Mizenko v. Electric Motor & Contracting Co.

419 S.E.2d 637, 244 Va. 152, 8 Va. Law Rep. 3331, 1992 Va. LEXIS 67

• Court: Supreme Court of Virginia
• Decided: June 5, 1992
• Docket: Record 910687
• Status: Published

Opinions

JUSTICE KEENAN

delivered the opinion of the Court.

The primary issue in this appeal is whether a worker who was injured while performing ship repair is barred by the exclusivity provision of the Virginia Workers’ Compensation Act, Code § 65.1-1 et seq. (now Code § 65.2-100 et seq.) (Virginia Act), from asserting a negligence action under the general maritime law against a prime contractor, as well as a subcontractor who was not his employer. We conclude that, under the facts presented in this case, the Virginia exclusivity provision cannot be applied to bar Mizenko’s federal maritime action against Electric Motor and Contracting Company (Electric). However, based on Metro Machine Corp. v. Mizenko, 244 Va. 78, 419 S.E.2d 632 (1992), decided today, Mizenko’s federal maritime action against Metro Machine Corporation (Metro) is barred under federal law and, therefore, the Virginia exclusivity provision may be given effect to bar Mizenko’s claim against Metro.

Michael Mizenko was employed by Abacus Temporary Services (Abacus) as a pipe fitter. Abacus is in the business of furnishing skilled labor to area employers. Abacus contracted with Metro, a Norfolk shipyard, to furnish Metro skilled labor.

Pursuant to this contract, Abacus sent Mizenko to work for Metro. Mizenko was assigned to work in the engine room of the U.S.S. COMPTE DE GRASSE, a naval destroyer being repaired by Metro pursuant to a contract with the United States Navy. The U.S.S. COMPTE DE GRASSE was a completed vessel afloat in navigable waters of the United States and docked at Metro’s shipyard.

Metro subcontracted with Electric to refurbish and clean the generators on the U.S.S. COMPTE DE GRASSE. In the course of performing the subcontract, Electric employees used a toxic solvent to clean the generators. Mizenko alleges that he suffered injuries as a result of inhaling fumes from this solvent. He received workers’ compensation for these injuries, through Abacus, under the Longshoremen and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (Longshore Act).

Mizenko subsequently filed a motion for judgment against Metro and Electric alleging negligence “under the Maritime Law.” Metro filed a motion for summary judgment in support of its special plea to the bar of workers’ compensation, alleging that Mizenko was a borrowed servant under the Longshore Act and that it was Mizenko’s statutory employer under the Virginia Act.¹ Thus, Metro argued that Mizenko’s claim was barred under both the Longshore Act and the Virginia Act. In an order entered January 26, 1990, the trial court denied Metro’s motion for summary judgment but did not state its reason for the denial.

By special pleas, a motion for summary judgment and a motion to dismiss, Metro and Electric next argued that the Virginia Act barred recovery by Mizenko, based on the decision of this Court in McBride v. Metric Constructors, 239 Va. 138, 387 S.E.2d 780 (1990). The trial court sustained the motions and dismissed the case with prejudice. In sustaining both motions, the trial court held that, based on McBride, Mizenko’s claim was barred by the Virginia Act even though he received compensation under the Longshore Act. Accordingly, the trial court held that Mizenko was “barred from bringing a tort action for negligence against those whom the [Virginia Act] declares immune.” This appeal followed.

I.

Mizenko argues that his claim is one of maritime tort, cognizable within the exclusive jurisdiction of admiralty and that, as such, it constitutes a federal maritime cause of action. Mizenko argues that, because he was injured on navigable waters while engaged in ship repair, an employment directly affecting navigation and commerce, the injury and employment are maritime in nature and, thus, come within the jurisdiction of admiralty.

Metro responds that Mizenko’s claim does not come under admiralty jurisdiction because his injury has no significant relationship to a traditional maritime activity. Metro contends that the circumstances surrounding Mizenko’s injury possess few characteristics which are uniquely maritime and that the injury just as easily could have occurred on land. According to Metro, Mizenko’s action arises out of common law negligence and is therefore subject to the Virginia Act’s exclusivity provision. We find Metro’s argument unpersuasive.

To support a cause of action for a maritime tort which falls within admiralty jurisdiction, the alleged negligence must occur on the navigable waters of the United States and the wrong must bear a significant relationship to traditional maritime activity. East River Steamship Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 863-64 (1986). Here, the parties agree that the activity took place on navigable waters, but disagree as to whether the activity bore a substantial relationship to traditional maritime activity.

In Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892 (1990), the United States Supreme Court held that, in order to determine whether an activity has a significant relationship to a traditional maritime activity, the relevant activity is not defined by the particular circumstances of the incident. Rather, it is defined by the general conduct from which the incident arose. 497 U.S. at 364, 110 S.Ct. at 2897. In the case before us, the record reflects that Metro’s contract with the Navy was to conduct ship repairs on the U.S.S. COMPTE DE GRASSE, a vessel lying in navigable waters. Mizenko was injured while performing these repairs. The Supreme Court has uniformly held that ship repair is a maritime activity. Baizley Iron Works v. Span, 281 U.S. 222, 232 (1930); Messel v. Foundation Co., 274 U.S. 427, 432 (1927); Robins Dry Dock & Repair Co. v. Dahl, 266 U.S. 449, 457 (1925); Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U.S. 479, 480-81 (1923). Thus, we hold that the activity with which we are presented here has a significant relationship to traditional maritime activity and that Mizenko has asserted a cause of action in maritime tort.

II.

Since Mizenko has asserted an action in maritime tort within the jurisdiction of admiralty, the trial court was required to apply general maritime law. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409 (1953). The general maritime law is drawn from both federal and state sources and is “an amalgam of traditional common-law rules, modifications of those rules, and newly created rules.” East River Steamship, 476 U.S. at 865. Within admiralty jurisdiction, the general maritime law applies unless preempted by federal legislation. East River Steamship, 476 U.S. at 864; Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 160-61 (1920); Chelentis v. Luckenbach Steamship Co., 247 U.S. 372, 381 (1918); Southern Pacific Co. v. Jensen, 244 U.S. 205, 215 (1917).

Under the general maritime law, a state law which changes, modifies, or affects maritime law may be given effect unless

it contravenes the essential purpose expressed by an act of Congress, or works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations.

Chelentis, 247 U.S. at 381 (citation omitted). Accordingly, the first step in determining whether state law may be applied is to determine whether application of the state law would conflict with rights afforded under the general maritime law. Where there is an admiralty - state law conflict, courts have examined and weighed the respective interests behind each law to determine whether federal law should supplant the application of state law. See Askew v. American Waterways Operators, Inc., 411 U.S. 325, 338-39 (1973); Baizley, 281 U.S. at 223; Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. (1922); Western Fuel Co. v. Garcia, 257 U.S. 233, 242 (1921); Knickerbocker Ice, 253 U.S. at 160-61; Chelentis, 247 U.S. at 381-82. In discussing the relationship between state and federal law within admiralty and maritime jurisdiction, the Supreme Court has held that a state may supplement federal maritime policy, but it may “not deprive a person of any substantial admiralty rights as defined in controlling acts of Congress or by interpretative decisions of this Court.” Pope & Talbot, 346 U.S. at 409-410.

III.

Having determined that this action should be governed by the general maritime law, we must now decide whether to give effect to the state exclusivity provision. Mizenko argues that his right to sue for a maritime tort under the general maritime law may not be barred by the state exclusivity provision. Specifically, he contends that application of the Virginia Act would preclude him from bringing this negligence action and, thus, a right available to him under the general maritime law would be denied.

In order to determine whether the Virginia Act’s exclusivity provision should be given effect in this case, we must first determine whether the application of state law would conflict with the application of the general maritime law. If there is no conflict, the state law may be applied. If a conflict exists, we must evaluate the comparative state and federal interests involved. See Askew, 411 U.S. at 338-39; Baizley, 281 U.S. at 223; Rohde, 257 U.S. at 477; Western Fuel, 257 U.S. at 242; Knickerbocker Ice, 253 U.S. at 160-61; Chelentis, 247 U.S. at 381-82. In making this evaluation, we employ the Chelentis analysis as explained in Steelmet, Inc. v. Caribe Towing Corp., 779 F.2d 1485, 1488 (11th Cir. 1986). There, the court held that:

One must identify the state law involved and determine whether there is an admiralty principle with which the state law conflicts, and if there is no such admiralty principle .... [and no admiralty principle should] be fashioned, the state rule should be followed. ... If there is an admiralty - state law conflict, the comparative interests must be considered — they may be such that admiralty shall prevail ... or if the policy underlying the admiralty rule is not strong and the effect on admiralty is minimal, the state law may be given effect.

