Opinion
Burt M. Morewitz, Newport News, for appellant.
R. John Barrett, Thomas J. Duff and F. Nash Bilisoly, Norfolk, for appellee.
Upon consideration of the record, briefs, and argument of counsel on behalf of the appellee, the Court is of opinion that the trial court erred in ruling that the exclusivity provision of the Virginia Workers' Compensation Act (Virginia Act), Code § 65.1-1 et seq., may be given effect to bar Hunter's action against Virginia International Terminals, Inc. (VIT). As held by this Court in Mizenko v. Electric Motor and Contracting Company, Inc., et al., 244 Va. 152, 419 S.E.2d 637 (1992), decided today, a worker injured on navigable waters, while engaged in maritime activity, has a cause of action in maritime tort which is governed by the general maritime law. Here, Hunter was injured while loading cargo aboard a barge located on navigable waters. This work was maritime in nature. Northern Coals&sDock Co. v. Strand, 278 U.S. 142, 144, 49 S.Ct. 88, 88-89, 73 L.Ed. 232 (1928); Peter v. Hess Oil Virgin Islands Corp., 903 F.2d 935, 946 (3d Cir.1990). Thus, Hunter has asserted a cause of action under the general maritime law.
Code § 65.1-1 et seq. was recodified as Code § 65.2-100 et seq., effective October 1, 1991.
VIT has not contended in this appeal, or in the trial court, that Hunter's action is barred by the Longshoremen and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. (Longshore Act), or any other federal authority. Accordingly, for purposes of this inquiry, VIT has conceded that the Longshore Act does not bar Hunter's action and we are faced with a conflict in the substantive rights afforded to Hunter under the general maritime and state law. See Mizenko, 244 Va. at 160, 419 S.E.2d at 642.
Based on an evaluation of the comparative state and federal interests as set forth in Mizenko, we hold that the Virginia Act may not be applied to bar Hunter's action against VIT. Therefore, we reverse the ruling of the trial court and remand this cause for further proceedings consistent with the principles stated therein.
LACY, Justice, with whom CARRICO, Chief Justice, and COMPTON, Justice, join, dissenting.
I respectfully dissent. Waterman Steamship Company had a contract with a shipper to transport cargo to Jordan. The cargo was stored at a terminal owned by Virginia International Terminals, Inc. (VIT). VIT billed Waterman for the labor, wharfage, and demurrage fees connected with the shipper's cargo. Waterman also had a contract with I.T.O., a stevedore company, to load the cargo.
Merlin T. Hunter, Jr., was an employee of I.T.O., and was on Waterman's barge when cargo he was loading fell and struck him. After collecting workers' compensation payments under the Longshore and Harbor Workers' Compensation Act (LHWCA or the Federal Act), 33 U.S.C. §§ 901, et seq., Hunter filed this suit against VIT, alleging that VIT's negligence had caused the injury.
The trial court granted VIT's motion to dismiss, holding that I.T.O. and VIT were engaged in part of the trade, business, or occupation of Waterman, that VIT was not an "other party" within the meaning of the Virginia Workers' Compensation Act (VWCA or the Virginia Act), Code §§ 65.2-100, et seq., and, therefore, that VIT was entitled to the immunity provisions of the VWCA.
The VWCA was recodified in 1991 with no substantial changes relevant here. Therefore, references to the Virginia Act will be to the current sections.
Hunter appealed, claiming that the trial court erred in holding that VIT was not an "other party" under the terms of the VWCA and in applying the VWCA to defeat his "federal maritime law claim."
VIT, relying on this Court's decision in McBride v. Metric Constructors, 239 Va. 138, 387 S.E.2d 780 (1990), and American Foods v. Ford, 221 Va. 557, 272 S.E.2d 187 (1980), as well as the federal cases of Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980), Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321 (1922), and Brockington v. Certified Electric, Inc., 903 F.2d 1523 (11th Cir.1990), cert. denied, 498 U.S. 1026, 111 S.Ct. 676, 112 L.Ed.2d 668 (1991), argued that the trial court properly applied the VWCA in this case.
As a threshold matter, I agree with VIT, and would affirm the holding of the trial court that VIT was not an "other party" or "stranger to the trade, business, or occupation" of Waterman and, therefore, was entitled to the immunity provisions of the VWCA. Smith v. Horn, 232 Va. 302, 351 S.E.2d 14 (1986).
Hunter's pleadings in this case, seeking recovery for work-related injuries incurred because of the alleged negligence of the defendants and claiming entitlement to "the benefits of 33 U.S.C. 933(a) and the General Maritime Law of the United States," are indistinguishable from those filed by Mizenko, and by McBride in McBride v. Metric Constructors, supra. The relationship between VIT and Hunter in this case parallels that of Electric Motor and Contracting Company and Michael Mizenko as described in Mizenko v. Electric Motors&sContracting Co., 244 Va. 152, 419 S.E.2d 637 (1992), decided today. For the reasons stated in my dissent to Mizenko, I would affirm the decision of the trial court in this case.
I also take issue with the majority's characterization of VIT's position as conceding that the LHWCA does not bar Hunter's action. The majority apparently holds that VIT's failure to assert the LHWCA as an affirmative defense obviates a comparison of the LHWCA to the Virginia Act, and, consequently, it proceeds to rely on a comparison of the VWCA and general maritime law to determine whether the Virginia Act could be applied in this case. Although this analytical framework seemingly results from the "concession" of VIT in this case, it carries with it, in my opinion, the same infirmities set out at pages 164-66 and 169-72 in my dissent in Mizenko, 244 Va. at 164-66, 169-72, 419 S.E.2d at 648, 649.
As I stated in that dissent, in order to apply the provisions of the VWCA in the area of concurrent state-federal jurisdiction over remedies for work-related injuries, the provisions and policies of the two statutes must be considered and effect given to all provisions and policies to the extent possible without frustrating the federal law. Consideration of the policies regarding suits against "persons in the same employ" as that term appears in the LHWCA, or persons not "strangers to the trade, business, or occupation" as that phrase has been utilized in Virginia workers' compensation law, is part of the process connected with the standard of review. It is not the assertion of an affirmative defense provided under a specific act.
Here, VIT asserted that it was entitled to the immunity afforded by the VWCA and previously granted by the cases of this Court in similar circumstances. That precedent implied that this Court had already determined that the two statutes were not inconsistent, and that the provisions of the Virginia Act could be applied. McBride, 239 Va. at 140-41, 387 S.E.2d at 781-82.
In my opinion, VIT sufficiently engaged the debate over the application of the VWCA to a remedy subject to the provisions of both the LHWCA and the VWCA.
This order shall be certified to the said circuit court.