David White Crane Service v. Howell
714 S.E.2d 572
Va.2011Background
- Green was the general contractor on the Peanut Patch construction site in Southampton County.
- Green contracted with White Crane to hoist structural beams at the site; White Crane employed Burgess as crane operator.
- Howell, a Green employee, was injured when Burgess allegedly misoperated the crane, causing a beam to swing into a man-lift Howell stood on.
- Howell sued White Crane and Burgess in circuit court; Green was not a party to the suit.
- White Crane and Burgess moved for a plea in bar arguing the Workers' Compensation Act exclusivity protects them, despite lack of workers' compensation insurance.
- The circuit court denied the plea in bar, and the case proceeded toward interlocutory appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does lack of workers' compensation insurance strip exclusivity protection for statutory co-employees? | Howell contends they are uninsured co-employees and not protected by exclusivity. | White Crane argues exclusivity applies to statutory co-employees regardless of insurance status. | Exclusivity protection applies despite lack of insurance. |
| Are statutory co-employees immune from common-law tort claims when insured/uninsured under the Act? | Howell would pursue a common-law action against co-employees if allowed. | White Crane asserts exclusivity bars such actions against co-employees who engage in the same project. | Statutory co-employees are immune; common-law action barred. |
| Does allowing the action against co-employees conflict with the Act's exclusivity and prevent double recovery? | Would not be barred if remediation under the Act is complete. | Allowing suit would undermine exclusivity and risk double recovery. | Permitting the common-law action would contravene exclusivity and risk double recovery. |
Key Cases Cited
- Pfeifer v. Krauss Constr. Co. of Va., Inc., 262 Va. 262, 546 S.E.2d 717 (2001) (statutory co-employees within Act's reach; exclusivity protections apply)
- Virginia Used Auto Parts, Inc. v. Robertson, 212 Va. 100, 181 S.E.2d 612 (1971) (uninsured employer liable to employee under Act; election of remedies not required)
- Delp v. Berry, 213 Va. 786, 195 S.E.2d 877 (1973) (employer lacking insurance forfeits exclusivity protection; common-law action may proceed)
- Evans v. Hook, 239 Va. 127, 387 S.E.2d 777 (1990) (exclusivity principles under the Act; workers' compensation remedy primary)
- Whalen v. Dean Steel Erection Co., 229 Va. 164, 327 S.E.2d 102 (1985) (context on exclusive remedy and who is a co-employee)
- Gray v. Virginia Sec'y of Transp., 276 Va. 93, 662 S.E.2d 66 (2008) (de novo review standard for pure questions of law on plea in bar)