Thomas Wolfe v. Allen F. Yudichak and Norwich University
No. 86-176
Supreme Court of Vermont
April 14, 1989
Motion for Reargument Denied December 8, 1989
[571 A.2d 592] | 235 Vt. 235
Present: Allen, C.J., Peck, Gibson, Dooley and Mahady, JJ.
Second Dissenting Opinion Filed May 15, 1989.
Affirmed.
Peter B. Joslin of Theriault & Joslin, P.C., Montpelier, for Defendant-Appellee.
Dooley, J. Plaintiff appeals from a decision of the Washington Superior Court granting defendant summary judgment on the ground that the Vermont Workers’ Compensation Act,
The facts are not in dispute. Allen Yudichak and Thomas Wolfe were students at Norwich University and members of the Norwich University Fire Brigade, a volunteer fire department sponsored by the University. Although the fire brigade is a student activity of Norwich University, it does have a constitution, bylaws and a membership roll. The fire brigade refers to itself as “this organization” throughout its constitution and bylaws. The brigade elects its own officers, prepares its own budget and develops and implements its own training procedures. The primary purpose of the brigade is to educate its members in firefighting. The members are not paid.
On April 29, 1984, in response to an alarm, defendant Yudichak drove the brigade fire truck on which plaintiff Wolfe rode. On the way to the fire, the truck skidded off the road and rolled over. One student was killed and plaintiff Wolfe was seriously injured.
Plaintiff alleged that Yudichak operated the truck in a negligent fashion in large part because he was under the influence of alcohol at the time. Because the students were acting in the scope of their duties as firefighters, Wolfe filed suit against Norwich University alleging respondeat superior and negligence for failing to properly supervise and train the student firefighters. Norwich University moved to dismiss this action, asserting that it had elected to provide members of the Norwich University Fire Brigade with workers’ compensation coverage by the purchase of an insurance policy covering the accident that was the subject of the complaint. Because Wolfe was cov-
Plaintiff asserts four claims on appeal. He argues that: (1) the court erred by determining that the Norwich University administration could elect to provide workers’ compensation for the Norwich University Fire Brigade; (2) the court‘s interpretation of Workers’ Compensation Act to include volunteers violates
The superior court‘s decision is based on
(L) members of any regularly organized private volunteer fire department while acting in the line of duty after election by the organization to have its members covered by this chapter;
This subsection is part of a list of alternative types of public employment, which, pursuant to
The statutory provision,
The first reason is that an election by the brigade, as opposed to Norwich University, is commanded by the literal and plain meaning of the language of the statute. Although our overall aim is to determine the intent of the Legislature, we must first look to the plain meaning of the words. See Derosia v. Book Press, Inc., 148 Vt. 217, 222, 531 A.2d 905, 908 (1987). The operative wording here is “after election by the organization to have its members covered by this chapter.” In this context, the “organization” must be the fire brigade. It cannot be Norwich University because the firefighting students are not “members” of Norwich University. The requirement that the department be “regularly organized” underscores this interpretation in two ways. First, it uses a form of the root word—“organize“—the same root word for the term “organization” in the clause we are interpreting. Thus, it is logical that the “organization” in the third clause is the entity that has been “organized” in the first clause. That entity is the fire brigade, not the whole university. Second, the requirement mandates a sufficient governing structure to make an election. If the fire brigade is “regularly organized,” it has sufficient structure to make an election—its constitution and bylaws support the adequacy of its organization in this case.
We recognize that other parts of the public employment definition allow election of coverage solely by the decision of the employer. We do not believe, however, that these subsections should be taken as a general endorsement of placing elections in the hands of the employer. The subsections which allow for employer election,
On the other hand, Vermont has rejected the rule that charitable institutions are immune from suit. Foster v. Roman Catholic Diocese, 116 Vt. 124, 133-34, 70 A.2d 230, 235-36 (1950). It is very likely, therefore, that the Legislature intended to treat public and private volunteer fire departments differently.
