NO. COA13-860
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
VINCENT BURLEY,
Employee, Plaintiff,
v. From the North Carolina
Industrial Commission
I.C. No. X52202
U.S. FOODS, INC., Employer,
and INDEMNITY INSURANCE COMPANY
OF NORTH AMERICA, Carrier,
and
GALLAGHER BASSETT SERVICES, INC.,
Third Party Administrator,
Defendants.
Appeal by plaintiff from opinion and award entered 28 June
2013 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 12 December 2013.
The Sumwalt Law Firm, by Vernon Sumwalt, Mark T. Sumwalt,
and Lauren Hester, for Plaintiff-Appellant.
McAngus, Goudelock & Courie, P.L.L.C., by Raymond J.
Williams, III, for Defendants-Appellees.
HUNTER, JR., Robert N., Judge.
Vincent Burley (“Plaintiff”) appeals from the 28 June 2013
opinion and award of the Full Commission of the North Carolina
-2-
Industrial Commission (the “Commission”), which concluded that
the Commission did not have subject matter jurisdiction to hear
Plaintiff’s claim. Plaintiff argues the Commission had subject
matter jurisdiction because a modification to his contract was
approved by defendant U.S. Foods Inc. (“U.S. Foods”) in
Charlotte. We agree and reverse the Commission’s opinion and
award.
I. Facts & Procedural History
On 8 July 2011, Plaintiff filed a claim for benefits with
the Commission seeking compensation for a back injury suffered
while working for U.S. Foods as a truck driver. U.S. Foods
denied that North Carolina has jurisdiction over Plaintiff’s
claim, but admitted liability under the Georgia Workers’
Compensation Act and is currently paying Plaintiff disability
compensation under Georgia law. The matter came on for a
hearing before Deputy Commissioner Philip A. Baddour, III (“Dep.
Comm. Baddour”) on 17 April 2012 and a written order was filed
on 13 December 2012. The evidence presented at the hearing
tended to show the following facts.
Plaintiff is a resident of Augusta, Georgia and was a 39-
year-old truck driver at the time of his 13 December 2012
hearing before the Commission. In 1993, Plaintiff graduated
-3-
from truck driving school in Charleston, South Carolina, and
obtained his commercial driving license from this course of
study. Plaintiff has been a truck driver since graduating from
this program.
U.S. Foods supplies and delivers food to restaurants,
schools, sports venues, hotels, and many other types of
businesses. U.S. Foods operates many distribution centers
nationwide to supply “hundreds of thousands of customers” with
its food products.
Plaintiff testified that U.S. Foods hired him as a delivery
truck driver in May 2000. Plaintiff completed his initial
hiring paperwork, including a driver’s application, medical
exam, and written driving exam, in Fort Mill, South Carolina.
Plaintiff completed additional pre-hiring paperwork, including a
road-test in Columbia, South Carolina and a drug-screening in
Georgia. After completing his initial paperwork, U.S. Foods
offered Plaintiff employment, and Plaintiff accepted the written
offer. Plaintiff signed this paperwork in Fort Mill, South
Carolina and was employed at-will.
Plaintiff drove a planned route as part of his employment.
The route was concentrated around the Augusta area, with stops
in Georgia and South Carolina. Plaintiff’s truck and trailer
-4-
were stowed every day at a drop yard in Augusta. Plaintiff’s
route did not involve travel in North Carolina nor was his truck
ever dropped in North Carolina.
U.S. Foods merged with another company, PYA Monarch, and
the Columbia drop yard, where Plaintiff was assigned, was
dissolved in 2002. Plaintiff testified that U.S. Foods offered
to transfer supervision of his employment to either their
Charlotte division or their Lexington, South Carolina division
after the merger. Plaintiff chose to work for the Charlotte
division because U.S. Foods arranged for his loaded delivery
truck to be delivered near his Augusta home. Had Plaintiff
chosen the Lexington division, he would have been required to
drive his personal vehicle to retrieve his loaded truck in
Lexington. Plaintiff’s transfer to the Charlotte division was
thereafter approved by U.S. Foods’s human resources department
in Charlotte.
