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Bynum v. Fredrickson Motor Express Corp.9/21/1993
The trial court granted defendant's motion to set aside the default judgment pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b) of the Rules of Civil Procedure, on the grounds of excusable neglect. The question of subject matter jurisdiction was presented to but not ruled upon by the trial court. Defendant argues in his brief that the trial court lacked subject matter jurisdiction because plaintiff's exclusive remedy for his alleged injuries was under our Workers' Compensation Act, and therefore the judgment below is void and of no effect.
Our Workers' Compensation Act provides:
Every employer subject to the compensation provisions of this Article shall secure the payment of compensation to his employees in the manner hereinafter provided; and while such security remains in force, he or those conducting his business
shall only be liable to any employee for personal injury . . . by accident to the extent and in the manner herein specified.
N.C. Gen. Stat. § 97-9.
Section 97-10.1 provides:
If the employee and the employer are subject to and have complied with the provisions of this Article, then the rights and remedies herein granted to the employee . . . shall exclude all other rights and remedies of the employee . . . as against the employer at common law or otherwise on account of such injury . . . .
N.C. Gen. Stat. § 97-10.1.
There is no dispute that plaintiff and defendant in this case are subject to the provisions of the Workers' Compensation Act. Plaintiff contends, however, that he has stated a claim under the exception to the exclusivity provisions under the Act recognized by our Supreme Court in Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). Accordingly, we must review the factual allegations in the plaintiff's complaint against the Woodson rule.
Plaintiff alleged in his complaint:
5. That while the plaintiff was in the trailer picking up freight and starting back out of the trailer, the said co-employee . . . [Wilkerson] got in the truck attached to the trailer and without checking as to the position of the plaintiff, drove the trailer away from the dock causing the plaintiff to pitch forward out of the trailer onto the pavement in the forklift that he was operating causing serious, permanent and grievous injury to his body.
6. That the defendant, Fredrickson Motor Lines, was negligent to such an extent that they knew, or should have known, that their employee, Wilkerson's conduct was substantially certain to cause serious injury or death to employees and that said conduct on behalf of the employer was intentional in the following respects:
(a) The defendant, employer knew of the propensity of its employee, Wilkerson to act without caution or circumspect in his working with co-workers and that
the said co-worker had had a previous act of negligence which resulted in serious injury to a co-worker and that afterwards the defendant failed to discharge the said Wilkerson employee, failed to properly retrain the employee, failed to provide substantial safety guidelines for their fellow employees, and failed to warn and remonstrate with the defendant, co-employee, Wilkerson.
7. That the defendant's act in failing to correct the employee and to provide a safe working environment for those forced to work with the employee, Wilkerson, was an act of intentional misconduct entitling the plaintiff to recovery.
In Woodson, our Supreme Court held that:
hen an employer intenti
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