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Tort Claim processes at the North Carolina Industrial Commission: An Overview
This manuscript provides a nuts-and-bolts overview of tort claims processes at the Industrial Commission, from pre-filing to trials and appeals. The primary focus is on processes, rather than on law or civil procedure. Topics include:
- Overview of latest statutory language
- Industrial Commission personnel and departments
- State Tort Claims Act and Tort Claim Rules of the N.C. Industrial Commission
- Tort claim forms
- Filing a tort claim
- Tort claim processing by the Industrial Commission
- Pre-trial conferences
- Scheduling orders
- Motions practice
- Stays
- Trials
- Post-trial process
- Appeals
- Hearing costs
- Settlements and mediation
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- The “exclusivity provision”
As of this writing, we are now nearly three years past the enactment of subsection (e) of N.C. Gen. Stat. § 143-291. That subsection, which could be called the “exclusivity provision” of the North Carolina State Tort Claims Act, went into effect on October 3, 2023 and reads as follows:
(e) This Article provides the sole and exclusive remedy for any claim that arises as a result of the negligence of any officer, employee, involuntary servant, or agent of the State while acting within the scope of his office, employment, service, agency, or authority, and the North Carolina Industrial Commission is the sole and exclusive forum for hearing any such claims. Any such claims filed in any other forum arising out of or relating to the same subject matter against the officer, employee, involuntary servant, or agent of the State is precluded.
This new subsection is really just a restatement of what the law already was prior to the new subsection’s enactment. Since its original enactment in 1951, the State Tort Claims Act has constituted the State’s limited waiver of sovereign immunity as to claims based on alleged negligence by state employees acting within the course and scope of their employment with a state agency, with the Industrial Commission being the statutorily designated agency to administer and adjudicate claims filed under said Act. Of course, there are a number of potential causes of action beyond negligence that can form the bases of claims against state employees in their individual and/or official capacities, and those types of claims and their adjudication in other forums are beyond the scope of this overview. The application of the last sentence of the new subsection will likely be litigated in other forums. It is well-settled though, that as to any cause of action alleging general or professional negligence on the part of a North Carolina state government employee acting in his or her official capacity, the sole jurisdiction for that cause of action lies with the North Carolina Industrial Commission, in the form of a tort claim against the state agency that employed the allegedly negligent employee. Also, notably, the sole jurisdiction for a cause of action alleging negligence by a school bus driver lies with the North Carolina Industrial Commission under the State Tort Claims Act (such a claim, which is against the city or county board of education for whom the school bus driver was working, is the only exception to the rule of the State Tort Claims Act that any claim thereunder must be only as against an agency of the State of North Carolina).
Since the effective date of the new subsection (e) set out above, somewhat surprisingly, the Industrial Commission has not seen a noticeable increase in the number of tort claims being filed, either with or without counsel. The tort claims that the Commission sees filed by attorneys typically involve school bus wrecks, medical negligence claims involving providers at public university hospitals, claims of negligence and/or gross negligence by state troopers, and negligence claims involving employees of NCDOT, NCDHHS, the North Carolina Department of Adult Correction, public universities, and community colleges. Of course, that’s not an exhaustive list, but those descriptors probably cover 95 percent of represented tort claims.
- Personnel at the Industrial Commission
At the “trial court” level of the Industrial Commission, the practitioner will interact with two different entities: the Clerk’s Office and the Deputy Commissioner (and his or her legal assistant).
The Clerk’s Office is the point of contact for any filings that are made with the Commission. The Clerk’s Office personnel then route those filings to the Deputy Commissioners who are assigned to handle the various claims.
The Deputy Commissioners are the trial-level judges for tort claims at the Commission. Each Deputy Commissioner has a legal assistant, who assists him or her with serving orders and dockets and with other logistical matters. There are approximately 20 Deputy Commissioners at the Commission at any given time, and currently seven of them handle tort claims.
- Basic tort claim processes at the Industrial Commission
Most of the Industrial Commission’s overall caseload comes from workers’ compensation, which is the other major statutory scheme that the Commission administers and adjudicates. However, even though tort claims form a much smaller part of the overall numbers, the Deputy Commissioners Section still expends a relatively large amount of effort in handling tort claims, simply because tort claims are litigated and go to hearing at much higher rates than workers’ compensation claims do.
