*1 APPEALS IN THE OF COURT PRINTING, INC. K. DEAL v. W. OWENS PRINTING, INC., OWENS, W. DEAL K. L. Plaintiff VALLEREE Defendant No. 9227SC845 (Filed 1994) January — — (NCI3d) compensation workers’ § and Servant Master showing accidental —employer’s accident compensable to tortious conduct show injured employee —burden on injury materials supporting pleadings If uses defendant i.e., claim, to of a Woodson element to an essential negate accidental, then the burden solely injury was show that the will be required shifts to due is also injury to show that a forecast of case, plaintiff In this the tortious conduct or affidavits produce supporting failed to that her her claim as evidence materials employer, conduct defendant tortious resulted from entered for properly therefore summary judgment was defendant. 566, 569, 593, 2d, §§ 709.

Am Jur Workers’ dissenting. Judge WYNN May entered

Appeal in County Heard Superior Court. in Judge Loto Caviness Gaston 1993. June Appeals the Court of plaintiff-appellant. R. Stann Frederick A., Alala, Mullen, H. by Randolph P. Sumner Cooper, Holland & Bone, Jr., defendant-appellee. and Jesse V. JOHNSON, Judge. Printing, K. Deal in Owens W. its decision This court filed

Inc., on 7 September on the matter and timely for rehearing petitioned 1993. Plaintiff granted petition. we 15 December facts: On pertinent now revisit We Owens, when her hand was suffered an L. Valleree W. K. place employment, hydraulic press

crushed disability permanent Inc. Plaintiff suffered 60% Printing, Deal IN THE OF COURT OWENS v. W. K. DEAL *2 (1994)] App. 324 N.C.

[113 result, the right hand. As a plaintiff filed a claim workers’ compensation benefits with the North Carolina Industrial Commis- (hereafter Commission) 1991, sion Industrial and on 20 August plain- tiff signed agreement for “final compromise settlement and release,” agreement. a clincher

Plaintiff submitted the clincher agreement Industrial approved Commission who on 26 1991. agreement August After plaintiff had entered into with the Industrial Commis- sion, filed a claim for personal injury against defendant employer on 13 December 1991 pursuant to a case decided 1991, Supreme Court North on 14 August Carolina Woodson (1991). Rowland, 330, v. 329 N.C. 222 407 S.E.2d filed an January

Defendant answer 21 1992pleading the clincher a agreement as bar to plaintiffs cause of action. The motion was May heard on 11 Judge granted Caviness who defendant’s motion for as a judgment matter of law. Plaintiff gave timely notice of appeal.

The dispositive issue before Court is whether the trial judge erred granting summary matter judgment as a of law against plaintiff.

Summary judgment only is appropriately granted where no disputed of genuine issues fact have presented been and the un disputed show facts that a is entitled as a matter Minor, 865, of law. Minor 70 N.C. 318 S.E.2d disc. denied, (1984). review A N.C. defending party is entitled to summary judgment if the defendant can show that the claimant cannot prove the existence of an essential element of the claim or cannot surmount an affirmative defense would Industries, Inc., bar the claim. Little v. Service National 340 S.E.2d 510 Here, the trial made judge findings of fact in this case and concluded as a matter of law that the release agreement signed by plaintiff monetary recovery barred additional from defendant. “A trial is not make judge required to of fact and conclu findings sions of law in a determining summary judgment, motion some, if he does they disregarded make are Mosley on appeal.” 109, 111, 145, 147, v. Finance disc. Therefore, review 295 case, review of this we will pleadings, consider affidavits IN THE COURT OF W. K. DEAL

