{ "id": 8522457, "name": "OSCAR M. COOK v. NORVELL-MACKORELL REAL ESTATE COMPANY and AETNA LIFE AND CASUALTY COMPANY", "name_abbreviation": "Cook v. Norvell-Mackorell Real Estate Co.", "decision_date": "1990-07-03", "docket_number": "No. 8910IC1281", "first_page": "307", "last_page": "312", "citations": [ { "type": "official", "cite": "99 N.C. App. 307" } ], "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": "14 S.E.2d 554", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1941, "opinion_index": 0 }, { "cite": "219 N.C. 521", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625079 ], "year": 1941, "opinion_index": 0, "case_paths": [ "/nc/219/0521-01" ] }, { "cite": "73 S.E.2d 488", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "236 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626252 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/nc/236/0435-01" ] }, { "cite": "53 S.E.2d 668", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "opinion_index": 0 }, { "cite": "230 N.C. 428", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630397 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/nc/230/0428-01" ] }, { "cite": "364 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "parenthetical": "and cases cited therein" } ], "opinion_index": 0 }, { "cite": "321 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2571983 ], "year": 1988, "pin_cites": [ { "parenthetical": "and cases cited therein" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0380-01" ] } ], "analysis": { "cardinality": 512, "char_count": 13171, "ocr_confidence": 0.779, "pagerank": { "raw": 1.8777533166651337e-07, "percentile": 0.7271632438802417 }, "sha256": "e5d69f2c7a8d9761da047f14a0e53a2de8032f09b6ca96098d498b0e807c5e44", "simhash": "1:2b8dc1d97fbe9f4a", "word_count": 1922 }, "last_updated": "2023-07-14T22:38:52.620321+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and Lewis concur." ], "parties": [ "OSCAR M. COOK v. NORVELL-MACKORELL REAL ESTATE COMPANY and AETNA LIFE AND CASUALTY COMPANY" ], "opinions": [ { "text": "WELLS, Judge.\nPlaintiff brings forward a single argument challenging the Commission\u2019s finding and concluding that defendant Norvell-Mackorell was acting as agent for the owners of the property in procuring roofing services from plaintiff\u2019s employer, Rainbow Roofing, and therefore was not plaintiff\u2019s statutory employer within the meaning of G.S. \u00a7 97-19 of the North Carolina Workers\u2019 Compensation Act. Because this raises the jurisdictional question of whether an employment relationship within the Act existed between plaintiff and Norvell-Mackorell at the time of the accident, the jurisdictional facts found by the Commission, though supported by competent evidence, are not binding on this Court. Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 364 S.E.2d 433 (1988) (and cases cited therein). Instead, we are required to review the evidence of record and make independent findings of jurisdictional facts established by the greater weight of the evidence with regard to plaintiff\u2019s employment status. Id.\nG.S. \u00a7 97-19 provides in pertinent part:\nAny principal contractor, intermediate contractor, or subcontractor who shall sublet any contract for the performance of any work without requiring from such subcontractor or obtaining from the Industrial Commission a certificate . . . stating that such subcontractor has complied with G.S. 97-93 [requiring that employers carry workers\u2019 compensation insurance] . . . shall be liable ... to the same extent as such subcontractor would be if he were subject to the provisions of this Article for payment of compensation and other benefits ... on account of injury or death of . . . any employee of such subcontractor due to an accident arising out of and in the course of the performance of work covered by such subcontract.\n(We note that the amendments to G.S. \u00a7 97-19, effective 13 July 1989, are neither applicable to the present case nor germane to the rationale upon which our holding is based.)\nThis is the so-called \u201cstatutory employer\u201d or \u201ccontractor under\u201d statute. It is an exception to the general definitions of \u201cemployment\u201d and \u201cemployee\u201d set forth at G.S. \u00a7 97-2 and was enacted by the Legislature to deliberately bring specific categories of conceded nonemployees within the coverage of the Act for the purpose of protecting such workers from \u201cfinancially irresponsible subcontractors who do not carry workmen\u2019s compensation insurance, and to prevent principal contractors, intermediate contractors, and sub-contractors from relieving themselves of liability under the Act by doing through sub-contractors what they would otherwise do through the agency of direct employees.\u201d Withers v. Black, 230 N.C. 428, 53 S.E.2d 668 (1949); Green v. Spivey, 236 N.C. 435, 73 S.E.2d 488 (1952); see also Larson The Law of Workmen\u2019s Compensation, vol. 1C \u00a7 49.00 et seq. G.S. \u00a7 97-19, by its own terms, cannot apply unless there is first a contract for the performance of work which is then sublet. Consequently, G.S. \u00a7 97-19 may apply as between two independent contractors, one of whom is a subcontractor to the other; but it does not apply as between a principal, i.e., an owner, and an independent contractor. See Beach v. McLean, 219 N.C. 521, 14 S.E.2d 554 (1941).