in the Court of Appeals 17 October 2019.
by Plaintiff from order entered 21 December 2018 by the North
Carolina Industrial Commission. I.C. No. TA-26087
T. Bryant, Jr., for Plaintiff-Appellant.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Charles Whitehead, for Defendant-Appellee.
Korner Day Care Center, Inc. ("Plaintiff"), appeals
from order entered on 21 December 2018 by the North Carolina
Industrial Commission dismissing Plaintiff's claim
against the North Carolina Department of Health and Human
Services, Division of Child Development
("Defendant"), under the North Carolina Tort Claims
Act. Because Plaintiff's claim is barred by the statute
of limitations, we affirm.
Factual and Procedural History
the third time the parties have been before this Court in the
last five years. A detailed factual history of this case can
be found at Nanny's Korner Day Care Ctr., Inc. v.
N.C. Dep't of Health & Human Servs., 825 S.E.2d
34 ( N.C. Ct. App. 2019) ("Nanny's Korner
II"). The facts relevant to this case are as
April 2010, Defendant notified Plaintiff that Defendant had
decided to issue administrative disciplinary action based on
substantiation by the Robeson County Department of Social
Services that child abuse had occurred at Plaintiff's day
care facility. Defendant then issued a notice of
administrative action to Plaintiff on 15 June 2010, invoking
disciplinary action. Plaintiff appealed Defendant's
decision through the administrative appeal process, first to
the Office of Administrative Hearings, then to Wake County
Superior Court, and then to this Court. On 20 May 2014, this
Court held that Defendant had violated Plaintiff's rights
by not conducting an independent investigation into the
alleged child abuse, and reversed Defendant's decision.
Nanny's Korner Care Ctr. v. N.C. Dep't of Health
& Hum. Servs., 234 N.C.App. 51, 64, 758 S.E.2d 423,
431 (2014) ("Nanny's Korner I").
January 2017, Plaintiff filed a claim with the Industrial
Commission under the Tort Claims Act, seeking $600, 000 in
compensatory and consequential damages due to Defendant's
negligent failure to conduct an independent investigation
prior to initiating disciplinary action. Defendant responded
by filing a motion to dismiss under Rule 12(b)(6) of the
North Carolina Rules of Civil Procedure on the ground, inter
alia, that Plaintiff failed to file the tort affidavit within
three years of Defendant's 15 June 2010 administrative
action, as required by the Tort Claims Act. After a hearing
on 19 April 2017, Deputy Commissioner Robert J. Harris issued
an order on 4 May 2017, dismissing Plaintiff's claim with
prejudice because the claim was barred by the statute of
limitations. Plaintiff appealed to the Full Commission (the
Commission conducted a hearing on 18 October 2017. On 21
December 2018, the Commission issued an order dismissing
Plaintiff's claim with prejudice, holding that the claim
was barred by the statute of limitations. The Commission
concluded that "the time period for Plaintiff to bring a
claim for damages under the Tort Claims Act began on 15 June
2010 and its Affidavit, filed on 23 January 2017, fell
outside of the Tort Claims Act's three-year statute of
timely filed notice of appeal to this Court.
argues that the Commission erred by dismissing
Plaintiff's claim as barred by the Tort Claims Act's
three-year statute of limitations. Plaintiff contends that
(1) the statute of limitations was tolled while Plaintiff
exhausted administrative remedies; (2) the Court of
Appeals' May 2014 decision in Nanny's Korner
I signified Plaintiff's exhaustion of administrative
remedies and, accordingly, marked the beginning of ...