IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA26-41
Filed 7 October 2026
Rowan County, No. 24CVS000645-790
ROBERT L. JEFFERSON, Plaintiff,
v.
JOHNSON CONCRETE COMPANY, Defendant.
Appeal by Plaintiff from order entered 1 August 2025 by Judge Adam M. Elkins
in Rowan County Superior Court. Heard in the Court of Appeals 11 August 2026.
Martin & Jones, PLLC, by Steven D. Corriveau and H. Forest Horne; and
Wilson Law, PA, by Kimberly Wilson White, for Plaintiff-Appellant.
Sue, Anderson & Bordman, LLP, by Gary K. Sue and Andrew T. Smith, for
Defendant-Appellee.
COLLINS, Judge.
Plaintiff Robert Jefferson appeals from the trial court’s order granting
Defendant Johnson Concrete Company partial summary judgment. For the reasons
stated herein, we reverse.
I. Background
Defendant is a North Carolina-based manufacturer of concrete blocks and
pipes. Labor Finders is an employment-staffing company that assigned Plaintiff to
perform work on Defendant’s premises.
The contract between Defendant and Labor Finders stated:
JEFFERSON V. JOHNSON CONCRETE CO.
Opinion of the Court
[Labor Finders] is a temporary employment service which
hires its own employees and assigns them to clients to
support or supplement the clients’ work force. In order to
establish liability, both yours and ours, [Labor Finders]
would like you to understand that to the extent we
maintain workers’ compensation, unemployment and
liability insurance, each coverage applies with respect to
employees of [Labor Finders] only, and that in no way does
[Labor Finders] imply or promise that its insurance will
cover your company or any of your company agents,
contractors or employees.
All temporary employees furnished by [Labor Finders] to
[Defendant] are considered employees of [Labor Finders],
and we are responsible for hiring, disciplinary action,
termination, and/or reassignment of all such employees.
[Defendant] is responsible for training and supervision of
[Labor Finders] employees while on assignment to
[Defendant].
Except as otherwise provided in the applicable work order
or approved by [Labor Finders] in writing in advance,
[Defendant] will not directly or indirectly through any
relationship (other than through [Labor Finders]), use the
services of: (a) a person who has been [a Labor Finders]
temporary employee assigned to [Defendant] at any time
during the 365 days prior to such use; or (b) any person who
was presented to [Defendant] by [Labor Finders] as a
candidate for any permanent or temporary position during
the 365 days immediately prior to such use. . . .
. . . Assignment; Compliance; Restrictions: All
temporary employees assigned to [Defendant] by [Labor
Finders (“Labor Finders Personnel”)] are employees of
[Labor Finders]. [Labor Finders] is responsible for hiring,
assigning, disciplining, terminating and/or reassigning
[Labor Finders] Personnel; and, is solely responsible for
establishing, providing, and paying wages and benefits to
[Labor Finders] Personnel. [Labor Finders] shall withhold,
transmit payroll taxes, make unemployment contributions,
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Opinion of the Court
and carry Workers’ Compensation and unemployment
insurance as required by law with respect to all [Labor
Finders] Personnel. With respect to [Labor Finders]
Personnel compensation, [Labor Finders] has agreed to pay
such [Labor Finders] Personnel. [Defendant] shall be
responsible for the training and supervision of assigned
[Labor Finders] Personnel. [Defendant] is solely
responsible to control and safeguard its premises,
processes and systems as well as for its business
operations, products, services and intellectual property. . . .
[Defendant] is solely responsible: (i) to properly train and
supervise [Labor Finders] Personnel while on assignment;
(ii) for the methods used and results obtained by the [Labor
Finders] Personnel while on the assignment to it; and
(iii) for all explicit and implied orders and instructions
given by or on behalf of [Defendant] to [Labor Finders]
Personnel.
Labor Finders assigned Plaintiff to work for Defendant beginning in March
2022. On 4 May 2022, Defendant’s employee instructed Plaintiff to clean and dislodge
dried cement from the mixing blades of a cement mixer. While performing this task,
Plaintiff’s right arm became trapped beneath a mixing blade, causing extensive
injuries to his arm, wrist, and hand.
