SUBCHAPTER 10B TORT CLAIMS RULES

 

SECTION .0100 ADMINISTRATION

 

04 NCAC 10B .0101 LOCATION OF OFFICES AND HOURS OF BUSINESS

For purposes of this Subchapter, the offices of the North Carolina Industrial Commission (Commission) are located in the Dobbs Building, 430 North Salisbury Street, Raleigh, North Carolina. Documents that are not being filed electronically may be filed between the hours of 8:00 a.m. and 5:00 p.m. only. Documents related to tort claims are permitted to be filed electronically until 11:59 p.m. on the required filing date.

 

History Note: Authority G.S. 143-291; 143-300;

Eff. January 1, 1989;

Amended Eff. July 1, 2014; May 1, 2000.

04 NCAC 10B .0102 OFFICIAL FORMS

(a) Copies of the Commission's rules, forms, and minutes regarding tort claims can be obtained by contacting the Commission in person, by written request mailed to 4340 Mail Service Center, Raleigh, NC 27699-4340, or from the Commission's website.

(b) The use of any printed forms other than those provided by the Commission is prohibited, except that insurance carriers, self-insureds, attorneys and other parties may reproduce forms for their own use, provided:

(1) No statement, question, or information blank contained on the Commission form is omitted from the substituted form.

(2) The substituted form is identical in size and format with the Commission form.

 

History Note: Authority G.S. 143-300;

Eff. January 1, 1989;

Amended Eff. July 1, 2014; May 1, 2000.

 

04 NCAC 10B .0103 FILING FEES

(a) No tort claim shall be accepted for filing with the Commission unless the claim is accompanied by an attorney's check, certified check, money order, or electronic transfer of funds in payment of a filing fee in an amount equal to the filing fee required for the filing of a civil action in the Superior Court division of the General Court of Justice.

(b) The provisions of Paragraph (a) of this Rule notwithstanding, a tort claim that is accompanied by a Petition to Sue as an Indigent shall be accepted for filing upon the date of its receipt.

(c) A Petition to Sue as an Indigent shall consist of an affidavit sufficient to satisfy the provisions of G.S. 1-110, stating that plaintiff is unable to comply with Paragraph (a) of this Rule.

(d) If the Commission determines the plaintiff is able to pay all or any part of the fees assessed under this Rule, an Order shall be issued directing payment of all or any part of that fee, and the plaintiff shall, within 30 days from his receipt of the Order, forward to the Commission an attorney's check, certified check, money order, or electronic fund transfer for the full amount required to be paid. Failure to submit the required amount of the filing fee within this time shall result in the tort claim being dismissed without prejudice.

(e) Upon consideration of a prison inmate's Petition to Sue as an Indigent, the Commission may determine that the inmate's tort claim is frivolous and dismiss the claim pursuant to G.S. 1-110. Appeals from the dismissal of a tort claim pursuant to this statute shall proceed directly to the Full Commission and shall be decided without oral argument. The Commission shall forward a copy of the file to the Attorney General's Office without cost upon plaintiff's notice of appeal to the Full Commission.

 

History Note: Authority G.S. 143-291.2; 143-300;

Eff. January 1, 1989;

Amended Eff. July 1, 2014; May 1, 2000.

 

04 NCAC 10B .0104 FILING BY FACSIMILE TRANSMISSION

Filing documents pertaining to tort claims by facsimile transmission is permitted. Any filing fee required shall be received by the Commission contemporaneously with the facsimile by electronic transfer of funds.

 

History Note: Authority G.S. 143-291; 143-291.2; 143-297; 143-300;

Eff. May 1, 2000;

Amended Eff. July 1, 2014.

 

SECTION .0200 - CLAIMS PROCEDURES

 

04 NCAC 10B .0201 RULES OF CIVIL PROCEDURE

 

History Note: Authority G.S. 143-300;

Eff. January 1, 1989;

Amended Eff. January 1, 2011; May 1, 2000;

Repealed Eff. July 1, 2014.

