Estep v. Construction General, Inc.

• Citation: 546 A.2d 376
• Decision Date: 18 July 1988
• Docket Number: No. 85-543.,85-543.
• Parties: Samuel ESTEP, et al., Appellants, v. CONSTRUCTION GENERAL, INC., et al., Appellees.
• Court: Court of Appeals of Columbia District

546 A.2d 376

Samuel ESTEP, et al., Appellants, v. CONSTRUCTION GENERAL, INC., et al., Appellees.

No. 85-543.

District of Columbia Court of Appeals.

Argued March 5, 1986,

Reargued April 20, 1987.

Decided July 18, 1988.

Peter J. Vangsnes (counsel for argument on March 5, 1986) and Wayne M. Mansulla (counsel for argument on April 20, 1987), with whom Wayne C. Burgy and Karl N. Marshall, Washington, D.C., were on the briefs, for appellants.

Ignacio B. Pessoa (counsel for argument on March 5, 1986), with whom Christopher K. Speed, Arlington, Va., and James M. Heffler, Washington, D.C., were on the briefs, for appellees.

Walter A. Smith, Jr. (counsel for argument on March 5, 1986 and for reargument on April 20, 1987), with whom Vincent H. Cohen, Robert B. Cave and David F. Grady, Washington, D.C., were on the briefs, for amicus curiae Washington Metropolitan Area Transit Authority.

Edward E. Schwab, Asst. Corp. Counsel, with whom John H. Suda, Acting Corporation Counsel at the time the briefs were filed, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the briefs, for the District of Columbia.

Before MACK, FERREN, and STEADMAN,^* Associate Judges.

FERREN, Associate Judge:

Samuel Estep was injured in 1979 while working for Krick Commercial, Inc. He received compensation from Krick under the District of Columbia Workmen's Compensation Act of 1928, D.C.Code § 36-301 et seq. (1973), which applied to injuries occurring before mid-1982. Estep and his wife then brought a negligence action against the general contractor on the project, Construction General, Inc., which had neither obtained workers compensation insurance for Krick's employees nor paid any part of the compensation to Estep. The trial court granted Construction General's motion for summary judgment, reasoning that, under Supreme Court precedent, the 1928 Act granted Construction General immunity from any tort liability arising from Estep's injury.

This appeal, then, presents the question whether, under the Workmen's Compensation Act of 1928, a general contractor that did not itself obtain compensation for an injured worker is immune from tort liability when the subcontractor that directly employed the worker did meet its statutory obligation to provide compensation.¹ In DiNicola v. George Hyman Construction Co., 407 A.2d 670 (D.C. 1979), we ruled that such a general contractor is not immune from tort liability. Five years later, however, the Supreme Court ruled in Washington Metropolitan Area Transit Authority v. Johnson, 467 U.S. 925, 104 S.Ct. 2827, 81 L.Ed.2d 768 (1984), that an injured District of Columbia worker cannot sue a general contractor in tort unless both the subcontractor and the general contractor have defaulted on their statutory obligations to provide workers compensation for the injury. Under DiNicola, therefore, Construction General would not be immune from tort suits brought by Krick employees such as Samuel Estep. Under Johnson, however, Construction General would be immune because its subcontractor, Krick, did not default on Krick's statutory obligation to provide compensation to Estep. The Esteps contend that the rule announced in Johnson should not govern injuries covered by the 1928 Act; they argue that we should adhere to the rule of DiNicola. We disagree and, on the authority of Johnson, affirm the trial court's dismissal of the lawsuit.

I.

In 1927, Congress passed the Longshoremen's and Harbor Workers' Compensation Act (the Longshore Act) to provide workers compensation for maritime employees. 33 U.S.C. §§ 901 et seq. (1982). A year later, Congress enacted the District of Columbia Workmen's Compensation Act of 1928 (the 1928 Act), which simply made the provisions of the Longshore Act applicable to deaths and injuries befalling workers employed in the District of Columbia. D.C. Code § 36-501 (1973). The 1928 Act has no substantive provisions of its own; it merely incorporates the provisions of the Longshore Act "including all amendments that may hereafter be made thereto." Id.

The Council of the District of Columbia has since repealed the 1928 Act and replaced it with the District of Columbia Workers' Compensation Act of 1980 (the 1980 Act), which, for reasons not relevant here, did not take effect until July 24, 1982. D.C. Code §§ 36-801 et. seq. (1981); O'Connell v. Maryland Steel Erectors, Inc., 495 A.2d 1134, 1141 (D.C. 1985) (as amended), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 603 (1986). Subsequently, Congress amended the Longshore Act in the Longshore and Harbor Workers' Compensation Act Amendments of 1984 (the 1984 Amendments). Among these amendments were provisions designed to overrule the Supreme Court's interpretation in Johnson of the provisions of the Longshore Act at issue (by way of the 1928 Act) in this case. 33 U.S.C. §§ 904 & 905 (Supp. III 1985). In O'Connell, however, we held that the 1984 Amendments had no effect on District of Columbia law because the 1928 Act, to which they would have applied, no longer existed.

