Won a case where the trial court had stricken our employer negligence defense from our answer

JENNIFER WELCH (Raleigh) won at the Court of Appeals in a case where the trial court had stricken our employer negligence defense from our answer in a wrongful death case.

• The court of appeals case was a wrongful death case where our client was sued by an individual allegedly killed while working on a job on which we were a subcontractor. The plaintiff/employee’s family was paid workers’ compensation benefits by his employer, so we alleged the employer’s negligence in our answer under NCGS 97-10.2, which, if successful, would entitle us to an offset in the amount of the workers’ compensation benefits paid.
• The employer “waived” its subrogation lien according to a Compromise Settlement Agreement approved by the Industrial Commission, but then entered into a separate agreement with the administratrix of the estate, whereby the employer stood to recoup $12,500 in the event the estate recovered against us (the third party). The employer moved to strike our employer negligence defense, claiming it had waived its lien, therefore, there could be no offset under NCGS 97-10.2. The trial court granted the employer’s motion and struck our employer negligence defense from the answer, effectively preventing us from possibly getting a reduction in any damages awarded against us in the amount of $92k.
• We appealed the decision to the Court of Appeals, and the trial court’s decision was reversed in a unanimous decision.  As to the Summary Judgment, the plaintiff allegedly fell in a hole on our client’s property and sustained personal injuries which she claimed made her totally disabled. Plaintiff indicated she was seeking $150k from our client for her injuries.
• We moved for Summary Judgment on the basis that our client did not own or occupy the property on which plaintiff allegedly fell, therefore plaintiff failed to establish that the defendant owed her a duty of reasonable care. We further moved on the basis that, even if we did owe a duty of care, plaintiff presented no evidence that we created the allegedly dangerous condition, or that we knew or should have known about the condition and failed to do anything about it. The trial court granted our Summary Judgment motion and the case was dismissed.