Gibbs v. Newport News Shipbuilding & Drydock Co.

• Decision Date: 01 November 2012
• Docket Number: Record No. 111870.
• Citation: 733 S.E.2d 648
• Parties: Dorthe Crisp GIBBS, Executor of the Estate of Kenneth M. Gibbs, Deceased v. NEWPORT NEWS SHIPBUILDING AND DRYDOCK COMPANY.
• Court: Virginia Supreme Court

733 S.E.2d 648

Dorthe Crisp GIBBS, Executor of the Estate of Kenneth M. Gibbs, Deceased

v.NEWPORT NEWS SHIPBUILDING AND DRYDOCK COMPANY.

Record No. 111870.

Supreme Court of Virginia.

Nov. 1, 2012.

E. Kyle McNew (Gary W. Kendall; J. Gregory Webb; MichieHamlett, Charlottesville, on briefs), for appellant.

Alexandra B. Cunningham (John D. Epps; William P. Childress; Hunton & Williams, Richmond, on brief), for appellee.

Present: KINSER, C.J., LEMONS, MILLETTE, MIMS, McCLANAHAN, and POWELL, JJ., and RUSSELL, S.J.

Opinion by Senior Justice CHARLES S. RUSSELL.

This appeal from an order dismissing an action for wrongful death presents the questionwhether the decedent, who was serving on active duty with the armed forces of the United States at the time of his injury, was covered by the Virginia Workers' Compensation Act (the Act), Code §§ 65.2–100 through –1310. If his injury, which was the subject of this action, came within the purview of the Act, an award under the Act would have been his estate's exclusive remedy, barring this action.

Facts and Proceedings

The material facts are not in dispute. At all times pertinent to this appeal, Kenneth M. Gibbs was an enlisted seaman, rated as an electronics technician, serving on active duty in the U.S. Navy. In 1962, the Navy entered into a contract with Newport News Shipbuilding and Drydock Company (the Shipyard) for the purchase of two nuclear submarines at an estimated contract price of $46,440,000 each. The vessels were to be constructed in the Shipyard and delivered to the Navy on completion. The contract specifically provided that during construction, federal government personnel would have access to the vessels for testing and training purposes.

One of the submarines, to be commissioned as USS Lewis and Clark, SSB(N) 644, was scheduled for preliminary acceptance by the Navy in November 1965. In mid–1965, Gibbs was ordered to be part of the Lewis and Clark's pre-commissioning crew. His duties were to test and inspect electronic systems on the vessel during the six months prior to its final delivery.

In 2008, Gibbs brought a civil action against the Shipyard and other defendants, alleging that while performing his duties aboard the Lewis and Clark he had been required to work daily in areas in which shipyard workers were installing asbestos products, that he had been exposed to large quantities of asbestos dust and fibers during this period and that he had contracted malignant mesothelioma as a result of this exposure.

Gibbs died on January 25, 2009. His widow, Dorthe Crisp Gibbs, qualified as administrator of his estate and amended the complaint to assert a claim for wrongful death pursuant to Code § 8.01–56, alleging that Gibbs' death was proximately caused by his mesothelioma. The Shipyard filed a plea in bar, asserting that the Act provided the estate's exclusive remedy. The circuit court sustained the plea in bar and entered an order dismissing the action with prejudice. We awarded the plaintiff an appeal.

Analysis

This appeal presents a pure question of law and is subject to a de novo standard of appellate review. David White Crane Serv. v. Howell, 282 Va. 323, 327, 714 S.E.2d 572, 575 (2011).

The Shipyard's plea in bar was based on the exclusivity provision of the Act. That provision is contained in Code § 65.2–307(A), which provides:

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.

This language is plain and unambiguous. Its exclusivity provision applies only when employer and employee have both “accepted the provisions of this title [the Act] respectively to pay and accept compensation.”

No party contends that the Navy had “accepted the provisions” of the Act or was subject to the Act in any way.¹ Rather, the Shipyard contends that the Navy was the Shipyard's statutory employer, that Gibbs was the Navy's employee, and that Gibbs and the Shipyard were therefore statutory co-employees between whom the exclusivity provision applies (citing Nichols v. VVKR, Inc., 241 Va. 516, 403 S.E.2d 698 (1991)).

