McCann v. Newport News Shipbuilding & Dry Dock Co.

• Decision Date: 22 October 1959
• Docket Number: No. 2553.,2553.
• Citation: 177 F. Supp. 909
• Parties: Philip F. McCANN, Plaintiff, v. NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY and McLean Contracting Company, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

177 F. Supp. 909

Philip F. McCANN, Plaintiff, v. NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY and McLean Contracting Company, Defendants.

No. 2553.

United States District Court E. D. Virginia, Norfolk Division.

October 22, 1959.

Seawell, McCoy, Winston & Dalton, John W. Winston, Norfolk, Va., for plaintiff.

Murray, Ford, West & Wilkinson, Granger West, Newport News, Va., for McLean Contracting Co.

Ferguson, Yates & Stephens, J. Warren Stephens, Newport News, Va., for

Newport News Shipbuilding & Dry Dock Co.

WALTER E. HOFFMAN, District Judge.

Plaintiff, McCann, an employee of Ingersoll-Rand Company, of Phillipsburg, New Jersey, was injured on October 14, 1955, while on the premises of the defendant, Newport News Shipbuilding and Dry Dock Company (hereinafter referred to as "Shipyard"), when plaintiff was bending over to pick up a piece of the new air compressor being installed at the No. 1 substation or power house. At the time in question a timber supporting an overhead pipe in the substation suddenly came free of the pipe and fell to the ground, striking and injuring the plaintiff. The new air compressor had been purchased by Shipyard from Ingersoll-Rand and, as a part of the contractual agreement between the parties, Ingersoll-Rand was to supply a supervisor of erection for a period of 14 days; Shipyard being obligated to pay the traveling and living expenses of the individual selected. The plaintiff was the designated supervisor of erection on duty at the time of the accident. By a separate contract with the Shipyard, McLean Contracting Company had installed the foundation for the air compressor, but the actual installation and erection of the compressor was being undertaken by Shipyard's Hull Fitting and Pipe Department. In fact, Shipyard's employees had the compressor nearly assembled and erected when plaintiff reported on the job and supervised the final stages of erection. At the moment of the accident, plaintiff and a Shipyard Machinist were working together on the final details of installation and erection.

Both defendants have filed motions for summary jugdment contending that plaintiff, at the time of his injury, was a statutory employee of the Shipyard and therefore covered under the Virginia Workmen's Compensation Act. Defendants state that plaintiff was performing a part of the "trade, business and occupation" of the Shipyard and hence cannot recover from Shipyard, a self-insurer under the Act, nor from Shipyard's independent contractor, McLean Contracting Company. Counsel have admitted that plaintiff has filed no claim for compensation or benefits under the Virginia Act, but has received benefits under the New Jersey Act as an emplyoee of Ingersoll-Rand Company.

The various affidavits attached to the motions, including an affidavit from an officer of Ingersoll-Rand, pointedly state that an integral part of the shipbuilding industry is the installation and maintenance of equipment, including air compressors, for power; that the necessary installation and erection of compressors of all kinds are ordinarily and appropriately performed by the shipbuilding industry, using their own crews, and with or without supervision by representatives of the manufacturers of such compressors; and that the installation and erection of the air compressor in question constituted an integral and indispensable part of the "trade, business and occupation" of the Shipyard, without which the business of Shipyard could not be performed from day to day.

Not having given notice to the contrary prior to the accident resulting in his injury, plaintiff, if then a statutory employee of Shipyard, is presumed to have accepted the provisions of the Virginia Workmen's Compensation Act. § 65-20, Code of Virginia, 1950. It is further provided under § 65-26, Code of Virginia, 1950, that:

"Liability of owner to workmen of sub-contractors.—

"When any person (in this section and §§ 65-28 and 65-29 referred to as `owner') undertakes to perform or execute any work which is a part of his trade, business or occupation and contracts with any other person (in this section and §§ 65-28 to 65-31 referred to as `sub-contractor') for the execution or performance by or under such sub-contractor of the whole or any part of the work undertaken by such owner, the owner shall be liable to pay to any workman employed in the work any compensation under this Act which he would have been liable to pay if the workman had been immediately employed by him."

It is, of course, mandatory upon every employer subject to the compensation provisions of the Act to insure the payment of compensation to his employees and, while such insurance remains in force, the employer is only liable to an injured employee to the extent specified. § 65-99, Code of Virginia, 1950.

Under § 65-38, Code of Virginia, 1950, the common-law right of action of an injured employee against a "third party" is stated to be "against any other party", as follows:

"Subrogation of employer to employee's rights against third parties; evidence, recovery; compromise. —

"The making of a lawful claim against an employer for compensation under this Act for the injury or death of his employee shall operate as an assignment to the employer of any right to recover damages which the injured employee or his personal representative or other person may have against any other party for such injury or death, and such employer shall be subrogated to any such right and may enforce, in his own name or in the name of the injured employee or his personal representative, the legal liability of such other party * * * Any amount collected by the employer under the provisions of this section * * * shall be held by the employer for the benefit of the injured employee or other person entitled thereto, less such amounts as are paid by the employer for reasonable expenses and attorney's fees. No compromise settlement shall be made by the employer in the exercise of such right of subrogation without the approval of the Industrial Commission and the injured employee or the personal representative or dependents of the deceased employee being first had and obtained."

This state of facts, and the Virginia statutes referred to herein, give rise to the pivotal questions which are:

(1) Was the work being done by plaintiff as a part of the trade, business and occupation of Shipyard?

(2) Assuming that plaintiff was performing work which was a part of the trade, business and occupation of Shipyard, does this protect McLean, an independent contractor of Shipyard, who was engaged in putting in the foundation for the air compressor, where no claim has been filed under the Virginia Act?

(3) Does the Virginia Workmen's Compensation Act apply to plaintiff, a non-resident injured in an industrial accident in Virginia, who has made no claim under the Virginia Act?

Manifestly the plaintiff was engaged in work, at the time of his injury, which was a part of Shipyard's "trade, business and occupation". Indeed, there is no dispute on the question. Shipyard employees, along with plaintiff, were actively engaged in the installation and erection of the air compressor at the time of the industrial accident. The facts herein presented are identical in principle with Doane v. E. I. DuPont de Nemours & Co., 4 Cir., 209 F.2d 921. Cf. Sykes v. Stone & Webster Engineering Corp., 186 Va. 116, 41 S.E.2d 469. Plaintiff was clearly not a "stranger" to the business. Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73. Such a finding makes it mandatory upon the...