Derosia v. Book Press, Inc., 85-332

• Docket Nº: No. 85-332
• Citation: 531 A.2d 905, 148 Vt. 217
• Case Date: June 26, 1987
• Court: United States State Supreme Court of Vermont

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531 A.2d 905 148 Vt. 217 Gertrude C. DEROSIA
v.
The BOOK PRESS, INC. and Liberty Mutual Insurance Co. No. 85-332. Supreme Court of Vermont. June 26, 1987.

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[148 Vt. 218] Thomas W. Costello, P.C., Brattleboro, for plaintiff-appellee.

Robert P. Gerety, Jr., of Plante, Richards, Terino & Hanley, White River Junction, for defendant-appellant.

Before [148 Vt. 217] ALLEN, C.J., PECK, J., BARNEY, C.J. (Ret.), UNDERWOOD, J. (Ret.), and SPRINGER, D.J. (Ret.), Specially Assigned.

[148 Vt. 218] ALLEN, Chief Justice.

Plaintiff, the wife of an injured employee, commenced this loss of consortium action against her husband's employer, The Book Press, Inc., ¹ and the employer's workers' compensation carrier, Liberty Mutual Insurance Company (Liberty). The complaint alleged, inter alia, that Liberty's negligent inspection of the work place was the proximate cause of her husband's physical injuries, on account of which she suffered damages for loss of consortium. The action is here on interlocutory appeal, under V.R.A.P. 5(b)(1), from an order of the Windham Superior Court denying Liberty's motion to dismiss. We conclude that the trial court improperly denied the motion to dismiss, and reverse and remand.

We note at the outset that the order granting permission to appeal does not set forth the question or questions of law deemed to be controlling. The trial court denied Liberty's motion to dismiss on the grounds ultimately affirmed in Derosia v. Duro Metal Products Co., 147 Vt. 410, 519 A.2d 601 (1986), and did not decide the questions which Liberty seeks to raise in this appeal. Nevertheless, where, as here, the questions which the parties seek to have resolved can be determined and have been fully briefed and argued, we will reach them. In re Fletcher, 144 Vt. 419, 422, 479 A.2d 134, 135-36 (1984); State v. Carpenter, 138 Vt. 140, 146, 412 A.2d 285, 289 (1980).

[148 Vt. 219] Duro Metal held that a workers' compensation insurance carrier is not immune from a tort action brought by an employee, notwithstanding the receipt of benefits by the employee under the workers' compensation statute, when the carrier negligently "undertakes to perform ... safety inspection[s] of the workplace," and causes injury to the employee. Duro Metal, 147 Vt. at 415, 519 A.2d at 604. Liberty now argues that even if it is not immune from third-

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party actions brought by the injured employee, the workers' compensation statute bars a loss of consortium claim brought by the spouse of the injured employee. Liberty's argument raises issues of first impression in this jurisdiction requiring us to interpret both the exclusive remedy provision, 21 V.S.A. § 622, and the dual liability provision, 21 V.S.A. § 624(a), of the workers' compensation statute.

I.

Liberty's first argument is that the exclusive remedy provision of the statute, 21 V.S.A. § 622, bars plaintiff's loss of consortium claim. Section 622 provides:

The rights and remedies granted by the provisions of this chapter to an employee on account of a personal injury for which he is entitled to compensation under the provisions of this chapter shall exclude all other rights and remedies of such employee, his personal representatives, dependents or next of kin, at common law or otherwise on account of such injury.

21 V.S.A. § 622 (emphasis added). The language of § 622, decisions from other jurisdictions interpreting similar statutory provisions, and our prior characterization of the nature of a claim for loss of consortium all support Liberty's interpretation of the statute.

In exchange for a grant to covered employees of "a remedy which is both expeditious and independent of proof of fault," the workers' compensation statute provides employers with liability which is "limited and determinate." Morrisseau v. Legac, 123 Vt. 70, 76, 181 A.2d 53, 57 (1962). As indicated above, the statute contains broad language barring "all other rights and remedies" of the employee's "dependents or next of kin, at common law or otherwise on account of such injury." 21 V.S.A. § 622. Plaintiff [148 Vt. 220] argues that the limitations in § 622 do not apply to her loss of consortium claim because her injury is not one for which her husband could be compensated under the Act, and it is therefore an independent cause of action.

Plaintiff misconstrues a loss of consortium cause of action. We have previously noted that a claim for "loss of consortium is a derivative action," is dependent upon the success of the underlying tort claim, and arises on account of the injured employee's physical injury. Hay v. Medical Center Hospital, 145 Vt. 533, 539, 496 A.2d 939, 942-43 (1985). Since an injured employee would be barred under § 622 from bringing a tort action...