Marlow v. TCS Designs

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-862

Filed 02 May 2023

Catawba County, No. 22 CVS 363

JUSTIN MARLOW, as Administrator of the Estate of Michelle Marlow (Deceased),

Plaintiff,

v.

TCS DESIGNS, Inc., JOBIE G. REDMOND, JEFF McKINNEY, and ERIC PARKER,

Defendants.

Appeal by Defendants from order entered 22 July 2022 by Judge Gregory

Hayes in Catawba County Superior Court. Heard in the Court of Appeals 22

February 2023.

White & Stradley, PLLC, by J. David Stradley and Nicole D. McNamara, and

Helton, Cody & Associates, PLLC, by Lyndon R. Helton, for Plaintiff-Appellee.

Pinto Coates Kyre & Bowers, PLLC, by Lyn K. Broom and Richard L. Pinto, for

Defendants-Appellants TCS Designs, Inc., Jobie G. Redmond, and Jeff

McKinney; and Goldberg Segalla LLP, by Martha P. Brown, for

Defendant-Appellant Eric Parker.

COLLINS, Judge.

TCS Designs, Inc., Jobie G. Redmond, Jeff McKinney, and Eric Parker

(collectively, “Defendants”) appeal from the trial court’s order denying their Rule

12(b)(1) motions to dismiss claims filed by Plaintiff Justin Marlow, as administrator

MARLOW V. TCS DESIGNS, INC.

Opinion of the Court

of the estate of his deceased wife, Michelle Marlow, in connection with her death.

Parker also appeals from the trial court’s order denying his Rule 12(b)(6) motion to

dismiss and his motion to stay. Defendants contend that the trial court erred by

denying their motions to dismiss because the North Carolina Industrial Commission

has exclusive jurisdiction over Plaintiff’s claims. Parker also contends that the trial

court abused its discretion by denying his motion to stay the proceedings because

there is a pending criminal case against him stemming from Michelle’s death. The

trial court did not err by denying Defendants’ motions to dismiss based on the

exclusivity provision of the Workers’ Compensation Act because the pleadings and

jurisdictional evidence considered establish that Michelle’s death did not arise out of

her employment. We dismiss Parker’s appeal from the denial of his Rule 12(b)(6)

motion to the extent that it does not relate to the Industrial Commission’s exclusive

jurisdiction. Furthermore, the trial court did not abuse its discretion by denying

Parker’s motion to stay. Accordingly, we dismiss in part and affirm in part.

I. Procedural and Factual Background

Tangela Parker and Michelle Marlow were employed as factory workers at TCS

Designs, Inc. (“TCS”), a commercial furniture manufacturer in Hickory, North

Carolina. At approximately 2:30 p.m. on 13 January 2021, Tangela went to the TCS

parking lot, retrieved a gun from her car, returned to the factory, and shot Michelle

twice in the head at point-blank range. Michelle died from the gunshot wounds that

day. Tangela and Michelle had been involved in two prior verbal confrontations

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during work hours, both of which were investigated by TCS. According to Tangela

and Michelle’s supervisor, during a 28 July 2020 altercation:

Tangela had her earphones on and was singing at a level

that Michelle could hear in spite of having her own

earphones in. When Michelle asked Tangela if she could

lower her voice[,] Tangela became irate and stated she

could not ask her to do anything she had to ask her

supervisor to discuss it with her.

During a 4 January 2021 altercation, company employees heard Tangela threaten to

“wipe the floor” with Michelle and “whip her ass.” Tangela was given a warning and

a 3-day suspension following the second confrontation.

Following Michelle’s death, Plaintiff filed a Form 18 in the North Carolina

Industrial Commission, indicating that Michelle’s death occurred as a result of being

“[s]hot by co-worker.” In response, TCS filed a Form 61, asserting that “Plaintiff’s

allegations do not establish that plaintiff has carried plaintiff’s burden of proving that

a compensable event occurred on 01/13/2021” and reserving the right to assert any

defense consistent with the evidence. Plaintiff filed a Form 33 on 10 March 2021,

requesting a hearing “for determination and Order from the Industrial Commission

for payment of death benefits.” Over the next eleven months, the parties engaged in

discovery, motions, and mediation.

A hearing was scheduled for 23 February 2022. However, on 17 February

2022, Plaintiff moved to voluntarily dismiss the case without prejudice, and the

motion was allowed.

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Plaintiff filed a complaint in Catawba County Superior Court on 21 February

2022 against TCS; Jobie Redmond, president of TCS; Jeff McKinney, a manager at

TCS; and Eric Parker, an employee of TCS and Tangela’s husband. The complaint

asserted claims for negligence, gross negligence, and willful and wanton conduct, and

sought compensatory and punitive damages.