OWENS App. 324 determination of our parties materials by plaintiff. presented issue of fact has been genuine whether a as set complaint alleging rights filed Plaintiff in this action a Woodson, fully S.E.2d 222. order to out in holding. consider the Woodson plaintiff’s allegations, we understand wrongful involved a which killed Thomas from work-related cave-in arising action a death in the case was the administrator Sprouse. Alfred com- in Woodson filed workers’ estate. The Sprouse’s with the North Carolina Industrial Commission pensation claim *3 contractor, general the employer and civil claims filed a motion simultaneously. defendants Act Workers’ shielded the theory on the the On the liability appeal, civil for intentional from employer Upon trial affirmed the decision of the court. Appeals Court of matter, Supreme opined the Court that: review of the accidental, defend- Sprouse’s death can be considered [i]f ants’ were because summary properly motions allowed judgment the exclusive coverage, death would fall within Act’s Sprouse’s in Act provided no remedies than those the are other his or a co-worker. employer available to either against hand, the if the of evidence is sufficient On other forecast the intentional Sprouse’s to show that death was result by was employer, committed his then tort stated, ground employer’s allowed the because the improperly on (Citations omitted.) civil support intentional tort will action. Woodson, 337, 407 S.E.2d at 226. 329 N.C. at injury

From the outset we note that occurred before plaintiff’s however, filed; retroactive applied Woodson was Woodson to be Yates ly. Dunleavy Construction 106 N.C. 146 (1992). review disc. Therefore, will to the standard according we consider this case out in Woodson. as set in Woodson that:

The Court reasoned ... an caused standpoint injured party, injury [f]rom accident, [may both the result of an by same conduct... be] by Compen- provided to the remedies giving rise [Workers’ tort, Act, making exclusivity and an intentional sation] IN THE COURT OF APPEALS OWENS v. W. K. DEAL (Citations Act

provision of the bar unavailable to a civil action. omitted.) 407 S.E.2d at 233. case, defendant, In the instant through his pleadings sup- materials, porting showed that injury was solely accidental. On 21 January defendant moved for dismissal case and supported his motion with his answer and a release agreement. Defendant stated his answer that “plaintiff was operating machine that she was not operating machine [sic] her, pursuant to the instructions that given were or that she was manner; operating the machine ain safe and . prudent . . and that plaintiff was operating machine under the influence medication, of prescription and that these acts constitute a bar addition, recovery.” the agreement stated that plaintiff suf- fered accident when injury accidently hydraulic she applied a weight before removing her hand. Based on defendant’s answer and the clincher stated that the was ac- cidental, the burden’then present shifted to plaintiff to a forecast of evidence to her claim that the injury was also the result anof intentional tort committed defendant employer. Plaintiff failed to affidavits or supporting materials as to support her claim resulted tortious conduct defendant If the defendant moving *4 summary judgment successfully for carries of proof, burden his/her plaintiff may rely the not the bare upon allegations of com- his/her to establish plaint a triable issue of fact. Haithcock v. Chimney Rock Considering court, the materials submitted to the we find that plaintiff has failed to a present genuine issue of fact sufficient to a against civil action for employer intentional We at point note that not this case does stand for the that proposition plaintiff once a signs a release to settle compensation a workers’ plaintiff automatically claim that is preclud- ed from pursuant to recovering Woodson or that plaintiff automatically admitting injury was solely accidental to the a exclusion of claim for employer tortious conduct. In- stead, we hold that if defendant uses pleadings support- and his/her claim, ing materials to negate essential element of a Woodson i.e., accidental, Id., that solely was at S.E.2d then the burden shifts to and THE OF APPEALS IN COURT W. K. DEAL

OWENS v. show of evidence to will to a forecast required be to conduct of the employer. is also due the tortious Yates, 416 S.E.2d 193. These Dunleavy prin- North pursuant of law Carolina General ciples principles are basic 1A-1, Statutes Rule § injury, pleadings defendant’s plaintiff’s Since based accidental, materials, defendant’s can be considered motion was allowed and no other properly those in the Act available to provided remedies other than are 337, 407 329 N.C. at her plaintiff against is limited to amount received Consequently, plaintiff at 226. to the release pursuant agreement.

Accordingly, the decision of trial court is affirmed. JOHN concurs. Judge WYNN dissents.

Judge dissenting.