Over the last several years, including the years since the 2023 amendment to the State Tort Claims Act, the Industrial Commission has held fairly steady at approximately 750 new tort claims being filed per year (as opposed to tens of thousands of workers’ compensation claims occurring each year). Of those 750 tort claims, approximately 500 are claims filed against the Department of Adult Correction by unrepresented incarcerated inmates (and those claims have their own specialized administration framework). Of the remaining 250 claims, approximately half are filed by unrepresented plaintiffs. That leaves approximately 125 tort claims (or approximately 10 claims per month), filed by attorneys.
- The Act and the Rules
What we refer to as the North Carolina State Tort Claims Act is officially called “Tort Claims Against State Departments and Agencies” and is found at N.C. Gen. Stat. §§ 143-291 et seq.
Some of the major provisions of the State Tort Claims Act are: (1) damages are capped at $1 million per person per occurrence; (2) only compensatory damages, not punitive or other types of damages, may be recovered; and (3) there is no right to a jury trial. If your claim goes to trial, it will be a bench trial before a Deputy Commissioner, and if the claim is found to be compensable, the Deputy Commissioner will enter the damages award.
The same elements and defenses from a standard negligence claim in the general courts apply to the litigation of a tort claim before the Commission, including but not limited to contributory negligence as a defense (and last clear chance, if applicable, as a reply).
The Industrial Commission is vested with the authority to promulgate rules under the State Tort Claims Act. Those administrative rules are found at 11 NCAC 23B .0101 et seq.
Per N.C. Gen. Stat. § 143-300, the North Carolina Rules of Civil Procedure and the North Carolina Rules of Evidence strictly apply to the litigation of tort claims before the Commission (whereas they are more loosely applied in workers’ compensation claims).
- Tort claim forms
The Industrial Commission is a forms-driven agency. That includes tort claims, to some extent. All of the forms discussed below can be found online by going to the Industrial Commission’s home page (https://www.ic.nc.gov/), clicking on “Claims Forms” on the dropdown menu that appears when you hover over “Injured Workers” (https://www.ic.nc.gov/forms.html#claims), and then locating the tort claim forms near the bottom of the list that appears on the right side of the page.
The primary form in tort claims before the Commission, the form that will be used in every claim, is the Form T-1, Claim for Damages under Tort Claims Act, or, as it is commonly known, the “Tort Claim Affidavit”. This form acts as the Complaint. Although it is a brief, one-page form, it is all that is required of a plaintiff to plead a tort claim with the Commission. Of course, many plaintiffs’ attorneys are accustomed to drafting more detailed Complaints, and it is perfectly acceptable to append a Complaint to a Form T-1. However, even if you include a Complaint, we still need to have the Form T-1 filed.
A copy of the current Form T-1 is attached at the end of this manuscript.
Some notable points about the Form T-1:
- Line 3 is the space to name the defendant state agency or county board of education (if the claim is for a school bus wreck).
- Line 4 has a space to name the alleged negligent employee(s) of the state agency or county board of education that was named in Line 3, whose alleged negligent act(s) and/or omission(s) form the basis of the claim. Note that, often the plaintiff will not yet know the name(s) of the alleged negligent employee(s) upon the filing of the T-1, but that does not preclude going ahead with the filing. If no specific alleged negligent employee(s) is/are named in the Form T-1, the defendant will make a motion to dismiss based thereon, but, per Tort Rule 204(i), ruling on such a motion is held in abeyance pending the completion of discovery, thus providing the plaintiff the opportunity to discover the identities of alleged negligent employees. When the name(s) of alleged negligent employee(s) have been ascertained, the plaintiff can amend the complaint to add their names, under Rule 15 of the Rules of Civil Procedure.
- The party defendant in the tort claim is the state agency/county board of education, based on the alleged negligence of its named employee(s).
- Individual person(s) are never themselves defendants, in any capacity.
- For the remainder of Items 4 through 7, although it is acceptable to refer to an attached Complaint, the plaintiff should still fill in those blanks on the Form T-1 with brief descriptors.
- The damages allegation in Item 4 need not be specific at the pleading stage, and there is no rule that it has to be above some threshold amount.
