             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA18-833

                               Filed: 19 March 2019

North Carolina Industrial Commission, I.C. No. 16-732670

TRISHA WRIGHT, Administratrix of the Estate of CHRISTOPER [sic] WRIGHT,
Deceased Employee, Plaintiff,

            v.

ALLTECH WIRING & CONTROLS, Employer, BUILDERS MUTUAL INSURANCE
COMPANY, Carrier, Defendants.


      Appeal by plaintiff from opinion and award entered 22 June 2018 by the North

Carolina Industrial Commission. Heard in the Court of Appeals 31 January 2019.


      Knott & Boyle, PLLC, by Bruce W. Berger and Ben Van Steinburgh, for
      plaintiff-appellant.

      Goldberg Segalla LLP, by Gregory S. Horner and Alexandra S. Kensinger, for
      defendants-appellees.


      ZACHARY, Judge.


      Trisha Wright, Administratrix of the Estate of Christopher Wright

(“Plaintiff”), appeals from an Opinion and Award entered 22 June 2018 by the Full

Commission of the North Carolina Industrial Commission. Plaintiff argues that the

Industrial Commission erred by failing to conclude that Mr. Wright’s death occurred

in the course and scope of his employment. For the reasons explained below, we

affirm.

                               I.      Background
                      WRIGHT V. ALLTECH WIRING & CONTROLS

                                  Opinion of the Court



      Alltech Wiring & Controls (“the Company”) employed Mr. Wright as an

Estimator. Mr. Wright’s duties required him to visit client job sites to prepare

estimates for the installation of security systems. On the vast majority of days, Mr.

Wright would leave home in the morning and travel to the office before heading to a

client job site. On some mornings, however, Mr. Wright would travel directly from

his home to a job site. Similarly, on most days, Mr. Wright would leave a job site and

return to the office before going home at the end of the workday. The Company

provided Mr. Wright and other employees with company-owned work trucks in order

to perform their work obligations. Mr. Wright used the work truck assigned to him

for his commute, and for travel to and from job sites.

      On 1 February 2016, Mr. Wright left the office at approximately 5:29 p.m. and

began driving home in his work truck. Mr. Wright spoke to Jerry Phillips, the owner

of the Company, on his work cell phone from 5:27 p.m. to 5:40 p.m. Mr. Wright then

stopped at a Target store on his way home, and from 5:43 p.m. to 5:54 p.m., his work

truck was stationary with the ignition turned off. From 5:54 p.m. to 5:56 p.m., Mr.

Wright spoke with his wife on the phone. At approximately 5:57 p.m., Mr. Wright

collided with another vehicle on White Oak Road, a route he frequently used during

his commute. At 7:00 p.m., Mr. Wright died as a result of his injuries.

      On 14 June 2016, Plaintiff filed a Form 18 claiming that Mr. Wright’s

dependents were entitled to death benefits. Defendants filed a Form 61 on 6 July



                                         -2-
                      WRIGHT V. ALLTECH WIRING & CONTROLS

                                   Opinion of the Court



2016, denying that Mr. Wright’s death occurred in the course and scope of his

employment. Plaintiff filed a Form 33 requesting a hearing, and the matter came

before Deputy Commissioner Melanie Wade Goodwin on 12 January 2017. On 22

March 2017, Deputy Commissioner Goodwin filed an Opinion and Award denying

Plaintiff’s claim for benefits. Plaintiff appealed to the Full Commission. After a

hearing, on 22 June 2018, the Full Commission issued an Opinion and Award

affirming the Deputy Commissioner’s decision denying benefits.

                           II.    Appellate Jurisdiction

      Plaintiff filed a notice of appeal to this Court on 26 June 2018. However, on 28

November 2018, Defendants filed a motion to dismiss, arguing that pursuant to this

Court’s recent opinion in Bradley v. Cumberland County, the record on appeal failed

to establish that Plaintiff’s notice of appeal was timely filed.       See Bradley v.

Cumberland Cty., ___ N.C. App. ___, ___, 822 S.E.2d 416, 417 (2018) (dismissing an

appeal for lack of jurisdiction where the notice of appeal bore neither time nor file

stamp, and the record contained no evidence “indicating if or when the Industrial

Commission received Plaintiff’s notice of appeal”), petition for disc. review filed, No.