More specifically, we concluded that when the 1980 Act repealed the 1928 Act, all claims for injuries occurring before the effective date of the new act, July 24, 1982, were cognizable not under the 1928 Act itself, but under the terms of the 1928 Act by way of 1 U.S.C. § 109 (1982), "a savings statute enacted by Congress to deal with the legal effect to he accorded a repealed statute." O'Connell, 495 A.2d at 1141.² As a consequence, for purposes of litigating such pre-1982 claims, the federal savings statute incorporated and thus froze the terms of the 1928 Act in the form they had immediately before the 1980 Act's effective date of repeal. It followed that, because the 1928 Act as such no longer existed as of July 24, 1982, there no longer was a District of Columbia statute to which congressional amendment of the Longshore Act could apply. Id. at 1140-42; accord, Keener v. Washington Metropolitan Area Transit Authority, 255 U.S.App.D.C. 148, 800 F.2d 1173 (1986) (deferring to this court's decision in O'Connell), cert. denied, 480 U.S. 918, 107 S.Ct. 1375, 94 L.Ed.2d 690 (1987). Whatever power Congress may have had to resurrect the 1928 Act solely for purposes of applying the 1984 Amendments to the District of Columbia, O'Connell must be understood to say that Congress did not do so.

In sum, Estep's claim is governed not by the 1928 Act but by the terms of the 1928 Act preserved through the federal savings statute. Accordingly, Estep's claim is governed by the provisions of the Longshore Act as they existed before the 1984 Amendments, since repeal of the 1928 Act itself eliminated the statutory basis for incorporating later amendments to the Longshore Act into District of Columbia law.

II.

Section 4(a) of the Longshore Act requires employers to obtain compensation for injured employees. 33 U.S.C. § 904(a) (1982). In exchange for undertaking this obligation, employers receive immunity under § 5(a) from tort suits by injured employees. 33 U.S.C. § 905(a) (1982). "In return for the guarantee of compensation, the employees surrender common-law remedies against their employers for work-related injuries. For the employer, the reward for securing compensation is immunity from employee tort suits." Johnson, 467 U.S. at 931, 104 S.Ct. at 2831. It follows that an employer who defaults on the obligation to provide compensation does not receive such immunity. 33 U.S.C. § 905(a) (1982).

The situation of general contractors, however, presents a special problem. Section 4(a) specifically requires a general contractor to obtain compensation for employees of its subcontractor only if the subcontractor has failed to do so. Thus, a general contractor that fails to obtain compensation does not default on its statutory obligations unless the subcontractor also has failed to obtain compensation. 33 U.S.C. § 904(a) (1982). The 1928 Act did not make clear, however, whether such a nondefaulting general contractor enjoys the same immunity from tort suits that a nondefaulting employer generally enjoys, even though the general contractor has not itself obtained compensation or insurance for its subcontractor's employees.

In DiNicola, we held that under the 1928 Act a general contractor can be sued for its negligence when the subcontractor has paid the injured employee as the workers compensation scheme demands. According to DiNicola, the general contractor enjoys tort immunity only when the subcontractor has failed to obtain adequate insurance and the general contractor then meets its resulting duty to step in to pay workers compensation. In reaching this result, the DiNicola court interpreted the relevant provisions of the federal Longshore Act; as have other decisions of this court, the DiNicola opinion consistently characterized its reasoning as a construction of federal law and drew upon federal court precedents interpreting the Longshore Act. See DiNicola, 407 A.2d at 672, 674-75; see also Lee v. District of Columbia Department of Employment Services, 509 A.2d 100, 103 (D.C. 1986); Milligan v. Brian Construction Development Co., 485 A.2d 593 (D.C. 1984); Dodson v. Washington Automotive Co., 461 A.2d 1020 (D.C. 1983) (per curiam).

Several years later, the Supreme Court squarely rejected DiNicola's understanding of §§ 4(a) and 5(a) of the Longshore Act, as incorporated in the 1928 Act. In Johnson, the Court held that general contractors share the presumption of immunity enjoyed by all employers. Like other employers, a general contractor loses this immunity only if it defaults on its statutory obligations. Johnson, 467 U.S. at 937, 104 S.Ct. at 2834. But, because a general contractor has no obligation to its subcontractor's employees unless the subcontractor has defaulted, the general contractor cannot default under the statute as long as the subcontractor provides compensation. The general contractor, therefore, loses its immunity only when both the subcontractor...