Nelson v. U.S. Postal Service

• Decision Date: 28 February 2002
• Docket Number: No. CIV.A. 3:00CV00059.,CIV.A. 3:00CV00059.
• Citation: 189 F.Supp.2d 450
• Parties: Ivanhoe NELSON, Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.
• Court: U.S. District Court — Western District of Virginia

189 F.Supp.2d 450

Ivanhoe NELSON, Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.

No. CIV.A. 3:00CV00059.

United States District Court, W.D. Virginia, Charlottesville Division.

February 28, 2002.

COPYRIGHT MATERIAL OMITTED

Lindsay Gordon Dorrier, Jr., Scottsville, VA, for Plaintiff.

Julie C. Dudley, U.S. Attorney's Office, Roanoke, VA, for Defendant.

MEMORANDUM OPINION

MICHAEL, Senior District Judge.

By Order dated January, 18, 2001, this court referred the above-captioned case to the presiding United States Magistrate Judge, to conduct proceedings appropriate for the resolution of dispositive pretrial matters and to submit to this court proposed findings of fact and recommendations for their resolution pursuant to 28 U.S.C. § 636(b)(1)(B). On July 6, 2001, the Magistrate Judge filed a Report and Recommendation suggesting that this court grant the defendant's May 18, 2001 motion for summary judgement and dismiss the plaintiff's action from the docket of the court.

The plaintiff filed an objection to the Report and Recommendation on July 13, 2001, and the defendant filed a response to the objection on July 27, 2001. Under § 636(b)(1)(C), this court "shall make a de novo review determination of those portions of the report...to which the objection is made." After a thorough examination of the plaintiff's objection, the supporting memoranda, the applicable law, the documented record, and the Report and Recommendation, the court agrees with the reasoning of the Magistrate Judge and shall dismiss the plaintiff's action in its entirety.

I.

The plaintiff, Ivanhoe Nelson, had been employed since 1982 as a truck driver for McCann Delivery Service ("McCann"), a contract mail hauler for the United States Postal Service ("U.S.P.S."). McCann's contract with U.S.P.S. provides that, in addition to transporting all mail tendered under the contract, McCann drivers "shall see that loads are properly distributed and secured and that doors, tailgates, and other equipment are fastened to insure safe operations." (PS Form 7407, July 1992, ¶ 5(c)). The plaintiff's specific duties required him to deliver mail loaded at the main post office in Charlottesville, Virginia to post offices in Fisherville and Lyndhurst, Virginia.

The cargo area of the truck driven by Nelson was essentially an enclosed box, with access available only through the rear door located approximately four feet above the ground. Because the truck lacked any mechanical means of loading or unloading the truck, unloading had to be done manually from the truck bed to ground level where there was no loading dock at a destination. In addition, Nelson's truck was not equipped with interior lighting, and thus the only lighting available was that which came from outside sources at a delivery location.

The plaintiff's usual schedule was to proceed from Charlottesville to Fisherville and then to Lyndhurst. The available light and loading mechanisms at these locations varied. The Charlottesville office had a well lighted dock. The Fisherville office had minimal lighting and no loading dock, but was outfitted with a scissors-jack consisting of "a platform about 3 or 4 feet deep which would raise to the level of the truck bed, be loaded, and then lower to the floor level for taking wheeled containers into the post office." (Pl's Opp'n to Summ. J. at 2.) The Lyndhurst office had neither a mechanical loading device nor an available light source.

On September 29, 1997, at approximately 2:30 a.m., the plaintiff arrived at work in Charlottesville and joined postal employees in the loading of that day's mail into the truck. The plaintiff complained to the postal employees about two unusual aspects of that day's load: (1) the high volume of heavy, glossy third-class mail to be delivered to Lyndhurst, and (2) the fact that the containers holding the third-class mail lacked lids. Nelson and the postal employees nevertheless loaded the third-class mail containers into tall metal cages near the front of the truck, and Nelson embarked on his usual delivery route.

At 3:00 a.m., Nelson arrived at the Fisherville office and, without the assistance of U.S.P.S. personnel, unloaded the mail designated for that facility. Due to the lack of lighting at the Lyndhurst office, Nelson customarily made use of the light and loading devices available at the Fisherville facility to reposition the Lyndhurst mail, generally located in the rear of the truck's cargo area, in order to make it easier to unload upon arrival in Lyndhurst. However, in the process of repositioning the large containers of third-class mail designated for Lyndhurst, Nelson boxed himself into a corner of the cargo area, where the only way to exit was to climb over the stacks of third class mail. As Nelson attempted to exit, he rolled over the stacked mail, fell out of the truck, and landed on the scissors jack platform, allegedly injuring his right elbow, right shoulder, and right knee.

