             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                No. COA18-542

                             Filed: 5 February 2019

Lee County, No. 16 CVS 285

THE ESTATE OF WILLIAM BELK, by and through TAQUITTA BELK,
ADMINISTRATRIX, Plaintiff,

            v.

BOISE CASCADE WOOD PRODUCTS, L.L.C., a member of BOISE CASCADE
COMPANY, JOHN DOE 1 and JOHN DOE 2, Defendants.


      Appeal by Defendant Boise Cascade Company from order entered 11 December

2017 by Judge David Thomas Lambeth, Jr., in Lee County Superior Court. Heard in

the Court of Appeals 13 November 2018.


      Muller Law Firm, PLLC, by Tara Davidson Muller, and The Hunt Law Firm,
      by Anita B. Hunt and Ralph A. Hunt, Jr., for Plaintiff-Appellee.

      Husch Blackwell, LLP, by William E. Corum, and Teague, Campbell, Dennis
      & Gorham, LLP, by Jennifer B. Milak, for Defendant-Appellant Boise Cascade
      Wood Products, L.L.C.


      DILLON, Judge.
                         BELK V. BOISE CASCADE WOOD PRODUCTS

                                       Opinion of the Court



       Defendant Boise Cascade Company (“Boise Cascade”)1 appeals from the trial

court’s order denying its motion for summary judgment. Boise Cascade contends that

exclusive jurisdiction over this case belongs to the Industrial Commission, because

Boise Cascade was a “special employer” of the deceased. After careful review, we

reverse.

                                        I. Background

       Boise Cascade is a limited liability company which owns and operates a

plywood manufacturing plant in Moncure. Boise Cascade entered into an Agreement

for Temporary Services with a staffing company, Aerotek, Inc. (“Aerotek”), to provide

temporary personnel for the plant. Pursuant to their Agreement for Temporary

Services, Aerotek recruited William Belk as a candidate for a mechanic position in

Boise Cascade’s maintenance department.

       In August 2014, Mr. Belk began working at the Boise Cascade plant. On 26

September 2015, after working at the Boise Cascade plant for more than a year, Mr.

Belk was killed in a workplace accident when a machine he was repairing collapsed.

       Mr. Belk’s estate (“Plaintiff”) brought a workers’ compensation claim against

Aerotek before the Industrial Commission and received an award of death benefits.




       1 Pursuant  to motion allowed 6 August 2018, Boise Cascade Company has been substituted for
Boise Cascade Wood Products, L.L.C., as the defendant in this case. We conform the caption in this
opinion to the previous documents in this line.

                                              -2-
                      BELK V. BOISE CASCADE WOOD PRODUCTS

                                   Opinion of the Court



      In April 2016, Plaintiff instituted this civil action against Boise Cascade

seeking damages for Mr. Belk’s death. Boise Cascade then filed to dismiss, which

was denied. Boise Cascade subsequently moved for summary judgment, which, after

a hearing on the matter, was also denied.

      Boise Cascade appeals.

                              II. Appellate Jurisdiction

      This appeal is interlocutory. Typically, “[t]he denial of a motion for summary

judgment is an interlocutory order and is not appealable.” Harris v. Walden, 314 N.C.

284, 286, 333 S.E.2d 254, 256 (1985). Nonetheless, “the denial of a motion concerning

the exclusivity provision of the Workers’ Compensation Act affects a substantial right

and thus is immediately appealable.” Fagundes v. Ammons Dev. Grp., Inc., ___ N.C.

App. ___, ___, 796 S.E.2d 529, 532 (2017). Therefore, we conclude that the appeal is

timely.

      Plaintiff, though, argues that Boise Cascade has not properly appealed from

the correct judgment. N.C. R. App. P. 3(d) (“The notice of appeal required to be

filed . . . shall designate the judgment or order from which appeal is taken[.]”). Boise

Cascade’s notice of appeal cites to the order denying summary judgment as the order

being appealed. Plaintiff, though, argues that this order was void. Specifically,

Plaintiff contends that the trial court’s denial of Boise Cascade’s prior motion to

dismiss was, essentially, an order denying summary judgment because the trial court



                                          -3-
                      BELK V. BOISE CASCADE WOOD PRODUCTS

                                  Opinion of the Court



considered matters outside the complaint.          Therefore, Plaintiff contends, the

subsequent order denying summary judgment was void and any appeal should have

been taken from the first order. We disagree with Plaintiff.