- The Form T-1 must be sworn before a notary by the plaintiff himself or herself, the proposed guardian ad litem, or the administrator/executor. If it is not, the Clerk’s Office will reject the filing, so it is important to build in time for that process to occur, particularly if the limitations period is nearing expiration.
Other forms for use in tort claims before the Commission include:
- The Form T-3, Release of Tort Claim, which is the form that is used for mandatory Commission review and approval of any tort claim settlement (1) for an amount greater than $25,000.00, or (2) for any amount, if any plaintiff is a minor or is incompetent.
- The Form T-42, Application for Appointment of Guardian Ad Litem. This form is used at the outset of the claim, per the requirements of Tort Rule 203, when a plaintiff is a minor or incompetent.
- Petition to Sue as an Indigent Person. While this form is most often used by unrepresented plaintiffs, we sometimes see it with represented plaintiffs. Upon approval, the filing fee is waived, and no hearing costs will be assessed against the plaintiff during the handling of the claim.
- The Form T-44, Application for Review, which is the form that is used when a party is seeking Full Commission review (the first level of appellate review from a final decision by a Deputy Commissioner).
- Filing a tort claim
A recent change has been the addition of a requirement on the Form T-1 that attorneys must file the form through the Commission’s Electronic Document Filing Portal (EDFP) (found at https://ncic.my.site.com/s/?language=en_US) , rather than filing by U.S. Mail or in-person. The Form T-1 on the Commission’s website is not fillable, meaning that it will have to be printed out, filled in, and scanned for submission through EDFP. Unrepresented plaintiffs may file a Form T-1 through other means, but an attorney must use EDFP to file one. See Tort Rule 104 (11 NCAC 23B .0104) for more information on electronic filing.
Upon receipt of a filed Form T-1, the Clerk’s Office will file-stamp it with the date on which it was received at the Commission. Please note that, if your firm is planning to file multiple tort claims on behalf of multiple plaintiffs related to the same occurrence(s) (a “mass tort” filing), you should contact the Clerk’s Office in advance of the filings in order to allow the Commission to set up a framework in advance to accept and process the filings – this has happened several times over the years, for example, most recently, with dozens of claims that were filed against the UNC School of the Arts under the “look-back window” statute for sex abuse claims.
Any Form T-42 application for appointment of a guardian ad litem and/or petition to sue as indigent person should be filed with the Form T-1, and they will be handled in due course during the Commission’s initial review of the claim.
The filing fee for a tort claim is currently $200.00. The EDFP system creates an invoice for the filing fee, and the attorney pays the fee electronically. If the Form T-1 is accompanied by a petition to sue as indigent, the Form T-1 is accepted and file-stamped the date it is received, even if there is an issue with the petition that holds up its approval.
If an attorney handling a medical negligence tort claim needs to make a motion under Rule 9(j) of the North Carolina Rules of Civil Procedure to seek to extend the limitations period for up to 120 days in order to comply with the provisions of Rule 9(j), the attorney may do so by filing the motion through EDFP, and the motion will be ruled upon promptly. No Form T-1 need be filed before or at the time of the filing of such a motion, and, as such, there is no need to reference any Industrial Commission file number with the filing. The Clerk’s Office keeps the motion (and the order thereon) as an intake, and if and when a Form T-1 is later filed related to that matter, the motion and order are placed in that file.
- Initial handling of a tort claim by the Commission
Upon the filing and intake of a Form T-1, the Clerk’s Office assigns a number to the claim (a “TA-number”) and generates an acknowledgment letter, which is addressed to plaintiff’s counsel and sent back to them, along with a copy of the file-stamped Form T-1. A copy of the acknowledgment letter and Form T-1 also goes to the Office of the Attorney General of North Carolina. This process usually is completed within one or two business days after the filing of the Form T-1. There is no need for a summons or service of the complaint by the plaintiff, as, by operation of the Tort Claims Act, the Clerk’s Office’s transmission of the copy of the acknowledgment letter and Form T-1 to the Attorney General’s office acts as service of the Form T-1 on the defendant agency or school board.