On 11 April 2022, Defendants filed a Form 60 with the Industrial Commission

accepting Plaintiff’s claim as compensable. Two days later, TCS, Redmond, and

McKinney moved to dismiss pursuant to North Carolina Rule of Civil Procedure

12(b)(1), asserting that the trial court lacked subject matter jurisdiction over the case

because the Industrial Commission possessed “exclusive jurisdiction” over Plaintiff’s

claims. Parker moved to dismiss pursuant to North Carolina Rules of Civil Procedure

12(b)(1) and 12(b)(6), asserting that “[t]he Industrial Commission has exclusive

jurisdiction over Plaintiff’s claims for compensation against . . . Parker and Plaintiff’s

common-law claims against . . . Parker are barred by the exclusivity provisions of

N.C.G.S. § 97-10.1.” Parker also moved to stay the proceedings, asserting that

permitting the civil action to proceed would infringe upon his Fifth Amendment

rights in a pending criminal case related to the same incident.

After a hearing on 27 and 28 June 2022, the trial court entered an order on 22

July 2022 denying Defendants’ motions to dismiss and Parker’s motion to stay.

Defendants filed and served a joint written notice of appeal on 15 August 2022.

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II. Discussion

A. Appellate Jurisdiction

The trial court’s order denying Defendants’ Rule 12(b)(1) motions to dismiss,

Parker’s 12(b)(6) motion to dismiss, and Parker’s motion to stay is not a final order

and is therefore interlocutory. See Veazey v. City of Durham, 231 N.C. 357, 362, 57

S.E.2d 377, 381 (1950) (“An interlocutory order is one made during the pendency of

an action, which does not dispose of the case, but leaves it for further action by the

trial court in order to settle and determine the entire controversy.”). “Generally, there

is no right of immediate appeal from interlocutory orders and judgments.” Clements

v. Clements, 219 N.C. App. 581, 583, 725 S.E.2d 373, 375 (2012) (quotation marks and

citation omitted). However, an interlocutory order may be immediately appealable if

it affects a substantial right. See N.C. Gen. Stat. § 7A-27(b)(3)(a) (2022).

The denial of a Rule 12(b)(1) motion to dismiss based on the exclusivity

provision of the North Carolina Workers’ Compensation Act (the “Act”) affects a

substantial right and is immediately appealable. Fagundes v. Ammons Dev. Grp.,

Inc., 251 N.C. App. 735, 737, 796 S.E.2d 529, 532 (2017). Similarly, the denial of a

Rule 12(b)(6) motion to dismiss based on the exclusivity provision of the Act affects a

substantial right and is immediately appealable. Est. of Vaughn v. Pike Elec., LLC,

230 N.C. App. 485, 492, 751 S.E.2d 227, 232 (2013). Additionally, an order in a civil

case affecting a litigant’s Fifth Amendment privilege against self-incrimination is

immediately appealable. See Roadway Express, Inc. v. Hayes, 178 N.C. App. 165, 168,

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631 S.E.2d 41, 44 (2006) (“[A] trial judge’s ruling requiring a party to provide evidence

over a Fifth Amendment objection is . . . immediately appealable.”); see also Staton

v. Brame, 136 N.C. App. 170, 176, 523 S.E.2d 424, 428 (1999) (reversing the trial

court’s order compelling defendant’s testimony in a civil action where defendant

asserted his Fifth Amendment privilege against self-incrimination).

Here, Defendants’ Rule 12(b)(1) motions to dismiss and a portion of Parker’s

12(b)(6) motion to dismiss are based on the exclusivity provision of the Act and the

trial court’s lack of jurisdiction over the matter. Accordingly, the order denying those

motions based on the exclusivity provision of the Act is immediately appealable.

However, the remaining portion of Parker’s 12(b)(6) motion to dismiss is based on

Plaintiff’s alleged failure to state a claim for negligence against Parker. As this

allegation is not based on the exclusivity provision of the Act, the order denying this

portion of the motion is not immediately appealable and is therefore dismissed. The

trial court’s order denying Parker’s motion to stay affects his Fifth Amendment

privilege against self-incrimination and is immediately appealable.

B. Motions to Dismiss

Defendants contend that the trial court erred by denying their Rule 12(b)(1)

motions to dismiss and Parker also contends that the trial court erred by denying his

Rule 12(b)(6) motion to dismiss because the North Carolina Industrial Commission

has exclusive jurisdiction over Plaintiff’s claims.

