Aetna Cas. & Sur. Co. v. Dodson
| Decision Date | 22 April 1988 |
| Docket Number | No. 871205,871205 |
| Citation | 235 Va. 346,367 S.E.2d 505 |
| Court | Virginia Supreme Court |
| Parties | AETNA CASUALTY AND SURETY COMPANY v. Patricia A. DODSON, Administratrix, etc. Record |
Ignacio Britto Pessoa, Alexandria, (Christopher K. Speed, Arthur & Speed, Ltd., Arlington, on briefs), for appellant.
John Blazer, Richmond (R. Harrison Pledger, Jr., McLean, Crews & Hancock, Richmond, on briefs), for appellee.
Present: All the Justices.
Pursuant to Rule 5:42 1, the United States Court of Appeals for the Fourth Circuit, on October 22, 1987, certified to this Court two questions of Virginia law, which we accepted by order entered November 25, 1987. The certified questions were stated as follows:
1. Does Virginia law permit recovery by an insured's estate under the UM provision of the insured's policy (paid for by the insured), where the insured was killed in a work-related motor vehicle accident and where the employer/vehicle owner and co-employee/vehicle operator both had insurance, but where the exclusive remedy clause of the Virginia Workmen's Compensation Act bars recovery under those other policies?
2. In the event Virginia law permits recovery under the circumstances in question one above, should the workmen's compensation benefits received by the insured's wife and children be set-off against the insured's estate's UM recovery where the insured's policy contains a set-off provision?
Because we answer the first question in the negative, it is unnecessary to answer the second.
The facts were stipulated in the federal court. On May 18, 1984, Elmer W. Dodson, Jr., was employed by A.G. Van Metre, Jr., Inc. (Van Metre), as a construction site supervisor. While in the course of his employment, he was struck and killed by a truck owned by Van Metre and operated by Rogerio Cardoso, a fellow employee of Van Metre also acting in the course of his employment. Dodson was survived by his widow and five children.
Dodson's widow and children are statutory beneficiaries under the Virginia wrongful death statutes. Code §§ 8.01-50 through 56. The widow and one dependent child applied for benefits under the Workers' Compensation Act. They received an award, and workers' compensation benefits are now being paid to them.
At the time of his death, Dodson was the named insured in a policy of insurance issued by Aetna Casualty and Surety Company (Aetna) covering two trucks owned by Dodson. The premium had been paid, and the policy was in effect. As required by Code § 38.1-381(b), 2 the policy contained an uninsured motorist (UM) endorsement, which provided: "The company will pay ... all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle...." (Emphasis added.)
Dodson's widow qualified as administratrix of his estate and brought a wrongful death action in the Circuit Court of Fairfax County against Van Metre, Cardoso, and Steven Reece, another Van Metre employee. 3 The defendants in the circuit court filed a plea in bar, asserting that the Workers' Compensation Act afforded the exclusive remedy, because Dodson's fatal injuries were sustained in the course of, and arose out of, his employment, and because Dodson, Cardoso and Reece were all engaged in their employment with Van Metre at the time of the accident. On July 23, 1987, the Circuit Court of Fairfax County sustained the plea in bar and dismissed the wrongful death action as to Van Metre, Cardoso, and Reece. 4
The administratrix also filed a declaratory judgment proceeding in the United States District Court for the Eastern District of Virginia against Aetna, contending that Dodson's estate was entitled to $300,000, the limit of Aetna's coverage under the UM endorsement, and that Aetna had denied coverage. Although Van Metre's truck was insured, she contended that the bar of the Workers' Compensation Act denied her the benefit of Van Metre's insurance, bringing Cardoso within the statutory definition of an "uninsured motorist." 5 Aetna raised several defenses by answer, and the parties filed cross-motions for summary judgment. Aetna contended that because Dodson's estate was not "legally entitled to recover" from the owner or operator of the "uninsured motor vehicle," due to the workers' compensation bar, the administratrix failed to meet a condition precedent for coverage under the UM endorsement.
The district court ruled in favor of the administratrix, granting declaratory judgment establishing UM coverage, and granting the administratrix "leave, in a separate proceeding, to establish fault and determine the full measure of damages with an off set for workman's compensation coverage." Aetna appealed to the United States Court of Appeals for the Fourth Circuit the district court's ruling establishing UM coverage. The administratrix cross-appealed the ruling allowing Aetna to offset workers' compensation benefits. The court of appeals certified those questions to us as stated above.
In Virginia, the Workers' Compensation Act affords the exclusive remedy for personal injury or accidental death sustained within its purview, against a covered employer or against fellow employees whose causative acts arise out of and in the course of employment by a covered employer. Code §§ 65.1-40 and -103. Here, the administratrix, having applied for and received workers' compensation benefits, cannot and does not contest the applicability of the Workers' Compensation Act to the facts surrounding her decedent's accidental death. Rather, she contends that the phrase "legally entitled to recover as damages," appearing in Aetna's policy, is ambiguous, and should be construed against Aetna, which drafted the policy, upon contra proferentem principles. Therefore, she argues, even though workers' compensation would be an exclusive remedy, barring her right to proceed against Van Metre and its employees, nevertheless, Aetna should be unable to take advantage of...
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