\nPlaintiff contends that, although Norvell-Mackorell may have been an agent of the owners of Briarcreek for purposes of leasing apartments and collecting rent, it was nevertheless a principal contractor with respect to the roofing work performed by Rainbow Roofing and thus falls within G.S. \u00a7 97-19. Alternatively, plaintiff contends that the owners of the apartment complex were in a dual status, being both owners of the property and principal contractors with respect to the maintenance thereof. Consequently, Norvell-Mackorell, by virtue of its contract of maintenance with the owners, occupied a position of an intermediate contractor He., a first-tier subcontractor) with respect to the roofing work performed by Rainbow Roofing, plaintiff\u2019s employer. We reject both arguments.\nIt is clear that both of plaintiff\u2019s contentions rest upon the single premise that Norvell-Mackorell was not an agent for the owners of Briarcreek, merely obligated under the management agreement to procure on behalf of the owners a suitable party to replace the shingles on the roofs of the buildings within that apartment complex, but rather an independent contractor with the owners of Briarcreek, contractually obligated to itself perform this work, which obligation Norvell-Mackorell sublet to Rainbow Roofing. It has long been the rule in this State that an independent contractor is one \u201cwho exercises an independent employment and contracts to do certain work according to his own judgment and method, without being subject to his employer except as to the result of his work.\u201d Youngblood, supra (and cases cited therein).\nHaving carefully reviewed the evidence of record, we find the following jurisdictional facts to be established by the greater weight of the evidence: that on the date of the accident, Norvell-Mackorell operated a rental management business, in the course of which it managed Briarcreek apartments where the roofing project was being performed and plaintiff received his injuries; that when major repairs at Briarcreek were necessary, Norvell-Mackorell\u2019s usual practice under its management agreement with the owners of Briarcreek was to procure price quotes from several contractors and submit such quotes to the owners for their authorization, subsequently engaging the contractor authorized by the owners to perform the work; that the management agreement with the owners of Briarcreek contained no provision requiring Norvell-Mackorell to perform major repairs or renovations to the apartment complex as part of its duties; that pursuant to the owners\u2019 authorization, Norvell-Mackorell engaged Rainbow Roofing to perform the roofing project at Briarcreek; that Norvell-Mackorell neither required from Rainbow Roofing nor obtained from the Industrial Commission a certificate that Rainbow Roofing had complied with G.S. \u00a7 97-19; that Norvell-Mackorell paid Rainbow Roofing out of its general rental management account, which expense was reimbursed by the owners of Briarcreek; and that Norvell-Mackorell received no additional compensation for the roofing project beyond that ordinarily received by it for the performance of its management duties.\nWe therefore conclude that Norvell-Mackorell was neither contractually obligated to replace the shingles on the roofs of the apartment buildings at Briarcreek nor permitted to exercise its independent judgment in engaging Rainbow Roofing to perform this work. Norvell-Mackorell accordingly was not an independent contractor with the owners of Briarcreek within the standards set forth in Youngblood, supra, with respect to the work performed to repair the roofs, but merely an agent for the owners, and thus had no contract to replace the roofing shingles which it could sublet to Rainbow Roofing. For these reasons, Norvell-Mackorell cannot be plaintiffs statutory employer within the meaning of G.S. \u00a7 97-19, notwithstanding its failure to ascertain Rainbow Roofing\u2019s compliance with the provisions of G.S. \u00a7 97-93. Hence, the Industrial Commission properly concluded that it did not have subject matter jurisdiction over plaintiff\u2019s claim against Norvell-Mackorell and correctly dismissed this claim.\nFor the reasons stated, the opinion and award of the Commission dismissing plaintiff\u2019s claim against Norvell-Mackorell must be and is\nAffirmed.\nJudges EAGLES and Lewis concur.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Simpson, Aycock, Beyer & Simpson, P.A., by Louis E. Vinay, Jr., for plaintiff-appellant.", "Hedrick, Eatman, Gardner & Kincheloe, by Scott M. Stevenson and Howard M. Widis, for defendant-appellees." ], "corrections": "", "head_matter": "OSCAR M. COOK v. NORVELL-MACKORELL REAL ESTATE COMPANY and AETNA LIFE AND CASUALTY COMPANY\nNo. 8910IC1281\n(Filed 3 July 1990)\n1. Master and Servant \u00a7 96.3 (NCI3d) \u2014 workers\u2019 compensation\u2014 jurisdictional question \u2014 independent appellate review of jurisdictional facts\nJurisdictional facts found by the Industrial Commission were not binding on the Court of Appeals in an action raising the jurisdictional question of whether an employment relationship within the Act existed between plaintiff and defendant Norvell-Mackorell at the time of the accident.