A Rule 12(b)(1) motion to dismiss represents a challenge to the trial court’s

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subject matter jurisdiction over a plaintiff’s claims. N.C. Gen. Stat. § 1A-1, Rule

12(b)(1) (2022). “Subject matter jurisdiction refers to the power of the court to deal

with the kind of action in question.” Harris v. Pembaur, 84 N.C. App. 666, 667, 353

S.E.2d 673, 675 (1987) (citation omitted). The trial court “need not confine its

evaluation of a Rule 12(b)(1) motion to the face of the pleadings, but may review or

accept any evidence, such as affidavits, or it may hold an evidentiary hearing.” Smith

v. Privette, 128 N.C. App. 490, 493, 495 S.E.2d 395, 397 (1998) (quotation marks,

brackets, and citations omitted). We review a trial court’s order on a Rule 12(b)(1)

motion de novo. Burton v. Phx. Fabricators & Erectors, Inc., 194 N.C. App. 779, 782,

670 S.E.2d 581, 583 (2009).

In ruling on a Rule 12(b)(6) motion to dismiss, “the allegations of the complaint

must be viewed as admitted, and on that basis the court must determine as a matter

of law whether the allegations state a claim for which relief may be granted.”

Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979) (citation

omitted). We review a trial court’s order on a Rule 12(b)(6) motion to dismiss de novo.

Est. of Long v. Fowler, 378 N.C. 138, 148, 861 S.E.2d 686, 694 (2021).

“The [s]uperior [c]ourt is a court of general jurisdiction and has jurisdiction in

all actions for personal injuries caused by negligence, except where its jurisdiction is

divested by statute.” Morse v. Curtis, 276 N.C. 371, 374-75, 172 S.E.2d 495, 498

(1970) (citing N.C. Gen. Stat. § 7A-240) (other citations omitted). “By statute the

[s]uperior [c]ourt is divested of original jurisdiction of all actions which come within

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the provisions of the [Workers’] Compensation Act.” Id. at 375, 172 S.E.2d at 498

(citations omitted).

Where an employee and their employer are subject to and have complied with

the provisions of the Act, the rights and remedies granted to the employee under the

Act exclude all other rights and remedies of the employee. N.C. Gen. Stat. § 97-10.1

(2022). An action comes within the provisions of the Act if: (1) the injury was caused

by an accident; (2) the injury was sustained in the course of the employment; and

(3) the injury arose out of the employment. Holliday v. Tropical Nut & Fruit Co., 242

N.C. App. 562, 566, 775 S.E.2d 885, 889 (2015). Here, the parties do not dispute that

Michelle’s death was caused by an accident within the meaning of the Act and that

her death was sustained in the course of her employment. The issue before this Court

is whether Michelle’s death arose out of her employment.

“Arising out of employment relates to the origin or cause of the accident.”

Morgan v. Morgan Motor Co., 231 N.C. App. 377, 381, 752 S.E.2d 677, 680 (2013)

(quotation marks and citation omitted). “The controlling test of whether an injury

arises out of the employment is whether the injury is a natural and probable

consequence of the nature of the employment.” Id. (quotation marks and citation

omitted). “An injury arises out of the employment if a contributing proximate cause

of the injury is a risk to which the employee was exposed because of the nature of the

employment, and to which the employee would not have been equally exposed apart

from the employment.” Dildy v. MBW Invs., Inc., 152 N.C. App. 65, 69, 566 S.E.2d

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759, 763 (2002) (quotation marks and citation omitted). “In North Carolina, courts

have consistently held that an intentional assault in the work place by a fellow

employee or third party is an accident that occurs in the course of employment, but

does not arise out of the employment unless a job-related motivation or some other

causal relation between the job and the assault exists.” Wake Cnty. Hosp. Sys. v.

Safety Nat’l Cas. Corp., 127 N.C. App. 33, 39, 487 S.E.2d 789, 792 (1997) (citations

omitted). “[I]f one employee assaults another solely under the impulse of anger, or

hatred, or revenge, or vindictiveness, not growing out of but entirely foreign to the

employment, the injury should be treated as the voluntary act of the assailant and

not as one arising out of or incident to the employment.” Harden v. Thomasville

Furniture Co., 199 N.C. 733, 735-36, 155 S.E. 728, 730 (1930).

In this case, the pleadings and jurisdictional evidence show the following: At

approximately 2:30 p.m. on 13 January 2021, Tangela went to the TCS parking lot,

retrieved a gun from her car, returned to the factory, and shot Michelle twice in the

head at point-blank range. Tangela and Michelle had been involved in two verbal

altercations at work prior to that date; the second altercation resulted in a 3-day

suspension. The pleadings and jurisdictional evidence do not show a job-related

motivation or some other causal relation between the job and Tangela’s shooting of

Michelle. Michelle’s death, although caused by a coworker, is not “a natural and

probable consequence of the nature of [Michelle’s] employment.” Morgan, 231 N.C.

