Mizenko v. Electric Motor and Contracting Co., Inc.

• Decision Date: 05 June 1992
• Docket Number: No. 910687,910687
• Parties: Michael MIZENKO v. ELECTRIC MOTOR AND CONTRACTING COMPANY, INC., et al. Record
• Court: Virginia Supreme Court

Page 637

419 S.E.2d 637

244 Va. 152

Michael MIZENKO v. ELECTRIC MOTOR AND CONTRACTING COMPANY, INC., et al.

Record No. 910687.

Supreme Court of Virginia.

June 5, 1992.

Ralph Rabinowitz, Norfolk (Rabinowitz, Rafal, Swartz, Taliaferro & Gilbert, on briefs), for appellant.

Carter B.S. Furr, Norfolk (Jett, Berkley, Furr & Padgett, on brief), for appellee Electric Motor and Contracting Co., Inc.

F. Nash Bilisoly, Norfolk (Thomas J. Duff, Vandeventer, Black, Meredith & Martin, on brief), for appellee Metro Mach. Corp.

Present: All the Justices.

KEENAN, Justice.

The primary issue in this appeal is whether a worker who was injured while performing ship repair is barred by the exclusivity provision of the Virginia Workers' Compensation Act, Code § 65.1-1 et seq. (now Code § 65.2-100 et seq.) (Virginia Act), from asserting a negligence action under the general maritime law against a prime contractor, as well as a subcontractor who was not his employer. We conclude that, under the facts presented in this case, the Virginia exclusivity provision cannot be applied to bar Mizenko's federal maritime action against Electric Motor and Contracting Company (Electric). However, based on Metro Machine Corporation v. Mizenko, 244 Va. 78, 419 S.E.2d 632 (1992), decided today, Mizenko's federal maritime action against Metro Machine Corporation (Metro) is barred under federal law and, therefore, the Virginia exclusivity provision may be given effect to bar Mizenko's claim against Metro.

Michael Mizenko was employed by Abacus Temporary Services (Abacus) as a pipe fitter. Abacus is in the business of furnishing skilled labor to area employers. Abacus contracted with Metro, a Norfolk shipyard, to furnish Metro skilled labor.

Pursuant to this contract, Abacus sent Mizenko to work for Metro. Mizenko was assigned to work in the engine room of the U.S.S. COMPTE DE GRASSE, a naval destroyer being repaired by Metro pursuant to a contract with the United States Navy. The U.S.S. COMPTE DE GRASSE was a completed vessel afloat in navigable waters of the United States and docked at Metro's shipyard.

Metro subcontracted with Electric to refurbish and clean the generators on the U.S.S. COMPTE DE GRASSE. In the course of performing the subcontract, Electric employees used a toxic solvent to clean the generators. Mizenko alleges that he suffered injuries as a result of inhaling fumes from this solvent. He received workers' compensation for these injuries, through Abacus, under the Longshoremen and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. (Longshore Act).

Mizenko subsequently filed a motion for judgment against Metro and Electric alleging negligence "under the Maritime Law." Metro filed a motion for summary judgment in support of its special plea to the bar of workers' compensation, alleging that Mizenko was a borrowed servant under the Longshore Act and that it was Mizenko's statutory employer under the Virginia Act. ¹ Thus, Metro argued that Mizenko's claim was barred under both the Longshore Act and the Virginia Act. In an order entered January 26, 1990, the trial court denied Metro's motion for summary judgment but did not state its reason for the denial.

By special pleas, a motion for summary judgment and a motion to dismiss, Metro and Electric next argued that the Virginia Act barred recovery by Mizenko, based on the decision of this Court in McBride v. Metric Constructors, 239 Va. 138, 387 S.E.2d 780 (1990). The trial court sustained the motions and dismissed the case with prejudice. In sustaining both motions, the trial court held that, based on McBride, Mizenko's claim was barred by the Virginia Act even though he received compensation under the Longshore Act. Accordingly, the trial court held that Mizenko was "barred from bringing a tort action for negligence against those whom the [Virginia Act] declares immune." This appeal followed.

I.

Mizenko argues that his claim is one of maritime tort, cognizable within the exclusive jurisdiction of admiralty and that, as such, it constitutes a federal maritime cause of action. Mizenko argues that, because he was injured on navigable waters while engaged in ship repair, an employment directly affecting navigation and commerce, the injury and employment are maritime in nature and, thus, come within the jurisdiction of admiralty.

Metro responds that Mizenko's claim does not come under admiralty jurisdiction because his injury has no significant relationship to a traditional maritime activity. Metro contends that the circumstances surrounding Mizenko's injury possess few characteristics which are uniquely maritime and that the injury just as easily could have occurred on land. According to Metro, Mizenko's action arises out of common law negligence and is therefore subject to the Virginia Act's exclusivity provision. We find Metro's argument unpersuasive.