Judge WYNN I that the trial respectfully majority’s holding dissent from summary granted judgment. court defendant’s motion properly own plaintiff, I conclude that signed instead terms, claim her from her Woodson pursuing bar summary erred by entering judgment against that the trial court plaintiff. plaintiff alleged

In her the course of complaint, hydraulic injured by with was defendant’s employment defendant she press and knew the machine was unsafe and drill that defendant it. Defendant moved dangerous operate but still ordered summary pleading “Agreement for Final Com- judgment Release,” as a bar promise signed, Settlement plaintiff’s action. motion, the prevail moving on a order the lack of establishing genuine must meet burden *5 any is moving party issue as to material fact and the entitled moving as matter law. The meets this party of (1) by proving opposing burden an essential element of nonexistent, discovery that showing through claim is or party’s (2) party cannot essen- opposing

IN THE OF COURT 329 W. OWENS v. K. DEAL 324 N.C. claim,

tial of his element or her cannot or surmount affirm- Jurden, ative defense which would bar claim. Bernick v. 306 (1982). 435, N.C. 293 S.E.2d moving carry If the fails to burden, party does have opposing respond and Fulford, v. should be denied. Brown (1984); James, 316 S.E.2d 220 Steel Development Corp. Creek v. (1980). S.E.2d 205 A injured executed on party based valuable is generally consideration a complete defense to an action for damages for such injuries. Miller Nationwide Ins. Mut. (1993). 295, 435 What a release depends means upon the executing parties’ intent which is determined from the used, language parties’ objectives they situation and the sought to accomplish. McGladrey, Hendrickson & v. Syntek Pullen Finance Corp., disc. rev. When the circumstances surround- ing execution of the dispute release are not in and its terms are free from ambiguity, meaning is for the court to determine. Miller, 112 N.C. App. at 435 S.E.2d 542. “Where a written declare, is explicit, court must so of irrespective what either of party thought effect the contract be.” McNair Goodwin, 1, 8, case,

In the instant the release in pertinent states part: Now, THEREFORE, Owens, Loretta considera- tion compensation of the payment herein recited and the medical benefits which shall be of paid upon approval the North Carolina Commission, hereby Industrial of receipt which remise, acknowledged, hereby release and forever discharge the said W. K. Deal Printing, Liberty Inc. and Mutual In- Company any surance every of and from and all and manner actions, action, suits, debts, of action and of cause or causes money, dues sums of demands and claims judgments, what- soever, which W. Liberty K. Deal Printing, Inc. and have, Mutual Company may Insurance she ever had or now heirs, or which her next whomsoever, kin personal of or representatives, can, or person may other or hereafter shall have reason or out terms growing provisions the North Carolina Workers’ Act on account alleged injury, rise to this claim for gives compen- *6 IN THE COURT OF PRINTING, INC. W. K. DEAL

OWENS v. (1994)] N.C. [113 sation, disability sus- expenses or medical any other and her. by tained added).

(Emphasis terms, from only pursuing release bars By its own Act, Compensation of the Workers’ under terms any action pursu- from not bar 97. The does N.C. Gen. Stat. § employer held that when an Woodson Rowland a tort action. ing intentionally knew was employer in conduct which the engages may substantially employee pursue injury, certain to cause Rowland, 329 Woodson a civil action 330, so as egregious This conduct must be 407 S.E.2d Care, Pendergrass v. Card to an intentional be tantamount Inc., may employee The also which arise from the compensation claims pursue workers’ Woodson, recovery. only is entitled to one accident but same at 228. at 407 S.E.2d her claims under by addresses signed The release pursuing Act Compensation not bar Workers’ thus to establish that it action. Defendant failed Woodson tort the trial as a matter of law. Therefore is entitled to summary judgment motion for erred in defendant’s granting court must reversed. case be contrary Supreme Court’s analysis The majority’s the release majority in Woodson. reasons that because holding The accidental, injury was defendant plaintiff’s states that and is entitled to met proof has burden resulted from produces injury evidence her unless however, the Supreme defendant’s tortious conduct. under the Workers’ Act held that “accident” Court “ ‘(1) not event which is ex- unlooked for untoward means by produced a result injured employee; or pected designed ” Woodson, 407 S.E.2d by a fortuitous cause.’ v. Thomas & Howard Harding at 233 (quoting (1962)). then 110-11 Court Woodson reasoned: inten- injured party, standpoint

