Appeal by plaintiff from Reid, Judge. Order entered 30 January 1981 in Superior Court, Pitt County. Heard in the Court of Appeals 19 November 1981.
Vaughn, Judge. Judges Webb and Hill concur.
The first issue is whether North Carolina's Workers' Compensation Act is the exclusive remedy for an employee intentionally injured by a fellow employee. We hold that it is not.
An examination of the development of workers' compensation laws leads to this conclusion. Before the laws' advent, some employers voluntarily assumed financial responsibility for their injured employees. Often, however, the employees were relegated to common law tort actions. So many defenses were available to the employer -- contributory negligence, assumption of risk, the fellow-servant rule -- that it was difficult for an employee to succeed at a negligence action. S. Horovitz, Injury and Death Under Workmen's Compensation Laws (1944).
Workers' compensation laws were a statutory compromise. The new acts assured workers compensation for injuries arising out of and in the course of employment without their having to prove negligence on the part of the employer. In exchange for the employer's loss of common law defenses, however, the employee gave up his right to common law verdicts. 2A A. Larson, The Law of Workmen's Compensation § 72.20 (1976) [hereinafter cited as Larson]; Smith v. Liberty Mut. Ins. Co., 409 F. Supp. 1211 (M.D. N.C. 1976). In effect, tort liability was replaced with no-fault liability.
All worker compensation acts contain some provision regarding the exclusivity of the remedy as applied to an employer. G.S. 97-10.1 states the following:
"If the employee and the employer are subject to and have complied with the provisions of this Article, then the rights and remedies herein granted to the employee . . . shall exclude all other rights and remedies of the employee . . . as
against the employer at common law or otherwise on account of such injury or death."
Our courts, therefore, have barred injured employees covered by the act from bringing negligence actions against their employers. Johnson v. United States, 133 F. Supp. 613 (E.D. N.C. 1955); Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548 (1966); Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886 (1953).
Jurisdictions differ as to whether such immunity should extend to co-employees. In most jurisdictions, courts have interpreted the third party statute of their state's workers' compensation act to allow common law negligence actions against co-employees. 2A Larson, § 72.00. One rationale is the doctrine that existing common law actions should not be abrogated except by direct enactment. Marks, Klein & Long, Co-Employee Suits Under Workmen's Compensation, 26 Fed'n. Ins. Counsel Q. 327, 331 (1976).
North Carolina, however, has construed its statutes to provide such enactment. G.S. 97-9 states "Every employer subject to the compensation provisions of this Article shall secure the payment of compensation to his employees . . . and while such security remains in force, he or those conducting his business shall only be liable to any employee for personal injury or death . . . in the manner herein specified." In Altman v. Sanders, 267 N.C. 158, 148 S.E.2d 21 (1966), the Supreme Court interpreted the phrase "those conducting his business" to include fellow employees. By reading G.S. 97-9 in conjunction with G.S. 97-10.1, supra, Smith v. Liberty Mut. Ins. Co., 409 F. Supp. 1211 (M.D. N.C. 1976), excluded fellow employees from common law liability. Accord, Strickland v. King and Sellers v. King, 293 N.C. 731, 239 S.E.2d 243 (1977). G.S. 97-10.2 which provides for actions against "some person other than the employer" has been held inapplicable to the negligent employee. Warner v. Leder, 234 N.C. 727, 69 S.E.2d 6 (1952). The third party statute applies only to persons who are strangers to the employment and negligently cause an injury. 234 N.C. at 732, 69 S.E.2d at 9.
One can understand the extension of an employer's immunity to employees when one considers the industrial setting. Accidents are bound to happen. By accepting employment, a worker increases not ...