Third, it is likely that the workers’ compensation law offers plaintiff no effective remedy. The Workers’ Compensation Act provides compensation of two-thirds of the employee‘s average weekly wage in cases of total disability.
We recognize that the Commissioner of Labor and Industry has apparently adopted as a policy that for “volunteer public safety workers” without other “regular employment” the average wage is computed as the average weekly wage of “similarly responsible, paid employees in the same occupation.”* Vermont Dep‘t of Labor & Industries, Processes and Procedure for Claims Under the Vermont Workers’ Compensation and Occupational Disease Acts Rule 14, Form 25 at 11-12. The Commissioner must, however, act pursuant to statutory authority and consistent with the applicable statute. New Hampshire-Vermont Physician Service v. Commissioner, Department of Banking & Insurance, 132 Vt. 592, 596, 326 A.2d 163, 166 (1974) (“A public administrative authority has only such powers as are expressly granted by the Legislature, together with those implied as necessary for the full exercise of those granted.“). The only possible authority for this policy is the second alternative method of calculating average wages in
Even if the statute were read to allow payment of compensation, the amount is meager at best. According to survey data from the Vermont Department of Employment and Training, the average hourly wage of firefighters in small Vermont communities (under 4000 residents) is $4.10 per hour and in large Vermont municipalities (over 4000 residents) is $7.70 per hour. Vermont Dep‘t of Employment & Training, Wage and Fringe
In summary, if we adopted defendant‘s position, plaintiff would be left with an uncertain and precarious entitlement to a meager income based on the income of persons in an occupation that plaintiff was never part of and was not ever to be part of. The income of firefighters has no more relevance to plaintiff‘s situation than those of any other occupation selected at random. See State v. Lund, 144 Vt. 171, 177, 475 A.2d 1055, 1059-60 (1984) (“It has long been the policy of this Court to avoid a construction of a statute ‘that will render the act ineffective or lead to irrational consequences.‘“) (quoting Audette v. Greer, 134 Vt. 300, 302, 360 A.2d 66, 68 (1976)); New England Power Co. v. Town of Barnet, 134 Vt. 498, 509, 367 A.2d 1363, 1370 (1976) (this Court will not presume that Legislature intended unjust or unreasonable results). While the Legislature could decide to leave volunteer firefighters in such circumstances, we think it more likely that they enacted a check on the unwilling assumption of such a harsh result. The Legislature did this through a requirement that the election be made by affected persons, presumably after a full evaluation of the alternatives.
Finally, we can find no policy reasons why defendant, Norwich University, should have the sole right of election with no voice given to the volunteer firefighters. See, e.g., Hill v. Conway, 143 Vt. 91, 95, 463 A.2d 232, 234 (1983) (this Court considers what “public policy” a statute “appears designed to implement“). If the fire brigade were free-standing, the deci-
For the above reasons, plaintiff is not entitled to workers’ compensation for his injuries in the accident in this case and the motion to dismiss should not have been granted.
Reversed and remanded.
Allen, C.J., dissenting. I believe the applicable statutes compel a contrary result. I would also observe without fear of serious contradiction that had the plaintiff asserted a claim for and been awarded workers’ compensation benefits, this Court, without dissent, would have affirmed the grant of the award. It has been repeatedly held by this Court that the remedial purposes of the Act require a liberal interpretation of its provisions in order to accomplish its intended purposes. See Montgomery v. Brinver Corp., 142 Vt. 461, 463, 457 A.2d 644, 646 (1983). Its provisions are not to be rigidly applied to defeat these purposes. The majority opinion ignores these dictates of statutory construction and may frustrate the application of the Workers’ Compensation Act in future cases brought by workers seeking the benefits of the Act.
Peck, J., dissenting. It is not possible to feel anything less than the deepest compassion for the young plaintiff who incurred serious and apparently permanent injuries as a result of the tragic accident of April 29, 1984, an accident in which another Norwich University student lost his life.