Plaintiff’s job title and responsibilities did not change
after he was transferred to the Charlotte division from the
Columbia division. Plaintiff stated that he was working the
“same job, just a different division,” although Plaintiff made
deliveries to different customers and drove a different route.
Plaintiff was also switched from an hourly weight-based pay
-5-
system to a component pay system. As a result, Plaintiff saw
his pay increase from $400 to $500 a week under the weight-based
system to between $900 and $1,400 per week under the component
system. Plaintiff worked continuously for U.S. Foods for nine
years, was never terminated or laid off, and never completed re-
hiring paperwork during this period.
Plaintiff injured his back on 23 September 2009 while
lifting a case of liquid milk during a delivery to a Sonic
Drive-In in Evans, Georgia. U.S. Foods terminated Plaintiff’s
employment on 1 October 2009.
U.S. Foods’s Charlotte division Transportation Manager
Alton Abernathy (“Mr. Abernathy”) also testified at the 17 April
2012 hearing. Mr. Abernathy stated that upon the merger of U.S.
Foods and PYA Monarch, U.S. Foods “went to all the drivers [in
the Columbia drop yard] that were being displaced . . . and
offered them jobs” if they transferred branches. If Plaintiff
rejected the transfer, he would have received a severance
package. Mr. Abernathy further described the different pay
systems between the Charlotte and Columbia divisions:
Plaintiff’s component pay system paid his commission on “pieces
and stops and miles with a base and safety pay” rather than
Plaintiff’s prior pay system, which was based on weight carried.
-6-
Mr. Abernathy also described the Charlotte division’s
accommodations for its drivers, noting that the branch delivered
drivers’ loads to fifteen different sites, including Plaintiff’s
drop site in Augusta.
Plaintiff’s transfer was approved and signed by three
individuals: Doug Jolly, U.S. Foods’s Transportation Manager at
its Fort Mill division; Kim Dahl, a human resources officer at
U.S. Foods; and Mel Smith, who provided final approval from the
human resources department. U.S. Food’s human resources
department has been located in Charlotte since 4 December 2000,
and both Kim Dahl and Mel Smith worked in the Charlotte office.
Lastly, U.S. Foods’s Human Resources Coordinator, Rebecca
Reed (“Ms. Reed”), testified at the hearing. Ms. Reed discussed
the terms of Plaintiff’s initial hiring contract, noting that
U.S. Foods could modify the terms of Plaintiff’s employment
under the contract.
After hearing the foregoing evidence, Dep. Comm. Baddour
concluded that the a modified contract does not constitute a
contract “made” in North Carolina for purposes of the relevant
jurisdiction granting statute, N.C. Gen. Stat. § 97-36 (2013).
Dep. Comm. Baddour also concluded that the final act to create
Plaintiff’s employment contract did not occur in North Carolina.
-7-
Accordingly, Dep. Comm. Baddour ordered that Plaintiff’s claim
be denied for lack of subject matter jurisdiction. Plaintiff
appealed to the Commission on 13 December 2012. The Commission
heard the case on 22 May 2013 and issued an opinion and order on
28 June 2013 affirming Dep. Comm. Baddour’s order. Plaintiff
timely filed written notice of appeal with this Court on 2 July
2013.
II. Jurisdiction & Standard of Review
Plaintiff’s appeal from the Commission’s opinion and award
lies of right to this Court pursuant to N.C. Gen. Stat. § 7A–
29(a) (2013). Accord N.C. Gen. Stat. § 97–86 (2013).
The only issue on appeal is whether the Industrial
Commission had subject matter jurisdiction over Plaintiff’s
claim. At present, whether the Commission has subject matter
jurisdiction over Plaintiff’s case depends on whether a contract
for employment was consummated in North Carolina pursuant to
N.C. Gen. Stat. § 97–36. See Parker v. Thompson–Arthur Paving
Co., 100 N.C. App. 367, 369, 396 S.E.2d 626, 628 (1990) (“The
jurisdiction of the Industrial Commission is limited by
statute.”). Plaintiff argues that (i) because U.S. Foods’s
Charlotte division approved Plaintiff’s transfer to oversight by
the Charlotte division from the Columbia division, Plaintiff’s
-8-
contract was modified and (ii) because the “last act” of
approving the modification occurred in Charlotte, the contract
of employment was made in North Carolina.