\nAm Jur 2d, Workmen\u2019s Compensation \u00a7\u00a7 128,153,167-175.\n2. Master and Servant \u00a7 50 (NCI3d|\u2014 workers\u2019 compensation\u2014 statutory employer \u2014 independent contractor\nN.C.G.S. \u00a7 97-19, the statutory employer statute, may apply as between two independent contractors, but does not apply between a principal and an independent contractor. An independent contractor is one who exercises an independent employment and contracts to do certain work according to his own judgment and method, without being subject to his employer except as to the result of his work.\nAm Jur 2d, Workmen\u2019s Compensation \u00a7\u00a7 128,153,167-175.\n3. Master and Servant \u00a7 50.1 (NCI3d)\u2014 workers\u2019 compensation\u2014 subject matter jurisdiction \u2014 defendant not statutory employer\nThe Industrial Commission properly concluded that it did not have subject matter jurisdiction over plaintiff\u2019s claim against defendant Norvell-Mackorell where Norvell-Mackorell operated a rental management business, in the course of which it managed Briarcreek apartments, where plaintiff\u2019s injuries occurred during a roofing project; Norvell-Mackorell\u2019s usual practice when major repairs at Briarcreek were necessary was to procure price quotes from several contractors and submit such quotes to the owners for their authorization, subsequently engaging the contractor authorized by the owners; the management agreement with the owners of Briarcreek contained no provision requiring Norvell-Mackorell to perform major repairs or renovations for the apartment complex; Norvell-Mackorell engaged Rainbow Roofing pursuant to the owners\u2019 authorization; Norvell-Mackorell neither required from Rainbow Roofing nor obtained from the Industrial Commission a certificate that Rainbow Roofing had complied with N.C.G.S. \u00a7 97-19; Norvell-Mackorell paid Rainbow Roofing out of its general rental management account, which expense was reimbursed by the owners of Briarcreek; Norvell-Mackorell received no additional compensation for the roofing project; Norvell-Mackorell was neither contractually obligated to replace the shingles on the roofs at the apartment buildings nor permitted to exercise its independent judgment in engaging Rainbow Roofing; and Norvell-Mackorell was accordingly not an independent contractor, but merely an agent for the owners, and was not plaintiff\u2019s statutory employer.\nAm Jur 2d, Workmen\u2019s Compensation \u00a7\u00a7 128,153,167-175.\nAppeal by plaintiff from opinion and award entered 24 July 1989 by the North Carolina Industrial Commission. Heard in the Court of Appeals 5 June 1990.\nPlaintiff instituted this action in the Industrial Commission pursuant to the provisions of the North Carolina Workers\u2019 Compensation Act, seeking compensation for injuries sustained during employment. At the 16 November 1988 proceedings before the deputy commissioner, the evidence tended to establish that on 19 December 1987 plaintiff was injured while employed as a roofer by defendant Kenneth Owens, d/b/a Rainbow Roofing Company (\u201cRainbow Roofing,\u201d not a party to this appeal), an unincorporated business that carried no workers\u2019 compensation insurance as required by G.S. \u00a7 97-93. On this date, Rainbow Roofing was undertaking a roofing repair project at Briarcreek Apartments (\u201cBriarcreek\u201d) in Valdese, North Carolina that involved replacing the shingles on all five apartment buildings in the Briarcreek complex. Rainbow Roofing had been engaged to perform this work by defendant-appellee Norvell-Mackorell Real Estate Company (\u201cNorvell-Mackorell\u201d). Norvell-Mackorell was under contract with the owners of Briarcreek to perform certain real estate management services, including leasing and maintaining Briarcreek, as well as collecting rent. At the time Rainbow Roofing was engaged to undertake the roofing project at Briarcreek, Norvell-Mackorell neither required from Rainbow Roofing nor obtained from the Industrial Commission a certificate stating that Rainbow Roofing had complied with G.S. \u00a7 97-93.\nBy opinion and award filed 2 December 1988, the deputy commissioner awarded plaintiff compensation as against defendant Owens, but dismissed plaintiff\u2019s claim against defendants Norvell-Mackorell and its insurance carrier, Aetna Life and Casualty Company, for lack of subject matter jurisdiction. This dismissal was based on the deputy commissioner\u2019s finding and concluding that Norvell-Mackorell was an agent for the owners of Briar creek, rather than a principal, intermediate, or subcontractor, and therefore was not subject to G.S. \u00a7 97-19, the \u201cstatutory employer\u201d provision.\nPlaintiff duly appealed to the full Commission from that portion of the deputy commissioner\u2019s opinion and award dismissing his claim against Norvell-Mackorell. By opinion and award entered 24 July 1989, the full Commission affirmed and adopted as its own the opinion and award of the deputy commissioner. Plaintiff appeals.\nSimpson, Aycock, Beyer & Simpson, P.A., by Louis E. Vinay, Jr., for plaintiff-appellant.\nHedrick, Eatman, Gardner & Kincheloe, by Scott M. Stevenson and Howard M. Widis, for defendant-appellees." }, "file_name": "0307-01", "first_page_order": 337, "last_page_order": 342 }