Plaintiff filed suit in superior court against Defendant on 2 April 2024,
asserting claims for negligence; negligence per se; gross, willful, and wanton
negligence; and punitive damages.1 Defendant answered, denying the substantive
allegations, and moved to dismiss, asserting that the trial court lacked subject-matter
jurisdiction based on the exclusivity provision of the North Carolina Workers’
1 Plaintiff filed a separate workers’ compensation claim against Labor Finders in the
Industrial Commission.
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Opinion of the Court
Compensation Act (“Act”), and that Plaintiff failed to adequately plead punitive
damages.
Both parties moved for partial summary judgment on whether the trial court
lacked subject-matter jurisdiction based on the exclusivity provision of the Act. After
a hearing, the trial court entered an order on 10 February 2025 denying both motions.
Plaintiff deposed Defendant’s corporate representative on 4 June 2025. The
following day, Plaintiff filed a Rule 60(b) motion to reconsider the order denying his
motion for partial summary judgment, arguing that the deposition testimony
constituted new evidence that he was not Defendant’s employee. Defendant filed its
own motion for reconsideration on 12 June 2025, asserting that the corporate
representative’s testimony established that Defendant “alone determined which
specific jobs the plaintiff would perform at [Defendant], dictated how he was to
perform them, and provided all necessary training, safety equipment, and
supervision of his work while he was at [Defendant] such that [Defendant] has clearly
been established as the special employer of the plaintiff.”
Following a hearing on 16 June 2025, the trial court entered an order granting
both motions for reconsideration and directing the parties to submit supplemental
briefing. The trial court subsequently entered an order granting Defendant partial
summary judgment on whether the trial court lacked subject-matter jurisdiction
based on the exclusivity provision of the Act. Plaintiff timely appealed.
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Opinion of the Court
II. Discussion
Plaintiff argues that the trial court had subject-matter jurisdiction over his
claims against Defendant because he was not Defendant’s employee such that the Act
did not divest the trial court of jurisdiction to adjudicate his claims.
A. Standard of Review
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that any party is entitled to a
judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2025). “In ruling
on a motion for summary judgment, the trial court must view the evidence in the light
most favorable to the non-moving party.” Keller v. Deerfield Episcopal Ret. Cmty.,
Inc., 271 N.C. App. 618, 622 (2020) (quotation marks and citation omitted).
“The party moving for summary judgment bears the burden of establishing
that there is no triable issue of material fact.” Badin Shores Resort Owners Ass’n v.
Handy Sanitary Dist., 257 N.C. App. 542, 549 (2018). “This burden can be met by
proving: (1) that an essential element of the non-moving party’s claim is nonexistent;
(2) that discovery indicates the non-moving party cannot produce evidence to support
an essential element of his claim; or (3) that an affirmative defense would bar the
claim.” CIM Ins. Corp. v. Cascade Auto Glass, Inc., 190 N.C. App. 808, 811 (2008)
(citation omitted).
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Opinion of the Court
We review a trial court’s order granting summary judgment de novo. Forbis v.
Neal, 361 N.C. 519, 524 (2007). Under de novo review, this Court considers the
matter anew and freely substitutes its own judgment for that of the lower court.
McAdoo v. Univ. of N.C. at Chapel Hill, 225 N.C. App. 50, 51 (2013).
B. Workers’ Compensation Act
“[T]he superior court is a court of general jurisdiction and has jurisdiction in
all actions for personal injuries caused by negligence, except where its jurisdiction is
divested by statute.” Solis-Santos v. Lester, 301 N.C. App. 439, 443 (2025) (cleaned
up). “By statute[,] the [s]uperior [c]ourt is divested of original jurisdiction of all
actions which come within the provisions of the Work[ers’] Compensation Act.” Morse
v. Curtis, 276 N.C. 371, 375 (1970) (citations omitted). The exclusivity provision of
the Act provides:
If the employee and the employer are subject to and have
complied with the provisions of this Article, then the rights
and remedies herein granted to the employee . . . shall
exclude all other rights and remedies of the employee . . .
as against the employer at common law or otherwise on
account of such injury or death.
N.C. Gen. Stat. § 97-10.1 (2025). In other words, the Act “provide[s] certain limited
benefits to an injured employee regardless of negligence on the part of the employer,
and simultaneously [] deprive[s] the employee of certain rights he had at the common
law.” Brown v. Motor Inns of Carolina, Inc., 47 N.C. App. 115, 118 (1980) (citations
omitted).