      The record shows that Boise Cascade did initially file a Rule 12(b)(6) motion to

dismiss and that the trial court entered an order denying that motion. Plaintiff notes

that in defense to the Rule 12(b)(6) motion it submitted approximately twenty-seven

(27) pages of documents to the trial court, thus transforming the Rule 12(b)(6) motion

into a motion for summary judgment.

      It is true that “[a] Rule 12(b)(6) motion to dismiss for failure to state a claim

is . . . converted to a Rule 56 motion for summary judgment when matters outside the

pleadings are presented to and not excluded by the court.” Stanback v. Stanback, 297

N.C. 181, 205, 254 S.E.2d 611, 627 (1979). However, “the trial court [is] not required

to convert a motion to dismiss into one for summary judgment simply because

additional documents [are] submitted.” Pinney v. State Farm Mut. Ins. Co., 146 N.C.

App. 248, 252, 552 S.E.2d 186, 189 (2001). Where it is clear from the record, namely

from the order itself, that the additional materials were not considered by the trial

court, the 12(b)(6) motion is not converted into a Rule 56 motion. Id.

      Here, the order denying Boise Cascade’s Rule 12(b)(6) motion does not mention

that the trial court considered anything beyond the pleadings. The order merely

states that the court’s decision was made after “having reviewed the pleadings and



                                         -4-
                      BELK V. BOISE CASCADE WOOD PRODUCTS

                                  Opinion of the Court



having heard and considered the arguments of Counsel[.]” At best, the trial court’s

language converted the Rule 12(b)(6) motion, which properly focuses only on the

complaint, into a Rule 12(c) motion, which focuses on all of the pleadings. We,

therefore, deny Plaintiff’s motion to dismiss Boise Cascade’s appeal.

                                     III. Analysis

      This appeal is from the denial of Boise Cascade’s motion for summary

judgment. We review an appeal from summary judgment de novo, to determine

whether, in the light most favorable to the nonmoving party, there is any genuine

issue of material fact and whether any party is entitled to judgment as a matter of

law. In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008). “If there is

any question as to the weight of evidence, summary judgment should be denied.”

Marcus Bros. Textiles, Inc., v. Price Waterhouse, LLP, 350 N.C. 214, 220, 513 S.E.2d

320, 325 (1999).

      On appeal, Boise Cascade argues that the evidence showed, as a matter of law,

that Boise Cascade was a “special employer” of Mr. Belk, and that, therefore,

jurisdiction over Plaintiff’s action belongs exclusively to the Industrial Commission.

We agree.

      The Workers’ Compensation Act creates an exclusive remedy for employees

injured in work-related incidents. N.C. Gen. Stat. Ann. § 97-10.1 (2013) (“[T]he rights

and remedies herein granted to the employee . . . shall exclude all other rights and



                                         -5-
                      BELK V. BOISE CASCADE WOOD PRODUCTS

                                  Opinion of the Court



remedies of the employee . . . as against the employer at common law or otherwise on

account of such injury or death.”). Where the Workers’ Compensation Act applies,

the employee is barred from pursuing a common law negligence action against his

employer(s), Pleasant v. Johnson, 312 N.C. 710, 713, 325 S.E.2d 244, 247 (1985), and

the trial courts are divested of jurisdiction. Lemmerman v. A.T. Williams Oil Co., 318

N.C. 577, 579, 350 S.E.2d 83, 85 (1986).

      Our Supreme Court has recognized that an employee may be in both the

employment of his primary, general employer, and also be “lent” as a special,

temporary employee to a secondary, special employer. Leggette v. J. D. McCotter,

Inc., 265 N.C. 617, 625, 144 S.E.2d 849, 855 (1965); Leonard v. Tatum & Dalton

Transfer Co., 218 N.C. 667, 671, 12 S.E.2d 729, 731 (1940); Baker v. State, 200 N.C.

232, 235, 156 S.E. 917, 918 (1931). But the lent employee is not automatically an

employee of both the general and the special employer for the purpose of workers’

compensation. Id.

      Our Supreme Court has held that “[t]he crucial test in determining whether a

servant furnished by one person to another becomes the employe [sic] of the person

to whom he is loaned is whether he passes under the latter’s right of control with

regard not only to the work to be done but also to the manner of performing it []

irrespective of whether [the latter] actually exercises that control or not.” Weaver v.