438P18, ___ N.C. ___, ___ S.E.2d ___ (filed Dec. 14, 2018). Later that same day,

Plaintiff filed a Motion to Add Portion to Record on Appeal to include a file-stamped

copy of the notice of appeal and a letter from the Industrial Commission

acknowledging its receipt. Plaintiff subsequently filed a Conditional Petition for Writ



                                          -3-
                       WRIGHT V. ALLTECH WIRING & CONTROLS

                                   Opinion of the Court



of Certiorari and Motion to Substitute Conditional Petition for Writ of Certiorari

requesting review, should we deem the notice of appeal deficient in light of Bradley.

      Notwithstanding Defendants’ arguments for dismissal, this Court’s holding in

Bradley was not exceptional. We merely reaffirmed the well-established rule that

failure to timely file notice of appeal is a jurisdictional defect that precludes this

Court’s ability to review the merits of a case. See Dogwood Dev. & Mgmt. Co., LLC

v. White Oak Transp. Co., 362 N.C. 191, 198, 657 S.E.2d 361, 365 (2008) (explaining

that “the time limits for taking appeal may not be extended by any court” (internal

ellipsis omitted)). “[A] jurisdictional default brings a purported appeal to an end

before it ever begins.” Id.

      The notice of appeal in Bradley was replete with defects; however, the fatal

error was the absence of evidence—beyond the “date . . . affixed by Plaintiff’s counsel

[but] . . . not confirmed by proof of service”—that appeal was timely taken. Bradley,

___ N.C. App. at ___, 822 S.E.2d at 420. The notice was printed on the appellant’s

law firm’s letterhead and addressed to a commissioner of the Industrial Commission,

confirmation receipt requested. Bradley, ___ N.C. App. at ___, 822 S.E.2d at 417.

Despite the inclusion of a statement that the notice was submitted via electronic filing

portal, there was no evidence that it was timely filed, and the record was devoid of

“any acknowledgement from the Industrial Commission indicating receipt” of the

notice. Bradley, ___ N.C. App. at ___, 822 S.E.2d at 420; cf. Jones v. Yates Motor Co.,



                                          -4-
                       WRIGHT V. ALLTECH WIRING & CONTROLS

                                   Opinion of the Court



121 N.C. App. 84, 85, 464 S.E.2d 479, 480 (1995) (“On 23 March 1994, the Commission

advised plaintiff that it received his notice of appeal to the Court of Appeals.”). Given

the jurisdictional implications of a party’s failure to timely and properly appeal, “[w]e

will not assume the notice of appeal was timely filed solely based upon Plaintiff’s

unverified notice of appeal.” Bradley, ___ N.C. App. at ___, 822 S.E.2d at 420.

      Moreover, although “the time limits for taking appeal may not be extended by

any court[,]” Dogwood, 362 N.C. at 198, 657 S.E.2d at 365 (internal ellipsis omitted),

our Court has discretionary authority to issue a writ of certiorari in order “to permit

review of the judgments and orders of trial tribunals when the right to prosecute an

appeal has been lost by failure to take timely action[.]” N.C.R. App. P. 21(a)(1).

Unlike in Bradley, here, Plaintiff both requested review by certiorari and moved to

amend the record to cure the jurisdictional defect prior to the date on which this case

was heard by this Court.

      By orders entered 15 January 2019, this Court denied Defendants’ Motion to

Dismiss and granted Plaintiff’s Motion to Add Portion to Record on Appeal. See

Williams v. United Cmty. Bank, 218 N.C. App. 361, 366-67, 724 S.E.2d 543, 548 (2012)

(granting the plaintiff’s motion to amend the appellate record to add a notice of appeal

and denying the defendant’s motion to dismiss). Accordingly, we need not exercise

our discretionary authority under Rule 21 in order to reach the merits of Plaintiff’s




                                          -5-
                       WRIGHT V. ALLTECH WIRING & CONTROLS

                                   Opinion of the Court



appeal. Therefore, we dismiss as moot Plaintiff’s Conditional Petition for Writ of

Certiorari and Motion to Substitute Conditional Petition for Writ of Certiorari.