At the same time that the acknowledgment letter is sent out, the tort claim undergoes an initial review with a judicial officer (currently the Senior Deputy Commissioner), who reviews the claim for any obvious jurisdictional issues with the named defendant(s). This is necessary because the Attorney General’s office will not enter even a limited appearance to contest jurisdiction if the claim clearly does not name a state agency (or a county school board in a school bus wreck claim) as a party defendant. It is not uncommon for a purported tort claim to be dismissed upon initial review, under Rule 12(h)(3) of the Rules of Civil Procedure, because the Commission clearly does not have subject matter jurisdiction, under the Tort Claims Act, over a claim against the named defendant(s), in which case the claim is dismissed without prejudice to the plaintiff’s right to pursue a claim in the appropriate forum.
Upon initial review, the reviewing judicial officer also handles the approval (or further follow-up if necessary) of any petition to sue as indigent.
If the tort claim survives the initial review (as most do), then the reviewing judicial officer assigns the claim to a Deputy Commissioner to handle, typically based on geography. That assigned Deputy Commissioner typically will then handle that tort claim through its final disposition at the trial level.
- Litigation of a tort claim
After the Commission’s service of the Form T-1 and any attachments on the Attorney General’s office, the Attorney General’s office (or outside counsel, should the agency and Attorney General’s office so designate – this sometimes happens, for example, in medical negligence claims involving providers at public university hospitals, or gross negligence claims involving state troopers) has the 30 days, per Rule 12(a) of the Rules of Civil Procedure, to file the responsive pleading on behalf of the defendant agency (subject to motions for extension of time, which are fairly routine).
Typically, the first action that the presiding Deputy Commissioner will take is to docket the tort claim for an on-the-record pre-trial conference and motion hearing, to take place in the third month following the month in which the tort claim was filed. This timeline allows for one routine 30-day extension of time for the defendant to file its responsive pleading. If both sides are represented and the defendant files an answer with no motions, then the Deputy Commissioner may dispense with setting the claim on a pre-trial conference and motion hearing docket and may instead simply seek a consent scheduling order from the parties in lieu of that. Although different Deputy Commissioners have different preferences, most of them now docket on-the-record pre-trial conferences to occur over the telephone or via a remote proceeding.
If there is an initial on-the-record pre-trial conference and motion hearing, the Deputy Commissioner will rule on any Rule 12 motions interposed by the Defendant, and, if the claim survives, will then obtain a consent scheduling order from the parties. Sometimes, particularly on a jurisdictional ruling such as a denial of a motion to dismiss on statute-of-limitations grounds, the defendant will file for interlocutory review by the Full Commission, whereupon the Deputy Commissioner is divested of further handling of the claim unless and until the Full Commission completes the interlocutory review process and remands the claim.
Otherwise, the parties thereafter conduct their discovery, expert witness designation and trial preparation process as they would in any civil claim, within the parameters of the consent scheduling order. Amended scheduling orders are routinely filed and approved. A consent scheduling order typically contains deadlines for the following: (1) completion of discovery; (2) plaintiff’s designation of expert witness(es) and defendant’s taking of their deposition(s), and vice versa; (3) filing of any dispositive motions; (4) taking of any de bene esse depositions; and (5) an “on-or-after” trial date (with a non-binding but reasonable estimate for the length of the trial, in hours or days).
Motion practice in tort claims is governed by Tort Rule 204 (11 NCAC 23B .0204). Note that, per Tort Rule 204(g), the response to a contested motion is due within 10 days following the service of the motion on the opposing party. But also note that, per Tort Rule 204(h), the presiding Deputy Commissioner may issue a ruling without awaiting a response.
All motions and responses are to be filed through the Commission’s Electronic Document Filing Portal (EDFP), per Tort Rule 104. Electronic filings may be made until 11:59 p.m. on the required date, per Tort Rule 101. The EDFP system provides an electronic receipt of the motion having been filed, in lieu of the Clerk’s Office returning a file-stamped copy of the motion.
On motions for summary judgment, the special deadline requirements of Rule 56 of the Rules of Civil Procedure also apply, and the Deputy Commissioner, usually in consultation with the parties, may, depending on the circumstances, either set the claim for a preliminary on-the-record motion hearing and issue a ruling in advance of the trial date, or wait until the trial date to hear and rule upon the motion.
