Delp v. Berry
| Decision Date | 23 April 1973 |
| Citation | 213 Va. 786,195 S.E.2d 877 |
| Parties | Michael W. DELP v. Clifton J. BERRY, Sr., and Johnson Brake and Wheel Service, Inc. |
| Court | Virginia Supreme Court |
Terry H. Davis, Jr., Norfolk (Taylor, Gustin, Harris, Fears & Davis, Norfolk, on brief), for plaintiff in error.
Sidney Sacks, Norfolk (Lewis, Sacks & DeLaura, Norfolk, on brief), for defendants in error.
Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.
In Virginia Used Auto Parts v. Robertson, 212 Va. 100, 103, 181 S.E.2d 612, 614 (1971), we concluded that Code § 65.1--106 'expressed the overriding legislative intent that an uninsured employer shall be liable to his employee injured in an accident arising out of and during the course of his employment' and that '(h)ence unsuccessful resort to a civil action will not bar the employee from pursuing his remedy under the (Workmen's Compensation) Act' (the Act). Code § 65.1--1 et seq. Here we must decide whether such an employee, who has been unable to collect from his uninsured employer an award made him by the Industrial Commission of Virginia (Commission), can thereafter resort to a civil action against the employer.
Michael W. Delp was injured in an accident which arose out of and in the course of his employment. He filed an application with the Commission against his employer, Johnson Brake and Wheel Service, Inc. (Johnson) for compensation under the Act. The employer claimed it did not have a sufficient number of employees to bring it within the jurisdiction of the Act. The Commission found that the employer was subject to the Act and entered an award in favor of Delp. The employer did not have workmen's compensation insurance and Delp has been unable to collect the amount of his award or any part thereof. Judgment was entered on the award in the Corporation Court of Norfolk and a writ of Fieri facias was issued thereon and returned 'no effects'.
Thereafter Delp filed his motion for judgment in the court below against Johnson and Clifton J. Berry, Sr., alleging that Berry employed Delp to work as a mechanic for Berry in his business, known as Johnson Brake and Wheel Service, Inc., and was liable both as an agent of the corporation and on the basis of Respondeat superior. Appellees pleaded res judicata. The trial court agreed, holding that it was without jurisdiction to determine the matter because exclusive jurisdiction was vested in the Commission. We granted Delp a writ of error.
The record discloses that at the time Delp was injured Johnson was not in compliance with the Act. Code § 65.1--103 prescribes the duty of employers to insure payment of compensation and the effect of such insurance:
Had Johnson complied with the provisions of the Act, it would have enjoyed the protection of Code § 65.1--40, which precludes a suit by an employee against his employer in the following language:
'The rights and remedies herein granted to an employee when he and his employer have accepted the provisions of this Act respectively to pay and accept compensation on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin, at common law or otherwise, on account of such injury, loss of service or death.'
Johnson cannot avail itself of the protection of these statutes for they are conditioned upon an employer having compensation insurance or having established financial ability to pay. Johnson did neither, claiming that its business was not subject to the Act.
Code § 65.1--105 requires every employer subject to the Act to file with the Commission evidence of compliance with the provisions of Code § 65.1--104, requiring of employers subject to the Act insurance or...
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Gibbs v. Newport News Shipbuilding & Drydock Co.
...Lacking any remedy under the Act, Gibbs' estate is unaffected by the exclusivity bar of Code § 65.2–307. See Delp v. Berry, 213 Va. 786, 789, 195 S.E.2d 877, 879 (1973); Virginia Used Auto Parts v. Robertson, 212 Va. 100, 102–03, 181 S.E.2d 612, 613–14 (1971). The circuit court therefore er......
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...We held that the employee was not required to make an election of remedies, but could proceed under the Act. In Delp v. Berry, 213 Va. 786, 195 S.E.2d 877 (1973), we considered a variation on that theme. There, an employee received from the Industrial Commission an award of benefits under t......
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Redifer v. Chester
...103, 181 S.E.2d at 614. The Court also discussed the application of the provisions now codified in Code § 65.2–805 3 in Delp v. Berry, 213 Va. 786, 195 S.E.2d 877 (1973). In Delp, an employee was successful in establishing the liability of his uninsured employer under the Act, but was unsuc......
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8.2 Procedural Considerations
...(Aug. 26, 2002).[143] Virginia Used Auto Parts, Inc. v. Robertson, 212 Va. 100, 102, 181 S.E.2d 612, 613-14 (1971).[144] Delp v. Berry, 213 Va. 786, 789, 195 S.E.2d 877, 879 (1973).[145] Id.[146] Va. Code § 65.2-1202.[147] Thomas v. Washington Gas Light Co., 448 U.S. 261 (1980).[148] Id.[14......