                                  III.   Discussion

      Plaintiff argues that the Industrial Commission erred by failing to conclude

that Mr. Wright’s death occurred in the course and scope of his employment. We

disagree.

      Upon appeal of a decision of the Industrial Commission, this Court is “limited

to reviewing whether any competent evidence supports the Commission’s findings of

fact and whether the findings of fact support the Commission’s conclusions of law.”

Deese v. Champion Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). “[T]he

Commission’s findings of fact are conclusive on appeal when supported by competent

evidence, even though there be evidence that would support findings to the contrary.”

Medlin v. Weaver Cooke Constr., LLC, 367 N.C. 414, 423, 760 S.E.2d 732, 738 (2014)

(quotation marks omitted). Unchallenged findings of fact are binding on appeal, and

the Industrial Commission’s conclusions of law are reviewed de novo. Id.

      For an injury to be compensable under the Workers’ Compensation Act, a

claimant must prove that: (1) the injury was caused by an accident; (2) the injury

arose out of the claimant’s employment; and (3) the injury was sustained in the course

of that employment. Clark v. Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 492 (2005).

“ ‘Arising out of the employment’ refers to the origin or cause of the accidental injury,



                                          -6-
                     WRIGHT V. ALLTECH WIRING & CONTROLS

                                 Opinion of the Court



while ‘in the course of the employment’ refers to the time, place, and circumstances

of the accidental injury.” Roman v. Southland Transp. Co., 350 N.C. 549, 552, 515

S.E.2d 214, 216 (1999).

      Generally, under the “coming and going” rule, an injury is not deemed to occur

“in the course of employment” when sustained in an accident during the employee’s

travel to or from work. Royster v. Culp, Inc., 343 N.C. 279, 281, 470 S.E.2d 30, 31

(1996). “This is because the risk of injury while traveling to and from work is one

common to the public at large . . . .” Hollin v. Johnston Cty. Council on Aging, 181

N.C. App. 77, 80, 639 S.E.2d 88, 91 (2007) (quotation marks omitted), disc. review

denied, 362 N.C. 235, 659 S.E.2d 732 (2008).            Nevertheless, such an injury is

compensable when

            (1) an employee is going to or coming from work but is on
            the employer’s premises when the accident occurs
            (premises exception); (2) the employee is acting in the
            course of his employment and in the performance of some
            duty, errand, or mission thereto (special errands
            exception); (3) an employee has no definite time and place
            of employment, requiring her to make a journey to perform
            a service on behalf of the employer (traveling salesman
            exception); or (4) an employer contractually provides
            transportation or allowances to cover the cost of
            transportation (contractual duty exception).

Id.




                                        -7-
                       WRIGHT V. ALLTECH WIRING & CONTROLS

                                   Opinion of the Court



        Here, Plaintiff argued that Mr. Wright’s accident fell under the contractual

duty exception and the traveling salesperson exception to the “coming and going”

rule.

        A.    Contractual Duty Exception

        Under the contractual duty exception to the “coming and going” rule, an injury

is compensable “where the employer furnishes the means of transportation . . . as an

incident to the contract of employment,” Smith v. Gastonia, 216 N.C. 517, 519, 5

S.E.2d 540, 541 (1939), or where “the cost of transporting the employees to and from

their work is made an incident to the contract of employment.” Puett v. Bahnson Co.,

231 N.C. 711, 713, 58 S.E.2d 633, 634 (1950). “The salient factor is whether provision

for transportation is a real incident to the contract of employment.” Tew v. E.B. Davis

Elec. Co., 142 N.C. App. 120, 123, 541 S.E.2d 764, 767, appeal dismissed and disc.

review denied, 353 N.C. 532, 548 S.E.2d 741 (2001). “The transportation must be

provided as a matter of right; if it is merely permissive, gratuitous, or a mere

accommodation, the employee is not in the course of employment.” Robertson v.

Constr. Co., 44 N.C. App. 335, 337, 261 S.E.2d 16, 18 (1979), disc. review denied, 299

N.C. 545, 265 S.E.2d 405 (1980).