App. at 381, 752 S.E.2d at 680; see Jackson v. Timken Co., 265 N.C. App. 470, 474,

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828 S.E.2d 740, 743 (2019) (holding that plaintiff’s injury, resulting from a failure to

properly diagnose a stroke he suffered on the job, did not arise out his employment

as a grinding machine operator). Stated differently, when Michelle reported to work

as a factory worker, she would not have considered being shot twice in the head at

point-blank range as a possible consequence of that work. Rather, the shooting arose

out of Tangela’s personal animosity towards Michelle. See Harden, 199 N.C. at

735-36, 155 S.E. at 730.

As Michelle’s death did not arise out of her employment with TCS, the

Industrial Commission does not have exclusive jurisdiction over the matter.

Furthermore, because the Industrial Commission does not have exclusive jurisdiction

over the matter, Plaintiff need not have alleged facts sufficient to establish an

exception to the Industrial Commission’s exclusive jurisdiction under Pleasant v.

Johnson, 312 N.C. 710, 717, 325 S.E.2d 244, 250 (1985) (holding that an employee

may pursue a civil action against a co-employee for willful, wanton, and reckless

negligence). Accordingly, the trial court did not err by denying Defendants’ motions

to dismiss under Rule 12(b)(1) and Parker’s motion to dismiss under Rule 12(b)(6).

C. Motion to Stay

Parker argues that the trial court abused its discretion by denying his motion

to stay the proceedings pending the outcome of the criminal case against him

stemming from Michelle’s death.

We review a trial court’s denial of a stay for abuse of discretion. Peter Millar,

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LLC v. Shaw’s Menswear, Inc., 274 N.C. App. 383, 388, 853 S.E.2d 16, 20 (2020). “We

do not re-weigh the evidence before the trial court or endeavor to make our own

determination of whether a stay should have been granted.” Bryant & Assocs., LLC

v. ARC Fin. Servs., LLC, 238 N.C. App. 1, 4, 767 S.E.2d 87, 90 (2014) (citation

omitted). “Instead, mindful not to substitute our judgment in place of the trial court’s,

we consider only whether the trial court’s denial was a patently arbitrary decision,

manifestly unsupported by reason.” Muter v. Muter, 203 N.C. App. 129, 134, 689

S.E.2d 924, 928 (2010) (quotation marks, brackets, and citations omitted).

Here, Parker was charged with felony accessory after the fact for assisting

Tangela in absconding to Arizona after she shot Michelle. In denying Parker’s motion

to stay the proceedings pending the resolution of his criminal case, the trial court

found:

The [c]ourt has considered the [m]otion, the potential

prejudice to each of the [p]arties, the interest of the court

system in the prompt resolution of all matters, civil and

criminal, the equities involved, in particular, the fact that

Defendant Parker delayed the criminal proceedings by

absconding for some six months.

Parker delayed the proceedings by absconding to Arizona for approximately six

months before he was extradited to North Carolina. Any further delay in the

proceedings would substantially prejudice Plaintiff’s ability to pursue this wrongful

death claim. Parker has no absolute right not to be forced to choose between

testifying in this matter and asserting his Fifth Amendment privilege. See Keating

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v. Office of Thrift Supervision, 45 F.3d 322, 326 (9th Cir. 1995) (“A defendant has no

absolute right not to be forced to choose between testifying in a civil matter and

asserting his Fifth Amendment privilege.”); Creative Consumer Concepts, Inc. v.

Kreisler, 563 F.3d 1070, 1080 (10th Cir. 2009); Louis Vuitton Malletier S.A. v. LY

USA, Inc., 676 F.3d 83, 98 (2d Cir. 2012). We cannot say that the trial court’s denial

of Parker’s motion to stay was a patently arbitrary decision, manifestly unsupported

by reason. Muter, 203 N.C. App. at 134, 689 S.E.2d at 928.

III. Conclusion

The trial court did not err by denying Defendants’ Rule 12(b)(1) and 12(b)(6)

motions to dismiss to the extent they were based on the exclusivity provision of the

Act. Parker’s appeal from the denial of his Rule 12(b)(6) motion to the extent it was

not based on the exclusivity provision of the Act is dismissed. The trial court did not

abuse its discretion by denying Parker’s motion to stay. Accordingly, we dismiss in

part and affirm in part the trial court’s order.

DISMISSED IN PART; AFFIRMED IN PART.

Judges HAMPSON and WOOD concur.

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