To support a cause of action for a maritime tort which falls within admiralty jurisdiction, the alleged negligence must occur on the navigable waters of the United States and the wrong must bear a significant relationship to traditional maritime activity. East River Steamship Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 863-64, 106 S.Ct. 2295, 2298, 90 L.Ed.2d 865 (1986). Here, the parties agree that the activity took place on navigable waters, but disagree as to whether the activity bore a substantial relationship to traditional maritime activity.

In Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990), the United States Supreme Court held that, in order to determine whether an activity has a significant relationship to a traditional maritime activity, the relevant activity is not defined by the particular circumstances of the incident. Rather, it is defined by the general conduct from which the incident arose. 497 U.S. at ---, 110 S.Ct. at 2897. In the case before us, the record reflects that Metro's contract with the Navy was to conduct ship repairs on the U.S.S. COMPTE DE GRASSE, a vessel lying in navigable waters. Mizenko was injured while performing these repairs. The Supreme Court has uniformly held that ship repair is a maritime activity. Baizley Iron Works v. Span, 281 U.S. 222, 232, 50 S.Ct. 306, 308, 74 L.Ed. 819 (1930); Messel v. Foundation Co., 274 U.S. 427, 432, 47 S.Ct. 695, 697, 71 L.Ed. 1135 (1927); Robins Dry Dock & Repair Co. v. Dahl, 266 U.S. 449, 457, 45 S.Ct. 157, 158, 69 L.Ed. 372 (1925); Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U.S. 479, 480-81, 43 S.Ct. 418, 418, 67 L.Ed. 756 (1923). Thus, we hold that the activity with which we are presented here has a significant relationship to traditional maritime activity and that Mizenko has asserted a cause of action in maritime tort.

II.

Since Mizenko has asserted an action in maritime tort within the jurisdiction of admiralty, the trial court was required to apply general maritime law. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409, 74 S.Ct. 202, 204, 98 L.Ed. 143 (1953). The general maritime law is drawn from both federal and state sources and is "an amalgam of traditional common-law rules, modifications of those rules, and newly created rules." East River Steamship, 476 U.S. at 865, 106 S.Ct. at 2299. Within admiralty jurisdiction, the general maritime law applies unless preempted by federal legislation. East River Steamship, 476 U.S. at 864, 106 S.Ct. at 2298; Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 160-61, 40 S.Ct. 438, 440, 64 L.Ed. 834 (1920); Chelentis v. Luckenbach Steamship Co., 247 U.S. 372, 381, 38 S.Ct. 501, 503, 62 L.Ed. 1171 (1918); Southern Pacific Co. v. Jensen, 244 U.S. 205, 215, 37 S.Ct. 524, 528, 61 L.Ed. 1086 (1917).

Under the general maritime law, a state law which changes, modifies, or affects maritime law may be given effect unless

it contravenes the essential purpose expressed by an act of Congress, or works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations.

Chelentis, 247 U.S. at 381, 38 S.Ct. at 503 (citation omitted). Accordingly, the first step in determining whether state law may be applied is to determine whether application of the state law would conflict with rights afforded under the general maritime law. Where there is an admiralty--state law conflict, courts have examined and weighed the respective interests behind each law to determine whether federal law should supplant the application of state law. See Askew v. American Waterways Operators, Inc., 411 U.S. 325, 338-39, 93 S.Ct. 1590, 1598-99, 36 L.Ed.2d 280 (1973); Baizley, 281 U.S. at 223; Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 477, 42 S.Ct. 157, 158, 66 L.Ed. 321 (1922); Western Fuel Co. v. Garcia, 257 U.S. 233, 242, 42 S.Ct. 89, 90, 66 L.Ed. 210 (1921); Knickerbocker Ice, 253 U.S. at 160-61, 40 S.Ct. at 440; Chelentis, 247 U.S. at 381-82, 38 S.Ct. at 503. In discussing the relationship between state and federal law within admiralty and maritime jurisdiction, the Supreme Court has held that a state may supplement federal maritime policy, but it may "not deprive a person of any substantial admiralty rights as defined in controlling acts of Congress or by interpretative decisions of this Court." Pope & Talbot, 346 U.S. at 409-410, 74 S.Ct. at 205.

III.

Having determined that this action should be governed by the general maritime law, we must now decide whether to give effect to the state exclusivity provision. Mizenko argues that his right to sue for a maritime tort under the general maritime law may not be barred by the state exclusivity provision. Specifically, he contends that application of the Virginia Act would preclude him from bringing this negligence action and, thus, a right available to him under the general maritime law would be denied.

In order to determine whether the Virginia Act's exclusivity provision should be given effect in this case, we must...