We do not agree with that analysis. Code § 65.2–302(A) provides that when any owner contracts with another to perform any work within the owner's trade, business or occupation, the owner shall be liable to pay to any worker on the job “any compensation under this title which he would have been liable to pay if the worker had been immediately employed by him.” Because the Navy would not in any circumstances have been liable to pay compensation under the Act, it was not the Shipyard's statutory employer.

Further, it is immaterial whether Gibbs was the Navy's “employee” within the Act's definition. The Shipyard points out that Code § 65.2–101 defines “employee” as one working under a “contract of hire” and argues that the term is broadly defined in the statute. The estate responds that the statute also contains nineteen specific classes of workers additionally defined as employees and that those additional classes do not include members of the armed forces on active duty. Applying the principle expressio unius est exclusio alterius, the estate argues that the omission of military service members was significant and renders the “contract of hire” definition less broad than it appears to be.

Military service has little in common with the employer-employee relationships of commerce and industry. Military service does not necessarily arise from voluntary enlistment. At times in our history, it has been, and may again become, compelled by involuntary conscription. Its training is rigorous, its discipline is strict, and those subject to it have no freedom to withdraw from it. It imposes duties that may often extend to the hazard of life itself. It is difficult to imagine that the General Assembly intended to include it within the term “contract of hire,” however broadly defined.

For the purposes of this appeal, it is not necessary to define the outer limits of “contract of hire.” Neither we nor the General Assembly has the authority to define our laws in such a way as to affect the relationship between the federal government and members of its armed forces on active duty. Further, as stated above, the laws of Virginia, however construed, cannot subject the Navy to the requirements of the Virginia Workers Compensation Act.² For these reasons, Gibbs never acquired the right to seek compensation under the Act.

In Adams v. Alliant Techsystems, Inc., 261 Va. 594, 544 S.E.2d 354 (2001), we drew a distinction between plaintiffs who have a right to claim benefits under the Act but whose claims are subject to defenses, and those whose claims fall entirely outside the purview of the Act. We held that the exclusivity bar of Code § 65.2–307 applies to plaintiffs in the first class, but that the bar does not apply and the common-law right to bring an action to recover for workplace injuries survives as to plaintiffs, like Gibbs, who fall within the second class. Id. at 598–99, 544 S.E.2d at 356.

In Whalen v. Dean Steel Erection Co., 229 Va. 164, 327 S.E.2d 102 (1985), we described the Act as a quid pro quo, providing no-fault compensation for workers in exchange for immunity for employers from actions at common law. We characterized the Act as “a societal exchange, benefitting all employers and all employees who stand together under the canopy of the Compensation Act.” Id. at 171, 327 S.E.2d at 106. Here, neither Gibbs nor any employer stood under that canopy.³

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 erred in sustaining the Shipyard's plea in bar.

Conclusion

For the reasons stated, we will reverse the judgment of the circuit court and remand the case for further proceedings consistent with this opinion.

Reversed and remanded.

Justice McCLANAHAN, with whom Justice MIMS joins, dissenting.

Justice McCLANAHAN, with whom Justice MIMS joins, dissenting.

I would affirm the judgment of the circuit court because the claim asserted by Gibbs' estate in this action falls within the purview of the Virginia Workers' Compensation Act (the “Act” or the “Virginia Act”), Code §§ 65.2–100 through –1310, which provides the estate's exclusive remedy.¹

A. Proper Analysis of Whether Claim is Barred

In determining whether a claim is barred by the exclusivity provision of the Act, the Court must determine whether the estate alleges an injury that occurred out of and in the course of Gibbs' employment, not whether a claim under the Act would have been subject to a defense rendering it non-compensable. Giordano v. McBar Indus., 284 Va. 259, 264, 729 S.E.2d 130, 133 (2012)

“When an employee is injured in a work-related accident, the Virginia Workers' Compensation Act provides the sole and exclusive remedy available.” Rasnick v. Pittston Co., 237 Va. 658, 660, 379 S.E.2d 353, 354 (1989); Code § 65.2–307(A). “An injury is subject to the exclusivity provision of the Act if it is the result of an accident and arises out of and in the course of the employment.” Richmond Newspapers, Inc. v. Hazelwood, 249 Va. 369, 372, 457 S.E.2d 56, 58 (1995). “Put simply, when an injury falls within the purview of Code § 65.2–300, the exclusivity provision applies.” Giordano, 284 Va. at 264, 729 S.E.2d at 133.

The analysis of whether the claim made by Gibbs' estate falls within the purview of the Act, therefore, begins with a determination of whether the injury resulting in his death was sustained in the course of...