Lead Opinion
delivered the opinion of the Court.
In this case, we decide whether an injured worker was the borrowed servant of the defendant and, if so, whether that fact precludes his federal maritime law negligence claim against the defendant.
Michael Mizenko, a skilled laborer, was employed by Abacus Temporary Services (Abacus), a сompany that had contracted to supply Metro Machine Corporation (Metro) with skilled labor on request. Pursuant to its contract, Abacus sent Mizenko to work for Metro in the performance of Metro’s contract for the “multi-faceted overhaul and repair” of the USS COMPTE DE GRASSE, a naval vessel afloat in the navigable waters of the United States and moored at Metro’s shipyard in Norfolk.
On May 8, 1986, Mizenko was injured while repairing pipes on the USS COMPTE DE GRASSE. Mizenko collected workers’ compensation benefits from Abacus pursuant to the Longshore and Harbor Workers’ Compensation Act (the Federal Act), 33 U.S.C. §§ 901, et seq. Later, Mizenko filed this federal maritime negligence action against Metro and Electric Motor and Contracting Co., Inc. (Electric).
Metro filed pleadings in which it alleged that because Mizenko was Metro’s borrowed servant under the Federal Act and Metro was Mizenko’s statutory employer undеr the Virginia Workers’ Compensation Act, Code § 65.1-1, et seq. (the Virginia Act), the exclusivity provisions of both acts barred Mizenko’s negligence action against it. Accordingly, Metro filed a plea in bar, requests for admission that were not denied, and a motion for summary judgment in support of its contention.
On November 14, 1989, after argument of counsel and consideration of briefs filed on the issue, Judge Morris B. Gutterman issued an opinion letter in which the court “denied” Metro’s motion for summary judgment “at this time.” An order was entered in conformity with that opinion letter on January 26, 1990.
Thereafter, Metro filed another plea, citing the case of McBride v. Metric Constructors, 239 Va. 138,
When Mizenko appealed the trial court’s dismissal of his case, Metro filed this separate appeal of the trial court’s earlier adverse disposition of its summary judgment motion. In this opinion, we decide Metro’s separate appeal.
I.
At the outset, Mizenko claims that this appeal is procedurally barred. Mizenko correctly contends that Metro could not have appealed the trial court’s dispositiоn of its motion for summary judgment because it was not a final order or disposition of the case. However, he incorrectly claims that such a disposition cannot be appealed after entry of the final order. Judge Gutterman’s decision was an adjudication of one of the principles оf the action that may be appealed after entry of the final judgment. Allen v. Parkey,
II.
The borrowed servant doctrine is a long-standing principle that has been applied in conjunction with the Federal and State Acts. Huffy. Marine Tank Testing Corp.,
Initially, we consider whether the circumstances under which Mizenko worked for Metro made him Metro’s borrowed servant. Because Mizenko failed to answer Metro’s request for admission, the facts set forth in the request are deemed admitted. Rule 4:11. And what follows is a summary of the admitted facts.
Abacus personnel were sent to Metro to be interviewed by the foreman of the appropriate shop. The foreman was authorized to accept or reject thе Abacus applicants. Under the terms of the contract, Metro retained the right to remove and replace Abacus personnel that Metro considered unsatisfactory.
Mizenko was sent to Metro on February 4, 1985, and was interviewed by the foreman of the pipe shop, who accepted Mizenko for employment. Mizenko worke'd as a pipe fitter at Metro until March 16, 1986, when he was laid off. At that time, Abacus sent Mizenko to the Jonathan Corporation, where he worked from March 17 until April 6, 1986. Mizenko was thereafter reassigned to Metro, where he worked until May 8, 1986.
During his employment at Metro, Mizеnko reported directly to Metro and received his daily work assignments from the Metro pipe shop foreman. His work was supervised and directed by Metro.
Abacus billed Metro weekly for the total number of hours its employees, including
All parties agree that control over the employee is the most important factor in consideration of the borrowed servant status, although it alone may not be dispositive. Gaudet,
Because the material facts are not disputed, this issue would be one of law to be appropriately disposed of by summary judgment. Gaudet,
Similarly, if a loaned or borrowed servant is under the control of the “borrowing” employer as to the work to be done and the time and method of doing it, the exclusivity provisions оf the Virginia Act preclude his common law recovery for personal injuries against an employee of the borrowing employer because he is a fellow servant of the injured party. Coker,
Accordingly, we think that the admitted facts in this case demonstrate that Mizenko was Metro’s borrowed servant as a matter of law under either the Federal or the State Act.