        In the instant case, the Industrial Commission made the following findings of

fact concerning the contractual duty exception, which Plaintiff challenges:

                   4. [The Company] provided Mr. Wright and other
              employees with a company-owned work truck. There was


                                          -8-
         WRIGHT V. ALLTECH WIRING & CONTROLS

                     Opinion of the Court



no written or oral contract entitling Mr. Wright to use the
work truck. Use of the work truck was not part of the
employment contract.

      ....

       6. Company-owned vehicles were available to most
employees of [the Company]. Mr. Phillips testified that, in
the past, he had ceased allowing employees to use company
vehicles because gas prices became too expensive.
According to Mr. Phillips, when use of company vehicles
was not permitted, employees used their personal vehicles.
Mr. Phillips testified that employees were not reimbursed
for their mileage commuting to and from home when they
drove their personal vehicles. Additionally, when use of
company vehicles was not allowed, employees were not
given any additional compensation for fuel for their
personal vehicles to commute to and from home.

      ....

       8. According to [the Company’s] employee handbook:
“An employee who travels in a company vehicle from home
before his regular workday and returns to his home at the
end of the workday is engaged in ordinary home to work
travel which is a normal incident of employment. This is
true whether he/she works at a fixed location or at different
job sites. Normal travel from home to work is not work
time.”

      ....

      13. Based upon a preponderance of the evidence in
view of the entire record, the Full Commission finds that
Mr. Wright was not entitled, through an express or implied
contract, to the work truck provided by [the Company].
The work truck was provided gratuitously by [the
Company] as an accommodation.




                            -9-
                         WRIGHT V. ALLTECH WIRING & CONTROLS

                                       Opinion of the Court



The Commission concluded as a matter of law that “Mr. Wright and the other

employees of the Company were provided work trucks as an accommodation rather

than as a matter of right consequent of an express or implied contract. The employee

handbook makes clear that commuting to and from work is not considered work time.”

       The gratuitous provision of transportation to an employee does not by itself

expose an employer to liability under the Workers’ Compensation Act. Insurance Co.

v. Curry, 28 N.C. App. 286, 290, 221 S.E.2d 75, 78, disc. review denied, 289 N.C. 615,

223 S.E.2d 396 (1976). In Curry, the employer permitted the employee to use a

company vehicle to transport himself and two other employees to and from work. Id.

at 287, 221 S.E.2d at 76. While driving the company vehicle to work one day, the

employee was involved in a traffic accident and died. Id. The trial court found1 and

this Court affirmed that (1) the deceased employee and his passengers were not

performing any work for their employer in the company vehicle at the time of the

accident; (2) the employees’ work day started when they arrived at the employer’s

place of business; (3) the employees were not contractually entitled to the

transportation provided by the employer; (4) the employees were not required by the

employer to use the company vehicle in traveling to and from work; and (5) the

transportation provided by the employer “was gratuitous and merely an



       1
       While this case arose under the Declaratory Judgment Act and not under the Workers’
Compensation Act via the Industrial Commission, this Court applied the provisions of the Workers’
Compensation Act in determining whether the accident arose out of and in the course of employment.

                                              - 10 -
                      WRIGHT V. ALLTECH WIRING & CONTROLS

                                   Opinion of the Court



accommodation.” Id. at 288, 290, 221 S.E.2d at 77, 78. Based on those findings, this

Court determined that the incident did not fall within the contractual duty exception

and affirmed the trial court’s decision. Id. at 290, 221 S.E.2d at 78.

      Here, competent evidence exists to support the challenged findings of fact

relating to the contractual duty exception. Mr. Phillips, owner of the Company,

testified that Mr. Wright had not signed a contract entitling him to daily use of a

company vehicle, and that there were times when Mr. Wright drove one of Mr.

Phillips’s personal cars. Mr. Phillips further testified that due to high gas prices, he

once temporarily suspended the use of work vehicles by his employees, but after gas

prices dropped, he allowed his employees to use the work trucks again. When asked,

“[i]f you wanted to right now, could you take those vehicles away from your employees

and say, ‘You have to drive your own vehicle home[?]’” Mr. Phillips responded by

saying, “I mean, I could.” Mr. Phillips explained that he has “pulled trucks away from

people on and off[,]” and that when employees use their personal vehicles, he does not

reimburse them for their travel expenses.           Mr. Phillips also stated that he

remembered Mr. Wright driving his personal vehicle to work “maybe once or twice,

couple of times.”