“Appellate review of an award from the Industrial
Commission is generally limited to two issues: (i) whether the
findings of fact are supported by competent evidence, and (ii)
whether the conclusions of law are justified by the findings of
fact.” Chambers v. Transit Mgmt., 360 N.C. 609, 611, 636 S.E.2d
553, 555 (2006). “However, as to a jurisdictional question,
this Court is not bound by the findings of fact of the lower
tribunal. This Court has the duty to make its own independent
facts as to jurisdiction.” Lentz v. Phil’s Toy Store, ___ N.C.
App. ___, ___, 747 S.E.2d 127, 130 (2013); see also Lucas v.
Li’l Gen. Stores, 289 N.C. 212, 218, 221 S.E.2d 257, 261 (1976).
The Commission concluded as a matter of law that
Plaintiff’s contract was not modified and that the last act
necessary to create Plaintiff’s original contract was made out
of state, depriving the Industrial Commission of subject matter
jurisdiction to hear Plaintiff’s case. “Conclusions of law by
the Industrial Commission are reviewable de novo by this Court.”
Bond v. Foster Masonry, Inc., 139 N.C. App. 123, 127, 532 S.E.2d
583, 585 (2000). “Under a de novo review, the court considers
-9-
the matter anew and freely substitutes its own judgment for that
of the lower tribunal.” Craig v. New Hanover Cnty. Bd. of
Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (quotation
marks and citation omitted).
III. Analysis
a. Contract Modification Under Section 97-36
A contract modification is not explicitly referenced in
Section 97-36, which grants the Commission subject matter
jurisdiction over certain accidents that occur out of state.
N.C. Gen. § 97-36 provides
[w]here an accident happens while the
employee is employed elsewhere than in this
State and the accident is one which would
entitle him or his dependents or next of kin
to compensation if it had happened in this
State, then the employee or his dependents
or next of kin shall be entitled to
compensation (i) if the contract of
employment was made in this State.1
Plaintiff argues that common law rules concerning modifications
of contract apply. See Lineberry v. Town of Mebane, 219 N.C.
257, 258, 13 S.E.2d 429, 430 (1941) (“The common law, to the
extent therein provided, is modified. Except as so modified it
still prevails.”); N.C. Gen. Stat. § 4-1 (2013) (declaring
1
Plaintiff does not raise the other two provisions of the
jurisdiction-granting statute, namely that U.S. Foods’s
principal place of business is in North Carolina or that
Plaintiff’s principal place of employment is in North Carolina.
-10-
portions of the common law not in conflict with the general
statutes remain in full force).
We agree with Plaintiff and have consistently applied
common law rules of contract to claims filed under the Workers’
Compensation Act. See, e.g., Hollowell v. N.C. Dep’t of
Conservation & Devel., 206 N.C. 206, 208, 173 S.E. 603, 604
(1934); Hojnacki v. Last Rebel Trucking, Inc., 201 N.C. App.
726, 689 S.E.2d 601, 2010 WL 10963 at *3–4 (2010) (unpublished)
(applying common law principles of contract law, such as offer
and acceptance, to a claim filed under the Workers’ Compensation
Act).
This Court has held that a lapse in employment and
subsequent re-hiring via a “last act” made in North Carolina
created a contract that was “made” in North Carolina for
jurisdictional purposes under Section 97-36. Baker v. Chizek
Transp., Inc., 210 N.C. App. 490, 711 S.E.2d 207, 2011 WL 904271
at *4–5 (2011) (unpublished). Similarly, under the common law
of contracts, a modification to the terms of a contract may
create a new underlying contract that was “made” in North
Carolina. See, e.g., Spartan Leasing Inc. v. Pollard, 101 N.C.
