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Atiapo v. Goree Logistics, Inc.

Court of Appeals of North Carolina

March 17, 2015

FRANCES ATIAPO, Employee, Plaintiff,
v.
GOREE LOGISTICS, INC., and OWEN THOMAS, INC., Employer, NONINSURED, Defendants. AND THE NORTH CAROLINA INDUSTRIAL COMMISSION
v.
GOREE LOGISTICS, INC., and OWEN THOMAS, INC., NONINSURED Employer, and MANDIEME DIOUF, Individually, Defendants

Heard in the Court of Appeals February 4, 2015

Grandy & Martin, P.A., by Kenneth C. Martin, for plaintiff-appellee Frances Atiapo.

Lawrence P. Margolis for defendants-appellants Goree Logistics, Inc. and Mandieme Diouf.

Ferguson, Scarbrough, Hayes, Hawkins & DeMay, PLLC, by John F. Scarbrough, for defendant-appellant Owen Thomas, Inc.

STEELMAN, Judge. Judges DIETZ and INMAN concur.

OPINION

Page 685

Appeal by defendants from opinion and award entered 20 June 2014 by Commissioner Tammy Nance in the North Carolina Industrial Commission.

STEELMAN, Judge.

Where the evidence supported a finding that Owen Thomas was a general contractor, the Industrial Commission did not err in holding Owen Thomas liable as a statutory employer pursuant to N.C. Gen. Stat. § 97-19.1. Where an employer failed to carry workers' compensation insurance, the Industrial Commission did not err in imposing penalties upon the employer and its principal.

I. Factual and Procedural Background

On 22 June 2011, Owen Thomas, Inc. (Owen Thomas), a licensed transportation broker, entered into a " Broker-Carrier Agreement" with Goree Logistics, Inc. (Goree). Owen Thomas was acting on behalf of its client, Sunny Ridge Farms (Sunny Ridge), to procure transportation for Sunny Ridge's goods. The agreement provided that Goree would exercise full control over the

Page 686

work it performed in transporting the goods, and that Goree would assume responsibility for payment of all taxes, unemployment, and workers' compensation, and other related fees.

Frances Atiapo (plaintiff) drove a tractor trailer for Goree, and was directed to drive a tractor trailer transporting Sunny Ridge's goods. At the time of plaintiff's injury, Goree did not have workers' compensation insurance.

Plaintiff was instructed to deliver the goods to Wyoming. When the goods were rejected, plaintiff was directed by Goree to drive the truck to Georgia. Plaintiff was later directed by Goree to go to Colorado. Near Ft. Collins, Colorado, plaintiff crested the peak of a hill, and came upon a string of stopped vehicles. His brakes failed and the tractor trailer collided with another vehicle. As a result of the collision, plaintiff sustained injuries.

On 29 July 2011, plaintiff filed an IC Form 18 notice of accident. On 19 September 2011, plaintiff filed a Form 33 request for hearing on his workers' compensation claim. On 28 September 2011, Goree filed a Form 61 denial of plaintiff's claim, contending that plaintiff was not an employee of Goree, but an ...


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