 

04 NCAC 10B .0202 MEDICAL MALPRACTICE CLAIMS BY PRISON INMATES

(a) In medical malpractice cases filed by or on behalf of prison inmates where the plaintiff is alleging that a health care provider as defined in G.S. 90-21.11 failed to comply with the applicable standard of care under G.S. 90-21.12 and the defendant has filed a Motion to Dismiss the claim, all discovery is stayed until the following occur:

(1) A recorded hearing in which no evidence is taken is held before a Deputy Commissioner or a Special Deputy Commissioner for the purpose of determining:

(A) whether a claim for medical malpractice has been stated;

(B) whether expert testimony is necessary for the plaintiff to prevail; and

(C) if expert testimony is deemed necessary, whether the plaintiff will be able to produce such testimony on the applicable standard of care.

(2) Upon receipt of a Motion to Dismiss and Request for Hearing from the defendant, the Commission issues an order setting the motion on a hearing docket and the case is assigned to a Deputy Commissioner or a Special Deputy Commissioner.

(b) If the defendant's Motion to Dismiss is granted, an appeal lies to the Full Commission.

(c) If defendant's Motion to Dismiss is denied, the case shall proceed as any other tort claims case. Defendant shall produce medical records to plaintiff within 45 days of the Order of the Commission denying defendant's Motion to Dismiss. Plaintiff shall then have 120 days to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure.

 

History Note: Authority G.S. 143-300;

Eff. January 1, 1989;

Recodified from 04 NCAC 10B .0206 Eff. April 17, 2000;

Amended Eff. July 1, 2014; May 1, 2000.

 

04 NCAC 10B .0203 INFANTS AND INCOMPETENTS

(a) Persons seeking to appear on behalf of an infant or incompetent, in accordance with G.S. 1A-1, Rule 17, shall apply on a Form 42 Application for Appointment of Guardian Ad Litem. The Commission shall appoint a fit and proper person as guardian ad litem, if the Commission determines it to be in the best interest of the minor or incompetent. The Commission shall appoint the guardian ad litem only after due inquiry as to the fitness of the person to be appointed.

(b) The Commission may assess a fee to be paid to an attorney who serves as a guardian ad litem for actual services rendered upon receipt of an affidavit of actual time spent in representation of the minor or incompetent as part of the costs.

 

History Note: Authority G.S. 143-291; 143-295; 143-300;

Eff. January 1, 1989;

Recodified from 04 NCAC 10B .0307 Eff. April 17, 2000;

Amended Eff. July 1, 2014; May 1, 2000.

 

04 NCAC 10B .0204 MOTIONS

(a) All motions regarding tort claims shall be filed with the Docket Section, unless the case is currently calendared before a Commissioner or Deputy Commissioner. All motions in calendared cases shall be filed with the Commissioner or Deputy Commissioner.

(b) A motion shall state with particularity the grounds on which it is based, the relief sought, and a statement of the opposing party's position, if known. Service shall be made on all opposing attorneys of record, or on all opposing parties, if not represented.

(c) All motions and responses thereto shall include a proposed Order to be considered by the Commission.

(d) By motion of the parties, or on its own motion, the Commission may enlarge the time for an act required or allowed to be done under the Rules in this Subchapter in the interests of justice or to promote judicial economy. An enlargement of time may be granted either before or after the relevant time requirement has elapsed.

(e) Motions to continue or remove a case from the hearing docket shall be made as much in advance as possible of the scheduled hearing and shall be made in writing. The moving party shall state that the other parties have been advised of the motion and relate the position of the other parties regarding the motion. Oral motions are permitted in emergency situations.

(f) The responding party to a motion, with the exception of motions to continue or to remove a case from a hearing docket, has 10 days after a motion is served during which to file and serve copies of a response in opposition to the motion. The Commission may shorten or extend the time for responding to any motion in the interests of justice or to promote judicial economy.

(g) Notwithstanding Paragraph (f) of this Rule, a motion may be acted upon at any time by the Commission, despite the absence of notice to all parties and without awaiting a response. A party who has not received actual notice of the motion or who has not filed a response at the time such action is taken and who is adversely affected by the ruling may request that it be reconsidered, vacated, or modified. Motions shall be determined without oral argument, unless the Commission orders otherwise in the interests of justice.