App. 450, 457, 400 S.E.2d 476, 480 (1991) (holding that an
-11-
addendum letter was a new contract because it modified a prior
lease agreement).
Section 97-36 also employs the phrase “employment
contract,” which encompasses a broader scope of employment than
“contract of hire,” a phrase that covers only the initial hiring
of an individual. Compare N.C. Gen. Stat. § 97-36 with N.C.
Gen. Stat. § 97-2(2) (2013) (using “contract of hire”). This
broader expanse includes a contract modification, providing a
basis for a contract being “made” in North Carolina under
Section 97-36.
The dissent cites Larson’s Workers’ Compensation Law
§ 143.03(4) (2011) for the proposition that when “a contract has
achieved an identifiable situs, that situs is not changed merely
because the contract is modified in another state.” While we
acknowledge that Larson’s is a learned treatise in this field,
we must construe Section 97-36 using the long-standing canons of
construction in this state which require a plain language
approach to interpreting Section 97-36.
This Court’s precedent identifies that a modified contract
containing the required formation elements is a new contract.
See, e.g., NRC Golf Course, LLC v. JMR Golf, LLC, ___ N.C. App.
___, ___, 731 S.E.2d 474, 480 (2012) (“Parties to a contract may
-12-
agree to change its terms; but the new agreement, to be
effective, must contain the elements necessary to the formation
of a contract.” (emphasis added)). Like other newly formed
contracts, a modified contract may be made in this state.
The General Assembly crafted Section 97-36 with a full view
that the phrase “employment contract” contemplated both
contracts of hire as well as modifications of existing contracts
which, by long-standing precedent, are new agreements. See id.;
compare N.C. Gen. Stat. § 97-36 with N.C. Gen. Stat. § 97-2(2)
(using “contract of hire”). As such, we do not interject our
own view of the legislature’s intended meaning and instead apply
existing precedent and the plain language of Section 97-36 to
this question of first impression. See Correll v. Div. of Soc.
Servs., 332 N.C. 141, 144, 418 S.E.2d 232, 235 (1992) (“The
legislative purpose of a statute is first ascertained by
examining the statute’s plain language.”).
Further, while the Larson’s passage cites other state court
decisions for the notion that a situs is not changed by contract
modification, other jurisdictions have recognized explicitly
that a contract modified within state borders confers
jurisdiction. See, e.g., Kilburn v. Grande Corp., 287 F.2d 371,
373–74 (5th Cir. 1961) (holding that Louisiana had jurisdiction
-13-
over a modified contract of employment where the original
employment contract was formed in Texas, but additional
consideration for employment was negotiated in Louisiana); Kuzel
v. Aetna Ins. Co., 650 S.W.2d 193, 195–96 (Tex. App. 1983)
(holding Maryland had jurisdiction where the original contract
of hire was formed in Texas, but a later contract modification
was agreed to in Maryland).
The Commission held that modification of an existing
contract does not fall within the scope of a contract “made” in
Section 97-36. The lack of a bar against such use, this Court’s
precedents recognizing common law contract principles, and use
of the phrase “employment contract” in Section 97-36 require a
different result. Accordingly, a modification of an employment
contract may be a proper basis to find a contract is “made”
within North Carolina under Section 97-36.
b. Whether Plaintiff’s Contract was Modified
Our next inquiry is whether Plaintiff’s contract was
actually modified under common law contract principles. The
same tests for formation of contract apply to whether a modified
contract is enforceable. NRC Golf Course, ___ N.C. App. at ___,
731 S.E.2d at 480 (“Parties to a contract may agree to change
its terms; but the new agreement, to be effective, must contain
-14-
the elements necessary to the formation of a contract.”
(quotation marks and citation omitted)); Corbin v. Langdon, 23
N.C. App. 21, 26, 208 S.E.2d 251, 254 (1974). The three
requisite elements to form an enforceable contract are offer,
acceptance, and consideration. Cap Care Grp., Inc. v. McDonald,
149 N.C. App. 817, 822, 561 S.E.2d 578, 582 (2002).
Consequently, we must consider whether each element exists to
determine whether a modified employment contract was formed
between Plaintiff and U.S. Foods.