      Mr. Phillips’s testimony demonstrates that his employees’ use of the company’s

work trucks was permissive, neither required nor a matter of right. Plaintiff argues

that Defendants presented no evidence that Mr. Wright worked for the Company



                                          - 11 -
                       WRIGHT V. ALLTECH WIRING & CONTROLS

                                  Opinion of the Court



during the time that Mr. Phillips restricted use of the work trucks because of high

gas prices. That contention is irrelevant. This testimony simply demonstrated the

permissive use of the work trucks, in that Mr. Phillips could revoke the use of

company vehicles at will.

      Plaintiff also contends that the Industrial Commission erred by basing its

decision on an employment handbook that was neither applicable to Mr. Wright nor

in effect at the time of his death. We determine that notwithstanding the finding in

which the Commission quotes from the employment handbook, there was substantial

competent evidence to support the Industrial Commission’s conclusion that Mr.

Wright’s accident did not fall within the contractual duty exception.

      As in Curry, Defendants did not require that Mr. Wright use the work truck

for his commute, and the provision of the truck was a gratuitous accommodation that

benefitted both parties. Id. A benefit to either or both parties does not give rise to

an implied contract.    See Tew, 142 N.C. App. at 124-25, 541 S.E.2d at 767-68.

Accordingly, the Industrial Commission’s findings of fact support its conclusion that

the facts of Plaintiff’s case do not fall within the contractual duty exception to the

“coming and going” rule.

      B.     Traveling Salesperson Exception

      Under the traveling salesperson exception, “[i]f travel is contemplated as a part

of the work, accident in travel is compensable.” Ross v. Young Supply Co., 71 N.C.



                                         - 12 -
                       WRIGHT V. ALLTECH WIRING & CONTROLS

                                   Opinion of the Court



App. 532, 537, 322 S.E.2d 648, 652 (1984). However, because traveling to and from

work is common to most every job, an injured employee who has fixed hours and a

fixed place of work does not fall within the traveling salesperson exception. See Hunt

v. Tender Loving Care Home Care Agency, Inc., 153 N.C. App. 266, 269-70, 569 S.E.2d

675, 678, disc. review denied, 356 N.C. 436, 572 S.E.2d 784 (2002). The employee’s

injury must arise during travel connected to the employment. See id. at 269, 569

S.E.2d at 678 (“Whether the travel is part of the service performed is also significant.”

(quotation marks omitted)).

      The Industrial Commission made the following findings of fact concerning the

traveling salesperson exception:

                    2. [Mr. Wright] would travel from the office to the
             client job site. Occasionally, he would travel directly from
             his home to a client job site, but the vast majority of days,
             he would drive directly from his home to the office.
             Similarly, Mr. Wright would occasionally drive directly
             from a job site to his home at the end of the day, but most
             of the time he drove back to the office after visiting a client
             job site . . . .

                   3. Mr. Wright was a salaried employee and he
             generally worked from 7:30 a.m. to 4:30 p.m. Sometimes
             Mr. Wright worked outside those hours at night and on
             weekends, which is documented on his time sheets. Mr.
             Wright also sometimes worked from home.

                    ....

                    11. . . . Mr. Wright left the office at 5:29 pm and
             began to drive home in his work truck. He spoke with Mr.
             Phillips, on the work cell phone from 5:27 p.m. to 5:40 p.m.


                                          - 13 -
                     WRIGHT V. ALLTECH WIRING & CONTROLS

                                 Opinion of the Court



            Mr. Wright stopped at Target on his way home, and the
            GPS logs in evidence show that the ignition was turned off
            from approximately 5:43 p.m. to 5:54 p.m., although the
            nature and purpose of the stop is unknown. Mr. Wright
            spoke with his wife from 5:54 p.m. to 5:56 p.m. At
            approximately 5:57 p.m., Mr. Wright was involved in a
            motor vehicle accident on White Oak Road. White Oak
            Road was on the route Mr. Wright frequently used when
            commuting between the office and his home. . . .