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Opinion of the Court
“In exchange for these limited but assured benefits, the employee is generally
barred from suing the employer for potentially larger damages in civil negligence
actions and is instead limited exclusively to those remedies set forth in the Act.”
Whitaker v. Town of Scotland Neck, 357 N.C. 552, 556 (2003) (quotation marks and
citations omitted). “However, this general rule of exclusivity only bars the employee
from bringing additional claims against his employer, not separate entities.” Nelson
v. Smith, 299 N.C. App. 51, 56 (2025).
C. Dual Employment Doctrines
An employee is defined by the Act as “every person engaged in an employment
under any appointment or contract of hire or apprenticeship, express or implied, oral
or written[.]” N.C. Gen. Stat. § 97-2(2) (2025). A plaintiff may be an employee of two
different employers at the same time under the joint employment doctrine and the
lent employee doctrine. Lassiter v. Robeson Cty. Sheriff’s Dep’t, 388 N.C. 594, 598
(2025).
Under the joint employment doctrine, “a single employee, under contract with
two employers, and under the simultaneous control of both, simultaneously performs
services for both employers, and . . . the service for each employer is the same as, or
is closely related to, that for the other.” Anderson v. Tex. Gulf, Inc., 83 N.C. App. 634,
636 (1986) (citation and emphasis omitted). Under the lent employee doctrine, where
a general employer lends an employee to a special employer, the special employer
becomes liable for workers’ compensation if: (a) “the employee has made a contract of
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Opinion of the Court
hire, express or implied, with the special employer”; (b) “the work being done is
essentially that of the special employer”; and (c) “the special employer has the right
to control the details of the work.” Id. at 635-36 (quotation marks and citations
omitted). “Under both doctrines, the first question is the same: Did the alleged
employee make a contract of hire with the employer?” Lassiter, 388 N.C. at 599
(citation omitted). We analyze the remaining elements of each doctrine only if the
first question is answered in the affirmative. Id.
“Employment contracts may be express or implied.” Archer v. Rockingham
Cty., 144 N.C. App. 550, 557 (2001). An express contract is an “explicit agreement”
between the parties “regarding the right of control[.]” Harris v. Miller, 335 N.C. 379,
387 (1994) (citation omitted). “An implied contract refers to an actual contract
inferred from the circumstances, conduct, acts or relations of the parties, showing a
tacit understanding.” Whicker v. Compass Group USA, Inc., 246 N.C. App. 791, 798
(2016) (quotation marks and citation omitted).
Defendant concedes that it did not have an express contract of hire with
Plaintiff. Defendant argues, however, that it had an implied contract of hire with
Plaintiff such that the first prong of the joint employment and lent employee doctrines
have been met.
Our Court addressed whether an implied contract of hire barred a plaintiff’s
negligence claim in superior court in Solis-Santos v. Lester. There, a staffing agency
entered into an agreement with a demolition company under which the agency would
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Opinion of the Court
provide “skilled temporary employees upon request.” 301 N.C. App. at 441. The
agreement provided, in relevant part:
[The staffing agency] would assign employees to [the
demolition company]; pay the assigned employees’ wages
and provide benefits; and “handle unemployment and
workers’ compensation claims involving [a]ssigned
[e]mployees.” [The demolition company] would “[p]roperly
supervise [a]ssigned [e]mployees performing its work” and
“[p]roperly supervise, control, and safeguard its premises,
processes, or systems.”
Id. This Court affirmed the dismissal of plaintiff’s negligence claim for lack of subject
matter jurisdiction because “there [was] no contractual provision declaring that
[p]laintiff was solely the employee of [the staffing agency]” and “the record contain[ed]
ample other evidence that [p]laintiff and [the demolition company] had an implied
employment contract[,]” including an affidavit and deposition testimony from the
company’s owner acknowledging an implied contract with plaintiff. Id. at 446.
