Trivette v. Yount

ELMORE, Judge,

dissenting.

I respectfully disagree with the majority’s conclusion that defendant should be classified as Ms. Trivette’s co-employee. As a result, I would reverse and remand the trial court’s order, with instructions to grant defendant’s motion to dismiss.

The majority states that defendant’s argument on appeal is that he is “the top person in the school system.” In turn, the majority provides a detailed hierarchy of the administrators within the public school system, in an attempt to refute defendant’s claim. However, it is clear from defendant’s brief filed with this Court, that the majority has misstated defendant’s argument. In his brief, defendant does not argue that he is the top person in the school system-, rather, he argues that as principal, he is the top person in the school in which he is employed. Defendant further argues that as principal of his school, he is an officer and agent' of the school board, and thus, he is properly classified as Ms. Trivette’s employer. I agree with defendant’s argument.

As the majority has noted, our General Statutes define a school principal as “[t]he executive head of the school.” See N.C. Gen. Stat. § 115C-5(7) (2009). This Court has further established that a school principal is a public officer. See Gunter v. Anders, 114 N.C. App. 61, 67-68 , 441 S.E.2d 167, 171 (1994). In Gunter , this Court reviewed whether the principal and the superintendent of a particular school system were considered officers or employees of the school board for purposes of liability. We held in Gunter that both superintendents and principals are properly classified as public officers, not employees. Furthermore, in Abell v. Nash County Bd. of Education, 71 N.C. App. 48, 53 , 321 S.E.2d 502, 506 (1984), this Court established that “[b]y statute and under traditional common-law principles, then, the superintendent and principal are agents of the board.” Thus, as principal of his school, defendant was both an officer and agent of the school board.

*488 An agent may also be referred to as an “alter-ego.” See State ex rel. Utilities Com. v. Southern Bell Tel. & Tel. Co., 326 N.C. 522, 523 , 391 S.E.2d 487, 488 (1990) (where the Supreme Court was reviewing whether one company acted as the agent or alter-ego of another company). Therefore, defendant, as an agent of the school board, may also be classified as an “alter-ego” of the school board. This Court has established that one way to determine whether an individual is a co-employee or employer for purposes of Workers’ Compensation is to determine whether that person is the “employer in person [or] a person who is realistically the alter ego of the [employer.]” Dunleavy v. Yates Constr. Co., 106 N.C. App. 146, 154 , 416 S.E.2d 193, 198 (1992). Here, defendant was an officer, agent, and alter-ego of the employer, the school board. Thus, defendant should be classified as Ms. Trivette’s employer at the time of the incident.

As the majority has indicated, the exclusivity of the Workers’ Compensation Act does not apply to common law actions by an employee against her employer when that action is based on the intentional conduct of the employer. Woodson v. Rowland, 329 N.C. 330, 340-41 , 407 S.E.2d 222, 228 (1991). Here, plaintiffs have not alleged intentional conduct in their complaint. Therefore, I believe that plaintiffs’ relief is limited to a claim under the Workers’ Compensation Act. The decision of the trial court should be reversed, and this case should be remanded to the trial court with instruction to grant defendant’s motion to dismiss.