by defendant from order entered 4 January 2019 by Judge G.
Bryan Collins, Jr. in Wake County No. 17 CVS 11899 Superior
Court. Heard in the Court of Appeals 15 October 2019.
Mullins Riley & Scarborough LLP, by Christopher J. Blake
and Joseph W. Eason, for plaintiff-appellee.
Hunter, Smith & Davis, LLP, by Rachel Ralston Mancl, for
Management, LLC, f/k/a Accuforce Staffing Services, LLC,
f/k/a Accuforce Smart Solutions, LLC ("Defendant")
appeals an order granting summary judgment for the North
Carolina Insurance Guaranty Association
("Plaintiff"). We affirm.
is a regional worker staffing company with less than $50,
000, 000.00 in market value. Defendant experienced severe
financial problems to the extent it was forced to file for
bankruptcy protection under Chapter 13 of the U.S. Bankruptcy
Carolina employers, who employ above a threshold number of
employees, are statutorily required to maintain workers'
compensation insurance coverage. Defendant's bankruptcy
filing made it difficult to obtain coverage to meet this
statutory requirement. Dallas National quoted coverage for
Defendant, which required a deductible of $800, 000.00 per
occurrence, but included a duty to defend the insured.
Defendant was unable to find another insurance carrier and
accepted the policy from Dallas National to meet North
Carolina's workers' compensation insurance coverage
requirement beginning 18 August 2009.
policy also required Defendant to maintain a collateral
deposit of $600, 000.00. Defendant claims this collateral
deposit has not been returned. At some point during
Defendant's period of coverage, Dallas National ceased
conducting business as Dallas National and began using
Freestone as its name.
2012, Defendant's employee, Tina Huffman ("Ms.
Huffman"), asserted a workplace injury and filed a
workers' compensation claim. Freestone acknowledged in a
Form 60 filing to the North Carolina Industrial Commission
("Commission"): (1) coverage under Defendant's
policy; (2) that Ms. Huffman was an employee of Defendant;
and, (3) Ms. Huffman was injured during the course and scope
of her employment. The Commission determined Ms. Huffman was
entitled to weekly disability benefits totaling $165.40 and
Ms. Huffman's attorney was awarded $55.14 per week.
2014, Plaintiff's involvement with
Defendant's policy was activated due to the insolvency of
Freestone. Plaintiff retained counsel to defend Defendant
during the pendency of Ms. Huffman's claim. Plaintiff
pursued settling Ms. Huffman's claim and a determination
from the Commission of whether she can return to work. Ms.
Huffman's counsel maintains that she "is completely
disabled and unable to return to work." As of 10 August
2018, Plaintiff has paid $134, 002.93 in indemnity and
expense payments on Ms. Huffman's claim.
September 2017 Plaintiff commenced this action for
reimbursement under N.C. Gen. Stat. § 58-48-1 for
payment of Ms. Huffman's claims asserted under coverage
for Defendant's policy with Freestone. Following written
discovery, Plaintiff moved for summary judgment. The trial
court heard and granted Plaintiff's motion for summary
judgment. Defendant appeals.
Court possesses jurisdiction pursuant to N.C. Gen. Stat.
§ 7A-27(b) (2017).
argues the trial court erred by granting summary judgment for
Plaintiff under N.C. Gen. Stat. § 58-48-35 (2017) and
asserts: (1) Defendant does not have a self-insured
retention; (2) Defendant is not a high-net-worth employer or
affiliate; (3) estoppel bars the claim; and, (4) genuine
issues of material fact remain undecided.
Standard of Review
standard of review of an appeal from summary judgment is de
novo; such judgment is appropriate only when the record shows
that 'there is no genuine issue as to any material fact
and that any party is entitled to a judgment as a matter of
law.'" In re Will of Jones, 362 N.C. 569,
573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v.
Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)).
argues Plaintiff has no claim under N.C. Gen. Stat. §
58-48-35 because Defendant's policy does not contain ...