On the basis of these injuries, Nelson applied for and received compensation under the Virginia Worker's Compensation Act (VWCA), VA. CODE ANN. § 65.2-100, et seq. (Michie 1995 & Supp.2000). In addition, Nelson filed a claim against the U.S.P.S. under the Federal Tort Claims Act (FTCA), which claim was denied. Nelson then filed the current action on July 5, 2000, and by his May 14, 2001 Amended Complaint, asserts jurisdiction of the federal courts under the Postal Reorganization Act of 1970(PRA), 39 U.S.C. 401, et seq. The plaintiff seeks compensatory damages and injunctive relief "requiring the defendant to follow its regulations with respect to safety and the proper sealing and securing of mail containers." (Am. Compl. at 2.)

II.

Because the defendant is attacking the court's subject matter jurisdiction based on the exclusivity provision of the VWCA, the appropriate motion is a motion to dismiss under Fed.R.Civ.P. 12(b)(1), and not a motion for summary judgement. See Peavler v. Mitchell & Scott Mach. Co., Inc., 638 N.E.2d 879, 880 (Ind.Ct.App. 1994). "A motion to dismiss for lack of subject matter jurisdiction presents a threshold question concerning a court's power to act." Id. The plaintiff has the burden of proving that subject matter jurisdiction exists, and when a defendant challenges subject matter jurisdiction "the district court is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgement." Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991). A Rule 12(b)(1) motion to dismiss should be granted "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id.

III.

The Magistrate Judge recommended that the court dismiss the plaintiff's action based on his finding that the VWCA provides the exclusive remedy for Nelson's injuries. Nelson objects to this finding on the following bases: (1) Nelson's claim relating to the loss of income from secondary employment is outside the jurisdiction of the VWCA; and (2) the U.S.P.S. is an "other party," rather than a statutory employer, under the VWCA and thus the plaintiff's remedies are not limited to those available under the VWCA. The court will address each of these objections in turn.

A. Plaintiff's Secondary Employment

In addition to his primary employment with McCann, Nelson states that, at the time of the accident, he had arranged to earn money on the side by performing landscaping work. Nelson was unable to perform this landscaping work due to the injuries he sustained in the accident at issue, and thus seeks compensation for the income he would have earned had he been able to engage in his secondary employment. Nelson argues that he is not precluded from recovering this income because "the VAWC does not expressly or by necessary inference deny the right to seek compensation for income lost from a second job due to an injury on the worker's primary job." (Opp'n to Mot. for Summ. J. at 9.)

Virginia Code § 65.2-307 states that rights and remedies provided to an employee under the VWCA "exclude all other rights and remedies of such employee...at common law or otherwise, on account of [the] injury." VA. CODE ANN. § 65.2-307. This exclusionary provision represents one aspect of what is essentially a compromise between employers and employees under the VWCA to settle differences arising out of personal injuries. The Virginia Supreme Court stated the nature of this compromise in Fauver v. Bell, 192 Va. 518, 65 S.E.2d 575, 577 (1951):

Under the Act both employer and employee surrender former rights and gain certain advantages. The employee surrenders his right to bring an action at law against his employer for full damages and agrees to accept a sum fixed by statute, based on the extent of his injuries and the amount of his wages. He gains a wider security in line with the more inclusive recovery afforded. The employer surrenders his right of defense on the grounds of contributory negligence, assumption of risk and the fellow servant rule. He is relieved from liability for damages to the employee for which in an ordinary negligence case he might otherwise be liable to a much greater extent. Negligence is of no concern in a compensation case unless the injury is caused by the employee's wilful negligence or misconduct. Rules of evidence are relaxed and procedures simplified. Rights granted and obligations imposed are limited as granted or imposed by the Act and are in their nature contractual.

While the VWCA provides the exclusive remedy for industrial injuries within its purview, an employee's common-law remedies are preserved where an incident is not covered by the VWCA. Griffith v. Raven Red Ash Coal Co., 179 Va. 790, 20 S.E.2d 530, 534 (Va.1942). For example, in Richmond Newspapers, Inc. v. Hazelwood, 457 S.E.2d 56 (Va.1995), the Supreme Court of Virginia held...