Court of Appeals of North Carolina.Jun 5, 2012
725 S.E.2d 923 (N.C. Ct. App. 2012)

No. COA11–1468.


William Anthony ADKINS II, Fiduciary and Administrator of the Estate of Nicholas Alexander Adkins, Deceased, Plaintiff, v. Judy Earlene STILWELL and The Southern Finishing Company, Inc., Defendants.

Jay Gervasi, P.A., by Jay A. Gervasi, Jr., for plaintiff appellant. Carruthers & Roth, P.A., by Jack B. Bayliss, Jr., for Southern Finishing Company, defendant appellee.

Appeal by plaintiff from order entered 25 October 2011 by Judge Stuart Albright in Rockingham County Superior Court. Heard in the Court of Appeals 23 April 2012. Jay Gervasi, P.A., by Jay A. Gervasi, Jr., for plaintiff appellant. Carruthers & Roth, P.A., by Jack B. Bayliss, Jr., for Southern Finishing Company, defendant appellee.
Teague Rotenstreich Stanaland Fox & Holt, PLLC, by Steven B. Fox and Kara V. Bordman, for Judy E. Stilwell and Co-counsel for Southern Finishing Company, defendant appellees.


William Anthony Adkins II, acting as fiduciary and administrator of the estate of Nicholas Alexander Adkins (“plaintiff”), appeals from the trial court's order granting summary judgment in favor of defendant Southern Finishing Company (“defendant Southern”). The trial court found that in light of the covenant not to enforce judgment, a trial with solely Judy Stilwell (“defendant Stilwell”) would be a waste of judicial resources. Consequently, the trial court certified the order as immediately appealable. Plaintiff contends the trial court erred in granting defendant Southern's motion for summary judgment because there remained a genuine issue of material fact as to whether or not defendant Stilwell was in the course of her employment when the accident occurred. For the following reasons, we affirm the decision of the trial court.

I. Background

Defendant Stilwell began working for defendant Southern in August 2007, as a temporary employee on a ninety-day probationary period, at Plant 10 in her hometown of Stoneville, North Carolina. Defendant Southern is in the business of staining and laminating decorative molding pieces. Defendant Stilwell was trained as a production clerk, which involved receiving orders on her computer from customers and then transmitting those orders to the plant so they could be pulled, stained, boxed, and shipped. Additionally, she was required to print shipping labels and manage the accompanying shipping records. Following the ninety-day probationary period, defendant Stilwell obtained a permanent position as a production clerk in defendant Southern's Martinsville, Virginia, plant, about twenty to twenty-five minutes from defendant Stilwell's home.

On Friday 23 January 2009, at around 6:00 a.m. or 6:30 a.m., Keith Vernon, defendant Stilwell's supervisor, called her at home and asked her to report to the Stoneville plant to fill in for Melissa Joyce, another production clerk, who had to stay home with a sick child. Defendant Stilwell expected to return to her usual plant in Martinsville the following Monday. However, on the evening of Sunday, 25 January 2009, defendant Stilwell received another call from Mr. Vernon asking her to report to the Stoneville plant again on Monday. While on her way to the Stoneville plant Monday morning, defendant Stilwell stopped by Debbie's Restaurant to purchase a biscuit to eat during her morning break. After leaving the restaurant, defendant Stilwell continued to the Stoneville plant at which point she drove past a stopped school bus, hitting and killing 16–year–old Nicholas Adkins, who was crossing the road.

Plaintiff filed a complaint against defendants on 29 December 2010, claiming that Nicholas had been killed due to the negligence of defendant Stilwell while she was in the course of her employment, thus imputing her negligence to defendant Southern. Prior to that, on or about 30 June 2010, plaintiff had entered into a Release of Carrier and Covenant Not to Enforce Judgment, meaning that he would not seek to enforce judgment obtained against defendant Stilwell beyond $50,000.00, in exchange for that set amount, which was the limit of defendant Stilwell's liability insurance policy as set by her insurance carrier. Mr. Vernon provided an affidavit in preparation for trial in which he stated that it “was routine” for defendant Southern to assign employees to different plants, as necessary. Furthermore, “[i]f Ms. Joyce was not available at the Plant 10 warehouse facility, to update the shipping and inventory data in the computer each morning, [defendant] Stilwell was subject to reassignment to the warehouse facility at Plant 10.” However, he could only state for certain that defendant Stilwell was assigned to the Stoneville plant “for at least one day in November 2008.” Defendant Stilwell stated in her deposition that she had filled in at Stoneville “a couple of times before [,]” but that the Martinsville plant “was [her] office.”

