Perrin v. Brunswick Corporation, Civ. A. No. 70-C-16-A.
Decision Date | 05 November 1971 |
Docket Number | Civ. A. No. 70-C-16-A. |
Citation | 333 F. Supp. 221 |
Court | U.S. District Court — Western District of Virginia |
Parties | William H. PERRIN, Plaintiff, v. BRUNSWICK CORPORATION, Defendant. |
R. E. Boucher, Abingdon, Va., for plaintiff.
William W. Eskridge, Abingdon, Va., for defendant.
The plaintiff, William H. Perrin, a Virginia resident, worked for Brunswick Corporation from May 4, 1967 until May 9, 1968, at its Sugar Grove defense plant. During this interval, he worked in or near gases coming from materials used in the manufacture of CS gas products. These products are designed to knock an enemy out of action by irritation of the eyes, skin, and nasal passages. On December 3, 1968, seven months after leaving his employment with Brunswick, and while working at Radford Arsenal, he suffered a spontaneous pneumothorax, which incapacitated him from performing work.
Pneumothorax is described as: Schmidt, Attorney's Dictionary of Medicine, Vol. 2, p. 668.31 (1971).1
Plaintiff filed a claim against the defendant, Brunswick Corporation, before the Industrial Commission of Virginia seeking Workmen's Compensation benefits on the ground that he had suffered work incapacity as a result of an occupational disease contracted during the course of his employment with the defendant. Va.Code §§ 65.1-46, et seq. The evidence before the Industrial Commission showed that plaintiff had chronic bronchitis, which probably was caused by or aggravated by inhalation of CS gas. The Commission denied plaintiff's claim on these grounds: (1) that the evidence failed to prove an injury by accident, (2) that bronchitis is an ordinary disease of life, and, even if aggravated by work environment, is not compensable, and (3) work incapacity of the plaintiff was caused by pneumothorax and there was no evidence to relate this condition with plaintiff's employment at Brunswick.
Plaintiff next instituted the present action against defendant seeking damages for the bronchitis and pneumothorax he allegedly sustained as the result of defendant's negligence. Defendant moved to dismiss the complaint on the grounds: (1) that the court is without jurisdiction of the subject matter of the action since jurisdiction of the subject matter is vested solely in the Industrial Commission of Virginia, (2) that the complaint fails to state a common law cause of action against defendant since any such common law action has been abrogated by Section 65.1-40 of the Code of Virginia, and (3) that plaintiff's claim is barred by the doctrines of res adjudicata and collateral estoppel and may not be relitigated in this court. The plaintiff made a motion to strike these defenses.
Defendant's first and second grounds for dismissal will be considered together, since if Section 65.1-40 of the Virginia Code, dealing with exclusiveness of the employee's rights, abrogated this common law action, jurisdiction of the subject matter would be vested solely in the Industrial Commission of Virginia.
The following portions of the Deputy Commissioner's opinion reflect the findings and conclusions which were subsequently adopted by the full Commission:
I
In view of the finding of the Industrial Commission that bronchitis is an ordinary disease of life which is not compensable under the Virginia Workmen's Compensation Act, Perrin's common law remedies against his employer are preserved unimpaired, since this condition is not touched by the statute. Griffith v. Raven Red Ash Coal Co., 179 Va. 790,...
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Ball v. Joy Mfg. Co., Civ. A. No. 1:87-0268
...covered by such bargain will not be affected thereby. This rationale of Griffith was followed in the opinion of Perrin v. Brunswick Corporation, 333 F.Supp. 221 (W.D.Va.1971), in which Chief Judge Widener of the United States District Court for the Western District of Virginia held in perti......
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Newport News Shipbuilding & Dry Dock Co. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor
... ... 790, 20 S.E.2d 530 (1942). See also, Perrin ... v. Brunswick Corp., 333 F.Supp. 221 (W.D.Va.1971) ... ...
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Sutter v. First Union Nat. Bank of Virginia, Inc.
...covered by the Act, therefore, jurisdiction is vested solely in the Industrial Commission of Virginia. See, e.g., Perrin v. Brunswick Corp., 333 F.Supp. 221, 223 (W.D.Va.1971). For an injury to be covered by the Act and for section 65.2-307 to bar recovery through a common law cause of acti......
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McSpadden v. Big Ben Coal Co.
...is not ordinarily subjected or exposed other than during a period of regular actual employment therein"); Perrin v. Brunswick Corp., 333 F.Supp. 221, 222-23 (W.D.Va.1971) (reporting holding by Industrial Commission of Virginia that asthmatic bronchitis, although probably caused by inhalatio......