“It is essential to the formation of any contract that
there be mutual assent of both parties to the terms of the
agreement so as to establish a meeting of the minds.” Harrison
v. Wal-Mart Stores, Inc., 170 N.C. App. 545, 550, 613 S.E.2d
322, 327 (2005) (quotation marks and citation omitted); see also
Wooten v. S.R. Biggs Drug Co., 169 N.C. 64, 68, 85 S.E. 140, 142
(1915) (holding that “the one thing without which a contract
cannot be made . . . is the assent of the parties to the
agreement, the meeting of the minds upon a definite
proposition”). As such, a contract modification must also have
an offer of modified terms and acceptance on those terms.
Corbin, 23 N.C. App. at 26, 208 S.E.2d at 255. At-will
contracts may also be modified by the parties to form a new
-15-
contract. Arndt v. First Union Nat. Bank, 170 N.C. App. 518,
526, 613 S.E.2d 274, 280 (2005) (“The employer, in an at will
relationship, can modify, unilaterally the future compensation
to be paid to an employee. If the employer modifies the terms
of an [employee] at will; and, the employee knows of the change,
the employee is deemed to have acquiesced to the modified terms,
if he continues the employment relationship.”).
Here, Mr. Abernathy testified that the company met with
displaced drivers after its merger with PYA Monarch. Mr.
Abernathy said the company offered its displaced drivers jobs
with the subsuming branches. U.S. Foods extended its offer for
its employees to transfer branches at a company safety meeting
in Charlotte. The alternative to transferring branches was to
receive a severance package from U.S. Foods. Thus, Plaintiff
had a choice: he could accept a transfer or he could cease
employment and receive a severance package. This fundamental
choice qualifies as a new offer under the traditional definition
of a contract.
Plaintiff accepted the offer. At the Charlotte meeting
where his new terms of employment were proposed, Plaintiff
negotiated the details of his transfer with his supervisor.
Specifically, Plaintiff requested that his trailers be dropped
-16-
near his home in Augusta. Plaintiff also completed paperwork at
the Charlotte safety meeting to accept the transfer, although
U.S. Foods’s Charlotte human resources department had to approve
the transfer before it was “official.” From the foregoing, it
is clear Plaintiff accepted a new offer modifying his existing
at-will employment agreement.
Finally, there must also be consideration in support of the
modified contract. Clifford v. River Bend Plantation, Inc., 312
N.C. 460, 466, 323 S.E.2d 23, 27 (1984) (“It is established law
that an agreement to modify the terms of a contract must be
based on new consideration or on evidence that one party
intentionally induced the other party’s detrimental reliance.”
(citation and quotation marks omitted)). “Consideration
sufficient enough to support a contract consists of any benefit,
right, or interest bestowed upon the promisor, or any
forbearance, detriment, or loss undertaken by the promisee.”
Fairfield Harbour Prop. Owners Ass’n, Inc. v. Midsouth Golf,
LLC, 215 N.C. App. 66, 75, 715 S.E.2d 273, 282 (2011) (quotation
marks and citation omitted). This Court does not typically
consider the adequacy of consideration, as “inadequate
consideration, as opposed to the lack of consideration, is not
sufficient grounds to invalidate a contract. In order to defeat
-17-
a contract for failure of consideration, the failure of
consideration must be complete and total.” Harllee v. Harllee,
151 N.C. App. 40, 49, 565 S.E.2d 678, 683 (2002) (citations
omitted). Paying wages for labor constitutes consideration, and
a change in the form of payment has been found to be sufficient
consideration to form a contract. Clyde Rudd & Associates, Inc.
v. Taylor, 29 N.C. App. 679, 682, 225 S.E.2d 602, 604 (1976)
(holding that a change in the method of compensation met the
consideration requirement of contract formation).
