Colleen Shiels STACK
v.
MECKLENBURG COUNTY, Mecklenburg County Department of Social Services, Lutheran Family Homes in North Carolina, Inc., and Ken Golden.
No. 8626SC1216.
Court of Appeals of North Carolina.
August 4, 1987.*17 Mark A. Michael, Charlotte, for plaintiff-appellant.
Smith Helms Mullis & Moore, by H. Landis Wade, Jr. and Elizabeth M. Quattlebaum and Gerdes Mason, Wilson & Tolbert by Michael Wilson, Charlotte, for defendant-appellee.
EAGLES, Judge.
I
Plaintiff first contends that the court erred in dismissing her claim for willful, wanton and reckless negligence. This contention presents the question of whether the North Carolina Workers' Compensation Act represents an employee's exclusive means of recovery for personal injuries resulting from the willful, wanton and reckless negligence of an employer. Following the precedent of Barrino v. Radiator Specialty Co., 315 N.C. 500, 340 S.E.2d 295 (1986), we hold that it is an employee's exclusive remedy.
G.S. 97-10.1 states that:
If the employee and the employer are subject to and have complied with the provisions of this Article, then the rights and remedies herein granted to the employee, his dependents, next of kin, or personal representative shall exclude all other rights and remedies of the employee, his dependents, next of kin, or representative as against the employer at common law or otherwise on account of such injury or death.
The exclusive remedy portion of the statute limits an employee to recovery under the Workers' Compensation Act. Accordingly, an employee must pursue those claims covered by the Act before the North Carolina Industrial Commission.
Because of the limited recovery afforded by the Act, our courts have recognized a few exceptions to its exclusive coverage. When an employer intentionally injures an employee, an independent civil action is available. Essick v. City of Lexington, 232 N.C. 200, 60 S.E.2d 106 (1950). Likewise, an injured employee may maintain a tort action against a co-employee for intentional injury. Wesley v. Lea, 252 N.C. 540, 114 S.E.2d 350 (1960). This court, on the basis of a selection of remedies, denied an employee's right to sue outside the Worker's Compensation Act to recover for willful, wanton and reckless negligence of a fellow employee. Freeman v. SCM Corporation, 66 N.C.App. 341, 311 S.E.2d 75 (1984). The Supreme Court allowed discretionary review and in a per curiam decision made clear that an employee's purported selection of remedies was not the determinative factor in the decision that claimant's only avenue of recovery was the Industrial Commission. Freeman v. SCM Corporation, 311 N.C. 294, 316 S.E.2d 81 *18 (1984). Subsequently, in Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985), the exception for recovery against a co-employee was extended to conduct which is willful, wanton and reckless. Freeman precludes an employee who qualifies for workers' compensation from bringing a similar negligence action against an employer.
Most recently, the Supreme Court reaffirmed Freeman in Barrino v. Radiator Specialty Co., supra. In a split decision, the Court rejected an independent action for the willful, wanton and reckless negligence of an employee and refused the separate action because of the Freeman precedent. Id., 315 N.C. at 510, 340 S.E.2d at 302. Two justices agreed that the civil action was not available but relied instead on an election of remedies theory. The plaintiff's "election" to receive benefits under the Workers' Compensation Act precluded an independent civil action. Id. at 516, 340 S.E.2d at 309 (Billings, J., concurring). The three remaining justices dissented, disputing that plaintiff did not have an alternative remedy. Id. at 517, 340 S.E.2d at 305 (Martin, J., dissenting).
Plaintiff now contends that the Barrino decision permits an election for an employee injured by the willful, wanton and reckless negligence of an employer. Plaintiff argues that the injured worker can choose either the Act's compensation or a civil action. We hold that the Barrino decision, when read in context with Freeman requires a contrary conclusion.
The Freeman decision expressly negated any inference that an employer's willful negligence creates alternative remedies. Freeman, 311 N.C. at 296, 316 S.E.2d at 82. Likewise, Barrino, in refusing to overrule Freeman, recognized that "[t]he operative fact in establishing exclusiveness is that of actual coverage, not of election to claim compensation in a particular case." Barrino, 315 N.C. at 506, 340 S.E.2d at 300 (quoting 2A Larson, The Law of Workmen's Compensation, section 65.14 (1984)). Accordingly, when an employee's injury is covered by the Act, the right to bring an independent negligence action against the employer is barred by the existence of the workers' compensation remedy.
Since the Act's coverage extends to injuries resulting from an employer's willful, wanton and reckless negligence, there is no issue regarding an election of remedies in this case. This coverage relegates the plaintiff to the compensation designated by the Act.
Our decision here is controlled by the Freeman and Barrino precedents. Plaintiff's employment at the time of the rape subjects her to the provisions of the Workers' Compensation Act. Her rights and remedies against defendant employer were determined by the Act and she was required to pursue them before the North Carolina Industrial Commission. Freeman, supra. Therefore, the trial court lacked subject matter jurisdiction and properly dismissed this claim.
II
Plaintiff also alleges claims based on intentional injury and intentional infliction of emotional distress. By doing so, plaintiff attempts to utilize the intentional conduct exception from the exclusive remedy rule pursuant to the decision in Essick v. City of Lexington, supra.
The trial court granted the defendant's Rule 12(b)(6) motion to dismiss these claims for failure to state a claim on which relief can be granted. The scope of review for a Rule 12(b)(6) motion involves a determination of whether the complaint's allegations contain sufficient material to comprise the elements of some claim recognizable in law. Hendrix v. Hendrix, 67 N.C. App. 354, 313 S.E.2d 25 (1984).
Plaintiff first claims intentional injury. By her employer's failure to disclose the history of sexual misconduct associated with the group home, plaintiff claims defendant-employer intentionally misrepresented the danger involved.
Plaintiff's allegations asserting intentional injury do not differ from those used to support her wanton, willful and *19 reckless claim. She cannot change a negligence claim simply by applying an "intentional conduct" label. Plaintiff fails to allege that Lutheran intended to harm her through its conduct. The failure to allege an actual intent to injure precludes the plaintiff from invoking the exemption for intentional conduct. See Barrino, 315 N.C. at 507-08, 340 S.E.2d at 300. Therefore, the trial court properly dismissed this claim.
Plaintiff also alleges intentional infliction of emotional distress. In Hogan v. Forsyth Country Club Co., 79 N.C.App. 483, 340 S.E.2d 116 (1986), this court recognized that the Workers' Compensation Act does not bar a claim for intentional infliction of emotional distress. An essential element of this tort requires the plaintiff to prove the intent to cause emotional distress. Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981). Again, the absence of allegations that Lutheran intended to injure the plaintiff requires dismissal of this claim.
Finally, plaintiff assigns as error the court's dismissal of her claim for punitive damages. Recovery of punitive damages depends on the successful maintenance of one of plaintiff's other claims. Since plaintiff's underlying causes of action were properly dismissed, this claim must also be dismissed.
Claims against an employer for willful, wanton and reckless negligence fall under the coverage of the Workers' Compensation Act. Accordingly, the trial court did not have subject matter jurisdiction of plaintiff's claim and properly dismissed it. Similarly, plaintiff's claims involving intentional conduct were properly dismissed for their failure to state claims on which relief could be granted.
Affirmed.
HEDRICK, C.J., and PARKER, J., concur.