Plummer v. Landmark Communications, Inc.

Decision Date04 March 1988
Docket NumberNo. 861201,861201
Citation235 Va. 78,366 S.E.2d 73
PartiesJosephine PLUMMER v. LANDMARK COMMUNICATIONS, INC. Record
CourtVirginia Supreme Court

John F. Rixey (Rixey & Rixey, Virginia Beach, on brief), for appellant.

William M. Harris (Taylor, Gustin, Harris, Fears & Davis, Virginia Beach, on brief), for appellee.

Present all the Justices.

COMPTON, Justice.

In this negligence action by an employee against an employer seeking recovery for personal injuries, the dispositive question is whether the plaintiff's exclusive remedy was under the Workers' Compensation Act (the Act).

On June 26, 1982, appellant Josephine Plummer was shot by an unknown assailant in the City of Virginia Beach. At the time, she was a route carrier of newspapers published by appellee Landmark Communications, Inc. She was waiting in her automobile in a darkened parking lot near 2:00 a.m. to obtain her supply of newspapers for delivery.

In June 1983, Plummer filed a claim under the Act in the Industrial Commission of Virginia, alleging that she was shot and injured in an accident arising out of and in the course of her employment with Landmark. A hearing on the claim was held before a deputy commissioner in August 1983.

In September 1983, Plummer filed the present action against Landmark as well as the owners of the premises where the incident occurred. The owners are not parties to this appeal, counsel for Plummer representing on brief that her action against them was compromised and settled.

In the original motion for judgment, the plaintiff alleged that she was injured while operating as an independent contractor under the direction and control of defendant Landmark. She asserted that defendant was negligent "for failing to provide ... a safe place to work and for sending her to work without taking reasonable measures to protect her."

In April 1984, the deputy commissioner issued an opinion deciding that Plummer was an employee, not an independent contractor, at the time of the injury and that the claimant was engaged in the course of her employment at the time of the shooting. The hearing commissioner further found, however, that Plummer's injury did not arise out of her employment and denied her claim. In September 1984, upon review before the full Commission, the hearing commissioner's decision was affirmed. Plummer did not appeal that ruling.

In February 1986, the trial court entered an order granting the plaintiff's motion to amend the motion for judgment to allege that she was an employee acting under the direction and control of defendant at the time of the injury. Subsequently, defendant filed a plea to the jurisdiction alleging plaintiff's exclusive remedy was under the Act, a plea of the statute of limitations, and a plea of former adjudication.

Initially, the trial court denied the several pleas. Upon reconsideration, the court sustained the plea to the jurisdiction and the plea of the statute of limitations. Plaintiff then filed a motion to amend the amended motion for judgment to reallege she was an independent contractor at the time of her injury. That motion was denied.

We awarded the plaintiff this appeal from the September 1986 final order dismissing the action. We limited the issues on appeal to the correctness of the court's ruling on the pleas. The view we take of the case requires discussion of only the jurisdictional plea.

The plaintiff argues the trial court erred in ruling that her exclusive remedy was under the Act. She contends the Industrial Commission's decision denying her claim on the ground the injury did not arise out of the employment amounted to a ruling that the Commission was without jurisdiction in the matter. Therefore, she argues, her common-law remedy remained available to her to be pursued in the present damage suit.

In Griffith v. Raven Red Ash Coal Co., 179 Va. 790, 20 S.E.2d 530 (1942), the Industrial Commission had held that the death of an employee killed in a coal mine explosion did not arise out of and in the course of his employment and dismissed the personal representative's claim for benefits under the Act. Subsequently, the personal representative sued the employer, which was the owner and operator of the mine, in negligence for wrongful death of the decedent. The plaintiff alleged that the decedent was an invitee upon the premises and that defendant had failed to keep the mine in a reasonably safe condition. The trial court dismissed the action, ruling that the matter was within the exclusive jurisdiction of the Industrial Commission. This Court reversed and remanded.

