Schwalb v. Chesapeake and Ohio Ry. Co., s. 841743

• Citation: 365 S.E.2d 742,235 Va. 27
• Decision Date: 04 March 1988
• Docket Number: 850728,Nos. 841743,s. 841743
• Parties: , 1988 A.M.C. 2077 Nancy J. SCHWALB v. The CHESAPEAKE AND OHIO RAILWAY COMPANY. William McGLONE v. The CHESAPEAKE AND OHIO RAILWAY COMPANY. Record
• Court: Supreme Court of Virginia

Page 742

365 S.E.2d 742

235 Va. 27, 1988 A.M.C. 2077

Nancy J. SCHWALB v. The CHESAPEAKE AND OHIO RAILWAY COMPANY.

William McGLONE v. The CHESAPEAKE AND OHIO RAILWAY COMPANY.

Record Nos. 841743, 850728.

Supreme Court of Virginia.

March 4, 1988.

Michael L. Weiner, Frances S.P. Li, William W. Nexsen, De Parcq, Perl, Honegs, Rudquist & Koenig, P.A., Minneapolis, Minn., Stackhouse, Rowe and Smith, Norfolk, on briefs, for appellant Nancy J. Schwalb.

Richard Wright West, West, Stein, West & Smith, P.C., Newport News, on brief, for appellee Chesapeake & Ohio Ry. Co., in No. 841743.

C. Gerard Thompson (Moody, Strople and Lawrence, Portsmouth, on briefs), for appellant William McGlone.

Richard Wright West (Douglas W. McCartney, West, Stein, West & Smith, P.C., Newport News, on brief), for appellee Chesapeake & Ohio Ry. Co. in No. 850728.

Present: All the Justices.

POFF, Justice.

In this appeal, we review two judgments entered in separate actions, each sustaining a plea to the jurisdiction. Claiming damages for personal injuries, each plaintiff had invoked the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60 (1982) (FELA). In each appeal, the sole issue is whether the plaintiff was a statutory employee as defined in the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950 (1982) (LHWCA or the Act). If so, the parties agree that the remedy provided by the Act is exclusive, see 33 U.S.C. § 905(a) (1982), and that we should affirm the judgments.

The two plaintiffs are Nancy J. Schwalb and William C. McGlone. Each was an employee of the defendant, The Chesapeake and Ohio Railway Company. Although the accidents resulting in the plaintiffs' injuries occurred at different times, the facts in the two cases, insofar as relevant to the issue common to the two appeals, are substantially identical. Each plaintiff was employed as a laborer to perform housekeeping and janitorial services in the offices, shops, bathrooms, and other places situated on the defendant's pier and adjacent property in Newport News. This property is equipped with facilities designed to transfer coal from railroad cars to ships moored at the pier. A "dumper", activated by "trunnion rollers", upends railroad cars and dumps the coal into "hoppers". The coal falls from the hoppers onto conveyor belts that carry it to a "loading tower" from which it is poured into the hold of a ship.

Coal spilled on the trunnion rollers can cause the dumpers to malfunction. Coal falling and accumulating beneath the conveyor belts eventually may damage the belts and interrupt the loading process. As part of the duties assigned by the defendant, the plaintiffs were required to clear away coal spilled in these areas. Because they were not members of a longshoremen's union, the plaintiffs were forbidden to load that coal onto the conveyor belts. The plaintiff McGlone was clearing away coal beneath a conveyor belt at the time he was injured. The plaintiff Schwalb was injured in a fall as she was walking along a "catwalk" approaching the trunnion rollers.

The parties in both cases agree that the defendant railroad is a statutory employer as defined in the LHWCA, that is, an employer "any of whose employees are employed in maritime employment, in whole or in part". 33 U.S.C. § 902(4) (1982). The plaintiffs' contention is that the trial courts erred in ruling that they were statutory employees as defined in the Act. The plaintiffs rely upon our decision in White v. N. and W. Ry. Co., 217 Va. 823, 232 S.E.2d 807, cert. denied, 434 U.S. 860, 98 S.Ct. 186, 54 L.Ed.2d 133 (1977). Reviewing a judgment based on such a ruling, we applied the Act as amended in 1972, Pub.L. No. 92-576, 86 Stat. 1251, to the facts in White. First enacted in 1927, Pub.L. No. 69-803, 44 Stat. (part 2) 1424, the LHWCA was the first successful congressional response to the Supreme Court's decision in Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917). There, the Court had ruled that a state workers' compensation act could not constitutionally apply to a longshoreman injured in an accident that had occurred on a gangplank between a pier and a ship. Initially, Congress sought to authorize states to extend their workers' compensation statutes seaward of the Jensen line, but the Court held the state statutes to be unconstitutional delegations of congressional power. Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834 (1920); Washington v. W.C. Dawson & Co., 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646 (1924).

