Ivey v. Jerry P. Puckett Const. Co., 841790

• Decision Date: 17 January 1986
• Docket Number: No. 841790,841790
• Citation: 338 S.E.2d 640,230 Va. 486
• Parties: Paul D. IVEY v. JERRY P. PUCKETT CONSTRUCTION COMPANY, et al. Record
• Court: Virginia Supreme Court

Page 640

338 S.E.2d 640

230 Va. 486

Paul D. IVEY v. JERRY P. PUCKETT CONSTRUCTION COMPANY, et al.

Record No. 841790.

Supreme Court of Virginia.

Jan. 17, 1986.

Michael W. Heaviside (Ashcraft & Gerel, Alexandria, on brief), for appellant.

Edward H. Grove, III (Michael L. Zimmerman, Brault, Palmer, Grove & Zimmerman, Fairfax, on brief), for appellees.

Present: All the Justices.

COMPTON, Justice.

Code § 65.1-38 of the Virginia Workers' Compensation Act deals with willful misconduct and provides that no compensation shall be allowed for injury or death "[d]ue to intoxication." The statute further provides that the burden of proof shall be upon the party claiming an exemption under this section.

The sole issue in this appeal is whether the employer established by a preponderance of the evidence a defense of willful misconduct by intoxication, and, if so, whether such intoxication was the proximate cause of the claimant's industrial accident.

On January 20, 1984, appellant Paul D. Ivey, the claimant, was injured in a single-vehicle accident in King George County while employed as an ironworker for appellee Jerry P. Puckett Construction Company. The employer and its insurer stipulated the accidental injury and resulting incapacity but defended Ivey's claim under Code § 65.1-38, asserting the claimant's injuries resulted from intoxication due to consumption of alcoholic beverages. After a hearing, a deputy commissioner determined the employer had established its defense and denied the claim. Upon review, the full Commission unanimously agreed with the findings of fact of the hearing commissioner and likewise denied the claim, giving rise to this appeal by the claimant.

On the day of the accident, a Friday, the claimant and two other workers left their job site in Bowie, Maryland, about 4:30 p.m. in a company-owned pick-up truck operated by the claimant. The trio was returning at the end of the work day to their homes in Virginia. After departing the work place, the claimant purchased a "12 pack" of beer containing 12-ounce cans. Snow was falling and the highways were wet.

During the 60-mile trip to his home, the claimant "let the other two fellows off" and continued to State Route 610, a paved secondary road. The road had snow on it and "ice in spots." According to the claimant, he "come up over a little hill and the rear of the truck started sliding." He testified that he "cut the wheel and tried to get it back into the road and it just keep on sliding and sled off into the ditch and hit a tree." The accident occurred about 6:00 p.m.

The claimant stated he was travelling 30 to 35 miles per hour in a 55 mile-per-hour speed zone at the time of the incident, not because of the icy conditions but because "I always drive that slow." He asserted that the rear tires of the truck "were slick, wore down" and that this condition, together with the condition of the highway, caused him to lose control of the vehicle. The claimant's wife testified that two other members of her family had lost control of their vehicles at the location of the claimant's accident on the day of his accident. The claimant denied that consumption of alcohol "had anything to do" with his loss of control of the truck.

The claimant testified that he consumed four cans of beer during the trip before the...