It is not uncommon for stays to be entered in tort claims, often before the defendant files its responsive pleading. Stays of proceedings in tort claims before the Commission are often done upon motion by one or both parties when there is related litigation between the parties and/or involving third parties in state or federal court. It is then the parties’ responsibility to notify the Commission upon the final disposition of that related litigation and whether one or both parties want the stay lifted for further proceedings in the tort claim before the Commission at that time, of course subject to rulings on any new motions to dismiss based on res judicata and/or collateral estoppel that may be interposed by the defendant at that time.
- Trial of a tort claim
Should a tort claim proceed toward trial, the trial generally is docketed to occur in the month or two after the “on-or-after” trial date that has been agreed upon between the parties in the latest scheduling order. Before docketing a tort claim for trial, the presiding Deputy Commissioner may consult further with the parties about matters like trial readiness, whether stipulations can be reached to narrow the issues for trial, and the expected length of the trial.
The Commission’s standard practice is to docket trials to occur in-person in the large city or town that is most convenient for the parties and attorneys (typically Raleigh, Charlotte, the Triad, Asheville, Wilmington or Greenville/Farmville). Remote trials, via the Webex platform, are an available option, if the parties show good cause for a trial to occur remotely rather than in-person. If the plaintiff is a represented incarcerated inmate, the Commission typically does not issue writs of habeas corpus ad testificandum, and arrangements are instead made to conduct the trial via Webex for the plaintiff’s attendance and testimony (as well as the testimony of any other prison-based witnesses). Webex is also available for use if, in consultation with the parties, the Deputy Commissioner determines that a “hybrid” trial involving partly in-person testimony and partly remote testimony is advisable under the circumstances. It is not uncommon for the Deputy Commissioner to conduct a phone conference with the attorneys, particularly in advance of a complex or lengthy trial, to discuss logistics and other matters.
The docket issues early in the month before the month in which the trial is docketed to occur (i.e. approximately 30 to 45 days before the trial date). The docket comes with a uniform pre-trial order, which sets out the requirements for the parties to share stipulated and potential party exhibits and provide copies of them in advance to the Commission, including video and audio files.
The parties are also to file, no later than 10 calendar days before the first docketed day of the trial, a final executed pre-trial agreement. The provisions to be included in the pre-trial agreement are set out in the uniform pre-trial order that comes with the docket, and the format is the same as that provided in the Form Order on Final Pre-Trial Conference as contained in the General Rules of Practice for the Superior and District Courts Supplemental to the Rules of Civil Procedure.
The North Carolina Rules of Evidence are applied in trials of tort claims, and pre-trial motions in limine are common, including but not limited to motions challenging prospective expert testimony under Rule 702 of the North Carolina Rules of Evidence. Typically, the presiding Deputy Commissioner will hear arguments on motions in limine either before the trial date (in an off-the-record telephone conference) or at the outset of the trial and make rulings either before or at the start of the trial on the merits.
Again, the trial is a bench trial, with no jury. Although not required, opening statements are allowed and can provide the Deputy Commissioner with a useful road map for the trial.
At the conclusion of the trial, after both sides have rested their cases and there has been an opportunity for rebuttal and surrebuttal (assuming that the defendant’s routine Rule 50 motion for a directed verdict at the conclusion of the plaintiff’s case has not been granted), the parties have the opportunity to make closing arguments. However, in represented trials, the Deputy Commissioner will always offer the parties the opportunity to file post-trial written contentions and/or proposed decisions, so the parties often will waive any lengthy oral closing arguments. Post-trial written submissions will usually be due within 30 to 90 days following the trial, depending on the complexity of the issues and the availability of the trial transcript (which, if the parties order it from the court reporting service upon the conclusion of the trial, is usually transmitted to the parties within approximately two to four weeks after the trial).
Unlike in workers’ compensation claims (which typically have post-hearing medical depositions), in tort claims the evidentiary record is closed at the end of the trial, with rare exception.
After receipt of the parties’ post-trial written contentions, the Deputy Commissioner will review, deliberate, and issue a written Decision and Order either denying the claim or granting the claim and awarding damages. There is no statutorily imposed or rules-imposed deadline for the Deputy Commissioner to file the decision, but the Deputy Commissioners endeavor to file their final decisions in tort trials within approximately 90 to 120 days following the receipt of the parties’ written contentions.