(h) When a Motion to Amend Pleadings has been filed, served upon opposing parties, and not previously ruled upon, the Commissioner or Deputy Commissioner may permit amendment of pleadings at the time of the hearing and then proceed to a determination of the case based on the evidence presented at the time of the hearing without requiring additional pleadings.

(i) Motions to dismiss or for summary judgment filed by the defendant on the ground that plaintiff has failed to name the individual officer, agent, employee or involuntary servant whose alleged negligence gave rise to the claim, or has failed to properly name the department or agency of the State with whom such person was employed, shall be ruled upon following the completion of discovery.

(j) Motions to reconsider or amend an order, opinion and award, or decision and order, made prior to giving notice of appeal to the Full Commission, shall be directed to the Deputy Commissioner who authored the Opinion and Award.

(k) Upon request of either party, or upon motion of the Commission, motions shall be set for hearing before a Commissioner or Deputy Commissioner.

 

History Note: Authority G.S. 143-296; 143-300;

Eff. January 1, 1989;

Recodified from 04 NCAC 10B .0203 Eff. April 17, 2000;

Amended Eff. July 1, 2014; May 1, 2000.

 

04 NCAC 10B .0205 MEDIATION (EFFECTIVE JULY 1, 2014)

(a) The parties to tort claims, by agreement or Order of the Commission, shall participate in mediation. Any party participating in mediation is bound by the Rules for Mediated Settlement and Neutral Evaluation Conferences of the Commission found in 04 NCAC 10G, except to the extent the same conflict with the Tort Claims Act or the rules in this Subchapter, in which case the Tort Claims Act and the rules in this Subchapter apply.

(b) An employee or agent of the named governmental entity or agency shall be available via telecommunication. Mediation shall not be delayed due to the absence or unavailability of the employee or agent of the named governmental entity or agency.

 

History Note: Authority G.S. 143-295; 143-296; 143-300;

Eff. January 1, 1989;

Amended Eff. July 1, 2014; January 1, 2011; May 1, 2000.

 

04 NCAC 10B .0206 HEARINGS

(a) The Commission may, on its own motion, order a hearing, rehearing, or pre-trial conference of any tort claim in dispute.

(b) The Commission shall set a contested case for hearing in a location deemed convenient to witnesses and the Commission, and conducive to an early and just resolution of disputed issues.

(c) The Commission may issue writs of habeas corpus ad testificandum in cases arising under the Tort Claims Act. Requests for issuance of a writ of habeas corpus ad testificandum shall be sent to the Docket Section of the Commission if the case has not been set on a calendar for hearing. If the case has been set on a hearing calendar, the request shall be sent to the Commissioner or Deputy Commissioner before whom the case is set.

(d) The Commission shall give notice of a hearing in every case. A motion for a continuance shall be allowed only by the Commissioner or Deputy Commissioner before whom the case is set in the interests of justice or to promote judicial economy. Where a party has not notified the Commission of the attorney representing the party prior to the mailing of calendars for hearing, notice to that party constitutes notice to the party's attorney.

(e) In cases involving property damage of less than five hundred dollars ($500.00), the Commission shall, upon its own motion or upon the motion of either party, order a telephonic hearing on the matter.

(f) All subpoenas shall be issued in accordance with Rule 45 of the North Carolina Rules of Civil Procedure, with the exception that production of public records or hospital records as provided in Rule 45(c)(2), shall be served upon the Commissioner or Deputy Commissioner before whom the case is calendared, or upon the Docket Section of the Commission should the case not be calendared.

(g) In the event of inclement weather or natural disaster, hearings set by the Commission shall be cancelled or delayed when the proceedings before the General Court of Justice in that county are cancelled or delayed.

 

History Note: Authority G.S. 143-296; 143-300;

Eff. January 1, 1989;

Recodified from 04 NCAC 10B .0202 Eff. April 17, 2000;

Amended Eff. July 1, 2014; January 1, 2011; May 1, 2000.

 

04 NCAC 10B .0207 HEARINGS OF CLAIMS BY PRISON INMATES

(a) In tort claims involving a plaintiff who is an inmate in the North Carolina Division of Adult Correction, the Commission shall set contested cases or motions for hearing as follows:

(1) in the prison unit where plaintiff is incarcerated or in some other prison facility or secure facility;

(2) by videoteleconference; or

(3) by telephone conference.

