Demetres v. E. W. Constr., Inc.

Decision Date28 January 2014
Docket NumberCivil Action No. 2:13cv155.
Citation995 F.Supp.2d 539
CourtU.S. District Court — Eastern District of Virginia
PartiesJames Thomas DEMETRES, Plaintiff, v. EAST WEST CONSTRUCTION, INC., Defendant.

OPINION TEXT STARTS HERE

Earl Stanley Murphy, Moody, Strople & Kloeppel, Ltd, Portsmouth, VA, for Plaintiff.

Danielle Deanna Giroux, Harman Claytor Corrigan & Willman, Richmond, VA, Stanley Paul Wellman, Harman Claytor Corrigan & Wellman, Glen Allen, VA, for Defendant.

OPINION AND ORDER

REBECCA BEACH SMITH, Chief Judge.

This matter comes before the court on the Motion to Dismiss (“Motion”) and accompanying Memorandum in Support, filed by the Defendant, East West Construction, Inc., pursuant to Federal Rule of Civil Procedure 12(b)(1). ECF No. 6. Therein, the Defendant alleges that this court lacks jurisdiction over the dispute because the Plaintiff's claims are preempted by the Virginia Workers' Compensation Act (“VWCA”). For the reasons set forth below, the court GRANTS the Defendant's Motion, and the case is DISMISSED for lack of subject matter jurisdiction in this federal court in the Eastern District of Virginia. 1

I. FACTUAL AND PROCEDURAL BACKGROUND

This suit arises out of an accident that occurred on a construction site in the City of Virginia Beach on March 28, 2011. Am. Compl. ¶ 1. ECF No. 4. After a period of discovery, the parties filed an Agreed Statement of Facts (“SOF”). ECF No. 24. The following facts, which are relevant to the jurisdictional analysis, are undisputed.

At the time of the accident, the Plaintiff, James Thomas Demetres (Plaintiff), a citizen of North Carolina, was an employee of Ashland Construction Company (“Ashland”), a North Carolina corporation. Am. Compl. ¶¶ 1, 3; SOF ¶¶ 1, 3. Ashland, a general contractor, assigned the Plaintiff “to work as the superintendent for the construction of a new CVS pharmacy” in Virginia Beach. Am. Compl. ¶ 10. Ashland hired East West Construction, Inc. (Defendant), a site and utility subcontractor and a Virginia corporation, to prepare the property for construction. Am. Compl. ¶¶ 7, 11. On March 28, 2011, one of the Defendant's employees was operating a bulldozer, which he backed over the Plaintiff, causing extensive injuries. Am. Compl. ¶¶ 11, 13. Following the accident, the Plaintiff received North Carolina workers' compensation benefits on behalf of his employer, Ashland. Am. Compl. ¶ 4; SOF ¶ 6. On March 27, 2013, the Plaintiff filed this diversity action against the Defendant in federal court, alleging that the negligence of the Defendant's employee caused the accident, and seeking $100,000,000 in damages. Am. Compl. ¶¶ 19–20.

II. STANDARD OF REVIEW

The plaintiff bears the burden of proving that subject matter jurisdiction exists by a preponderance of the evidence. See, e.g., United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347–48 (4th Cir.2009) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982)). When a defendant challenges subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), ‘the district court is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.’ Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999) (quoting Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991)). The district court should grant the Rule 12(b)(1) motion to dismiss ‘only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.’ Id. (quoting Richmond, Fredericksburg & Potomac R.R. Co., 945 F.2d at 768).2

III. ANALYSIS
A. Applicable Law

A federal district court hearing a case based on diversity jurisdiction, such as the instant case, must apply the law of the state in which the court sits. E.g., Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496–97, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); America Online, Inc. v. St. Paul Mercury Ins. Co., 347 F.3d 89, 92 (4th Cir.2003). Virginia applies the lex loci delecti rule for determining the applicable law in tort actions. Jones v. R.S. Jones and Assoc., Inc., 246 Va. 3, 5, 431 S.E.2d 33 (1993); see Garcia v. Pittsylvania Cnty. Serv. Auth., 845 F.2d 465, 467 (4th Cir.1988) (stating that “the law of the State of the accident controls the remedy sought in that particular forum”) (citing McCann v. Newport News Shipbuilding & Dry Dock Co., 177 F.Supp. 909, 913 (E.D.Va.1959)). Moreover, the United States Court of Appeals for the Fourth Circuit has determined that Virginia law applies to a diversity tort action brought in a Virginia federal court regarding whether the exclusivity provision of the VWCA bars the claim. See Garcia, 845 F.2d at 466–68. In Garcia, as in the instant case, the plaintiffs were North Carolina residents, working for a North Carolina company that was performing work in Virginia for a Virginia entity. Id. at 466–68. The plaintiffs were injured in an accident that occurred in Virginia. Id. The Fourth Circuit held that the VWCA applied and that it provided the exclusive remedy for the plaintiffs under Virginia law. Id. at 468. Thus, the plaintiff bears the burden of proving that the VWCA's exclusivity provision does not preclude this court's subject matter jurisdiction.3See Jadhav, 555 F.3d at 347–48 (citing Adams, 697 F.2d at 1219).

B. The VWCA's Exclusivity Provision

The VWCA bars actions against both an employee's “direct” employer and his or her “statutory employer,” providing that an injured employee's exclusive remedy lies under the VWCA. The exclusivity provision of the VWCA provides as follows:

The rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title respectively to pay and accept compensation on account of 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.