Here, when Plaintiff transferred to the Charlotte division,
he transferred from a weight-based compensation system to a
component pay system. This was a change in the method of
compensation and ultimately netted Plaintiff an increase in pay.
After transferring, Plaintiff’s earnings increased. As such, a
valuable benefit was conferred between both sides: U.S. Foods
retained Plaintiff as an employee, Plaintiff retained a position
driving trucks for U.S. Foods, and Plaintiff received increased
pay as a result of the transfer.
As all three elements existed, a valid contract was formed
between the parties via the modification of their previous
employment contract. As a result, we must now consider whether
the contract was “made” in North Carolina for purposes of
-18-
Section 97-36. For that inquiry, we turn to the “Last Act”
analysis.
c. “Last Act” Analysis
Section 97-36 ultimately grants the Commission jurisdiction
only if the contract was “made” in North Carolina. To determine
where a contract for employment was made, the Commission and
North Carolina courts apply the “last act” test. Murray v.
Ahlstrom Indus. Holdings, Inc., 131 N.C. App. 294, 296, 506
S.E.2d 724, 726 (1998). The “last act” test provides that “for
a contract to be made in North Carolina, the final act necessary
to make it a binding obligation must be done here.” Id.
(citation and quotation marks omitted).
In Murray, the plaintiff was initially hired at a plant in
Tennessee, was laid off, and then was called at his North
Carolina residence with an offer to work in Mississippi. Id. at
295, 506 S.E.2d at 725. Negotiations took place via telephone
and the plaintiff accepted the offer while in North Carolina.
Id. This Court held the last requisite act to form the binding
employment contract occurred while the plaintiff was in North
Carolina and that the Commission had jurisdiction to hear the
plaintiff’s workers’ compensation claim. Id. at 297, 506 S.E.2d
at 726.
-19-
Similar facts exist here. Plaintiff was offered and
accepted a transfer with a different pay structure. Plaintiff
filled out paperwork to that effect at a safety meeting in
Charlotte. The transfer was explicitly described as not “final”
or “official” unless approved by U.S. Foods’s human resources
department in Charlotte. Two signatures from human resources
officers were provided in Charlotte to approve the transfer. As
such, the last act to make the transfer binding occurred in
Charlotte, where Plaintiff completed his transfer paperwork and
where final approval by U.S. Foods’s human resources department
was provided.
IV. Conclusion
Because we hold that Plaintiff and U.S. Foods modified
Plaintiff’s contract and that the final binding act occurred in
North Carolina, we hold that Section 97–36 extends subject
matter jurisdiction to Plaintiff’s claim. As such, the opinion
and award of the Industrial Commission is
Reversed and remanded for rehearing.
Judge STROUD concurs.
Judge DILLON dissents in a separate opinion.
NO. COA13-860
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
VINCENT BURLEY
Employee, Plaintiff
v. From the North Carolina
Industrial Commission
I.C. No. X52202
U.S. FOODS, INC., Employer and
INDEMNITY INSURANCE COMPANY OF
NORTH AMERICA, Carrier
And
GALLAGHER BASSETT SERVICES, INC.,
Third Party Administrators,
Defendants.
DILLON, Judge, dissenting.
In 2000, Plaintiff Vincent Burley (“Employee”), a Georgia
resident, entered into a contract of employment in South
Carolina with Defendant U.S. Foods, Inc., (“Employer”), an
Illinois-based company, to work as a truck driver. Employee was
injured as the result of a work-related accident which occurred
in Georgia in 2009. Employee filed this action seeking workers’
compensation benefits in North Carolina; however, the Commission
denied the claim, determining that it lacked jurisdiction to
make an award. The sole statutory basis which Employee argues
-2-
on appeal gives the Commission jurisdiction over his claim is
N.C. Gen. Stat. § 97-36(i), which provides jurisdiction for out-
of-state accidents where “the contract of employment was made in
this State[.]” Specifically, Employee argues he agreed to a
modification to his contract of employment while attending a
business meeting in Charlotte in 2002, and that this
modification constituted a “contract of employment . . . made in
this State[.]” See id. However, I disagree that this
modification was sufficient to change the contract’s situs from
South Carolina to North Carolina; and, therefore, I would affirm
the Commission’s conclusion that it lacked jurisdiction in this
matter. Accordingly, I respectfully dissent.
