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Midgett v. North Carolina Department of Transportation9/3/2002
PUBLISHED
The plaintiff appeals an Order of the Industrial Commission dismissing his claim against his employer, the N.C. Department of Transportation ("DOT"), for lack of jurisdiction under the Tort Claims Act. We affirm.
Plaintiff was employed by the DOT as a seaman aboard the M/V Kinnakeet, a ferry boat transporting motor vehicles and passengers between Hatteras Island and Ocracoke Island. On the morning of 4 July 1995, plaintiff slipped and fell on the deck of the Kinnakeet, injuring his back. According to the report filed by the plaintiff's investigating supervisor E.M. Farrow, the accident occurred because the deck was wet from a rain shower. In addition, the wrong paint had been applied to the deck of the vessel, so that instead of a rough, non-skid finish, the deck had a slick finish.
The plaintiff filed a claim under the Workers' Compensation Act, N.C. Gen. Stat. §§ 97-1 to 97-200 (2001); the claim was settled by a compromise settlement agreement between the parties. The agreement was approved by the Industrial Commission on 25 September 1997.
The plaintiff then filed this claim against the DOT under the Tort Claims Act, N.C. Gen. Stat. §§ 143-291 to 143-300.1 (2001), which authorizes claims against the State for injuries due to negligence if they arose "under circumstances where the State of North Carolina, if a private person, would be liable to the claimant in accordance with the laws of North Carolina." N.C.G.S. § 143-291(a). The plaintiff contended that although his claim was filed under the Tort Claims Act, it stems from the Jones Act, 46 U.S.C. 688 (2001), a federal statute which governs recovery for injury to seamen. The State filed a motion to dismiss, asserting: (1) that plaintiff failed to state a claim upon which relief can be granted under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure (2001), because the State has not waived sovereign immunity for Jones Act claims; (2) that the plaintiff has already recovered through his exclusive remedy for his injury under the Workers' Compensation Act, so that this claim is barred; and (3) that even if the plaintiff stated a claim under the Tort Claims Act, he failed to allege negligence on the part of a named employee of the defendant as required by N.C. Gen. Stat. § 143-291 and § 143-297(2) (2001). Deputy Commissioner William C. Bost of the Industrial Commission entered an order dismissing the claim without specifying the grounds. The defendant appealed to the Full Commission arguing only the lack of subject matter jurisdiction due to sovereign immunity. The Commission entered an order discussing the issue at some length, and concluding, in pertinent part, that the matter was not properly before it because: he North Carolina Department of Transportation is an agency of the state and cannot be sued except as provided by statute and may be sued in tort only as authorized by the Tort Claims Act. Although granted jurisdiction to hear claims brought under the North Carolina Tort Claims Act, the General Assembly has not waived sovereign immunity for Jones Act claims and therefore has not granted the Industrial Commission jurisdiction over Jones Act claims. (internal citations omitted).
The Full Commission dismissed the claim for lack of subject matter jurisdiction. The plaintiff appeals.
The plaintiff assigns error to the Industrial Commission's conclusion that the Commission lacked jurisdiction over his claim. Typically findings of fact in final decisions on appeal to this Court from the Industrial Commission are binding upon this Court if supported by any competent evidence. See N.C. Gen. Stat. § 143-293 (2001); see also Deese v. Champion Int'l Corp., 352 N.C. 109, 1
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