Here, the contract between Defendant and Labor Finders provides:
. . . Assignment; Compliance; Restrictions: All
temporary employees assigned to [Defendant] by [Labor
Finders (“Labor Finders Personnel”)] are employees of
[Labor Finders]. [Labor Finders] is responsible for hiring,
assigning, disciplining, terminating and/or reassigning
[Labor Finders] Personnel; and, is solely responsible for
establishing, providing, and paying wages and benefits to
[Labor Finders] Personnel. [Labor Finders] shall withhold,
transmit payroll taxes, make unemployment contributions,
and carry Workers’ Compensation and unemployment
insurance as required by law with respect to all [Labor
Finders] Personnel. With respect to [Labor Finders]
Personnel compensation, [Labor Finders] has agreed to pay
such [Labor Finders] Personnel. [Defendant] shall be
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Opinion of the Court
responsible for the training and supervision of assigned
[Labor Finders] Personnel. [Defendant] is solely
responsible to control and safeguard its premises,
processes and systems as well as for its business
operations, products, services and intellectual property. . . .
[Defendant] is solely responsible: (i) to properly train and
supervise [Labor Finders] Personnel while on assignment;
(ii) for the methods used and results obtained by the [Labor
Finders] Personnel while on the assignment to it; and
(iii) for all explicit and implied orders and instructions
given by or on behalf of [Defendant] to [Labor Finders]
Personnel.
This contract states that all temporary employees assigned to Defendant by
Labor Finders “are employees of Labor Finders.” (brackets omitted). Plaintiff was
hired, assigned to Defendant, and paid by Labor Finders. Similar to the contract in
Solis-Santos, there is no contractual provision here declaring that Plaintiff was solely
the employee of Labor Finders. Contrary to the record evidence in Solis-Santos,
however, the record evidence here shows that Plaintiff and Defendant did not have
an implied contract of hire. Defendant’s corporate representative testified that:
Plaintiff was not Defendant’s employee; Defendant did not pay wages or benefits to
Plaintiff; Plaintiff was not eligible for benefits through Defendant because he was not
Defendant’s employee; Defendant did not pay unemployment contributions on
Plaintiff’s behalf because Defendant did not carry Plaintiff on its rolls as an employee;
he assumed Plaintiff was not on Defendant’s workers’ compensation policy; and
Defendant’s workers’ compensation premiums were not modified as a result of
Plaintiff’s accident. Defendant’s corporate representative testified specifically as
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Opinion of the Court
follows:
Q. Okay. I’m going to read some of that. “All temporary
employees assigned to Customer by Labor” -- “by LF (‘LF
Personnel’) are employees of LF.”
Did I read that correctly?
A. Yes.
Q. And so what that meant was that [Plaintiff] was an
employee of Labor Finders, not an employee of Johnson
Concrete. Is that right?
A. Yes.
Q. So Labor Finders was paying all wages and all benefits
to [Plaintiff], correct?
A. Yes.
Q. Johnson Concrete didn’t pay wages to [Plaintiff]?
A. No.
Q. Didn’t pay benefits to [Plaintiff]?
A. No.
Q. In fact, he wasn’t eligible for any of the benefits that
Johnson Concrete provided to its regular employees
because he wasn’t an employee of Johnson Concrete.
A. No.
Q. Is that correct?
A. Yes.
Q. The next sentence reads, “[Labor Finders] shall
withhold, transmit payroll taxes, make unemployment
contributions, and carry Workers’ Compensation and
unemployment insurance as required by law with respect
to all [Labor Finders] Personnel.”
Did I read that correctly?
A. Yes.
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Opinion of the Court
Q. And then -- so with respect to any withholdings of taxes
or Medicare or Social Security, Labor Finders was solely
responsible for that?
A. Yes.
Q. Johnson Concrete had no involvement in that
whatsoever. Is that right?
A. That’s correct.
Q. And Johnson Concrete didn’t carry [Plaintiff] on its rolls
as an employee, so it wasn’t paying any unemployment
contributions if -- in the event that [Plaintiff] became
unemployed for some reason. Is that right?
A. That is correct.
Q. Labor Finders made all unemployment contributions
relative to [Plaintiff]?
A. Yes.
Q. And then Johnson Concrete didn’t carry [Plaintiff] on
its workers’ compensation rolls, correct?
A. I do not know. I mean, I would assume not.
Q. Okay. I mean -- well, you know how -- you know that
employees of Johnson Concrete go on -- their names go on
the Johnson Concrete workers’ compensation ---A. Yeah.