From tionally nonetheless at the same time inflicted another can . expected . . not an “unlooked for and untoward event be Harding, 256 N.C. at injured employee.” designed or IN THE COURT OF APPEALS OWENS v. W. K. DEAL is, therefore, 124 S.E.2d at inherently 110. It inconsist-

ent to assert that caused the same conduct was *7 accident, both result of an to giving rise the remedies Act, provided by the Compensation] and an inten- [Workers’ tort, tional making exclusivity provision of the Act unavailable bar a to civil action. 349, 329 N.C. at 407 S.E.2d at 233. clearly

Woodson holds that a plaintiffs injury can be both an accident for the purposes of workers’ compensation and the result anof intentional tort committed the defendant employer. case, In the instant in order for prevail defendant to on its motion summary it judgment, must negate plaintiff’s allegation that its conduct was substantially certain to injury. Dunleavy cause See Co., Inc., v. Yates Construction 106 N.C. App. disc. rev. (Summary S.E.2d 146 judgment properly entered the defendant when his forecast of evidence revealed his conduct did not manifest reckless disregard safety for the of plaintiff nor did it amount to the intentional carry failure duty to out a Merely of care owed to the plaintiff). insufficient, pleading signed by release plaintiff is since the not bar plaintiff pursuing a tort action. concludes, however, majority The upon based the release and defendant’s answer alleged which operate did hydraulic press properly, defendant had shifted the burden to her injury evidence that was the result intentional allegation Defendant’s stated: the time the operating Plaintiff was the machine that

[A]t she was not operating the machine pursuant the instructions her, given that were or that she was not operating manner; thereto, machine in a safe prudent that in addition it is alleged upon information and belief that Plaintiff was operating machine under of prescription the influence medication, and that these acts recovery. constitute bar to nonmoving party does not coming bear burden of claim, however, forward with evidence in of his support until the moving has offered evidence which that claim. negates Mace (1980); v. Bryant Constr. Corp., (1975); Butler v. Berkeley, Whitely v. Cubberly, 24 N.C. App. 210 S.E.2d 289 Defendant’s IN THE COURT OF v. OAKES STATE relies, allega is an the majority allegation, unverified not a Contributory negligence contributory negligence. tion of Dept. v. North Carolina tort. Jenkins to an intentional defense (1956).Therefore, Vehicles, Motor of I conclude that over to shift the burden defendant did not the trial court’s her claim and that supply reversed. should be entry judgment against I dissent. respectfully v. DENNIS LEE OAKES OF NORTH CAROLINA

STATE No. 9218SC1096 *8 (Filed 1994) January (NCI4th)— field test on § and Witnesses 1. Evidence testimony admissible —officer’s counterfeit controlled substance testimony by in admitting err The trial court did not which he con- of a field test results concerning an officer defendant, since the purchased on the substance ducted perform qualified training experience officer was test. 2d, § 826. Am Jur Evidence to determine Admissibility experimental material or qualities or character of physical chemical or 76 ALR2d 354. substance. (NCI4th)— sentencing hearing— § 1054

2. Criminal Law indictment —no error habitual felon continuance obtain new continuing err in defendant’s sen- did not trial court delivery conviction of sale tencing after his hearing the State in order allow controlled substance a counterfeit an habitual felon. that he was alleging new indictment to obtain a 2d, §§ 527 seq. Criminal Law et Am Jur (NCI4th)— felon indictment— § Law 1284 habitual 3. Criminal felony —pending prosecu- underlying on not entered indictment attaches habitual felon tion to which laws, until judgment habitual felon For the purpose delivery of sale and defendant’s conviction was entered