The Blog Formerly Known As Practical Paralegalism
Charlotte workers’ compensation attorney Bob Bollinger successfully litigated a missed appeal deadline before the North Carolina Court of Appeals, after the North Carolina Industrial Commission e-mailed his legal assistant a document which had a 15-day appeal deadline – which Mr. Bollinger missed because he did not know about it.
On April 26, 2007, Deputy Commissioner Myra L. Griffin issued her opinion and award in Egen v. Excalibar Resort Professional, ___ N.C. App. ___, 663 S.E.2d 914 (2008), denying plaintiff’s claim for workers’ compensation benefits. She sent it to the parties via e-mail only, directly to defendant’s counsel, Samuel Barker, but not directly to plaintiff’s counsel, Bob Bollinger. Instead, the plaintiff’s e-mail notice was sent care of Janice Craig, a legal assistant in Mr. Bollinger’s office.
When Mr. Bollinger discovered that the opinion and award had been issued, the deadline to timely appeal it had expired. He wrote the Commission on May 16, 2007, stating:
Please note that I did not personally see the Opinion and Award until May 14, although it was apparently served exclusively by email…However, that email was not sent directly to me, but rather to a clerical employee who did not understand the significance of the email. I believe that the email to the Plaintiff should have been sent directly to me, rather than to a clerical employee, as the rules generally prevailing as to service of process require service on the attorney of record, not upon his clerical support staff.
Defendants’ counsel argued that plaintiff’s appeal was untimely and moved to dismiss it. Mr. Bollinger responded with a motion for relief due to excusable neglect. On June 7, 2007, Chairman Buck Lattimore granted the defendants’ motion to dismiss.
Mr. Bollinger filed a motion for reconsideration on June 18, 2007, which included an affidavit signed by his legal assistant, Janice Craig. The affidavit stated that she thought the e-mail had also been sent to Mr. Bollinger and that she was simply “blind-copied” on it. To add to the confusion, the “To” line contained the names of both Mr. Barker and Mr. Bollinger. Ms. Craig’s affidavit also stated that the e-mail did not contain the Commission’s usual notice of appeal deadlines sent with mailed opinion and awards, and that in her decade of employment with Mr. Bollinger’s firm, she had never before received an opinion and award via e-mail. Ms. Craig did acknowledge receipt of the e-mail by replying to the Commission.
Chairman Buck Lattimore denied plaintiff’s motion for reconsideration on June 23, 2007. Mr. Bollinger appealed to the North Carolina Court of Appeals, arguing that “the Commission erred in the manner in which it served notice upon him, specifically by (1) notifying the plaintiff’s attorney’s employee, rather than plaintiff’s attorney directly and (2) using email as the means of providing notice.” Egen.
On August 5, 2008, the North Carolina Court of Appeals issued a decision which reversed the granting of defendants’ motion to dismiss, although the court did not find that the Commission erred by serving notice on the attorney’s agent via e-mail. Rather the court concluded that “the Commission erred in not finding excusable neglect on the part of plaintiff’s attorney.” Egen.
Regardless of the court’s finding that serving an agent via e-mail was not incorrect, the Commission “clarified” its “practice and procedure with respect to service of documents by e-mail in light of Egen” and published Minutes on February 17, 2009, which state in part: “The Industrial Commission shall not use e-mail for the purpose of notification or service upon a party of time sensitive documents where appeal rights are affected…” [emphasis added]
On February 26, 2009, Mr. Bollinger wryly observed on the North Carolina Advocates for Justice workers’ compensation section listserv that: “I fell on my sword for this, guys. I will forever be in the Court of Appeals reporter as the lawyer who committed ‘excusable neglect’ in Egen because they mailed an O&A to my assistant, instead of mailing it to me….and I missed the appeal deadline because I didn’t know it had arrived.”
As a legal assistant who also might have thought that my supervising attorney had received the e-mail if his name had been included in the “To” line, I am extremely grateful for Mr. Bollinger’s sacrifice and the resulting clarification of the Commission’s service of time sensitive documents.
Special thanks to attorney Bob Bollinger for allowing me to re-print his listserv post.