Defendant Stilwell further indicated that she generally did not encounter stopped school buses during her usual commute to Martinsville, other than buses pulling in and out of school parking lots, which in her opinion were similar to regular vehicles. Also, defendant Stilwell usually did not have to arrive at work in Martinsville until 8:00 a.m., but while filling in at the Stoneville plant she had to arrive at 7:00 a.m. due to that being the normal arrival time for Ms. Joyce. As a result, she claimed she was unaccustomed to seeing stopped school buses due to her late commute time to Martinsville. Moreover, defendant Stilwell noted that on Thursday, 22 January 2009, she had taken home some shipping labels accidentally printed at the Martinsville plant, which were intended for the Stoneville plant. She had planned on dropping the labels off at the Stoneville plant on her way to work at the Martinsville plant on Monday morning, so that Ms. Joyce would not have to reprint the labels. Consequently, the labels were still in her vehicle at the time of the accident on Monday morning.

Defendants filed answers to plaintiff's complaint, both denying negligence, and defendant Southern specifically denying it was liable because defendant Stilwell was not in the course of her employment at the time of the accident. On 1 August 2011, defendant Southern filed a motion for summary judgment, which was heard on 29 August 2011 in Rockingham Superior Court. The trial court granted defendant Southern's motion and stated in its amended order, filed 25 October 2011, that the order was immediately appealable. Plaintiff filed his notice of appeal on 25 October 2011.

II. Analysis

Plaintiff raises a single issue on appeal in arguing that the trial court erred by granting defendant Southern's motion for summary judgment where a genuine issue of material fact remained as to whether or not defendant Stilwell was in the course of her employment when the accident occurred. We disagree.

As a preliminary issue, we note that plaintiff's appeal from the trial court's interlocutory order is properly before this Court. Although the trial court's order dismissed the case as to fewer than all parties, the trial court certified the order as immediately appealable. Where the trial court “certifies that there is no just reason for delay, the judgment is immediately appealable,” pursuant to N.C.R. Civ. P. 54(b) (2011). DKH Corp. v. Rankin–Patterson Oil Co., 348 N.C. 583, 585, 500 S.E.2d 666, 668 (1998). Plaintiff and defendant Stilwell had entered into an agreement limiting his judgment amount against defendant Stilwell to $50,000.00, which plaintiff already obtained, meaning there would be no purpose in maintaining the action solely against defendant Stilwell. As a result, the interlocutory order is properly before this Court.

“We review a trial court's order granting or denying summary judgment de novo. Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.” Smith v. County of Durham, ––– N.C.App. ––––, ––––, 714 S.E.2d 849, 854 (2011), disc. review denied,365 N.C. 364, 718 S.E.2d 399 (2011) (internal quotation marks and citations omitted). “Summary judgment is properly granted ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.’ “ Id. at ––––,714 S.E.2d at 853 (quoting N.C. Gen.Stat. § 1A–1, Rule 56(c) (2010)).