Although the federal Act filled a workers' compensation void, the LHWCA, as originally enacted, provided coverage only when "disability or death result[ed] from an injury occurring upon the navigable waters of the United States". 33 U.S.C. § 903(a) (1927). Federal compensation coverage stopped at the Jensen line; the Act did not apply to a longshoreman injured at work on a pier, even though engaged in traditional longshoremen's functions. Nacirema Operating Co. v. Johnson, 396 U.S. 212, 218-20, 90 S.Ct. 347, 351-52, 24 L.Ed.2d 371 (1969).

The 1972 amendments to the LHWCA moved the Jensen line landward to include areas adjoining navigable waters and "customarily used by an employer in loading, unloading, repairing, or building a vessel". 33 U.S.C. § 903(a) (1982). Yet, Congress did not extend federal coverage to every worker injured in such areas, for it added an amendment defining a covered employee as "any person engaged in maritime employment". 33 U.S.C. § 902(3) (1982). The effect of the two amendments was to create a two-pronged coverage test--the situs of the injury and the status of the injured worker.

In White, a railroad employee filed a claim under FELA. He had been injured on a situs covered by the LHWCA, and "the critical question presented ... [was] whether plaintiff was a 'person engaged in maritime employment' and thus an 'employee' within the meaning of the Act." 217 Va. at 827, 232 S.E.2d at 809. White was hired as an electrician to maintain and repair the electrical equipment used at a pier to dump coal from railroad cars, to move conveyor belts transporting the coal, and to load the coal into ships. Although White did not operate any of the equipment employed in the loading process, the railroad argued that "all of his activity was 'functionally related' to the loading of coal on ships", id. at 831, 232 S.E.2d at 812, and that he was, therefore, an employee engaged in maritime employment and, as such, was limited to the remedy provided by the LHWCA.

In White, the railroad had borrowed the "functional relationship" formula from the opinion in Sea-Land Service, Inc. v. Director, Office of Workers' Compensation, 540 F.2d 629, 637-38 (3d Cir.1976). Considering the history of the Act and construing the congressional intent underlying the 1972 amendments, we rejected that formula. We adopted, instead, the standard articulated in Weyerhaeuser Co. v. Gilmore, 528 F.2d 957, 961 (9th Cir.), cert. denied, 429 U.S. 868, 97 S.Ct. 179, 50 L.Ed.2d 148 (1976) ¹:

[F]or an injured employee to be eligible for federal compensation under [the Act], his own work and employment, as distinguished from his employer's diversified operations, including maritime, must have a realistically significant relationship to 'traditional maritime activity involving navigation and commerce on navigable waters,' with the further condition that the injury producing the disability occurred on navigable waters or adjoining areas as defined in § 903.

Applying the Gilmore standard, we said that "we do not believe plaintiff's duties ... had a realistically significant relationship to the loading of cargo on ships", that "plaintiff was not a covered 'employee' within the meaning of the Act", and that "the order dismissing plaintiff's FELA action will be reversed". 217 Va. at 832-33, 232 S.E.2d at 813.

In the appeals at bar, the defendant railroad relies on Price v. Norfolk & W. Ry. Co., 618 F.2d 1059 (4th Cir.1980). There, the plaintiff in an FELA action was a painter employed by the defendant railroad. He sustained an injury while painting the support towers of a structure housing a conveyor belt system used in loading grain into the hold of a vessel. The Price court reasoned that, because "the failure to paint would eventually lead to severe rusting that would halt the entire [loading] process", id. at 1062 n. 4, the plaintiff was engaged in maritime employment and, consequently, "was an 'employee' within the meaning of the LHWCA which provides an exclusive remedy", id. at 1062.

We cannot agree that Congress intended the 1972 amendments to have such pervasive and preclusive effects. Nor do we agree with the argument advanced by the railroad in these appeals that the Supreme Court implicitly has overruled our decision in White. On brief, the defendant says that "the U.S. Supreme Court has stated that one is engaged in maritime employment if he is 'engaged in the overall process of loading and unloading vessels' (emphasis supplied)." For this proposition, the defendant cites Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977). The language the defendant quotes from that decision is an abbreviated excerpt lifted from a longer passage, the import of which we construe differently.

The injuries at issue in Caputo were sustained during the process of unloading a ship. Considering the reports of the congressional committees that initiated the 1972 amendments, the Court concluded that Congress intended

to cover those workers involved in the essential elements of unloading a vessel--taking cargo out of the hold, moving it away from the ship's side, and carrying it immediately to a storage or holding area.... [P]ersons who are on the situs but are not engaged in the overall process of loading and unloading vessels are not...