                   12. . . . Mr. Wright was fatally injured while he was
            driving home from [the Company’s] fixed place of business,
            where he had primarily worked most of that day during
            [the Company’s] regular working hours. There is no
            evidence in the record showing that Mr. Wright was on his
            way to a job site, or that he was acting in the course of his
            employment at the time of the accident. Mr. Wright was
            not utilizing his work cell phone, laptop, or tablet or acting
            in furtherance of his job duties at the time of the accident.

Based on these facts, the Industrial Commission concluded as a matter of law that

Mr. Wright’s injuries did not fall within the traveling salesperson exception of the

“coming and going” rule.

      On appeal, Plaintiff challenges findings of fact numbers 2 and 12. However, in

order for the traveling salesperson exception to apply, the employee cannot have a

fixed place of work or fixed hours and must be injured while performing work duties

for the employer. In Thornton v. Richardson Company, the employee was a traveling

salesperson who worked from his employer’s place of business in Raleigh. 258 N.C.

206, 207, 128 S.E.2d 256, 256 (1962). The employee was driving a station wagon

provided by his employer on Highway 17 in South Carolina at 2:40 a.m. when he was



                                        - 14 -
                      WRIGHT V. ALLTECH WIRING & CONTROLS

                                  Opinion of the Court



involved in a fatal head-on collision. Id. at 207-08, 128 S.E.2d at 256-57. Our

Supreme Court affirmed the Industrial Commission’s decision denying compensation

because “[t]here [was] no evidence in the record tending to show that the deceased

had any duties to perform for his employer in the vicinity where the fatal accident

occurred and at the time of night it occurred.” Id. at 208, 128 S.E.2d at 257.

      In the instant case, competent evidence similarly supports the Industrial

Commission’s finding that “[t]here is no evidence in the record showing that Mr.

Wright was on his way to a job site, or that he was acting in the course of his

employment at the time of the accident.” Phone records and Mr. Phillips’s testimony

established that Mr. Wright called Mr. Phillips at 5:27 p.m. and they spoke for

thirteen minutes. GPS logs of Mr. Wright’s truck show that on the day of the accident,

Mr. Wright left the Company’s office around 5:30 p.m. and took his normal route

home. The GPS logs also revealed that Mr. Wright’s vehicle stopped at 7313 White

Oak Road in Garner from 5:43 p.m. to 5:54 p.m. Mrs. Wright testified that Mr. Wright

stopped at a Target store. Then at 5:54 p.m., Mr. Wright called her cell phone and

they spoke for two minutes. At 5:57 p.m., the work truck’s GPS stopped recording

further movement.

      Plaintiff argues that Mr. Wright was working on his way home because he was

talking to Mr. Phillips, but after that phone conversation ended, Mr. Wright stopped




                                         - 15 -
                      WRIGHT V. ALLTECH WIRING & CONTROLS

                                 Opinion of the Court



at Target and then called his wife. If Mr. Wright was working during the drive home,

that work most likely ended upon termination of his phone call with Mr. Phillips.

      Furthermore, there was also competent testimony that Mr. Wright had a fixed

work location with fixed hours. Mr. Phillips testified that on most days Mr. Wright

would come to the office to begin his workday. Mrs. Wright’s testimony and Mr.

Wright’s time sheets established that he generally worked from 7:00 a.m. to 4:30 p.m.

every workday. Record evidence, including time sheets and GPS logs, demonstrated

that Mr. Wright usually started and ended his work day at the office. This evidence

supports the Industrial Commission’s finding that on the vast majority of days

Plaintiff would travel from his home to the office. Thus, the Industrial Commission’s

findings support the conclusion that Plaintiff did not fall within the traveling

salesperson exception to the “coming and going” rule.

                                IV.    Conclusion

      Competent evidence supports the Industrial Commission’s findings of fact, and

those findings support the Industrial Commission’s conclusions that Plaintiff did not

fall within either the contractual duty or traveling salesperson exceptions to the

“coming and going” rule.    Accordingly, we affirm the decision of the Industrial

Commission.

      AFFIRMED.

      Judges TYSON and COLLINS concur.



                                        - 16 -