Plaintiff argues defendant Stilwell was in the course of her employment while traveling to a different work location and, as a result, defendant Southern should be liable for her negligence under the theory of respondeat superior. “As a general rule, liability of a principal for the torts of its agent may arise in three situations: (1) when the agent's act is expressly authorized by the principal; (2) when the agent's act is committed within the scope of his employment and in furtherance of the principal's business[;] or (3) when the agent's act is ratified by the principal.” Matthews v. Food Lion, LLC, 205 N.C.App. 279, 281–82, 695 S.E.2d 828, 830 (2010). “If an employee is negligent while acting in the course of employment and such negligence is the proximate cause of injury to another, the employer is liable in damages under the doctrine of respondeat superior....” Bradley v. Hidden Valley Transp., Inc ., 148 N.C.App. 163, 165, 557 S.E.2d 610, 612 (2001) (internal quotation marks and citations omitted), aff'd,355 N.C. 485, 562 S.E.2d 422 (2002). We must determine whether defendant was in the course of her employment which requires that “ ‘an employee, at the time of the incident, must be acting in furtherance of the principal's business and for the purpose of accomplishing the duties of his employment.’ “ Matthews, 205 N.C.App. at 282, 695 S.E.2d at 831 (quoting Troxler v. Charter Mandala Center, 89 N.C.App. 268, 271, 365 S.E.2d 665, 668 (1988)). However, “accidents occurring while an employee is commuting to or from work do not arise out of or occur in the course of the employee's duties of employment.” Wright v. Wake County Public Schools, 103 N.C.App. 282, 283–84, 405 S.E.2d 228, 229 (1991) (citing Barham v. Food World, 300 N.C. 329, 266 S.E.2d 676,reh'g denied,300 N.C. 562, 270 S.E.2d 105 (1980)).

Plaintiff attempts to distinguish Wilkie v. Stancil, 196 N.C. 794, 147 S.E. 296 (1929), where our Supreme Court held that an employee's commute to and from work is generally not in the course of its employment. Plaintiff argues the facts of Wilkie involved a fairly simple situation of an employee going from home straight to work, while the case at bar has more intricate details. See id. Nonetheless, our Supreme Court held in Wilkie that “[t]o permit a recovery against [an employer] under these circumstances would be to enlarge the rule of respondeat superior to such an extent as to make the master liable for every negligent act his servant might commit while going to or from his place of work, though transported in a vehicle of his own selection, over which the master had no control and in which he had no interest .” Id. at 796, 147 S.E.2d at 297. This theory has been reinforced in numerous other cases. See Ellis v. Service Co., Inc ., 240 N.C. 453, 456, 82 S.E.2d 419, 420–21 (1954) (employee's work day started when he picked up his loaded delivery truck and not when he first arrived at the plant); Bradley, 148 N.C.App. at 166, 557 S.E.2d at 613 (employee who was returning a truck routinely used by employer to employer's house was not in the course of his employment because he had already clocked out). Defendant Stilwell was not in the course of her employment during her commute as evidenced by her decision to stop and get a biscuit on the way, which emphasizes defendant Southern's lack of control and interest in her during the commute.

Nevertheless, plaintiff contends that workers' compensation cases can be instructive in the case at hand, specifically concerning the exceptions to the “going and coming” rule. In particular, plaintiff argues the situation at hand falls under the “special errand” exception, which exists when an accident occurs while an employee is “traveling to or from work if the injuries occur while the employee is engaged in a special duty or errand for his employer .” Chavis v. TLC Home Health Care, 172 N.C.App. 366, 383, 616 S.E.2d 403, 416 (2005). Plaintiff notes that this exception places the employee within the course of the employment, which is a necessary element of respondeat superior. See Massey v. Board of Education, 204 N.C. 193, 167 S.E. 695 (1933) (employee, who was a janitor, injured in an accident on the way to work while stopped at a store to pick up some cleaning materials which were necessary for his job).

In his argument, plaintiff claims defendant Stilwell's traveling to the Stoneville plant rather than the Martinsville plant was more akin to a “special errand.” Plaintiff first contends the Stoneville plant was not defendant Stilwell's regular place of employment, which would mean her driving to the plant was a “special errand.” The “special errand” in driving to the different plant in Stoneville resulted in defendant Stilwell passing by stopped school buses, which she normally did not do on her commute to Martinsville. Making a trip to a different office owned by the same employer does not amount to a “special duty or errand,” but is the same as traveling to the employee's regular office. This argument has been addressed under the similar “traveling salesman” exception, which

