Snowden v. Virginia Elec. & Power Co.
| Decision Date | 06 December 1976 |
| Docket Number | Civ. A. No. 76-74-NN and 76-75-NN |
| Citation | 432 F. Supp. 266 |
| Parties | Al Jolson SNOWDEN, Plaintiff, v. VIRGINIA ELECTRIC AND POWER COMPANY, Defendant. George G. STOKLEY, Plaintiff, v. VIRGINIA ELECTRIC AND POWER COMPANY, Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
Edwin Jay Rafal, Norfolk, Va., for plaintiffs.
D. Alan Rudlin, Hunton & Williams, Richmond, Va., for defendant.
Jurisdiction of these actions exists by reason of alleged diversity of citizenship, 28 U.S.C. § 1332. The basis of the actions is the alleged negligence of defendant, Virginia Electric and Power Company (Vepco). Vepco is a public service corporation engaged in the production, distribution and sale of electricity, which, in part, is distributed and transmitted through the Company's electric lines, mostly through overhead wires hanging from towers or poles.
At the time of the accident in question Vepco was engaged in improving, repairing or rebuilding its electric service line in York County, Virginia, by increasing the capacity of such line. The undertaking required the replacing of existing poles with steel poles. Under Vepco's management and coordination, and pursuant to contract, Bost Construction Company (Bost) contracted and agreed with Vepco to install concrete foundations for the steel poles, and to do other things. Bost subcontracted to Karl Walski Construction Company, Inc. (Walski) the work of driving steel piles in the ground at the sites of the steel poles' concrete foundations. Plaintiffs were employees of Walski and were performing services for their employer at the concrete foundation sites and carrying out work on the project. They were allegedly injured when a crane owned and operated by Walski came into contact with an overhead Vepco electric transmission line. At that time each plaintiff was covered by the provisions of the Virginia Workmen's Compensation Act (the Act). They have been and are still receiving Workmen's Compensation benefits under the Act for their injuries.
Following the institution of these actions Vepco filed a motion to dismiss for lack of jurisdiction, asserting that plaintiffs' only remedy was under the Act.
Pursuant to Virginia Code Section 65.1-40, where an employee and his employer have accepted the provisions of the Act to pay and accept compensation on account of any personal injury, such will "exclude all other rights and remedies of such employee" on account of injuries sustained while in the performance of his duties.
Section 65.1-29 provides:
When any person (in this section and §§ 65.1-31 and 65.1-32 referred to as "owner") undertakes to perform or execute any work which is a part of his trade, business or occupation and contracts with any other person (in this section and §§ 65.1-31 to 65.1-34 referred to as "subcontractor") for the execution or performance by or under such subcontractor of the whole or any part of the work undertaken by such owner, the owner shall be liable to pay to any workman employed in the work any compensation under this Act which he would have been liable to pay if the workman had been immediately employed by him.
An employee who has accepted the provisions of the Act is therefore limited to the exclusive rights and remedies under the Act (Section 65.1-40) as against his employer. The Act imposes liability not only on the workman's employer, but also on the third party who has contracted with the workman's employer for the work which "is a part of (third party's) trade, business or occupation." (Section 65.1-29). Stated differently, where an independent contractor is performing work which is a part of the trade, business or occupation of the owner, the employees of the independent contractor are statutory employees of the owner, and as such limited to the benefits and compensation under the Act, and precluded from instituting or maintaining a suit at common law against the owner. This is so even where employee's employer carried Workmen's Compensation for his employees, and thus made it unnecessary for the employee to look to the owner for said benefits. Sykes v. Stone & Webster Engineering Co., 186 Va. 116, 41 S.E.2d 469 (1947).
But, of course, the Act does not bar an action by the injured employees against a third party if the third party is one referred to in the Act as an "other party." We must determine whether Vepco, the "owner" falls within the class of "other party" under the facts of this case.
This being a diversity case, the Court is bound by and must follow the law of the State of Virginia, and the interpretation placed on the language of the Act by the highest Court of that State. Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967); C.I.R. v. Stern, 357 U.S. 39, 78 S.Ct. 1047, 2 L.Ed.2d 1126 (1958); Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); St. Paul Fire and Marine Ins. Co. v. Lack, 476 F.2d 583 (4th Cir. 1973).
It seems clear from the decision of the Supreme Court of Virginia, and the Court of Appeals for the Fourth Circuit, that the owner under the Act is not an "other party" if the subcontractor for whom plaintiff worked was performing work which was a part of the "trade, business or occupation" of the owner at the time of the injury. Bassett Furniture Industries, Inc. v. McReynolds, 216 Va. 897, 224 S.E.2d 323, 326 (1976); Anderson v. Thorington Construction Co., 201 Va. 266, 110 S.E.2d 396, 400 (1959); Williams v. Gresham Co., 201 Va. 457, 503, 111 S.E.2d 498 (1959); Corollo v. S.S. Kresge Co., 456 F.2d 306 (4th Cir. 1972).
In the Williams case, supra, Williams, an employee of the Ferry Authority attempted to sue Gresham, a contractor who contracted to drive piling for a ferry slip. At page 503, 111 S.E.2d at page 503, the Court said:
There is no material conflict in the evidence and it conclusively shows that defendant was engaged in work, at the time of plaintiff's injury, which was a part of the trade, business or occupation of the owner, Ferry District, and that defendant was not a stranger to the work. Both defendant and Ferry District were under the canopy of the Workmen's Compensation Act and not subject to an action at law by plaintiff, Ferry District's employee, for damages on account of injuries he received while engaged in the same work. § 65-37, supra. Therefore, defendant was not an "other party" within the purview of § 65-38, supra, and amenable to such an action at law.
The Anderson case, supra, grew out of the construction of the Petersburg Turnpike by an Authority created by the Legislature of Virginia. Anderson was an employee of the independent engineering firm doing work on the project. He sued Thorington Construction Company, an independent contractor also doing work on the project, for damages for injuries sustained. At 110 S.E.2d page 400 the Court said:
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Vandergrift v. United States, Civ. A. No. 77-197-N.
...58 S.Ct. 817, 82 L.Ed. 1188 (1938); St. Paul Fire & Marine Ins. Co. v. Lack, 476 F.2d 583 (4th Cir. 1973); Snowden v. Virginia Electric & Power Co., 432 F.Supp. 266, 268 (D.C.Va.1976). The question at issue is whether under the Virginia Workmen's Compensation Act immunity "would apply to a ......
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...under the Act, and precluded from instituting or maintaining a suit at common law against the owner. Snowden v. Virginia Elec. & Power Co., 432 F.Supp. 266, 268 (E.D. Va. 1976). "This is so even where employee s employer carried Workmen s Compensation for his employees, and thus made it unn......
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...employees of the owner even though their immediate employer (and employer-in-fact) is the independent contractor. Snowden v. VEPCO, 432 F.Supp. 266 (E.D.Va.1976). The test governing statutory employment is whether the independent contractor is performing an indispensable activity normally c......
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