6 N.C. App. 641 | N.C. Ct. App. | 1969
This appeal challenges the Commission’s jurisdictional conclusion on two grounds: First, that the Commission erred in conclud
We find that the Industrial Commission was clearly correct in its conclusion that the employer in this case “did not regularly employ five or more employees in the same business or establishment.” In this regard the evidence clearly supports the Commission’s findings and establishes that the employer’s various business enterprises were separate and distinct and were not operated as an integrated whole, each being radically different from the other, having its own separate group of employees, and each furnishing a different service or product to a different market. While there was evidence that the deceased employee had on isolated occasions performed services for his employer unrelated to the timber business, in which he was primarily employed, these were minimal, and there was no evidence tending to show that the employees in any of the employer’s several enterprises ever performed sufficient services in two or more of such enterprises as to require a conclusion that these enterprises had, by virtue of having a common set of employees, become in law the “same business or establishment.” G.S. 97-2(1); G.S. 97-13(b).
In our opinion, however, under the facts established by the evidence and as found by the Commission itself, the parties were nevertheless subject to the provisions of the Workmen’s Compensation Act. The evidence is uncontradicted and the Commission found that a few months prior to the accident the employer had purchased from Iowa Mutual Insurance Company a policy of workmen’s compensation insurance, had paid the premium therefor, and had obtained possession of the policy. This policy provided workmen’s compensation liability coverage for a period of one year for all of his employees, including the employees in the timber operation. G.S. 97-13(b) provides in part:
“This article shall not apply ... to any person, firm or private corporation that has regularly in service less than five employees in the same business within this State, except that any employer without regard to number of employees, . . . who has purchased workmen’s compensation insurance to cover*647 his compensation liability■ shall be conclusively presumed during life of the policy to have accepted the provisions of this article from the effective date of said policy and his employees shall be so bound unless waived as provided in this article.” (Emphasis added.)
The Iowa Mutual policy had been cancelled prior to the date of the accident. Therefore, the conclusive presumption of coverage created by G.S. 97-13 (b) does not here come into play, since by the language of the statute this conclusive presumption existed only "during life of the policy.” However, also by the express language of the statute, the employer by purchasing workmen’s compensation insurance coverage, accepted the provisions of the Workmen's Compensation Act “from the effective date of said policy and his employees shall be so bound unless waived as provided in this article.” Interpreting this statute, the North Carolina Supreme Court, speaking through Bobbitt, J. (now C.J.) in the case of Laughridge v. Pulpwood Co., 266 N.C. 769, 771, 147 S.E. 2d 213, 216, said:
“Ordinarily, an employer with less than five employees is exempt from the Act. However, when such employer at his election voluntarily purchases workmen’s compensation insurance, he accepts all provisions of the Act. G.S. 97-13 (b). In such case, the policy he purchases both creates and protects his compensation liability; and thereafter such employer and his employees are bound by the provisions of the Act unless, prior to any accident resulting in injury or death, notice to the contrary is given ‘in the manner (therein) provided.’ G.S. 97-3. The manner in which such notice is to be given is prescribed in G.S. 97-4.”
In the present case not only was there no evidence that a notice had been given as prescribed in G.S. 97-4, but the evidence was overwhelmingly to the contrary. The employer himself testified that upon being notified by the insurance agent through whom the Iowa Mutual policy had been placed that that policy was being cancelled, he had requested and obtained assurances that other workmen’s compensation insurance was being obtained. He had informed his employees that they were covered by such insurance, and it was his and their understanding that this was so up to and including the time of the accident. Only after the accident had occurred and he had given the insurance agent notice thereof, did he and his employees first obtain any information to the effect that workmen’s compensation insurance was not then in effect. Therefore, all of the evidence establishes that the employer and his employees intended
The Commission found as a fact that the employer procured a policy of workmen’s compensation insurance but that this policy had been cancelled shortly prior to the accident in this case. By purchasing this policy the employer accepted the provisions of the Workmen’s Compensation Act and became bound thereby from the effective date of the policy. G.S. 97-13 (b). Thereafter he and his employees were bound by its provisions unless, prior to any accident resulting in injury or death, notice to the contrary was given in the manner prescribed by G.S. 97-4. Laughridge v. Pulpwood Co., supra. While, as noted above, all of the evidence would tend to establish that no such notice was given prior to the accident in this case, the Commission failed to make any finding of fact on this point. “In case the findings are insufficient upon which to determine the rights of the parties, the court may remand the proceeding to the Industrial Commission for additional findings.” Byers v. Highway Comm., 275 N.C. 229, 233, 166 S.E. 2d 649, 651; Citing Brice v. Salvage Co., 249 N.C. 74, 105 S.E. 2d 439. Accordingly, this proceeding is remanded to the Industrial Commission to make an additional finding of fact as to whether any notice of nonacceptance of the Act had been given prior to the accident in this case. If it shall find that the notice had not been so given, then it would follow as a conclusion of law from all of the facts found that the parties were subject to the Act at the time of the accident and the Commission will render award and decision in conformity with such conclusion.
Error and remanded.