Justus v. Penn

6 Va. Cir. 239, 1985 Va. Cir. LEXIS 125

• Court: Buchanan County Circuit Court
• Decided: September 5, 1985
• Status: Published

Opinion

By JUDGE NICHOLAS E. PERSIN

Upon a review of the evidence, argument, and memoranda submitted concerning the Defendant’s Motion to Dismiss, the Court is of the opinion that the Motion should be granted on the grounds that the Plaintiff’s sole and exclusive remedy in this case is under the workmen’s compensation statutes.

The evidence is Clear that the Plaintiff by his actions and with representation and advice of counsel, chose a remedy under workmen’s compensation provisions. This appeared to be the proper method of obtaining benefits inasmuch as the record reveals that the Defendant was a fellow employee and the accident arose out of and during the course of Plaintiff’s employment. Furthermore, if the Court were to overrule the Motion to Dismiss, the Plaintiff would be permitted to take an inconsistent position with reference to all of the actions taken by him pursuant to the workmen’s compensation statutes.

Assuming that the injury received by the Plaintiff was intentionally inflicted by the Defendant, creating an exception to the workmen’s compensation provisions, the Plaintiff, in the judgment of the Court, would be estopped to seek recovery pursuant to the Motion for Judgment that has been filed in this case.

Counsel for the Plaintiff is directed to prepare the order dismissing this case from the docket pursuant to the rulings of the Court contained herein.