Bennett, 259 N.C. 16, 28, 129 S.E.2d 610, 618 (1963). Our Supreme Court has applied



                                           -6-
                         BELK V. BOISE CASCADE WOOD PRODUCTS

                                       Opinion of the Court



this test to determine whether a plaintiff-worker was a special employee of a

defendant-company, and therefore subject to the jurisdiction of the Industrial

Commission in seeking compensation/damages when he was injured on the job.

Moody v. Kersey, 270 N.C. 614, 621, 155 S.E.2d 215, 220-21 (1967); see also Rouse v.

Pitt County Memorial Hosp., 343 N.C. 186, 197-98, 470 S.E.2d 44, 51 (1996) (applying

the Weaver “right to control” test to determine whether a borrowed worker was a

special employer).

       Whether a lent worker became a special employee of the entity to whom he was

lent is a question of fact. And, in a civil action, where the evidence is sufficient to

create a genuine issue of fact on this issue, our Supreme Court has instructed that

the determination is to be decided by the jury. See Weaver, 259 N.C. at 30, 129 S.E.

2d at 620 (reversing dismissal where evidence in the light most favorable to the

plaintiff created a genuine issue of fact regarding whether there was an employment

relationship between the lent worker and the special employer).2

       Therefore, the question before us is whether there was a genuine issue of

material fact before the trial court regarding whether Mr. Belk was a special, lent

employee of Boise Cascade. For the reasons stated below, we conclude that the



       2   We do not disturb a jury’s determination in a civil trial regarding the nature of the
relationship between a lent worker and the company for whom he is working, where the determination
is supported by evidence. However, in the context of a worker’s compensation claim brought before
the Industrial Commission, the reviewing court gives no deference to the Commission’s findings on
this jurisdictional issue, but reviews them de novo. See, e.g., Whicker v. Compass Group USA, Inc.,
246 N.C. App. 791, 795-96, 784 S.E.2d 564, 568 (2016) (reviewing “jurisdictional facts” de novo).

                                               -7-
                       BELK V. BOISE CASCADE WOOD PRODUCTS

                                   Opinion of the Court



evidence established, as a matter of law, that Mr. Belk was, indeed, a special

employee of Boise Cascade: The evidence conclusively establishes that control over

the manner in which Mr. Belk performed his job passed to Boise Cascade.

Accordingly, Boise Cascade was entitled to summary judgment.

      In reaching our conclusion, we note the following uncontested facts:

      The Agreement for Temporary Services between Aerotek (Mr. Belk’s general

employer) and Boise Cascade attributes the right to control Mr. Belk to Boise

Cascade. Specifically, in that Agreement, Boise Cascade clearly undertook the right

to control the day-to-day work activities of Mr. Belk, leaving administrative/clerical

functions (payroll, etc.) to Aerotek, providing as follows:

             1. . . . [Aerotek] will be the general employer, responsible for
             all administrative responsibilities and legal compliance,
             except as otherwise provided in this Agreement. Boise
             Cascade will be the special employer, responsible for day-to-
             day supervision and control of [Aerotek’s] Employees who
             are assigned by [Aerotek] to render services to Boise
             Cascade, pursuant to this Agreement . . . . Boise Cascade
             will also be considered an employer for purposes of state
             workers’ compensation law, although [Aerotek] will retain
             liability for workers’ compensation benefits.
              ...
             4. . . . .[Aerotek] shall have the right and responsibility
             to . . . [comply with] state and local taxes and charges
             incident to the provision of and payment of compensation
             for Temporary Services . . . .

             5. Boise Cascade will be responsible for that portion of the
             day-to-day supervision and control of Employees as
             necessary to conduct Boise Cascade’s business and shall
             determine the general procedures to be followed by the


                                          -8-
                       BELK V. BOISE CASCADE WOOD PRODUCTS

                                   Opinion of the Court



             Employees regarding the performance of their duties.

             6. . . . [Aerotek] shall inform the Employees that both
             [Aerotek] and Boise Cascade are considered their employer
             for workers’ compensation benefits.

(Emphasis added).