Q. --- insurance policy, right?
A. Yeah.
Q. And you understand that [Plaintiff] was never on
Johnson Concrete’s workers’ compensation policy?
A. I would hope not.
Q. Okay. I mean, you understand what an experience
modification is, correct?
A. Yeah.
Q. What is an experienced [sic] modification?
A. On the . . .
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Opinion of the Court
Q. On the workers’ compensation policy.
A. That’s what we pay based on our accident rates and
stuff.
Q. Yeah. So if an employee of Johnson Concrete gets
injured on the job, then that can lead to an increase in the
---A. That’s right.
Q. --- Johnson Concrete workers’ compensation premiums,
correct?
A. Yes.
Q. And [Plaintiff] wasn’t an employee of Johnson Concrete.
A. No.
Q. And so there was no experience modification to Johnson
Concrete as a result of [Plaintiff] being injured on May
22nd of 2023.
A. No.
Defendant essentially wants the benefit of the exclusivity provision of the
Worker’s Compensation Act without the burdens associated with being Plaintiff’s
employer—Defendant cannot have it both ways.
Because there was no record evidence of an implied contract of hire between
Plaintiff and Defendant, neither the joint employment doctrine nor the lent employee
doctrine applies. Accordingly, the exclusivity provision of the Act does not apply, and
the trial court erred by granting Defendant partial summary judgment on this issue.
III. Conclusion
Because the exclusivity provision of the North Carolina Workers’
Compensation Act did not divest the trial court of subject-matter jurisdiction over
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Opinion of the Court
Plaintiff’s claims, the trial court erred by granting Defendant partial summary
judgment. Accordingly, we reverse and remand to the trial court for further
proceedings.
REVERSED.
Judge STROUD concurs.
Judge GRIFFIN dissents by separate opinion.
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GRIFFIN, Judge, dissenting.
I dissent from the majority’s decision concluding there was not an implied
contract of hire. I would hold an implied employment contract exists and the
relationship falls under the Workers’ Compensation Act.
Whether an employer-employee relationship exists at occurrence of the injury
is a jurisdictional fact, and we review this de novo. Lassiter v. Robeson Cnty. Sheriff’s
Dep’t, 388 N.C. 594, 598, 923 S.E.2d 783, 788 (2025) (citations omitted). “To
determine whether an implied employment contract existed between the parties,
consideration must be given as to who ‘hired, paid, trained, and supervised’ the
employee.” Lassiter v. Robeson Cnty. Sheriff’s Dep’t, 291 N.C. App. 579, 587, 896
S.E.2d 280, 287 (2023) (citation omitted), rev’d in part on other grounds, 388 N.C. 594,
923 S.E.2d 783.
The express contract states in relevant part: “[Labor Finders] is responsible for
hiring, assigning, disciplining, terminating and/or reassigning [Labor Finders]
Personnel.” (Emphasis added). I acknowledge Labor Finders hired Plaintiff.
However, this hiring provision does not claim to have exclusive hiring responsibilities.
Other contractual phrases emphasize such singularity.
Furthermore, the contract states, “[Defendant] shall be responsible for the
training and supervision of assigned [Labor Finders] Personnel.” (Emphases added).
Consequently, Defendant had the express responsibility to train and supervise
Plaintiff.
JEFFERSON V. JOHNSON CONCRETE CO.
GRIFFIN, J., dissenting.
The contract continues, “[Defendant] is solely responsible: (i) to properly train
and supervise [Labor Finders] Personnel while on assignment.” As Plaintiff falls
within the designation of “Labor Finders Personnel,” Defendant has the
responsibility of training and supervising Plaintiff while on assignment.
I do acknowledge the contract expressly states Labor Finders is “solely
responsible for establishing, providing, and paying wages and benefits to [Labor
Finders] Personnel.” This language weighs against an implied employment contract
between Plaintiff and Defendant. Nevertheless, weighing all the applicable
considerations—who hired, paid, trained, and supervised the employee—the factors
tilt in favor of an employee-employer relationship between Plaintiff and Defendant.
While Labor Finders had the exclusive responsibility to pay Plaintiff, Defendant had
the sole responsibility in training and supervising. The hiring role was not
exclusively Labor Finders’.
An implied contract exists, and Plaintiff and Defendant had an employeeemployer relationship. I would affirm the trial court’s order.
2