733 S.E.2d 648
Va.2012Background
- Gibbs, an active-duty Navy electronics technician, worked on the Lewis and Clark submarine under Navy supervision during its construction at the Shipyard.
- In 1962, the Navy contracted with Newport News Shipbuilding for two nuclear submarines, with Navy access for testing during construction.
- Gibbs alleged asbestos exposure aboard the Lewis and Clark during pre-delivery work, leading to malignant mesothelioma.
- Gibbs died in 2009; his widow, as administrator, amended to assert a Virginia wrongful-death claim under Code § 8.01-56 seeking recovery for Gibbs' death.
- The Shipyard moved to bar the action claiming the Virginia Workers’ Compensation Act (the Act) provides the exclusive remedy; the circuit court granted dismissal with prejudice, which Gibbs appealed.
- The issue is whether Gibbs’ injury and death were within the purview of the Act, thus barring the tort action or whether Gibbs falls outside the Act’s exclusivity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gibbs’ estate is barred by the Act’s exclusivity provision | Gibbs’ injury fell outside the Act; Gibbs was not an employee of the Shipyard for purposes of the Act. | The Act applies to injuries arising out of and in the course of employment between employee and employer; Gibbs and Shipyard were statutory fellow employees. | Gibbs’ claim falls outside the Act’s exclusivity; the circuit court erred in baring the action. |
| Whether Gibbs was an employee of the Navy under the Virginia Act | Gibbs provided services to the Navy under a contract of hire, satisfying the Act’s employee definition. | The Navy cannot be considered within the Act’s employee definition due to federal supremacy and non-acceptance of the Act by the Navy. | Gibbs was an employee of the Navy under the Virginia Act; his injury arose in the course of employment. |
| Whether Gibbs and the Shipyard were statutory co-employees under the Act | Since Gibbs and the Shipyard were performing Navy-related work, they were statutory co-employees under the Act. | The majority’s approach misreads the relationship; the Navy’s status does not preclude statutory co-employer status. | Yes; Gibbs and the Shipyard were statutory co-employees when Gibbs was exposed to asbestos. |
| Appropriate remedy given the exclusivity analysis | Because Gibbs was outside the Act, common-law remedies remain available. | If within the Act’s purview, exclusive remedy bars suits; if outside, suit can proceed. | Remand for further proceedings consistent with the opinion; the circuit court’s dismissal was reversed. |
Key Cases Cited
- Adams v. Alliant Techsystems, Inc., 261 Va. 594, 544 S.E.2d 354 (2001) (distinction between claims subject to defenses and claims entirely outside Act’s purview)
- Whalen v. Dean Steel Erection Co., 229 Va. 164, 327 S.E.2d 102 (1985) (Act as quid pro quo; immunity to employers from common-law claims in exchange for benefits)
- Nichols v. VVKR, Inc., 241 Va. 516, 403 S.E.2d 698 (1991) (statutory fellow employees; exclusive remedy applies among co-employees under the Act)
- Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 1988 () (Supremacy Clause; federal immunity not per se to state Act applicability; preemption evaluated case-by-case)
- Rasnick v. Pittston Co., 237 Va. 658, 379 S.E.2d 353 (1989) (exclusive remedy under Act governs injuries arising in employment)
- Richmond Newspapers, Inc. v. Hazelwood, 249 Va. 369, 457 S.E.2d 56 (1995) (exclusivity and scope of the Act; injuries arising out of employment fall within purview of Act)
- Giordano v. McBar Indus., 284 Va. 259, 729 S.E.2d 130 (2012) (analysis of purview of the Act and injury in course of employment)
- Stover v. Ratliff, 221 Va. 509, 272 S.E.2d 40 (1980) (master-servant factors and employee status under the Act)