Sympathy in the face of such devastating tragedy is a natural, human and humane response. I am sure it is felt by each member of this Court regardless of whether he joins with the unfortunate majority opinion or writes separately in dissent. Nevertheless, expressed in its simplest elemental form, the majority opinion is bad law. It reflects, too clearly, particularly in several of the closing paragraphs, that it is result-oriented and
The majority appear to blow about like a straw in the wind. If sympathy motivates a liberal construction of the Act, it will be construed broadly to bring the subject within the scope of its benefits. On the other hand, in the rare case when it is in the subject‘s interest to declare him ineligible for benefits, and his situation appeals to the sympathetic emotions, the majority seems prepared to execute an abrupt volte face, whirl around like a weather vane, and adopt an unreasonably strict construction which holds that, indeed, the subject was not entitled to workers’ compensation.
This pattern can be demonstrated by a comparison of the result reached here, and the majority decision in Derosia v. Duro Metal Products Co., 147 Vt. 410, 413-14, 519 A.2d 601, 604 (1986). In the latter case, the majority, employing an extremely broad and liberal construction of the Act, and contrary to what may be the greater weight of authority, extended third-party liability potential to include the insurance carrier. In the instant case, the majority shrinks entitlement to a degree that may well embarrass attempts at distinction which must inevitably become necessary in the future.
Cases such as Derosia, Simpson v. State Mutual Life Assurance Co., 135 Vt. 554, 382 A.2d 198 (1977), and the case before us disclose still another unfortunate tendency of this Court. That is, to assist certain plaintiffs, who employ the so-called shotgun approach to litigation, by finding some basis, however strained, to impose potential liability on a given defendant simply because the latter has the “deepest-pocket” among the named defendants, and the primary defendant may be judgment proof. In fact, that may well be the case here.
While I am in full accord with the dissent of the Chief Justice in this case (as I was in Derosia), I have further grounds for dissent that compel me to write separately and at considerably greater length.
That is simply not the case here, nor is there the slightest scintilla of evidence to suggest the absurd conclusion to the contrary by the majority that the Brigade is (or was) independent of the University.
The majority conclusion is based on the sole fact that the Brigade had a “constitution” of its own. This is no evidence of an independent existence. If it were, any campus organization, although approved and sponsored by the University, an athletic team, for example, a dramatic society, a band or orchestra, could separate itself and become wholly independent of, and in no way accountable to, the University by the simple expedient of working up a constitution of sorts for internal purposes. This would be laughable were it not for the unfortunate result that a student member of an organization, otherwise eligible for workers’ compensation, would be denied its benefits regardless of the fact that no legitimate cause of action otherwise existed against the University. I submit that, for purposes of establishing the independent status of a collegiate subordinate organization vis-a-vis the college itself, a constitution is meaningless without much more than is disclosed by the record here.
It is possible that a different case might be made if the Brigade was chartered as a corporation by the state, or filed appropriate partnership documents. No such entity ever existed. An admittedly inexact analogy might be drawn based on the relationship between the fifty states, individually, and the United States as a national entity. The mere fact that each state has its own constitution does not mean they are not subject primarily
Notwithstanding the majority opinion, both plaintiff and the majority failed completely to demonstrate the necessary independence of the Brigade from the University. But this was an essential element upon which a denial of workers’ compensation might have been predicated. Indeed it must be the very foundation of plaintiff‘s entire case to the point that his failure to do so alone justified the grant of summary judgment as to the University.