(b) In cases involving multiple filings by an inmate, the Commission may, in the interests of justice and for judicial economy, consolidate all of the claims for hearing upon the motion of either party or upon the Commission's own motion.

(c) The witnesses incarcerated by the North Carolina Division of Adult Correction may be subpoenaed by a writ of habeas corpus ad testificandum. Plaintiff shall file an Application and Writ of Habeas Corpus Ad Testificandum, with a copy to the defendant, for review and approval by the Deputy Commissioner before whom the matter is calendared for an evidentiary hearing in accordance with G.S. 97-101.1.

(d) All other subpoenas shall be issued in accordance with Rule 45 of the North Carolina Rules of Civil Procedure, with the exception that production of public records or hospital records as provided in Rule 45(c)(2), shall be served upon the Commissioner or Deputy Commissioner before whom the matter is calendared or upon the Docket Section of the Commission should the case not be calendared.

 

History Note: Authority G.S. 97-101.1; 143-296; 143-300;

Eff. January 1, 1989;

Recodified from 04 NCAC 10B .0204 Eff. April 17, 2000;

Amended Eff. July 1, 2014; May 1, 2000.

 

04 NCAC 10B .0208 HEARING COSTS

Costs relating to tort claims payable to the Commission are due upon receipt of a bill or statement from the Commission.

 

History Note: Authority G.S. 7A-305; 143-291.1; 143-291.2; 143-300;

Eff. July 1, 2014.

 

SECTION .0300 - APPEALS TO FULL COMMISSION

 

04 NCAC 10B .0301 SCOPE

The rules in this Section are the applicable Rules for appeals of cases brought pursuant to Article 31 of Chapter 143 of the General Statutes to the Full Commission.

 

History Note: Authority G.S. 143-292; 143-300;

Eff. January 1, 1989;

Amended Eff. July 1, 2014; May 1, 2000.

 

04 NCAC 10B .0302 NOTICE OF APPEAL TO THE FULL COMMISSION

A letter expressing an intent to appeal shall be considered notice of appeal to the Full Commission within the meaning of G.S. 143-292, provided that the letter specifies the Order, Opinion and Award, or Decision and Order from which appeal is taken.

 

History Note: Authority G.S. 143-292; 143-300;

Eff. January 1, 1989;

Amended Eff. July 1, 2014; May 1, 2000.

 

04 NCAC 10B .0303 PROPOSED ISSUES ON APPEAL

(a) The appellant shall, within 25 days of receipt of the transcript of the record, or receipt of notice that there will be no transcript of the record, file with the Commission a written statement of the proposed issues that the appellant intends to present on appeal. The statement shall certify service upon the opposing party or parties. The purpose of the proposed issues on appeal is to facilitate the preparation of the record on appeal and does not limit the scope of the issues presented on appeal in appellant's brief.

(b) Failure to file the proposed issues on appeal may result in the dismissal of the appeal either upon the motion of the non-appealing party or upon the Full Commission's own motion.

 

History Note: Authority G.S. 143-292; 143-300; 362 N.C. 191 (2008);

Eff. January 1, 1989;

Amended Eff. July 1, 2014; January 1, 2011; May 1, 2000.

 

04 NCAC 10B .0304 DISMISSALS OF APPEALS

 

History Note: Authority G.S. 143-300;

Eff. January 1, 1989;

Recodified from 04 NCAC 10B .0305 Eff. April 17, 2000;

Amended Eff. May 1, 2000;

Repealed Eff. July 1, 2014.

 

04 NCAC 10B .0305 BRIEFS TO THE FULL COMMISSION

(a) An appellant shall file a Form 44 Application for Review and brief in support of his grounds for review with the Commission, with a certificate indicating service on the appellee, within 25 days after receipt of the transcript, or receipt of notice that there will be no transcript. The appellee shall have 25 days from service of the appellant's brief to file a reply brief with the Commission, with written statement of service on the appellant. When the appellant fails to file a brief, the appellee shall file his brief within 25 days after the appellant's time for filing brief has expired. A party who fails to file a brief shall not be allowed oral argument before the Full Commission. If both parties appeal, they shall each file an appellant's and appellee's brief on the schedule set forth in this Rule. If the matter has not been calendared for hearing, any party may file with the Docket Director a written stipulation to a single extension of time not to exceed 15 days. In no event shall the cumulative extensions of time exceed 30 days.

