Canova Elec. Contracting, Inc. v. LMI Ins. Co., s. 0157-96-2

• Decision Date: 18 June 1996
• Docket Number: Nos. 0157-96-2,0221-96-2,s. 0157-96-2
• Citation: 22 Va.App. 595,471 S.E.2d 827
• Parties: CANOVA ELECTRICAL CONTRACTING, INC. and Royal Insurance Company of America v. LMI INSURANCE COMPANY. Record
• Court: Virginia Court of Appeals

Page 827

471 S.E.2d 827

22 Va.App. 595

CANOVA ELECTRICAL CONTRACTING, INC. and Royal Insurance Company of America v. LMI INSURANCE COMPANY.

Record Nos. 0157-96-2, 0221-96-2.

Court of Appeals of Virginia,

Richmond.

June 18, 1996.

Benjamin J. Trichilo (Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C., on briefs), Fairfax, for appellants.

William F. Karn (Cathie W. Howard; Williams & Pierce, on briefs), Richmond, for appellee.

Present: BENTON, COLEMAN and FITZPATRICK, JJ.

BENTON, Judge.

These appeals arise from the commission's denial of motions to dismiss two separate petitions for review. Canova Electrical Contracting, Inc. and Royal Insurance Company of America contend that the commission erred in denying the motions to dismiss because the commission lacked jurisdiction to consider a dispute solely involving coverage between insurers. For the reasons that follow, we dismiss the appeals.

I.

The evidence proved that Canova contracted to provide electrical contracting services for a building project in Alexandria, Virginia. In January 1994, Canova entered into an agreement with Tower Electric Co., in which Tower agreed to provide electricians to work at the building project at a rate specified in the agreement. Canova agreed to provide all supervision of the electricians at the building project and further agreed not to hire any Tower employees before one year after completion of the building project.

James Foley began working for Tower in May 1994. He sustained an injury by accident on July 10, 1994, while working at the building project. Foley filed a worker's compensation claim against Tower and its insurer, LMI Insurance Co. Later, at Foley's request, the commission added Canova and its insurer, Royal, to the claim as defendants. Foley alleged that he was working for Canova on loan from Tower at the time of the accident.

Carlos Real was employed by Tower in February 1994. He sustained an injury by accident on June 21, 1994, while working at the building project and filed a worker's compensation claim against Tower. Contending that Canova was Real's statutory employer at the time of the accident, Tower requested that Canova be included as a defendant to the claim. The commission granted the request.

Following separate evidentiary hearings on these two claims, a deputy commissioner ruled in each case that "it was the parties' intent that Tower employees would continue to be employees of Tower and not the servants of Canova." The deputy commissioner entered awards on behalf of "Foley against Tower Electric Co. and LMI Insurance Co." and "Real against Tower Electric Co. and LMI Insurance Co."

LMI filed requests for review from both decisions. Canova filed motions to dismiss the requests for review, alleging, in part, that LMI was acting on its own behalf, that "no appeal has been filed on behalf of the insured of LMI Insurance Company, Tower Electric Company," and that "LMI Insurance Company has no standing to file an appeal where there is an adjudication by the commission that its insured, Tower Electric Company, is obligated under a final Order of the commission to pay compensation benefits."

In denying the motions to dismiss, the commission issued separate opinions containing identical language. In pertinent part, the commission ruled as follows:

An award of the commission is at issue in the current proceeding because the Deputy Commissioner has decided which of two named defendant employers is responsible for the payment of benefits. In the present appeal, fundamental issues of liability are still at issue since a decision of the Commission is not final until all appeals have been exhausted or until the time for appeal has passed. As a result of this consideration regarding finality, there has been no final determination regarding the employer in the present matter. Therefore, the issue before the Commission affects the employee's rights.... [T]he matter before the Commission is not solely a contest between two compensation carriers.

In addition, Code of Virginia § 65.2-101 provides a definition of an employer as follows:

(i) any person, the Commonwealth or any political subdivision thereof and any individual, firm, association or corporation, or the receiver or trustee of the same, or the legal representative of a deceased employer, using the service of another to pay for (ii) any volunteer fire company or volunteer lifesaving or rescue squad electing to be included and maintaining coverage as an employer under this title. If the employer is insured, it includes his insurer so far as applicable.

(Emphasis added).

Even though LMI's Petition for Review to the full Commission did not name the employer, given the statutory inclusion of an insurer in the definition of employer found in § 65.2-101, in a workers' compensation proceeding, the identities of an employer and insurer are by their nature intertwined. Therefore, Tower Electric Company is necessarily a party to the review.

Canova appeals to this Court from that ruling by the commission denying Canova's motion to dismiss.

II.

The Court of Appeals of Virginia is a court of limited jurisdiction. West v. Commonwealth, 18 Va.App. 456, 457, 445 S.E.2d 159, 159 (1994), appeal dismissed, 249 Va. 241, 455 S.E.2d 1 (1995)...