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Bowles v. BCJ Trucking Services8/2/2005
N.C. Insurance Guaranty Association ("IGA") appeals from the opinion and award entered by the full North Carolina Industrial Commission ("Commission") awarding Terry Bowles ("plaintiff") benefits for an injury he sustained at work. We affirm.
I. Background
Plaintiff was injured on 3 March 1998 in the course of his employment with BCJ Trucking Services ("BCJ"). On 11 April 2001, plaintiff was awarded ongoing temporary total disability benefits beginning 6 December 1999 from BCJ's workers' compensation insurance company, North Carolina Selective ("Selective"). Selective was comprised of various employers who pool their workers' compensation liabilities to create a licensed self-insured group.
Selective began experiencing financial trouble in early 1997. On 29 April 1997, the North Carolina Department of Insurance ("NCDOI") informed Selective of its financial concerns and by letter dated 21 January 1998 informed Selective of its need to obtain additional capital or a commitment from a commercial insurance company to reinsure them. Shortly thereafter, NCDOI informed Selective it would be in the "best interest" of the publicand Selective's members to transfer its obligations and liabilities to a commercial insurer.
Selective entered into a NCDOI approved assumption reinsurance agreement with Reliance National Insurance Company ("Reliance") effective 31 December 1998. Selective transferred and Reliance assumed 100 percent of Selective's workers' compensation liability claims and obligations. Reliance began and continued to pay plaintiff's benefits per the assumption agreement.
Reliance was an active member of IGA, which is a statutorily created reinsurance association which covers claims of insolvent insurance companies pursuant to N.C. Gen. Stat. § 58-48-1 et seq. On 3 October 2001, Reliance became insolvent and was ordered into liquidation by the Pennsylvania Commonwealth Court. After Reliance was liquidated, IGA assumed payments of plaintiff's benefits.
IGA commenced this action by filing a Form 33 request with the Commission to determine its responsibility for paying plaintiff's claim. The Commission issued an opinion and award holding IGA responsible for paying plaintiff's workers' compensation claim. The Commission held: (1) the claim arose when Selective was the insurance carrier for BCJ; and (2) Reliance had assumed the insurance contract through novation and IGA was liable for the claim due to Reliance's insolvency. IGA appeals.
II. Issues
IGA argues the Commission erred by: (1) finding plaintiff's claim met the definition of a "covered claim" under N.C. Gen. Stat.§ 58-48-20; and (2) finding plaintiff's claim was within IGA's obligations by N.C. Gen. Stat. § 58-48 et seq.
III. Abandoned Assignments of Error
IGA's assignments of error asserting the Commission erred in its finding of fact number seven and its order assessing costs to IGA were not argued and are deemed abandoned. Brown v. Kroger Co., ___ N.C. App. ___, ___, 610 S.E.2d 447, 450 (2005) ("Pursuant to N.C.R. App. P. 28(b)(6) (2004), the omitted assignments of error are deemed abandoned").
IV. Standard of Review
"Opinions and awards of the Commission are reviewed to determine whether competent evidence exists to support the Commission's findings of fact, and whether the findings of fact support the Commission's conclusions of law." Bondurant v. Estes Express Lines, Inc., ___ N.C. App. ___, ___, 606 S.E.2d 345, 348 (2004) (citing Deese v. Champion Int'l Corp., 352 N.C. 109, 114, 530 S.E.2d 549, 552 (2000)). As IGA failed to take exception to the Commission's findings of fact, they are bind
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