Fisher v. Long Manufacturing Co.

29 Va. Cir. 530, 1991 Va. Cir. LEXIS 347

Opinion

By Judge Oliver A. Pollard, Jr.

I have now had an opportunity to read the Memoranda submitted on behalf of the several parties related to the Motion to Dismiss for Lack of Jurisdiction.

In this case, acid was thrown in the face of the plaintiff by the defendant, Wright. This occurred at the place of employment and was related to the employment in that the argument between these two men involved the cleaning of certain machinery belonging to the defendant, Long Manufacturing Company, Inc,, the employer. There was, apparently, no other reason for the altercation between the plaintiff and defendant, Wright. Workers’ Compenstion was paid to and accepted by the plaintiff.

The cases of Metcalf v. A.M. Express Moving, 230 Va. 464 (1986), and City of Richmond v. Braxton, 230 Va. 161 (1985), establish that assaults between employees can be considered as “arising out of” the employment and that assaults under certain circumstances can be considered “accidents” even though they involve willful acts.

Considering the facts of this case and the authorities, it is my opinion that plaintiff’s sole claim for damages or other benefits lies under the Workers’ Compensation Act of Virginia and that the Court, therefore, has no jurisdiction to proceed in this matter. I will ask Mr. Oakey to prepare and circulate an appropriate order sustaining the Motion to Dismiss for Lack of Jurisdiction.