "pin_cites": [
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          "page": "43"
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  "last_updated": "2023-07-14T21:22:01.691260+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Chief Judge HEDRICK and Judge ARNOLD concur."
    ],
    "parties": [
      "ESMOND H. CAPPS, Widow and Guardian Ad Litem for ROBBY WAYNE EVANS, Minor Child; SUSAN WATKINS, Guardian Ad Litem for GEORGE F. CAPPS, JR., Minor Child of GEORGE F. CAPPS, Deceased Employee, Plaintiffs v. STANDARD TRUCKING COMPANY, Employer, ROYAL INSURANCE COMPANY, Carrier, Defendants"
    ],
    "opinions": [
      {
        "text": "COZORT, Judge.\nThis appeal concerns whether the deceased employee\u2019s stepchild, Robby Wayne Evans, is a \u201cchild\u201d of the deceased within the meaning of G.S. 97-2(12) so as to clothe him with the conclusive presumption under G.S. 97-39 that he is \u201cwholly dependent for support upon the deceased employee\u201d and, therefore, entitled to an equal share of the compensation under G.S. 97-38. In light of Winstead v. Derreberry, 73 N.C. App. 35, 326 S.E. 2d 66 (1985), we must remand this case for a determination of whether Robby Wayne Evans was \u201csubstantially\u201d dependent upon the deceased at the time of his death.\nOn 31 January 1983 George Franklin Capps, Sr., was driving a transfer truck for Standard Trucking from Raleigh to Wilmington during a Teamster\u2019s Union strike when he was fatally wounded by a bullet from a high-powered rifle. Prior to a hearing before the Deputy Commissioner the parties stipulated that the deceased-employee\u2019s death was compensable under the Worker\u2019s Compensation Act at the maximum rate of $248.00 per week for 400 weeks. The hearing was held to determine who among the plaintiffs should share in the compensation. The plaintiffs represented at the hearing were decedent\u2019s widow, Esmond Capps, whom he married in 1981; her son, decedent\u2019s stepson, Robby Wayne Evans, who had lived with his mother and decedent at the time of decedent\u2019s death; and decedent\u2019s natural son, George Franklin Capps, Jr., who lived with his natural mother, decedent\u2019s former wife.\nAfter the hearing the Deputy Commissioner concluded that decedent\u2019s widow, her son (decedent\u2019s stepson), and decedent\u2019s natural son were each entitled to an equal share of the compensation. Finding that the stepchild was \u201cdependent\u201d upon the deceased for support at the time of decedent\u2019s death, the Full Commission concluded that Robby Wayne Evans is a \u201cchild\u201d of the deceased within the meaning of G.S. 97-2(12) and affirmed the result reached by the Deputy Commissioner. The Full Commission\u2019s decision was filed on 4 September 1984.\nG.S. 97-38 provides that persons who are \u201cwholly dependent for support upon the earnings of the deceased employee at the time of the accident\u201d are entitled to share equally, to the exclusion of all others, in the entire compensation payable. [Emphasis added.] G.S. 97-39 provides, that \u201c[a] widow, a widower and/or a child shall be conclusively presumed to be wholly dependent for support upon the deceased employee.\u201d [Emphasis added.] G.S. 97-2(12) defines \u201cchild\u201d as including \u201ca stepchild . . . dependent upon the deceased.\u201d [Emphasis added.] In Winstead v. Derre-herry, supra, the court held that a stepchild must be factually \u201csubstantially\u201d dependent upon the deceased in order to qualify as a \u201c \u2018child\u2019 dependent on deceased under G.S. \u00a7 97-39 and, therefore, [be] entitled to a share of death benefits under G.S. \u00a7 97-38.\u201d 73 N.C. App. at 43, 326 S.E. 2d at 72. We are bound by this prior decision.\nHere the Full Commission found only that the stepchild was \u201cdependent upon the deceased for support at the time of the death.\u201d [Emphasis added.] No finding of substantial dependency was made. Therefore, we must remand this case for a determination of whether Robby Wayne Evans was substantially dependent for support upon the earnings of the deceased at the time of the death so as to afford him the conclusive presumption under G.S. 97-39 of being \u201cwholly dependent\u201d upon the deceased and, therefore, entitle him to an equal share of death benefits under G.S. 97-38.\nRemanded.\nChief Judge HEDRICK and Judge ARNOLD concur.",
        "type": "majority",
        "author": "COZORT, Judge."
      }
    ],
    "attorneys": [
      "Clifton & Singer by W. Robert Denning III for the plaintiff appellant, Susan Watkins, Guardian Ad Litem for George F. Capps, Jr., Minor Child of George F. Capps, Employee.",
      "Mast, Tew, Armstrong & Morris by John W. Morris and George B. Mast for the plaintiff appellee, Robby Wayne Evans."
    ],
    "corrections": "",
    "head_matter": "ESMOND H. CAPPS, Widow and Guardian Ad Litem for ROBBY WAYNE EVANS, Minor Child; SUSAN WATKINS, Guardian Ad Litem for GEORGE F. CAPPS, JR., Minor Child of GEORGE F. CAPPS, Deceased Employee, Plaintiffs v. STANDARD TRUCKING COMPANY, Employer, ROYAL INSURANCE COMPANY, Carrier, Defendants\nNo. 8510IC32\n(Filed 15 October 1985)\nMaster and Servant \u00a7 79.1\u2014 stepchild \u2014 finding of substantial dependency required for benefits\nAn award of an equal share of workers\u2019 compensation benefits to a stepchild was remanded where the Industrial Commission found only that the stepchild was dependent upon the deceased for support at the time of the death and did not make a finding of substantial dependency. G.S. 97-39, G.S. 97-2(12).\nAppeal by plaintiff from the North Carolina Industrial Commission. Opinion and Award of the Full Commission filed 4 September 1984. Heard in the Court of Appeals 26 August 1985.\nClifton & Singer by W. Robert Denning III for the plaintiff appellant, Susan Watkins, Guardian Ad Litem for George F. Capps, Jr., Minor Child of George F. Capps, Employee.\nMast, Tew, Armstrong & Morris by John W. Morris and George B. Mast for the plaintiff appellee, Robby Wayne Evans."
  },
  "file_name": "0448-01",
  "first_page_order": 480,
  "last_page_order": 482
}