Not only did plaintiff fail in his obligation, but without going into the record in elaborate detail, the evidence is all against the plaintiff on this underlying issue. The very name of the organization, “Norwich University Volunteer Fire Brigade,” suggests that the Brigade was, in fact, an “arm” of the University. There was no evidence that the members of the Brigade were not well aware that they were supposedly protected by workers’ compensation and acquiesced in the coverage which was designed for their benefit. There was no objection to the coverage or indication that they would have preferred to take the risk of being unable to establish a claim against the University in a tort action in the event of an injury while engaged in a Brigade activity. There is no indication that the Brigade‘s equipment was provided with its own independent funds or that the equipment was housed, maintained and repaired at the independent expense of the Brigade or its members; in fact, the evidence is to the contrary; these were all furnished by the University.
It appears that since and because of the accident the University has abolished the Brigade. I doubt the plaintiff would attempt to argue that this action required a vote to dissolve by the membership. Clearly, for purposes of workers’ compensation, particularly for purposes of the Act and the required liberal construction which would protect the Brigade members, the “organization” was the University.
The following responds to the two issues considered by the majority and, because I find the basis for the majority viewpoint to be lacking, I reach several other constitutional arguments raised by plaintiff.
The majority holds that the superior court improperly construed the language of
When reviewing that statute as a whole, State v. Lynch, 137 Vt. 607, 613, 409 A.2d 1001, 1005 (1979), I find that Norwich University, and not the Brigade itself, is the “organization” for the purpose of
(12)(J) volunteer reserve police officers . . . when the selectmen or trustees vote to have those officers covered . . . .
(12)(K) other municipal workers, including volunteer fire fighters . . . after the governing officials of such municipal body so vote . . . .
These provisions enable specific volunteer organizations to be covered by workers’ compensation when the “trustees,” or “governing officials” “vote” or “elect.” These provisions demonstrate that, for the purpose of
II.
The majority points to the benefit provisions of the statute,
Guidelines published by the Department of Labor and Industry provide a means by which plaintiff can be compensated for lost wages. Specifically, the guidelines allow plaintiff to receive compensation calculated on the average weekly wage of a firefighter in the same district. In addition, under the Act plaintiff will be entitled to lifetime medical expenses associated with his injuries. Although the actual determination of benefits is not
Finally, I note that plaintiff is not barred from pursuing a remedy against the alleged tortfeasor (defendant Yudichak) for causing his injury.
III.
Plaintiff claims that
The General Assembly may pass laws compelling compensation for injuries received by employees in the course of their employment . . . . It may designate the class or classes of employers and employees to which such laws shall apply.
Plaintiff asserts that this constitutional provision addressing employees cannot be extended by legislation to include volunteers. He argues that because he was an unpaid volunteer worker, he cannot be designated an employee, and that he was, therefore, not covered by workers’ compensation. I would reach this argument and disagree.
Employee is defined by Ballentine‘s Law Dictionary as “[a]n expression more euphonious than ‘servant’ but ordinarily meaning the same. One who is in such a relation to another person that the latter may control the work of the former and direct the manner in which it shall be done.” Ballentine‘s Law Dictionary 399 (3d ed. 1969) (citations omitted).
Other states have found that the test for determining the existence of an employer/employee relationship under the Workers’ Compensation Act is the same as common-law rules for ascertaining relation of master and servant. Brady v. Ralph Parsons Co., 308 Md. 486, 499, 520 A.2d 717, 724 (1987). Specifically, an employer/employee relationship must be characterized by such elements as the employer‘s supervisory power, his
Here, enough of the elements of an employer/employee relationship are present to demonstrate the existence of such relationship in this case. Plaintiff‘s activities as a member of the Fire Brigade were controlled by defendant. Defendant had the right to terminate plaintiff‘s membership in the Fire Brigade. Defendant owned the equipment, provided the facilities, and funded the Brigade. Although there is no payment of wages, I would hold that the combination of the above factors sufficiently establish the existence of an employer/employee relationship between Norwich and plaintiff.
