THELMA BONNER BOOTH, Widow and Administratrix of the Estate of HENRY HUNTER BOOTH, JR., Deceased-Employee, Plaintiff,
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.
in the Court of Appeals 6 September 2017.
by Plaintiff from an Opinion and Award entered 7 December
2016 by the Full North Carolina Industrial Commission. No.
Wallace & Graham, P.A., by Edward L. Pauley, for
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.
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.
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.
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.
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
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.
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?
filed timely notice of appeal.
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
Standard of Review ...