states that “[i]f travel is contemplated as part of the employment, an injury from an accident during travel is compensable.” Hunt, 153 N.C.App. at 269, 569 S.E.2d at 678. Such claims are compensable because “employees with no definite time and place of employment ... are within the course of their employment when making a journey to perform a service on behalf of their employer.” Creel, 126 N.C.App. at 556–57, 486 S.E.2d at 483. The applicability of the “traveling salesman” exception to a particular case “ ‘depends upon the determination of whether [the] plaintiff had fixed job hours and a fixed job location.’ “
Hollin v. Johnston Cty. Council on Aging,
181 N.C.App. 77, 80, 639 S.E.2d 88, 91 (2007). In Hollin, this Court held that a health care aid who worked regular hours and assisted patients in their homes, did not meet the “traveling salesman” exception because each patients' home constituted a “fixed work location.” Id. (internal quotation marks and citation omitted). Here, defendant Stilwell had fixed hours and worked at either the Stoneville or Martinsville plant which would also be considered “fixed work locations.” Id. Thus, her trip to Stoneville does not satisfy the “traveling salesman” exception.

Plaintiff's other argument is that defendant Stilwell was on a “special errand” and in the course of her employment because she was carrying work-related materials at the time of the accident. Defendant Stilwell had some shipping labels in her vehicle which were intended for the Stoneville plant. She took it upon herself to transport the labels to the Stoneville plant since she lived close by, however, defendant Southern did not ask or direct defendant Stilwell to deliver the labels.

It is immaterial that the employee intended by such act to secure a benefit for the employer. Lamm v. Charles Stores Co., 201 N.C., 134. Liability of the principal, or the master, depends not upon the motive of the agent, or the servant, such as his intent to benefit his employer, or to protect his property, but upon the question whether in the performance of the act which gave rise to the injury the agent or the servant was at the time engaged in the service of his employer. Dickerson v. Refining Co., 201 N.C., 90. It is not sufficient that the act shows that he did it with the intent to benefit or serve the master. It must be something done in attempting to do what the master has employed the servant to do.
Snow v. DeButts,
212 N.C. 120, 124, 193 S.E. 224, 227 (1937). Defendant Southern noted that the labels could have just as easily been reprinted at the Stoneville plant rather than having defendant Stilwell deliver them. Likewise, defendant Stilwell could have delivered the labels to the Stoneville plant on Friday, as she had taken them from the Martinsville plant Thursday afternoon. Consequently, defendant Stilwell's decision, on her own volition, to deliver the labels while on her way to work does not make the trip a special errand because defendant Southern did not ask her to deliver the labels and she was going to the Stoneville plant anyway to work for the day.

While situations involving workers' compensation and respondeat superior can occasionally be similar, the rules do not always apply in both situations. In Matthews, our Court held that the case of Hunt v. State, 201 N.C. 707, 161 S.E. 203 (1931), did not apply because it utilized a rule from the Workers' Compensation Act which is not present under the theory of respondeat superior. Matthews, 205 N.C.App. at 284, 695 S.E.2d at 832. As a result, the issue of whether or not defendant Stilwell's commute to the Stoneville plant constituted a “special errand” is irrelevant, because this exception, and the corresponding “going and coming” rule, do not apply under the theory of respondeat superior. See id. Defendant Southern cannot be held liable for the negligence of defendant Stilwell while she was on a basic commute to work.

III. Conclusion

The trial court properly granted defendant Southern's motion for summary judgment. Defendant Stilwell was not in the course of her employment while commuting to work even though the Stoneville plant was not her usual place of employment. It was a temporary relocation of her jobsite, which had occurred on a few prior instances. Furthermore, her personal stop to get a biscuit while on the way to work only further exhibits that defendant Southern did not have control over defendant Stilwell during her commute. Likewise, the Workers' Compensation Act rule regarding “going and coming,” with accompanying exceptions, do not apply under the theory of respondeat superior. As a result, we affirm the decision of the trial court.

Affirmed. Chief Judge MARTIN and Judge BRYANT concur.

Report per Rule 30(e).