Tort Law

Brien Roche

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Workers’ Compensation-Third-Party Claims.  

Workers Compensation-Third Party Claims-Statutes

See Va. Code § 65.2-309 as to subrogation claims. No settlement of such claim shall be made without approval of commission and employee.

See Va. Code § 65.2-310 indicating that employer may, prior to verdict, move court for order compelling judgment debtor to pay compensation and expenses to employer in subrogation action.

See Va. Code § 65.2-311 as to payment of expenses and attorney’s fees in third-party claims.

See Va. Code § 65.2-812 as to subrogation claims indicating that such claims may not be settled without approval of commission and employee.

Workers Compensation-Third Party Claims-Cases

2007 Crocker v. Riverside Brick & Supply Co., 273 Va. 235, 639 S.E.2d 214.

Truck driver employed by shipping company delivered stone to a customer and in the course of unloading was injured. Truck driver in this instance endeavored to assist in unloading but the unloading was the sole responsibility of defendant and therefore the driver was not the statutory employee of the customer.

2001 Jeneary v. Commonwealth, 262 Va. 418, 551 S.E.2d 321.

Wrongful death action settled with uninsured motorist carrier. Uninsured employer’s fund had no right of subrogation since uninsured motorist’s carrier is not deemed to be “other party” for purposes of subrogation by uninsured employer’s fund. Likewise, health insurance provider had no right to file suit to collect payment out of this civil action since under the Workers’ Compensation Act, they were obliged to wait for the conclusion of the workers’ compensation claim which, at this point, had not been concluded.

1998 Hawkins v. Commonwealth, 255 Va. 261, 497 S.E.2d 839.

Employee after receiving worker’s compensation benefits separately sued third-party physicians for malpractice in treating her injury and settled that action. Trial court properly fixed amount of employer’s lien for medical expenses and set proportionate attorney fees and cost but then exceeded its jurisdiction by applying proportionate percentage to compensation benefits to be paid and medical expenses to be incurred in future.

1996 Yancey v. JTE Constructors, Inc., 252 Va. 42, 471 S.E.2d 473.

General contractor had been retained by state to construct sound barrier wall. Plaintiff’s employer was delivering sound barrier panels as required by contract with the general contractor. He was inspecting panels as they were being unloaded, and he was injured. This conduct of delivering the panels is not part of the trade, business, or occupation of the general contractor, and, therefore, the general contractor is not statutory employer.

1993 Bohle v. Henrico County Sch. Bd., 246 Va. 30, 431 S.E.2d 36.

Plaintiff in this action settled third-party claim for $1.1 million. Workers’ Compensation lien was $514,545.34. Court ordered reduction of lien by pro-rata share of attorney’s fees. As to future compensation benefits, court noted that after net amount received by plaintiff, if and when this net is used towards compensation benefits and/or medical expenses, pro-rata share of legal fees shall be deducted therefrom before additional compensation benefits are due.

1992 Circuit City Stores v. Bower, 243 Va. 183, 413 S.E.2d 55.

Carrier seeks reimbursement out of third-party settlement. Carrier’s share of attorney’s fees is to be based not on what has been paid in compensation and expenses by carrier, but on full 500-week award.

1989 Cinnamon v. International Bus. Machs. Corp., 238 Va. 471, 384 S.E.2d 618.

Test of whether plaintiff has claim is whether activity is in that business normally carried on through employees rather than independent contractors. This test applies except in cases where work is obviously subcontracted fraction of main contract. This test need not be applied, since in this case, IBM as owner, engaged contractor to perform work which is not part of trade, business or occupation of IBM. In this case, even though IBM has its own construction division, this is not sufficient to qualify them as statutory employer.

1983 Stevens v. Ford Motor Co., 226 Va. 415, 309 S.E.2d 319.

Plaintiff was employee of trucking company that delivered automobile parts to Ford’s plant. Ford had exclusive duty of unloading truck. Plaintiff had no duty to unload. Ford is “other party” if at time of accident plaintiff and his employer were not performing work that was part of Ford’s trade, business or occupation. In this case, unloading of cargo was sole responsibility of Ford, and because plaintiff was not engaged in Ford’s trade, business or occupation he can maintain this action.

1983 Cooke v. Skyline Swannanoa, 226 Va. 154, 307 S.E.2d 246.

Court in this case held that Cooke was Skyline’s statutory employee because at time of her injury her direct employer was engaged in work that was part of Skyline’s trade, business, or occupation. Skyline had license to operate Holiday Inn. That Holiday Inn was to include restaurant facilities. Skyline executed agreement with Cooke’s direct employer to operate this restaurant. She was injured in course of working in restaurant. Test (except in cases where work is obviously a subcontracted fraction of main contract) is whether this indispensable activity is, in that business, normally carried on through employees rather than independent contractors. In this case, plaintiffs direct employer was subcontractor of Skyline, and, as such, Skyline is immune from suit.