Other jurisdictions have treated volunteer firefighters as employees for the purpose of workers’ compensation. The Pennsylvania Supreme Court has found that because a volunteer firefighter was injured while performing his duties as a fireman, he was within the provisions of their Workmen‘s Compensation Act. Brinker v. City of Greensburg, 409 Pa. 110, 113, 185 A.2d 593, 594 (1962); see
I conclude that sufficient elements of an employer/employee relationship are present, and that, consequently, the characterization of plaintiff as an “employee” does not offend
IV.
Lastly, plaintiff argues that the Act, as applied to him, violates the equal protection provision of the
Both analyses begin with identifying the uneven impact of the law. The classification then must be viewed in relation to the policy behind the law creating the inequity. Here, I need not proceed past the initial exercise of identifying the uneven impact. As discussed above, the Act and the guidelines issued by the Department of Labor and Industry provide for an average wage to be calculated for both unemployed and employed volunteer firefighters. Thus, this law does not apply unevenly, and no equal protection problem exists.
I conclude that plaintiff is covered by workers’ compensation and
On Motion for Reargument
Per Curiam. On motion for reargument, petitioner Norwich University seeks a declaration that the decision in this matter was issued by an improperly constituted Court and is therefore void. We disagree and deny the motion for reargument.
The principal basis for petitioner‘s motion is the inclusion among the deciding justices of Hon. Frank G. Mahady, who was appointed to the Court on April 20, 1987, heard oral argument on the case in the September, 1987 Term, and resigned before the Court‘s opinion issued on April 14, 1989. Since Justice Mahady‘s resignation preceded Senate confirmation of his interim appointment, petitioner contends that his power to act ceased immediately on resignation under
Petitioner does not attack this policy in general, but argues that it should not apply to a justice under interim appointment only and not yet confirmed by the Senate. We find nothing in the Constitution to establish a class of justices with different and diminished powers and prerogatives from those who have been confirmed by the Senate. Under
Although petitioner argues from the constitutional provisions, it relies on the limitations in certain statutes which it believes support its position. It argues that
We do not believe it is necessary to plunge fully into the confusing and overlapping statutes in this area to decide this motion. We conclude that the power to decide when to include former Justices in the composition of this Court is a judicial power that does not belong to the legislative branch of government and cannot be exercised by it.
Although it is difficult to draw clear lines in separating the powers of the co-equal branches, and there must necessarily be some overlap of powers, the “co-equal independent Judiciary must possess rights and powers co-equal with its functions and duties, including the right and power to protect itself against any impairment thereof.” Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45, 52, 274 A.2d 193, 197 (1971). The judiciary must control the “management of the courts” to fulfill its function of providing justice to those who appear before us. See State ex rel. Thompson v. Day, 200 Minn. 77, 82, 273 N.W. 684, 686 (1937). We do not believe that we provide justice to the litigants by starting anew on a case that is now five years old and has never reached the merits.
We write briefly about the impediments contained in the existing statutes because they demonstrate why we must assert judicial control over the composition of the Court.
The only policy that is consistent with the responsibilities and duties of this Court under the Vermont Constitution is that the justices who sat according to law when a case is argued will participate in the decision even though they are no longer members of the Court on the date the decision is signed. Accordingly, District Judge Mahady properly participated in the decision in this case.
Petitioner‘s second ground in support of its motion is that the majority opinion neglected to consider evidence that the Brigade, as a member of the Capitol Fire Mutual Aid System, had effectively elected to have its members covered by Workers’ Compensation Insurance. This argument is not only a new one, but it appears to conflict with the election theory in petitioner‘s brief in chief. Consequently it is not a proper matter to be advanced in support of a motion for reargument under
The motion for reargument is denied.
DOOLEY, J.
ASSOCIATE JUSTICE
Notes
A justice or judge so appointed shall hold office, with all the powers incident to the office, until the Senate convenes and acts upon the appoint-
ment submitted by the Governor. Thereafter, the appointee shall continue in office if the Senate consents to the appointment. If the appointment is not confirmed upon vote of the Senate, the appointment shall be terminated and a vacancy in the office will be created.