      Our Supreme Court has stated that “most persuasive” to the determination of

special employment is whether the contract between the employers gives the right to

control the work of the employee to the special employer. Harris v. Miller, 335 N.C.

379, 395, 438 S.E.2d 731, 740 (1994) (“When a contract, written or oral, between two

employers expressly provides that one or the other shall have right of control, solution

of the [lent employee] question is relatively simple[.]” (citation omitted)). In its 1996

Rouse opinion, our Supreme Court repeated a statement it made in its 1994 Harris

opinion, that “[w]here the [employers] have made an explicit agreement regarding

the right of control, this agreement will be dispositive.” Rouse, 343 N.C. at 200, 470

S.E.2d at 52. But we do not take this statement to mean that a statement contained

in the contract between the employers is conclusive on the issue of whether the lent

worker is an employee of the special employer, notwithstanding the use of the word

“dispositive.” Rather, such an agreement is merely strong evidence of the nature of

the relationship between the lent worker and the special employer. Indeed, in Rouse,

our Supreme Court recognized that the contract between the employers gave the right

to control the lent workers to the special employer, but that this and other evidence



                                          -9-
                          BELK V. BOISE CASCADE WOOD PRODUCTS

                                        Opinion of the Court



was sufficient only to raise a genuine issue of material fact as to whether there was

indeed a right to control sufficient to create a special employment relationship. Id.

at 201-02, 470 S.E.2d at 53.

       In addition to the contract between Aerotek and Boise Cascade, there is other

uncontradicted evidence demonstrating that Mr. Belk was a special employee of Boise

Cascade. For instance, Mr. Belk was hired by Boise Cascade to serve as a mechanic

in its maintenance department. Mr. Belk was fatally injured while repairing a

hydraulic valve on one of Boise Cascade’s machines3 when part of the machine

collapsed. It is uncontested, and therefore there is no genuine issue of fact, that Mr.

Belk was performing the work of Boise Cascade, the special employer, when the

incident occurred.

       The evidence is uncontradicted that Boise Cascade had the right to control Mr.

Belk with respect to the work he performed as a maintenance mechanic. Boise

Cascade paid Mr. Belk an hourly wage. And Mr. Belk worked at Boise Cascade’s

plant for over a year before he was injured.

       Plaintiff relies on various points in depositions that were before the trial court

that suggest Boise Cascade did not provide training, direction, or supervision over




       3 Our Supreme Court has held that a presumption exists that a lent worker remains the sole
employee of the general employer when the worker works with expensive equipment owned by the
general employer. Weaver, 259 N.C. at 28-29, 129 S.E.2d at 619. But, here, there is no indication that
Aerotek owned any equipment which was used by Mr. Belk. Rather, Mr. Belk was working with
equipment owned by Boise Cascade.

                                               - 10 -
                      BELK V. BOISE CASCADE WOOD PRODUCTS

                                  Opinion of the Court



Mr. Belk regarding his job duties. Regardless, Boise Cascade had the right and

ability to control Mr. Belk’s work pursuant to contract.

      Plaintiff claims that its proceedings in the Industrial Commission against

Aerotek alone preclude the possibility that Boise Cascade controlled Mr. Belk because

the resulting Opinion and Award stated that “there [was] no question as

to . . . nonjoinder of parties.” However, the Industrial Commission made no rulings

in its Opinion and Award as to whether Aerotek controlled Mr. Belk. Rather, the

parties in that proceeding mutually stipulated both that there was no issue of

nonjoinder and that Mr. Belk was an employee of Aerotek.         In any event, this

stipulation is not binding on Boise Cascade, who was not a party to that proceeding.

                                   IV. Conclusion

      We conclude that there were no genuine questions of fact with respect to

whether Mr. Belk was a special, lent employee of Boise Cascade. Even considering

the evidence in the light most favorable to Plaintiff, we hold that the evidence

conclusively showed that Mr. Belk was a special employee of Boise Cascade.

Necessarily, exclusive jurisdiction over Plaintiff’s claims rests in the Industrial

Commission, not the trial court below. Therefore, we reverse the trial court’s order

denying Boise Cascade’s motion for summary judgment.

      REVERSED.

      Judge ZACHARY concurs.



                                         - 11 -
              BELK V. BOISE CASCADE WOOD PRODUCTS

                         Opinion of the Court



Judge BRYANT concurs in result only.




                                - 12 -