One of the issues the Court decided was "whether the ... Act ... bars an action at law for the injury or death of an employee due to the negligence of the employer, where such injury or death is not due to an accident arising out of and in the course of the employment and hence is not compensable under the Act." Id. at 795, 20 S.E.2d at 532-33. The Court referred to former section 12 of the Act, now Code § 65.1-40, which provides:

"The rights and remedies herein granted to an employee when he and his employer have accepted the provisions of this Act respectively to pay and accept compensation on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin, at common law or otherwise, on account of such injury, loss of service or death."

The Court also cited former section 4 of the Act, now § 65.1-23 with a change not relevant here. The present section provides that every employer and employee "shall be conclusively presumed to have accepted the provisions of this Act respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment and shall be bound thereby," unless prescribed notices are given.

Stating that these sections should be interpreted in the light of the purpose of the Act as a whole, the Court said that the Act provides a system of compensation to an employee or his dependents for injury or death arising out of and in the course of employment, "without regard to fault as the cause of such injury or death." Id. at 796, 20 S.E.2d at 533. Noting that the Act should be construed liberally in favor of the worker, the Court stated, however, that the common law is not to be considered changed by statute unless the legislative intent is plainly manifested.

Therefore, the Court held, the purpose of section 12 was to exclude the common-law remedies of an employee only for injuries or death arising out of and in the course of the employment, "leaving unimpaired the common-law right of action for damages for the personal injury or death of the employee when such does not arise out of and in the course of the employment." Id. at 797, 20 S.E.2d at 533. The Court concluded that the Act "is exclusive in so far as it covers the field of industrial accidents, but no further. To the extent that the field is not touched by the statute, we think that the legislature intended that the employee's common-law remedies against his employer are to be preserved unimpaired." Id. at 798, 20 S.E.2d at 534.

Accordingly, the Court decided that when the Industrial Commission ruled the decedent's death did not arise out of and in the course of the employment, the Commission's jurisdiction of the matter ended, id. at 800, 20 S.E.2d at 534-35, and the plaintiff was free to pursue common-law remedies against the employer. See Lloyd v. American Motor Inns, Inc., 231 Va. 269, 343 S.E.2d 68 (1986) (error to sustain plea of res judicata filed in tort action brought by employee against employer, when Industrial Commission previously had decided that accident did not arise out of and in the course of the employment).

In the present case, the Commission decided that the accident did not arise out of the claimant's employment, but found that it did arise in the course of such work. The question then becomes whether Raven Red Ash controls when one of these two requirements for payment of compensation is not met. There is no necessity for us to decide that question in this case. See generally Beckham v. Estate of Brown, 100 N.M. 1, 664 P.2d 1014 (Ct.App.), writ quashed, 100 N.M. 192, 668 P.2d 308 (1983) (wrongful death action against employer of decedents held not barred by the exclusivity provisions of workers' compensation statutes when their death did not occur in the course of their employment). We will assume without deciding that the rule of Raven Red Ash is applicable here and that this common-law action is not barred, the Industrial Commission's jurisdiction having ended when it determined that the accident did not arise out of the plaintiff's employment.

The defendant contends, however, that the Industrial Commission would have awarded the plaintiff compensation if the facts alleged in this common-law action had been presented to the Commission. When the allegations of a plaintiff's motion for judgment against the employer, or the facts offered in support of the allegations, show that the plaintiff's remedy is under the Act, the plaintiff has no right to pursue her action at law. Aistrop v. Blue Diamond Coal Co., 181 Va. 287, 24 S.E.2d 546 (1943). See Raven Red Ash Coal Co. v. Griffith, 181 Va. 911, 922-23, 27 S.E.2d 360, 364-65 (1943). Therefore, we must examine the record of the Commission hearing to determine whether the facts presented there were substantially the same as the factual allegations advanced in this common-law action. If they were, the Commission's ruling, which we have assumed was one of lack of jurisdiction, is conclusive and this action may proceed. However, if the facts advanced in this action were substantially different from those presented to the Commission and if the facts presented here show that the...

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