(b) After request for review has been given to the Full Commission, any motions related to the issues for review before the Full Commission shall be filed with the Full Commission, with service on the other parties. Motions related to the issues for review including motions for new trial, to amend the record, or to take additional evidence, filed during the pendency of a request for review to the Full Commission shall be argued before the Full Commission at the time of the hearing of the request for review.

(c) Cases shall be cited to the North Carolina Reports, the North Carolina Court of Appeals Reports, or the North Carolina Reporter, and when possible, to the Southeastern Reporter. Counsel shall not discuss matters outside the record, assert personal opinions or relate personal experiences, or attribute wrongful acts or motives to opposing counsel.

(d) Briefs to the Full Commission shall not exceed 35 pages, excluding attachments. No page limit applies to the length of attachments. Briefs shall be prepared using a 12 point type, shall be double spaced, and shall be prepared with non-justified right margins. Each page of the brief shall be numbered at the bottom right of the page. When a party quotes or paraphrases testimony or other evidence from a transcript of the evidence or from an exhibit in the party's brief, the party shall include, at the end of the sentence in the brief that quotes or paraphrases the testimony or other evidence, a parenthetic entry that designates the source of the quoted or paraphrased material and the page number location within the applicable source. The party shall use "T" for transcript, "Ex" for exhibit, and "p" for page number. For example, (1) if a party quotes or paraphrases material located in the transcript on page 11, the party shall use the following format "(T p 11)" and (2) if a party quotes or paraphrases material located in an exhibit on page 12, the party shall use the following format "(Ex p 12)". When a party quotes or paraphrases testimony or other evidence in the transcript of a deposition in the party's brief, the party shall include, at the end of the sentence in the brief that quotes or paraphrases the testimony or other evidence from the deposition, a parenthetic entry that contains the name of the person deposed and the page number location within the transcript of the deposition. For example, if a party quotes or paraphrases the testimony of John Smith, located on page 11 of the transcript of the deposition, the party shall use the following format "(Smith p 11)".

 

History Note: Authority G.S. 143-296; 143-300;

Eff. January 1, 1989;

Recodified from 04 NCAC 10B .0306 Eff. April 17, 2000;

Amended Eff. July 1, 2014; May 1, 2000.

 

04 NCAC 10B .0306 MOTION FOR NEW HEARING

 

History Note: Authority G.S. 143-292; 143-296; 143-300;

Eff. January 1, 1989;

Recodified from 04 NCAC 10B .0310 Eff. April 17, 2000;

Amended Eff. May 1, 2000;

Repealed Eff. July 1, 2014.

 

04 NCAC 10B .0307 MOTIONS BEFORE THE FULL COMMISSION

(a) After notice of appeal has been given to the Full Commission, any motions related to the claim before the Full Commission shall be filed with the Full Commission, with service on the other parties.

(b) A Motion for a New Hearing must be filed in writing, and supported by Affidavit. Motions related to the issues for review including motions for new trial, to amend the record, or to take additional evidence, filed during the pendency of an appeal to the Full Commission shall be argued before the Full Commission at the time of the hearing of the appeal.

 

History Note: Authority G.S. 143-296; 143-300;

Eff. January 1, 1989;

Recodified from 04 NCAC 10B .0308 effective April 17, 2000;

Amended Eff. July 1, 2014; May 1, 2000.

 

04 NCAC 10B .0308 STAYS

When a case is appealed to the Full Commission, all orders, opinion and awards, or decision and orders of a Deputy Commissioner are stayed pending appeal.

 

History Note: Authority G.S. 143-292; 143-296; 143-300;

Eff. May 1, 2000;

Amended Eff. July 1, 2014.

 

04 NCAC 10B .0309 NEW EVIDENCE

 

History Note: Authority G.S. 143-300;

Eff. January 1, 1989;

Amended Eff. May 1, 2000;

Repealed Eff. July 1, 2014.