1983 Safety-Kleen Corp. v. Van Hoy, 225 Va. 64, 300 S.E.2d 750.

Employee’s benefits under Workers’ Compensation Act were terminated when employer’s and carrier’s rights to subrogation against third party were defeated by employee’s settlement of claim against that third party without their knowledge or consent. Employee was allowed to retain workmen’s compensation benefits received along with proceeds of third-party settlement. Court expressed no comment on that double recovery since apparently that issue was not raised by parties.

1972 Sheris v. Sheris & Travelers, 212 Va. 825, 188 S.E.2d 367.

Employee killed while on international airplane flight. Family awarded death benefits under Workers’ Compensation Act. Administrator asserted action against airline and settled that case for amount in excess of benefits under Workers’ Compensation Act. As result, outstanding award of Industrial Commission was vacated.

1969 Burroughs v. Walmont, 210 Va. 98, 168 S.E.2d 107.

Plaintiff was truck driver delivering material to job site. Defendant was general contractor. Plaintiff was simply employee of trucking firm hired by supplier of general contractor. As such, general contractor was “other party” under Act and could be sued by plaintiff.

1966 Bosher v. Jamerson, 207 Va. 539, 151 S.E.2d 375.

Plaintiff employee of subcontractor on construction site. Defendant’s driver brought sand in truck and helped to spread sand in concrete form. This was more than mere delivery as defendant was actually involved in trade, business and occupation of subcontractor: construction of buildings. As such, defendant is immune from suit by plaintiff.

1965 Shook Co. v. Barksdale, 206 Va. 45, 141 S.E.2d 738.

Plaintiff was truck driver injured by negligence of employee of company that was purchasing his cargo. Injury occurred while plaintiff was assisting with unloading. Workers’ compensation claim against employer did not bar third-party claim against purchaser. Purchaser was stranger to business of plaintiff’s employer since it was not business of plaintiff s employer to unload trucks.

1965 Veale v. Norfolk & W. Ry., 205 Va. 822, 139 S.E.2d 797.

Plaintiff employee of consignee of railroad car injured when struck by door of car he had just unloaded. Civil action against railroad allowable.

1959 Anderson v. Thorington Constr. Co., 201 Va. 266, 110 S.E.2d 396.

Plaintiff employer of engineering firm hired to supervise work, was injured by employee of subcontractor. Plaintiff was statutory fellow servant of employee of subcontractor and thus immune.

1957 Rea v. Ford, 198 Va. 712, 96 S.E.2d 92.

Workers’ Compensation Act allows third-party claims by or on behalf of injured worker against one who is stranger to employment and work. General contractor and subcontractors are immune from suit by employees of each other. In third-party claim where insurance carrier is protecting its subrogation interest and employee is also represented by counsel to protect his interest, insurance counsel was in control of litigation and court properly prohibited both counsel from in essence, presenting two different cases.

1951 Fauver v. Bell, 192 Va. 518, 65 S.E.2d 575.

Acceptance of workers’ compensation benefits does not extinguish right of action that employee may have against physician for negligence which aggravated his condition.

1947 Chalkley v. Nolde Bros., 186 Va. 900, 45 S.E.2d 297.

Discussion of bearing that settlement of third-party claim has on workers’ compensation claim.

1947 Sykes v. Stone & Webster Eng’g Corp., 186 Va. 116, 41 S.E.2d 469.

General contractor on job site cannot be sued by employee of subcontractor as result of industrial accident.

1946 Stone v. George W. Helme Co., 184 Va. 1051, 37 S.E.2d 70.

Employer’s right of subrogation must not be prejudiced by actions of employee, in order to preserve employee’s compensation rights. Employee barred from recovery under Compensation Act if he first settles claim with third-party tortfeasor.

1943 Drinkard v. Drinkard-Payne Buick Corp., 181 Va. 253, 24 S.E.2d 421.

Mere institution of civil action against third-party tortfeasor does not bar injured employee’s right to compensation.

1942 Noblin v. Randolph Corp., 180 Va. 345, 23 S.E.2d 209.

Injured employee who has received workers’ compensation may pursue his third-party claim against negligent party; however, he must not prejudice employer’s subrogation rights.

For more information about workers compensation see the pages on Wikipedia.