Smith v. Desautels

• Citation: 953 A.2d 620,2008 VT 17
• Decision Date: 07 March 2008
• Docket Number: No. 06-146.,06-146.
• Parties: Carl M. SMITH v. Emile DESAUTELS and Desautels House Movers, Inc.
• Court: United States State Supreme Court of Vermont

953 A.2d 620

2008 VT 17

Carl M. SMITH v. Emile DESAUTELS and Desautels House Movers, Inc.

No. 06-146.

Supreme Court of Vermont.

March 7, 2008.

Eugene Rakow of Eugene Rakow, P.C., and L. Maxwell Taylor and Alan Biederman of Biederman Law Office, Rutland, for Plaintiff-Appellant.

Andrew Jackson, Middlebury, for Defendants-Appellees.

Present: DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ., and COOK, D.J. (Ret.), Specially Assigned.

DOOLEY, J.

¶ 1. Plaintiff, Carl Smith, was working for defendants, Desautels House Movers, Inc. and Emile Desautels, when an acetylene tank fell on his hand and crushed it. Although defendants did not have workers' compensation insurance, they paid for workers' compensation benefits claimed and received by plaintiff. After exhausting his benefits, plaintiff brought this suit, seeking damages for defendants' negligence. The superior court granted summary judgment for defendants, concluding that plaintiff had made a binding election to claim compensation pursuant to 21 V.S.A. § 618(b) and was, therefore, barred from bringing this civil action. Plaintiff appeals, arguing that: (1) the superior court does not have jurisdiction to determine whether an election occurred; and (2) his acceptance of compensation did not waive his right to a civil suit because he never completed a signed, written agreement approved by the Commissioner. See id. § 618(d). We find no jurisdictional bar to the superior court's action but conclude that, under the terms of the statute, plaintiff did not waive his right to a civil suit against his employer. We therefore reverse and remand.

¶ 2. The undisputed facts are as follows. Plaintiff was injured in the course of his employment for defendants in May 2002 and thereafter, in June, filed a claim for benefits under Vermont's workers' compensation statutes. 21 V.S.A. §§ 601-711. Defendants did not carry workers' compensation insurance at the time of the accident, contrary to statute. See id. § 687.

¶ 3. In July, a workers' compensation specialist in the Department of Labor notified the parties of some of their rights with respect to the claim. The specialist further urged defendants to show proof of workers' compensation insurance coverage and advised both parties to obtain legal counsel. By December 2002, the Department had calculated the weekly benefit that the workers' compensation statutes afforded plaintiff, and defendants paid this amount during the period in which plaintiff was deemed temporarily totally disabled. Defendants also covered the costs of plaintiff's surgery. By that time, defendants had counsel, but plaintiff did not.

¶ 4. In September 2003, while defendants were still paying temporary total disability compensation pursuant to the Department schedule, plaintiff, through counsel, sent a letter to defendants' attorney stating that he would be filing a negligence suit against defendants in addition to pursuing his workers' compensation claim. Defendants continued to pay, and plaintiff continued to accept, temporary total disability payments until December 2003, when defendants filed a notice to discontinue benefits based on a physician's determination that plaintiff had reached a medical end result at a 17% whole-person impairment. The Department approved this request. Thereafter, defendants paid plaintiff permanent partial compensation at $296 per week for 68.85 weeks. Shortly after these benefits were discontinued, in April 2005, plaintiff brought this negligence suit in superior court. The court granted defendants' motion for summary judgment¹ in March 2006, and plaintiff's appeal followed.

¶ 5. Two statutory subsections are central to the resolution of this case. One is 21 V.S.A. § 618(b), which provides:

A worker who receives a personal injury by accident arising out of and in the course of employment with an employer who has failed to comply with section 687 of this title may elect to claim compensation under this chapter or to bring a civil action against the employer for full damages resulting from the work injury.

Section 687 provides alternative means for the employer to "secure compensation" for employees, the most common of which is to purchase workers' compensation insurance. Id. § 687(a). It is undisputed that defendants failed to comply with § 687 because they failed to obtain any of the alternative types of security.

¶ 6. The second subsection is § 618(d), which provides:

The acceptance of any payment by an employee for a work injury shall not bar a subsequent election to pursue a civil suit under subsection (b) of this section unless the employee, with knowledge of his or her rights, signs a written agreement waiving the right to pursue a civil action. The agreement shall be filed with and approved by the commissioner. If the employer fails to pay any amount due and owing under the workers' compensation act the waiver agreement shall be void and the employee may pursue a civil action.

Plaintiff never signed an agreement waiving his right to pursue a civil action, and no such agreement was filed with and approved by the Commissioner.

