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Booth v. Hackney Acquisition Co.

Court of Appeals of North Carolina

November 7, 2017

THELMA BONNER BOOTH, Widow and Administratrix of the Estate of HENRY HUNTER BOOTH, JR., Deceased-Employee, Plaintiff,
v.
HACKNEY ACQUISITION COMPANY, f/k/a HACKNEY & SONS, INC., f/k/a HACKNEY & SONS (EAST), f/k/a J.A. HACKNEY & SONS, Employer, NORTH CAROLINA INSURANCE GUARANTY ASSOCIATION on behalf of AMERICAN MUTUAL LIABILITY INSURANCE, Carrier, and on behalf of THE HOME INSURANCE COMPANY, Carrier, Defendants.

          Heard in the Court of Appeals 6 September 2017.

         Appeal by Plaintiff from an Opinion and Award entered 7 December 2016 by the Full North Carolina Industrial Commission. No. W58084

          Wallace & Graham, P.A., by Edward L. Pauley, for Plaintiff-Appellant.

          Nelson Mullins Riley & Scarborough LLP, by Christopher J. Blake and Joseph W. Eason, for Defendant-Appellee North Carolina Insurance Guaranty Association.

          Cranfill Sumner & Hartzog LLP, by Theodore B. Smyth and Joseph C. Tanski, for amicus curiae National Conference of Insurance Guaranty Funds.

          MURPHY, JUDGE.

         Individuals with latent health conditions are not members of a suspect class, and access to a claim against the North Carolina Insurance Guaranty Association does not affect a fundamental right. The distinctions imposed by statute are subject to minimum scrutiny under the Equal Protection Clause and do not violate the North Carolina or United States Constitutions, as they further legitimate State interests.

         Thelma Bonner Booth ("Plaintiff"), as the administratrix of the estate of Henry Hunter Booth, Jr. ("Booth"), appeals the Full North Carolina Industrial Commission's Opinion and Award certifying a constitutional question to this Court. On appeal, Plaintiff asserts the following arguments: (1) the "bar date" provision in N.C. G.S. § 58-48-35(a)(1) (2015) violates Plaintiff's constitutional rights to equal protection and due process; and (2) the statute of repose in N.C. G.S. § 58-48-100(a) (2015) deviates from the purposes of the Workers' Compensation Act and is also unconstitutional. After careful review, we hold both provisions do not violate the North Carolina or United States Constitutions and remand to the Full Commission for further proceedings.

         I. Background

         Booth worked at Hackney Industries, Inc. from 1967 to 1989. From September 1988 to September 1990, Hackney was insured by the Home Insurance Company. On 13 June 2003, a court in New Hampshire filed an order of liquidation for Home Insurance Company and declared the company to be insolvent. The same court ordered all claims against the company to be filed with the "liquidator" by 13 June 2004, the bar date.

         On 23 June 2008, Booth was diagnosed with lung cancer. On 27 April 2009, Booth passed away. On 16 November 2009, a doctor opined Booth "developed welding related conditions including lung fibrosis and adenocarcinoma of the lung which was caused and/or contributed to by his exposure to welding rod fumes."

         On 1 December 2009, Plaintiff completed a Form 18 (Notice of Accident to Employer and Claim of Employee, Representative, or Dependent). On 17 June 2013, the North Carolina Insurance Guaranty Association ("Defendant") filed a Form 61 (Denial of Workers' Compensation Claim) for the Home Insurance Company, because Home Insurance was an insolvent insurance carrier. In the Form 61, Defendant denied that it owed any obligation regarding Plaintiff's claim because the claim was not proper under N.C. G.S. §§ 58-48-35(a)(1) and 58-48-1. On 20 October 2015, Defendant filed a motion to dismiss Plaintiff's claim, arguing the bar date and the statute of repose mandated dismissal of Plaintiff's claim against Defendant.[1]

         On 2 December 2015, Deputy Commissioner Thomas H. Perlungher denied Defendant's motion to dismiss. On 5 January 2016, Defendant appealed to the Full Commission. On 7 December 2016, the Full Commission certified the following question to this Court, pursuant to N.C. G.S. § 97-86 (2015):

Do the provisions of N.C. Gen. Stat. §§ 58-48-35(a)(1) and 58-48-100(a), as applied in workers' compensation cases involving occupational diseases which, due to the very nature of the disease, develop many years after the last injurious exposure, violate the guarantees of due process and equal protection of law under Article I, Section 19 of the Constitution of the State of North Carolina and/or under the 14th Amendment to the United States Constitution to claimants who were injuriously exposed prior to the bar date but whose occupational disease did not develop until after the bar date and/or after the last date allowed by the statute of repose?

         Plaintiff filed timely notice of appeal.

         II. Jurisdiction

         Under N.C. G.S. § 97-86, "[t]he Industrial Commission . . . may certify questions of law to the Court of Appeals for decision and determination by the Court[, ]" prior to entering a final opinion and award. Id. On 7 December 2016, the Commission certified a constitutional question to this Court, pursuant to section 97-86. Thus, we have jurisdiction over Plaintiff's appeal, even though the Opinion and Award from which Plaintiff appeals is interlocutory.

         III. Standard of Review ...


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