American Original Foods, Inc. v. Ford

• Decision Date: 26 November 1980
• Docket Number: No. 791841,791841
• Citation: 221 Va. 557,272 S.E.2d 187
• Parties: , 1981 A.M.C. 153 AMERICAN ORIGINAL FOODS, INC., and Reliance Insurance Company v. Nettie FORD. Record
• Court: Virginia Supreme Court

Page 187

272 S.E.2d 187

221 Va. 557, 1981 A.M.C. 153

AMERICAN ORIGINAL FOODS, INC., and Reliance Insurance Company v. Nettie FORD.

Record No. 791841.

Supreme Court of Virginia.

Nov. 26, 1980.

William E. Baggs, Norfolk (Andrew C. Mitchell, Jr., S. Lawrence Dumville, Breeden, Howard & MacMillan, Norfolk, on briefs), for appellants.

John H. Klein, Norfolk (Breit, Rutter & Montagna, Norfolk, on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ.

HARRISON, Justice.

In this case we decide that the Industrial Commission of Virginia did not err in assuming jurisdiction over a workmen's compensation claim that arose out of an accident which occurred in Virginia upon navigable waters.

George Ford was a welder employed by the Eastern Marine Builders & Supply Company, a division of American Original Foods, Inc. He died as the result of an industrial accident which happened on January 17, 1978, while the decedent was welding hydraulic lines in the clam hold of the "Shinnecock," a ship moored at his employer's dock at Cape Charles. A claim for compensation was filed against the decedent's employer and its carrier, Reliance Insurance Company, and an award was entered in favor of the dependent mother of the decedent. An appeal was granted the employer and its carrier, limited to a consideration of the jurisdiction of the Commission to adjudicate the claim.

During the pendency of this appeal, the Supreme Court decided Sun Ship, Inc. v. Commonwealth of Pennsylvania, --- U.S. ----, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980), which we find pertinent to our disposition of the instant case. There, the appellees were five employees of Sun Ship, Inc., a shipbuilding and ship repair enterprise located on the Delaware River. Each employee was injured after the effective date of the 1972 amendments to the Federal Longshoremen's and Harbor Workers' Compensation Act (LHWCA) and while involved in ship repair activities. The sole issue was whether Pennsylvania could apply its workmen's compensation scheme to the landbased injuries which admittedly fell within the coverage of the LHWCA. The Supreme Court held that it could, and in its opinion took occasion to review the evolution of the law of compensation for workmen injured in maritime precincts beginning with Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917), relied upon by appellants here.

In Jensen the Court held that the New York Workmen's Compensation Act could not be applied to a stevedore unloading a vessel on navigable waters, because to do so would impair the uniformity of the general maritime law. 244 U.S. at 215, 37 S.Ct. at 528. Immediately thereafter Congress passed legislation to give injured maritime employees the rights and remedies under the workmen's compensation laws of any state. This legislation, as well as a second statute similar in approach, was declared unconstitutional. Washington v. Dawson & Co., 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646 (1924); Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834 (1920). At the same time that Congress was seeking to alleviate the impact of the Jensen decision, the Supreme Court also began to narrow its impact by "identifying circumstances in which the subject of litigation might be maritime yet 'local in character,' and thus amenable to relief under state law." Sun Ship, Inc., --- U.S. at ----, 100 S.Ct. at 2435. See also Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321 (1922); Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210 (1921).

In 1927, Congress enacted a federal compensation law, the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901, et seq., which provided, in pertinent part, that "(c)ompensation shall be payable (for an injury) ... occurring upon the navigable waters of the United States ... if recovery ... through workmen's compensation proceedings may not validly be provided by State law." Section 903(a). The effect of this, as Mr. Justice Brennan points out in Sun Ship, Inc., --- U.S. at ----, 100 S.Ct. at 2435, is that "Federal and state law were thus linked together to provide theoretically complete coverage for maritime laborers. But the boundary at which state remedies gave way to federal remedies was far from obvious in individual cases. As a result, the injured worker was compelled to make a jurisdictional guess before filing a claim; the price of error was unnecessary expense and possible foreclosure from the proper forum by statute of limitations."

In Davis v. Department of Labor, 317 U.S. 249, 256, 63 S.Ct. 225, 229, 87 L.Ed. 246 (1942), the Court, after noting that there had never been formulated any guiding rule to determine the extent of state power in advance of litigation, determined that the border between federal and state compensation schemes was less a line than a "twilight zone and which the employees must have their rights determined case by case, and in which particular facts and circumstances are vital elements." The employee in Davis was a structural steelworker who was killed on a barge which was engaged in dismantling an abandoned drawbridge which spanned a navigable river. The Court permitted a recovery under state compensation law. It held that the surrounding circumstances were controlling in determining whether the claim for compensation for the death of the worker was within the state's authority under state workmen's compensation laws or was governed by LHWCA. The court said that in determining the factual problem, a court should give presumptive weight to the conclusion of the appropriate federal authorities and to state statutes, and further, that a presumption of constitutionality exists in favor of a state statute. 317 U.S. at 256-58, 63 S.Ct. at 229-30.

In Calbeck v. Travelers Insurance Co., 370 U.S. 114, 124, 82 S.Ct. 1196, 1202, 8 L.Ed.2d 368 (1962), the injured employees were welders for a shipbuilding company. They were injured while working on barges which had been launched and were floating on navigable waters. The case involved overlapping federal and state law coverage for marine workers. The Court held that LHWCA comprehended "all injuries sustained by employees on navigable waters." Mr. Justice Brennan, commenting on Calbeck, in Sun Ship, Inc., --- U.S. at ----, 100 S.Ct. at 2435, observed that Calbeck extended the coverage of LHWCA "without regard to whether the locus of an event was 'maritime but local,' and hence within the scope of state compensation provisions." Mr. Justice Brennan added:

Yet having extended the LHWCA into the "maritime but local" zone, Calbeck did not overturn Davis by treating the federal statute as exclusive. To the contrary, Calbeck relied upon Davis, and discussed at length its proposition that an injury within the "maritime but local" sphere might be compensated under either state or federal law. 370 U.S. at 128-129, 82 S.Ct. at 1204. So, too, Calbeck's explanation of Avondale Marine Ways, Inc. v. Henderson, 346 U.S. 366, 74 S.Ct. 100, 98 L.Ed. 77 (1953), indicated that although an injury might be compensable under the Longshoremen's Act, "there is little doubt that a state compensation act could validity (sic ) have...