Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fagundes v. Ammons Development Group, Inc.

Court of Appeals of North Carolina

February 7, 2017

FRANCISCO FAGUNDES and DESIREE FAGUNDES, Plaintiffs,
v.
AMMONS DEVELOPMENT GROUP, INC.; EAST COAST DRILLING & BLASTING, INC.; SCOTT CARLE; and JUAN ALBINO, Defendants.

          Heard in the Court of Appeals 30 November 2016.

         Appeal by defendants from order entered 8 March 2016 by Judge Michael J. O'Foghludha in Wake County Superior Court No. 15 CVS 1191.

          The Jernigan Law Firm, by Leonard T. Jernigan, Jr. and Anthony L. Lucas, and Edwards Kirby, LLP, by William W. Plyler, for plaintiff-appellee.

          Young Moore and Henderson, P.A., by Jay P. Tobin, for defendants-appellants.

          DIETZ, JUDGE.

         The central issue in this appeal is whether employees injured while working in "ultrahazardous" jobs may sue their employers in the court system despite the provisions of the Workers' Compensation Act requiring those claims to be pursued at the Industrial Commission.

         Plaintiff Francisco "Frank" Fagundes, who seeks to sue his employer for injuries suffered during a blasting accident, acknowledges that this is a novel argument. But he contends that his position is simply a logical extension of our Supreme Court's decision in Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991).

         We disagree. The portion of Woodson addressing jurisdiction under the Workers' Compensation Act does not depend on the inherent danger of the occupation. Woodson permits injured workers to sue in court if their employer engaged in "misconduct knowing it is substantially certain to cause serious injury or death, " regardless of whether the job, ordinarily, is a dangerous one. 329 N.C. at 340, 407 S.E.2d at 228. Fagundes does not argue that he can satisfy the Woodson substantial certainty test. He instead argues that his job at a blasting company involved an "ultrahazardous" activity which, at common law, was the subject of a strict liability cause of action in the court system. He argues that, because of the danger of his job and the common law remedies traditionally available to him, he should be permitted to sue in court.

         Put another way, what Fagundes wants is not for this Court to extend the reasoning of Woodson to a closely analogous set of facts, but to rewrite the Workers' Compensation Act to create an exception that he believes serves important policy purposes. That is not what courts do. When the General Assembly established the exclusive jurisdiction of the workers' compensation system, it chose not to create the exception that Fagundes seeks from the courts. We have no authority to override that legislative decision.

         Accordingly, as explained in more detail below, we reverse the trial court's denial of Defendants' motions for summary judgment and remand for entry of an appropriate order and judgment consistent with this opinion.

         Facts and Procedural History

         Defendant East Coast Drilling & Blasting, Inc. is a company that provides construction services, including drilling, blasting, and crushing rock. Defendant Scott Carle is the company's president and CEO. Defendant Juan Albino is a blaster for the company.

         On 25 July 2013, Plaintiff Frank Fagundes was performing rock crushing services for the company when debris ejected from a blasting operation that Albino was supervising struck and seriously injured Fagundes. On 29 January 2015, Fagundes sued the company, Carle, and Albino. Among other claims, Fagundes asserted a strict liability claim against all three defendants and a willful, wanton, or reckless negligence claim against Albino.

         Defendants moved for summary judgment on 17 December 2015. Among other grounds, Defendants argued that Fagundes failed to forecast sufficient evidence to overcome the exclusivity provision in the Workers' Compensation Act, which severely limits the types of workplace injury claims that can be pursued in the court system.[1]On 8 March 2016, the trial court entered an order partially granting the motion, but denying the motion with respect to Fagundes's strict liability claim and his willful, wanton, or reckless negligence claim against Albino. Defendants timely appealed. This Court has appellate jurisdiction because the denial of a motion concerning the exclusivity provision ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.