Any damages awarded to any minor plaintiff will be directed to be paid to the Clerk of Court in the county in which the minor plaintiff resides to hold until the plaintiff reaches age 18, unless some suitable alternative arrangement (i.e. trust and/or structured settlement) is tendered and approved by the Deputy Commissioner. With minor or incompetent plaintiffs, plaintiff’s counsel will need to consult with the other side and with the Deputy Commissioner for review and approval of the distribution and disposition of the award.
- Appeals
The first level of appellate review of a Deputy Commissioner’s final decision in a tort claim is with the full Industrial Commission. The Full Commission is a six-member body and hears appeals in panels of three commissioners.
The process for an appeal to the Full Commission is covered in Tort Rule 302 (11 NCAC 23B .0302). For purposes of this overview, the main point is that the notice of appeal to the Full Commission must be filed within 15 calendar days of the appellant’s receipt of the Deputy Commissioner’s decision. A notice of appeal from a Deputy Commissioner’s final Decision and Order can be a simple one-page filing. The Form T-44 Application for Review (mentioned earlier) is not completed until later in the appeal process, per the timeline set out in Tort Rule 302.
The Full Commission reviews the case de novo, and the Deputy Commissioner’s findings, including those on witness credibility, are not binding on the Full Commission. The Full Commission’s review is solely based on the trial record and the oral arguments of the parties.
Following a Full Commission decision, the next level of appellate review is with the North Carolina Court of Appeals.
- Hearing costs
Whenever a tort claim is docketed for an on-the-record hearing, whether a pre-trial conference, a motion hearing or a trial (and whether the hearing actually occurs or not), hearing costs are assessable. At the Deputy Commissioner level, hearing costs are currently $120.00. Unless a plaintiff has been granted indigency status, he or she, as well as the defendant agency, is subject to being assessed with hearing costs.
The presiding Deputy Commissioner has the discretion as to whether, when and how to assess hearing costs. Typically, the hearing costs will be assessed against the “non-prevailing” party, and they are assessed as part of the order that is ultimately filed based on the hearing setting. It is not uncommon for hearing costs to be split “60-60”.
- Settlements and mediation
If a claim settles for over $25,000.00, or if a claim involving a minor or incompetent plaintiff settles in any amount, then the parties must execute and submit a Form T-3 Release of Tort Claim for approval. The Attorney General’s office is accustomed to drafting these forms and will usually complete them for the parties.
In any claim involving a minor or incompetent plaintiff, plaintiff’s counsel must submit a proposed distribution order, approved by the guardian ad litem, that accounts for the distribution of the entire settlement proceeds, including but not limited to the amount that the plaintiff will receive, the attorney’s fee, costs, and the satisfaction of any Medicaid lien (see N.C. Gen. Stat. § 108A-57) and/or other outstanding related medical expenses.
Sometimes a potential tort claim settles before a tort claim has actually been filed. If that settlement is greater than $25,000.00 and/or involves a minor or incompetent plaintiff, then the nominal plaintiff must file with the Commission a Form T-1 along with a Form T-3 and supporting documentation. A judicial officer will then review the proposed distribution and approve the settlement.
Although tort claim settlements are usually public record, there is an exception for medical malpractice claims involving public university hospitals (see N.C. Gen. Stat. § 132-1.3). In that case, counsel should consult with the presiding Deputy Commissioner and the Clerk’s Office for the filing, approval and maintenance of the settlement paperwork under seal.
Unlike in workers’ compensation claims before the Commission, mediation in tort claims is not mandatory. The Deputy Commissioner will not order the parties to mediate, but if the parties agree to mediate voluntarily, then they are to notify the Commission’s Mediation Section, and they are bound by the Rules for Mediated Settlement and Neutral Evaluation Conferences of the Commission, found in 11 NCAC 23G.
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If you have general questions, we’re available and happy to help:
Senior Deputy Commissioner Robert J. Harris
919-807-2638
Clerk of the Industrial Commission Emily M. Baucom
919-807-2583
Assistant Clerk of Industrial Commission Paula Seldes
919-807-2608