TRISHA WRIGHT, Administratrix of the Estate of CHRISTOPER [sic] WRIGHT, Deceased Employee, Plaintiff,
ALLTECH WIRING & CONTROLS, Employer, BUILDERS MUTUAL INSURANCE COMPANY, Carrier, Defendants.
in the Court of Appeals 31 January 2019.
by plaintiff from opinion and award entered 22 June 2018 by
the North Carolina Industrial Commission No. 16-732670.
& Boyle, PLLC, by Bruce W. Berger and Ben Van Steinburgh,
Goldberg Segalla LLP, by Gregory S. Horner and Alexandra S.
Kensinger, for defendants-appellees.
Wright, Administratrix of the Estate of Christopher Wright
("Plaintiff"), appeals from an Opinion and Award
entered 22 June 2018 by the Full Commission of the North
Carolina Industrial Commission. Plaintiff argues that the
Industrial Commission erred by failing to conclude that Mr.
Wright's death occurred in the course and scope of his
employment. For the reasons explained below, we affirm.
Wiring & Controls ("the Company") employed Mr.
Wright as an Estimator. Mr. Wright's duties required him
to visit client job sites to prepare estimates for the
installation of security systems. On the vast majority of
days, Mr. Wright would leave home in the morning and travel
to the office before heading to a client job site. On some
mornings, however, Mr. Wright would travel directly from his
home to a job site. Similarly, on most days, Mr. Wright would
leave a job site and return to the office before going home
at the end of the workday. The Company provided Mr. Wright
and other employees with company-owned work trucks in order
to perform their work obligations. Mr. Wright used the work
truck assigned to him for his commute, and for travel to and
from job sites.
February 2016, Mr. Wright left the office at approximately
5:29 p.m. and began driving home in his work truck. Mr.
Wright spoke to Jerry Phillips, the owner of the Company, on
his work cell phone from 5:27 p.m. to 5:40 p.m. Mr. Wright
then stopped at a Target store on his way home, and from 5:43
p.m. to 5:54 p.m., his work truck was stationary with the
ignition turned off. From 5:54 p.m. to 5:56 p.m., Mr. Wright
spoke with his wife on the phone. At approximately 5:57 p.m.,
Mr. Wright collided with another vehicle on White Oak Road, a
route he frequently used during his commute. At 7:00 p.m.,
Mr. Wright died as a result of his injuries.
June 2016, Plaintiff filed a Form 18 claiming that Mr.
Wright's dependents were entitled to death benefits.
Defendants filed a Form 61 on 6 July 2016, denying that Mr.
Wright's death occurred in the course and scope of his
employment. Plaintiff filed a Form 33 requesting a hearing,
and the matter came before Deputy Commissioner Melanie Wade
Goodwin on 12 January 2017. On 22 March 2017, Deputy
Commissioner Goodwin filed an Opinion and Award denying
Plaintiff's claim for benefits. Plaintiff appealed to the
Full Commission. After a hearing, on 22 June 2018, the Full
Commission issued an Opinion and Award affirming the Deputy
Commissioner's decision denying benefits.
filed a notice of appeal to this Court on 26 June 2018.
However, on 28 November 2018, Defendants filed a motion to
dismiss, arguing that pursuant to this Court's recent
opinion in Bradley v. Cumberland County, the record
on appeal failed to establish that Plaintiff's notice of
appeal was timely filed. See Bradley v. Cumberland
Cty., __ N.C.App. __, __, 822 S.E.2d 416, 417 (2018)
(dismissing an appeal for lack of jurisdiction where the
notice of appeal bore neither time nor file stamp, and the
record contained no evidence "indicating if or when the
Industrial Commission received Plaintiff's notice of
appeal"), petition for disc. review filed, No.
438P18, __ N.C. __, __S.E.2d __(filed Dec. 14, 2018). Later
that same day, Plaintiff filed a Motion to Add Portion to
Record on Appeal to include a file-stamped copy of the notice
of appeal and a letter from the Industrial Commission
acknowledging its receipt. Plaintiff subsequently filed a
Conditional Petition for Writ of Certiorari and Motion to
Substitute Conditional Petition for Writ of Certiorari
requesting review, should we deem the notice of appeal
deficient in light of Bradley.
Defendants' arguments for dismissal, this Court's
holding in Bradley was not exceptional. We merely
reaffirmed the well-established rule that failure to timely
file notice of appeal is a jurisdictional defect that
precludes this Court's ability to review the merits of a
case. See Dogwood Dev. & Mgmt. Co., LLC v. White Oak
Transp. Co., 362 N.C. 191, 198, 657 S.E.2d 361, 365
(2008) (explaining that "the time limits for taking
appeal may not be extended by any court" (internal
ellipsis omitted)). "[A] jurisdictional default brings a
purported appeal to an end before it ever begins."
notice of appeal in Bradley was replete with
defects; however, the fatal error was the absence of
evidence-beyond the "date . . . affixed by
Plaintiff's counsel [but] . . . not confirmed by proof of
service"-that appeal was timely taken. Bradley,
__ N.C.App. at __, 822 S.E.2d at 420. The notice was printed
on the appellant's law firm's letterhead and
addressed to a commissioner of the Industrial Commission,
confirmation receipt requested. Bradley, __ N.C.App.
at __, 822 S.E.2d at 417. Despite the inclusion of a
statement that the notice was submitted via electronic filing
portal, there was no evidence that it was timely filed, and
the record was devoid of "any acknowledgement from the
Industrial Commission indicating receipt" of the notice.
Bradley, __ N.C.App. at __, 822 S.E.2d at 420;
cf. Jones v. Yates Motor Co., 121 N.C.App. 84, 85,
464 S.E.2d 479, 480 (1995) ("On 23 March 1994, the
Commission advised plaintiff that it received his notice of
appeal to the Court of Appeals."). Given the
jurisdictional implications of a party's failure to
timely and properly appeal, "[w]e will not assume the
notice of appeal was timely filed solely based upon
Plaintiff's unverified notice of appeal."
Bradley, __ N.C.App. at __, 822 S.E.2d at 420.
although "the time limits for taking appeal may not be
extended by any court[, ]" Dogwood, 362 N.C. at
198, 657 S.E.2d at 365 (internal ellipsis omitted), our Court
has discretionary authority to issue a writ of certiorari in
order "to permit review of the judgments and orders of
trial tribunals when the right to prosecute an appeal has
been lost by failure to take timely action[.]" N.C. R.
App. P. 21(a)(1). Unlike in Bradley, here, Plaintiff
both requested review by certiorari and moved to amend the
record to cure the jurisdictional defect prior to the date on
which this case was heard by this Court.
orders entered 15 January 2019, this Court denied
Defendants' Motion to Dismiss and granted Plaintiff's
Motion to Add Portion to Record on Appeal. See Williams
v. United Cmty. Bank, 218 N.C.App. 361, 366-67, 724
S.E.2d 543, 548 (2012) (granting the plaintiff's motion
to amend the appellate record to add a notice of appeal and
denying the defendant's motion to dismiss). Accordingly,
we need not exercise our discretionary authority under Rule
21 in order to reach the merits of Plaintiff's appeal.
Therefore, we dismiss as moot Plaintiff's Conditional
Petition for Writ of Certiorari and Motion to Substitute
Conditional Petition for Writ of Certiorari.
argues that the Industrial Commission erred by failing to
conclude that Mr. Wright's death occurred in the course