Va.Code § 65.2–307(A) (emphasis added).

First, the Plaintiff argues that he and his employer, Ashland, did not accept the VWCA because Ashland compensated the Plaintiff under the North Carolina Workers' Compensation Act, not the VWCA. See Pl.'s Reply and Opp'n to Def.'s Mot. Dismiss 9–10. ECF No. 13. He also emphasizesthat the Defendant made no financial contribution to Ashland's North Carolina workers' compensation insurance policy, under which the Plaintiff was compensated. Pl.'s Supp. Reply and Opp'n to Def.'s Mot. Dismiss 2. ECF No. 26.

The Plaintiff's argument is unavailing. It is irrelevant that he received workers' compensation benefits from Ashland under North Carolina's workers' compensation laws. The VWCA provides that [e]very employer and employee, except as herein stated, shall be conclusively presumed to have accepted the provisions of this title.” Va.Code § 65.2–300(A). Moreover, the VWCA extends workers' compensation coverage to out-of-state residents injured while working in Virginia. See Garcia, 845 F.2d at 466–68. Indeed, even though the Plaintiff has received compensation under North Carolina's workers' compensation laws, he may be eligible for compensation under the VWCA to the extent that his recovery under North Carolina's workers' compensation laws has not compensated him to the same extent that the VWCA would have done. SeeVa.Code § 65.2–508(B). However, coverage under the VWCA constitutes an out-of-state resident's only remedy for injuries that occur in Virginia and that are caused by a statutory employer. See McCann, 177 F.Supp. at 913–14 (explaining that a New Jersey resident injured in Virginia was eligible for compensation under the VWCA and that the VWCA thus barred his tort claim against his statutory employer); see also Garcia, 845 F.2d at 467 (explaining that McCann states the law of Virginia regarding the applicability of the VWCA to out-of-state residents injured in Virginia).

In Garcia, as here, the out-of-state plaintiffs received workers' compensation under the North Carolina Workers' Compensation Act. 845 F.2d at 466. Because they were injured in Virginia by statutory co-employees, the Fourth Circuit held that the VWCA's exclusivity provision barred their tort claims. Id. at 466–68; see also Wilson v. Fraser, 353 F.Supp. 1, 4–5 (D.Md.1973) ([I]t is eligibility for benefits under the workmen's compensation laws of Virginia, not whether a claim for benefits was actually made or received, which determines whether a bar to a common law action exists.”) (citing Home Indem. v. Poladian, 270 F.2d 156 (4th Cir.1959); McCann, 177 F.Supp. 909 (E.D.Va.1959)); McCann, 177 F.Supp. at 913 (explaining that “Virginia intended to grant such remedies to, and impose such restrictions and limitations upon, such non-residents to the same extent as though they were residents and employed by a Virginia employer.”). Thus, because the Plaintiff's injury occurred in Virginia and was caused by a statutory co-employee, compensation under the VWCA is his only remedy under Virginia law, and his tort suit is barred here. See infra at 545–47.

The Plaintiff further argues that Garcia does not apply to his case because Garcia considered the pre–1991 version of the VWCA's exclusivity provision. See Pl.'s Reply and Opp'n to Def.'s Mot. Dismiss 13–14. ECF No. 13; Pl.'s Supp. Reply and Opp'n to Def.'s Mot. Dismiss 6–7. ECF No. 26. However, the pre–1991 version of the VWCA's exclusivity provision on which Garcia is based is materially the same as the current version quoted above. Former Va.Code § 65.1–40 (recodified as Va.Code § 65.2–307(A)) provided as follows:

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,...

To continue reading

Request your trial
6 cases
  • Demetres v. E. W. Constr., Inc.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • January 15, 2015
    ...of North Carolina. Id. at 467. The district court concluded that Garcia clearly foreclosed Demetres's claim. Demetres v. E.W. Constr. Co., 995 F.Supp.2d 539, 544 (E.D.Va.2014) (relying on Garcia to conclude that Demetres's “tort suit is barred [in Virginia]”). Like the district court, we co......
  • Demetres v. E. W. Constr., Inc.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • January 15, 2015
    ...of North Carolina. Id. at 467. The district court concluded that Garcia clearly foreclosed Demetres's claim. Demetres v. E.W. Constr. Co., 995 F.Supp.2d 539, 544 (E.D.Va.2014) (relying on Garcia to conclude that Demetres's “tort suit is barred [in Virginia]”). Like the district court, we co......
  • Demetres v. E. W. Constr., Inc., 14–1180.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • January 15, 2015
    ...North Carolina. Id. at 467. The district court concluded that Garcia clearly foreclosed Demetres's claim. Demetres v. E.W. Constr. Co., 995 F.Supp.2d 539, 544 (E.D.Va.2014) (relying on Garcia to conclude that Demetres's “tort suit is barred [in Virginia]”). Like the district court, we concl......
  • Roberson v. SMG Food & Beverage, LLC
    • United States
    • U.S. District Court — Eastern District of Virginia
    • July 21, 2020
    ...law of Virginia governs. Benner v. Nationwide Mut. Ins. Co., 93 F.3d 1228, 1234 (4th Cir. 1996); see Demetres v. E. W. Constr., Inc., 995 F. Supp. 2d 539, 543 (E.D. Va. 2014) (Smith, J.) ("[The United States Court of Appeals for the Fourth Circuit] has determined that Virginia law applies t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT