I conclude that the case sub judice was not properly before the Superior Court, Robeson County, as that court lacked subject matter jurisdiction. The proper forum for this case was the North Carolina Industrial Commission ("Industrial Commission").
The North Carolina Worker's Compensation Act, which is codified in the North Carolina General Statutes, Chapter 97, provides that, "All questions arising under this Article if not settled by agreements of the parties interested therein, with the approval of the [Industrial] Commission, shall be determined by the Commission, except as otherwise herein provided." N.C. Gen.Stat. § 97-91 (2005).
The [Industrial] Commission is specifically vested by statute with jurisdiction to hear "all questions arising under" the Compensation Act. This jurisdiction under the statute ordinarily includes the right and duty to hear and determine questions of fact and law respecting the existence of insurance coverage and liability of the insurance carrier.
Greene v. Spivey, 236 N.C. 435, 445, 73 S.E.2d 488, 495-96 (1952) (internal citations omitted).
In N.C. Ins. Guar. Ass'n v. Int'l. Paper Co., the North Carolina Insurance Guaranty Association ("Association") brought a declaratory judgment action to determine its statutory responsibilities under the amended Insurance Guaranty Association Act and the Worker's Compensation Act. 152 N.C.App. 224, 226, 569 S.E.2d 285, 285, petition denied by, 356 N.C. 438, 572 S.E.2d 786 (2002). This Court affirmed the trial court's decision to dismiss the case for lack of subject matter jurisdiction concluding that "the relief sought by the Association would directly impact upon the Industrial Commission's duty. . . ." Id., 152 N.C.App. at 227, 569 S.E.2d at 287. That duty includes deciding "questions of fact and law regarding the liability of an insurance carrier." Id. (internal citation omitted).
In the case sub judice plaintiff was injured in a work-related accident and brought an action for a declaratory judgment "for the court to interpret the rights and privileges [p]laintiff has with regard to recovery of the benefits awarded in I.C. No. 915954 from the [d]efendants and from the insurance coverage described herein." The dispositive issue is determining the liability of an insurance carrier, here, Auto-Owners Insurance Company which falls within the jurisdiction of the Industrial Commission. N.C. Ins. Guar. Ass'n, 152 N.C.App. at 227, 569 S.E.2d at 287. This claim for relief falls within the jurisdiction of the Industrial Commission as it is a "question arising under" the purview of the Worker's Compensation Act. See N.C. Gen.Stat. § 97-91.
Additionally, I note that Campbell could have been joined as a defendant in the case against Donnie Locklear Drywall Services before the Industrial Commission.
Any principal contractor, intermediate contractor, or subcontractor who shall sublet any contract for the performance of any work without requiring from such subcontractor or obtaining from the Industrial Commission a certificate, issued by a workers' compensation insurance carrier, or a certificate of compliance issued by the Department of Insurance to a self-insured subcontractor, stating that such subcontractor has complied with G.S. 97-93 hereof, *458shall be liable, irrespective of whether such subcontractor has regularly in service fewer than three employees in the same business within this State, to the same extent as such subcontractor would be if he were subject to the provisions of this Article for the payment of compensation and other benefits under this Article on account of the injury or death of any employee of such subcontractor due to an accident arising out of and in the course of the performance of the work covered by such subcontract.
N.C. Gen.Stat. § 97-19 (2005).
Campbell, as the principal contractor and owner of the insurance policy, could have been a defendant in the original suit heard by the Industrial Commission. Under N.C. Gen.Stat. § 97-19, Campbell, the principal contractor, is liable for the injuries received by plaintiff and thus is a proper party to any suit to recover for injury. Id.
Accordingly, I would reverse the trial court order for lack of subject matter jurisdiction.
I respectfully dissent.