 

04 NCAC 10B .0310 WAIVER OF ORAL ARGUMENT

Upon the request of a party or its own motion, the Commission may waive oral argument in the interests of justice or to promote judicial economy. In the event of such waiver, the Full Commission shall file an award, based on the record and briefs.

 

History Note: Authority G.S. 143-292; 143-296; 143-300;

Eff. January 1, 1989;

Recodified from 04 NCAC 10B .0311 Eff. April 17, 2000;

Amended Eff. July 1, 2014; May 1, 2000.

 

SECTION .0400 - APPEALS TO THE COURT OF APPEALS

 

04 NCAC 10B .0401 Scope

The rules in this Section are the applicable Rules for appeals to the Court of Appeals pursuant to Article 31 of Chapter 143 of the General Statutes.

 

History Note: Authority G.S. 143-293; 143-300;

Eff. January 1, 1989;

Amended Eff. July 1, 2014.

 

04 NCAC 10B .0402 STAYS

When a case is appealed to the Court of Appeals, all orders, opinion and awards, or decision and orders of the Full Commission are stayed pending appeal.

 

History Note: Authority G.S. 143-292; 143-294; 143-296; 143-300;

Eff. January 1, 1989;

Amended Eff. July 1, 2014; May 1, 2000.

 

04 NCAC 10B .0403 MOTIONS FOR COURT OF APPEALS CASES

(a) Prior to the docketing of the record on appeal in the Court of Appeals, all motions filed by the parties regarding an appeal to the Court of Appeals shall be addressed to and ruled upon by the Chair of the Commission, or the Chair's designee.

(b) A motion to reconsider or to amend an award of the Full Commission shall be filed within 15 days of receipt of notice of the award. An award of the Full Commission is not final until the disposition is filed by the Commission on the pending motion to reconsider or to amend an award.

 

History Note: Authority G.S. 143-293; 143-300;

Eff. January 1, 1989;

Amended Eff. July 1, 2014; May 1, 2000.

 

04 NCAC 10B .0404 REMAND FROM APPELLATE COURTS

When a case is remanded to the Commission from the appellate courts, each party may file a statement, with or without a brief to the Full Commission, setting forth its position on the actions or proceedings, including evidentiary hearings or depositions, required to comply with the court's decision. This statement shall be filed within 30 days of the issuance of the court's mandate and shall be filed with the Commissioner who authored the Full Commission decision or the Commissioner designated by the Chairman of the Commission if the Commissioner who authored the decision is no longer a member of the Commission.

 

History Note: Authority G.S. 143-292; 143-296; 143-300;

Eff. January 1, 1989;

Amended Eff. July 1, 2014; May 1, 2000.

 

SECTION .0500 RULES OF THE COMMISSION

 

04 NCAC 10B .0501 WAIVER of Rules

In the interests of justice or to promote judicial economy, the Commission may, except as otherwise provided by the rules in this Subchapter, waive or vary the requirements or provisions of any of the rules in this Subchapter in a case pending before the Commission upon written application of a party or upon its own initiative only if the employee is not represented by counsel. Factors the Commission shall use in determining whether to grant the waiver are:

(1) the necessity of a waiver;

(2) the party's responsibility for the conditions creating the need for a waiver;

(3) the party's prior requests for a waiver;

(4) the precedential value of such a waiver;

(5) notice to and opposition by the opposing parties; and

(6) the harm to the party if the waiver is not granted.

 

History Note: Authority G.S. 143-291; 143-300;

Eff. January 1, 1989;

Amended Eff. July 1, 2014; May 1, 2000.

 

04 NCAC 10B .0502 RULEMAKING

 

History Note: Authority G.S. 143-300;

Eff. January 1, 1989;

Repealed Eff. July 1, 2014.

 

04 NCAC 10B .0503 SANCTIONS

The Commission may, on its own initiative or motion of a party, impose a sanction against a party, or attorney or both, when the Commission determines that such party, or attorney, or both failed to comply with the Rules in this Subchapter. The Commission may impose sanctions of the type and in the manner prescribed by Rule 37 of the North Carolina Rules of Civil Procedure.

 

History Note: Authority G.S. 1A-1, Rule 37; 143-291; 143-296; 143-300;

Eff. January 1, 2011;

Amended Eff. July 1, 2014.