Employee was initially assigned to Employer’s Columbia,
South Carolina drop-yard. In 2002, Employer merged with another
company, which resulted in the closing of Employer’s Columbia
drop-yard. However, Employee’s employment was never severed.
Rather, the parties came to an agreement during a meeting in
Charlotte whereby oversight of his job was transferred to
Employer’s Charlotte division and his compensation was
increased. As the majority points out, though, Employee’s “job
title and responsibilities did not change.”
-3-
As the majority notes, whether an out-of-state employment
contract modified in this State constitutes a “contract of
employment . . . made in this State” for purposes of conferring
jurisdiction in the Commission under N.C. Gen. Stat. § 97-36(i)
for an out-of-state accident has never been directly addressed
by a North Carolina appellate court. (Emphasis added.) I
believe that, for purposes of conferring jurisdiction for an
out-of-state accident based on where the contract of employment
was “made[,]” the General Assembly intended that only one state
be considered an employment contract’s situs, namely, where the
contract “was made[,]” and not also be every state where the
contract might have been “modified” over the course of an
employee’s tenure.2 I believe that if the General Assembly had
intended to include states where contracts of employment were
2
The scope of my dissent is based on the facts of this
case. I recognize that there could be situations where a
modification may be so significant that it could be deemed that
a new contract of employment was “made[,]” thereby changing the
situs of the employment contract. For example, in this case had
Employee accepted an offer to move to Employer’s Illinois
headquarters to manage one of its divisions, it might be said
that – for purposes of conferring jurisdiction under N.C. Gen.
Stat. § 97-36(i) - the parties “made” a new contract of
employment. However, I do not believe the changes that were
actually made at the Charlotte meeting to Employee’s contract –
where he remained employed and his role did not fundamentally
change – rise to the level of making of new contract of
employment.
-4-
also modified, and not simply made, within the jurisdictional
reach of the Commission, it could have so provided by including
the phrase “or modified” in the language of N.C. Gen. Stat. §
97-36(i). “Once a contract has achieved an identifiable situs,
that situs is not changed merely because the contract is
modified in another state[.]” Larson’s Workers’ Compensation
Law § 143.03[4] (2013) (citing Crawford v. Trans World Airline,
27 N.J. Super. 567, 99 A.2d 673 (1953); Tobin v. Rouse, 118 Vt.
40, 99 A.2d 617 (1953); United Airlines v. Industrial
Commission, 96 Ill. 2d 126, 449 N.E.2d 119 (1983)).3
Following the majority’s reasoning, the Commission gains
jurisdiction over an out-of-state contract of employment if the
modification of any contract term is agreed to by one of the
parties while that party happens to be in North Carolina; and,
further, the Commission loses jurisdiction over a contract of
employment made in North Carolina if the modification of any
term of that North Carolina contract is agreed to by one of the
parties while that party happens to be in another state. I
3
Though an opinion stated in Larsons’ is not binding
authority on this Court, this treatise has been cited with
approval by our courts on a number of occasions, see, e.g., Shaw
v. U.S. Airways, 362 N.C. 457, 461, 665 S.E.2d 449, 452 (2008);
Gore v. Myrtle/Mueller, 362 N.C. 27, 36, 683 S.E.2d 404, 406-07
(2007); Taft v. Brinley’s, __ N.C. App. __, __, 738 S.E.2d 741,
744-45 (2013); and I find the above-quoted statement contained
in Larsons’ concerning the issue in this case to be persuasive.
-5-
disagree with this reasoning and do not believe that our General
Assembly intended that - for purposes of conferring jurisdiction
based on contracts of employment “made” - a contract of
employment is deemed made, not where the employer-employee
relationship is established, but rather where any term of the
employment agreement is last modified. Accordingly, I would
vote to affirm the decision of the Commission that it lacked
jurisdiction to award benefits to Employee.