Hardy v. Brantley Construction Co., 322 N.C. 106 (1988)

April 6, 1988 · Supreme Court of North Carolina · No. 650A87

322 N.C. 106

JOHN H. HARDY, Plaintiff v. BRANTLEY CONSTRUCTION COMPANY, Employer, NATIONWIDE MUTUAL INSURANCE COMPANY, Carrier, Defendant; JOHN ROGER McKINNEY, Third Party Tort-Feasor (8710IC26) ALBERT R. WELLS, Employee, Plaintiff v. BRANTLEY CONSTRUCTION COMPANY, Employer, NATIONWIDE MUTUAL INSURANCE COMPANY, Carrier, Defendant; JOHN ROGER McKINNEY, Third Party Tort-Feasor (8710IC27)

No. 650A87

(Filed 6 April 1988)

Appeal by plaintiffs from a decision of a divided panel of the Court of Appeals reported at 87 N.C. App. 562, 361 S.E. 2d 748 (1987), which affirmed in part, and vacated and remanded in part, an opinion and award of the North Carolina Industrial Commission entered 3 October 1986. We allowed defendants’ petition for discretionary review on 14 January 1988. Heard in the Supreme Court 17 March 1988.

Connor, Bunn, Rogerson & Woodard, P.A., by James F. Rogerson, and Allen G. Thomas and Charles P. Farris, Jr., P.A., by Allen G. Thomas, for plaintiffs.

LeBoeuf, Lamb, Leiby & MacRae, by Jane Flowers Finch and Albert D. Barnes, for defendants.

Taft, Taft & Haigler by Thomas F. Taft, Kenneth E. Haigler and James M. Stanley, Jr., for North Carolina Academy of Trial Lawyers, amicus curiae.

PER CURIAM.

The portion of the Court of Appeals opinion which vacates in part the opinion and award of the Industrial Commission is before us by virtue of the dissenting opinion of Phillips, J. For the reasons stated in the dissenting opinion, that portion of the Court of Appeals opinion is reversed.

We conclude that defendants’ petition for discretionary review was improvidently allowed. The result is that the opinion and award of the Industrial Commission remains in full force and effect.

In plaintiffs’ appeal, reversed.

In defendants’ appeal, discretionary review improvidently allowed.