Finally, we consider Mizenko’s argument that the borrowed servant doctrine is no longer applicable in employment-related injury cases within the coverage of the Federal Act as a result of 1984 amendments to that Act. In 1984, Congress adopted a number of amendments to the Federal Act, some of which were in response to a case decided by the United States Supreme Court, Washington Metropolitan Area Transit Authority v. Johnson,
In Johnson, the Court interpreted the statutory languagе of the Federal' Act as entitling a general contractor to immunity from tort suits filed by a subcontractor’s employees unless the general contractor neglected to secure workers’ compensation coverage after the subcontractor failed to do so. Id. at 939-40. This holding made immunity for gеneral contractors the rule rather than the exception. Congress quickly amended the Federal Act to provide that a general contractor would be deemed an employer and, therefore, clothed with an employer’s immunity only when it was required to secure the payment of workers’ comрensation because the subcontractor had failed to do so. Thus, the statutory grant of
Following these amendments, courts have held uniformly that this congressional action did not abrogate the apрlication of the borrowed servant doctrine in these circumstances. The Fifth Circuit, the first court to address this issue, identified the distinction between a statutory description of circumstances which deems one to be an “employer,” although not the true employer, and circumstances under which one is the employer under the borrowed servant doctrine in West v. Kerr-McGee Corp.,
The Third Circuit has followed the Fifth Circuit’s lead. In Peter v. Hess Oil Virgin Islands Corp.,
West’s reading of the legislative history is correct; there is nothing in the legislative history indicating that Congress intended to do anything other than overrule Washington Metro. . . . [and] [t]hat brief history does not support the proposition that Congress wished to upset the use of the borrowed servant doctrine as utilizеd by the Fourth and Fifth Circuit cases ....
Id. at 941; see also Melancon,
Mizenko invites us to reject the analysis of these cases, although he offers no case supporting his position. We decline this invitation. We, like the courts that have already considered this issue, cannot find any statutory language or congressional intent in the 1984 amendments to abrogate the maritime law principle of borrowed servant. Thus, we think that the borrowed servant doctrine continues to be available when considering work-related injuries encompassed by the Federal Act.
Since the exclusivity provisions of both acts bar Mizenko’s action against Metro, wе find that Judge Gutterman erred in denying Metro’s motion for summary judgment. Nevertheless, because the trial court ultimately dismissed Mizenko’s claim against Metro, although for the wrong reason, we will affirm its action in doing so and assign the right reason. State Farm Mut. Auto. Ins. Co. v. Seay, 236 Va. 275, 280 n.3,
Affirmed.
Notes
Electric was a subcontractor of Metro. Electric’s employees allegedly caused Mizenko’s injuries in using a toxic solvent whose fumes Mizenko inhaled while working near those employees. In Mizenko v. Electric Motor and Contracting Co.,
Metro made known its specific objection to the court’s denial of its motion for summary judgment by objecting to the order, and by briefing and arguing its borrowed servant defense. Metro’s actions afforded opposing counsel аn opportunity to respond to Metro’s contention, and afforded the trial court an opportunity to rule intelligently on the issue presented. Accordingly, Metro made a timely objection in conformity with Rule 5:25 and preserved its right of appeal. Weidman v. Babcock,
Concurrence Opinion
JUSTICE COMPTON, with whom CHIEF JUSTICE CARRICO and JUSTICE LACY join, concurring.
I concur in the result in this case but not in the ratio decidendi. The opinion charaсterizes the nature of Mizenko’s action as a “federal maritime law negligence claim.” From this basis, this Court’s ruling proceeds to the conclusion that the exclusivity provisions of both the Federal and Virginia acts bar Mizenko’s action against Metro.
I do not agree that the plaintiff’s action is a “fedеral maritime law negligence claim.” In my opinion, the plaintiff’s claim is a common law negligence action, as so clearly articulated in JUSTICE LACY’s dissent in Mizenko v. Electric Motor and Contracting Co., Inc.,
Dissenting Opinion
dissenting.
While I do not dispute the majority’s analysis that Mizenko is the borrowed servant of Metro, nevertheless, I would hold that Metro’s appeal of this interlocutory order is procedurally barred by Code § 8.01-670.*
The trial court’s order of January 26, 1990, which denied Metro’s initial motion for summary judgment, and from which Metro has appealed, is not a final order. A final order is one which disposes of the entire action and leaves nothing to be done except the ministerial superintendence of execution of the order. Daniels v. Truck Corporation,
On February 28, 1991, Metro was dismissed from the case with prejudice. That was the final order in this case, and it is the order from which Mizenko has appealed. In the final order, Metro did not preserve its objection to the trial court’s earlier denial of summary judgment. Further, Metro did not appeal any aspect of this order.
Allen v. Parkey,
Code § 8.01-670 provides:
A. Any person may present a petition for an appeal to the Supreme Court if hе believes himself aggrieved:
1. By any judgment in a controversy concerning:
a. The title to or boundaries of land,
b. The condemnation of property,
c. The probate of a will,
d. The appointment or qualification of a personal representative, guardian, committee, or curator,
e. A mill, roadway, ferry, wharf, or landing,
f. The right of the Commonwealth, or a county, or municipal corporation to levy tolls or taxes,
g. The construction of any statute, ordinance, or county proceeding imposing taxes; or
2. By the order of a court refusing a writ of quo warranto or by the final judgment on any such writ; or
3. By a final judgment in any other civil case; or
B. Any party to any case in chancery wherein there is an interlocutory decree or order:
1. Granting, dissolving or denying an injunction; or
2. Requiring money to be paid or the possession or title of property to be changed; or
3. Adjudicating the principles of a cause.