¶ 7. The merits of this case involve the interplay between the two subsections. The superior court held that § 618(b) requires an election between workers' compensation and tort damages and that plaintiff made a clear election by applying for and accepting workers' compensation. It held that the requirements of § 618(d) apply only if the employer makes payments voluntarily and not pursuant to direction of the Commissioner of Labor, as it found occurred here.

¶ 8. The plaintiff argues he loses the right to sue only if he signs a written waiver pursuant to § 618(d) and if it is approved by the Commissioner. In the absence of such written waiver, he contends, acceptance of workers' compensation payments, whether or not directed by the Commissioner, does not defeat the right to sue. Further, plaintiff argues that only the Commissioner, and not the superior court, can determine whether he has lost the right to sue. We start with the jurisdictional question, and, because we find that the superior court had jurisdiction to decide whether plaintiff could bring this action, we proceed to the merits. Each of plaintiff's arguments presents an issue of law we review de novo. State v. Valyou, 2006 VT 105, ¶ 4, 180 Vt. 627, 910 A.2d 922 (mem.).

¶ 9. We note at the outset that plaintiff has raised his jurisdictional argument for the first time on appeal. Because it is a challenge to jurisdiction, however, we may consider it. See Braun v. Greenblatt, 2007 VT 53, ¶ 7, ___ Vt. ___, 927 A.2d 782.

¶ 10. In making his jurisdictional argument, plaintiff relies primarily on 21 V.S.A. § 606, which provides that "[q]uestions arising under the provisions of this chapter, if not settled by agreement ..., shall be determined, except as otherwise provided, by the commissioner." Because all provisions about workers' compensation are in chapter 9 of Title 21, plaintiff argues that all legal questions in the domain of workers' compensation are in the exclusive jurisdiction of the Commissioner and may not be addressed by the superior court.

¶ 11. Plaintiff's argument is very broad and would apply to any legal question. We do not think that § 606 can be read as creating jurisdictional exclusivity as broadly as plaintiff argues. See Dominguez ex rel. Hamp v. Evergreen Res., Inc., 142 Idaho 7, 121 P.3d 938, 943 (2005) (under identical Idaho statute, Industrial Commission and courts have concurrent jurisdiction to determine which has jurisdiction over the controversy); Employers Mut. Cos. v. Skilling, 163 Ill.2d 284, 206 Ill.Dec. 110, 644 N.E.2d 1163, 1165 (1994) (identical language in Illinois statute does not make jurisdiction of Illinois Industrial Commission exclusive). Although we have not analyzed § 606 in detail, we have followed the approach of the Supreme Court of Illinois in Skilling. For example, many decisions of this Court have involved work-related negligence actions brought under the dual-liability provisions of 21 V.S.A. § 624. In those cases, the superior court has determined whether §§ 622 and 624(a) allow for civil suits, rather than referring the question to the Commissioner. See, e.g., Edson v. State, 2003 VT 32, ¶ 4, 175 Vt. 330, 830 A.2d 671; Herbert v. Layman, 125 Vt. 481, 481-82, 218 A.2d 706, 707 (1966), overruled on other grounds by Whitney v. Fisher, 138 Vt. 468, 470, 417 A.2d 934, 936 (1980). As the Illinois court did in Skilling, 206 Ill.Dec. 110, 644 N.E.2d at 1165-66, we held in Gallipo v. City of Rutland, 2005 VT 83, ¶ 44, 178 Vt. 244, 882 A.2d 1177, that the doctrine of primary jurisdiction should govern whether the superior court should decide a legal question arising under the workers' compensation chapter. See also Travelers Indem. Co. v. Wallis, 2003 VT 103, ¶¶ 9-18, 176 Vt. 167, 845 A.2d 316 (applying primary jurisdiction to challenge to Commissioner's administration of interim compensation payments). Under the doctrine, we consider three main factors: "(1) whether the question to be decided is one of law or is a mixed question of fact and law; (2) whether an alternative tribunal with expertise is available to adjudicate the controversy; and (3) whether the plaintiff is attacking the validity of a statute." Gallipo, 2005 VT 83, ¶ 44, 178 Vt. 244, 882 A.2d 1177. In Gallipo, the workers' compensation carrier sought the return of interim benefits paid, under the theory of unjust enrichment, because the Commissioner eventually ruled that plaintiff was not eligible for compensation. We held that the superior court had jurisdiction over the claim primarily because the main question was one of law-whether unjust enrichment applied-and because unjust enrichment is based on standards of the common law developed by court decision. Id. ¶ 45. We also noted that "[w]e are already in a proceeding between the parties; moving to another forum is inefficient." Id.

¶ 12. We conclude that Gallipo...