Based on our decision in Metro Machine Corp. v. Mizenko, 244 Va. 78, 419 S.E.2d 632 (1992), decided today, we find that there is no admiralty - state law conflict in Mizenko’s action against Metro.² Since no conflict exists, we find that the state exclusivity provision may be given effect to bar Mizenko’s claim against Metro.

Unlike Metro, Electric does not contend that Mizenko’s action is barred by the Longshore Act or any other federal authority. Further, in the trial court, Electric’s special plea asserted only that Mizenko’s action is barred by the Virginia Act. Thus, for purposes of this inquiry, Electric has conceded that the Longshore Act would not bar Mizenko’s action under the general maritime law.

If we put aside Electric’s procedural concession, we still conclude that the Longshore Act does not bar Mizenko’s suit against Electric. Initially, we recognize the basic principle that under the Longshore Act, an employee may not bring a negligence action against a “person in the same employ” because the Long-shore Act extends absolute immunity from suit to fellow employees of an injured worker. 33 U.S.C. § 933(i); Nations v. Morris, 483 F.2d 577, 587 (5th Cir. 1973), cert. denied, 414 U.S. 1071 (1973); Bailey v. Collier, 465 So.2d 381, 382 (Ala. 1985); Smalls v. Blackmon, 269 S.C. 614, 616, 239 S.E.2d 640, 641 (1977). However, the Longshore Act permits an injured employee to bring a negligence action against a third party. 33 U.S.C. § 933(a); Pallas Shipping Agency, Ltd. v. Duris, 461 U.S. 529, 533 (1983); Czaplicki v. Hoegh Silvercloud, 351 U.S. 525, 532-33 (1956).

The parties have not cited, nor have we found, any cases interpreting the Longshore Act which address whether a subcontractor is a “person in the same employ” with an individual employee of the prime contractor.³ However, several states which have an exclusivity provision similar to that of the Longshore Act, and which have confronted this issue, have held that a subcontractor is not in the same employ with an employee of the prime contractor. Frohlick Crane Serv., Inc. v. Mack, 182 Colo. 34, 37-38, 510 P.2d 891, 893 (1973); Parkhill Truck Co. v. Wilson, 190 Okl. 473, 480, 125 P.2d 203, 210 (1942); Benoit v. Hunt Tool Co., 219 La. 380, 401-02, 53 So.2d 137, 144 (1951); Boettner v. Twin City Constr. Co., 214 N.W.2d 635, 640 (N.D. 1974).

We find that this interpretation comports with the conceptual framework of the Longshore Act and, therefore, we reach the same result in our analysis of its provisions. Unlike the Virginia Act, the Longshore Act has not been interpreted by the courts as providing a “canopy” of immunity to all subcontractors engaged in the work, trade, or business of the prime contractor. See 2A Larson, The Law of Workmen’s Compensation § 72.32-33 (1990). Further, under the Longshore Act, the reason for treating subcontractors in the posture of Electric as third parties is that they have no potential liability for payment of workers’ compensation benefits to an injured employee of the prime contractor. Accordingly, under this analysis, there is no quid pro quo providing a rationale for holding Electric immune from liability for its negligence. See id.

Based on our determination that Mizenko’s action would be barred by the Virginia Act, and that it would not be barred by the Longshore Act, we are faced with a conflict in the substantive rights afforded to Mizenko under the general maritime law and under state law. Therefore, we next evaluate whether the federal interests involved here outweigh the state interests in order to determine whether to give effect to the Virginia Act’s exclusivity provision.

In Pope & Talbot, Inc. v. Hawn, 346 U.S. 406 (1953), the Supreme Court was confronted with a similar negligence claim arising out of a worker’s performance of ship repairs while the ship was berthed at a pier located on the Delaware River in Pennsylvania. In holding that federal maritime law, and not Pennsylvania law, governed the action, the Court emphasized that, since the worker was injured on navigable waters while working on the repair of a ship, his right of recovery was rooted in federal maritime law. 346 U.S. at 409. Therefore, the Court determined that Pennsylvania law could not be applied to bar his action under federal law. To hold otherwise, the Court explained, would result in the deprivation of a substantive admiralty right. 346 U.S. at 409-10. Like the worker in Pope & Talbot, Mizenko has a substantive admiralty right against Electric arising from the general maritime law. We view this as a compelling federal aspect in our review process.

The need for uniformity in application of the general maritime law is also a substantial consideration here. If some workers who are engaged in distinctly maritime activity are deprived of their right to bring a federal cause of action in certain state courts, while other maritime workers have the right to maintain exactly the same cause of action in other state courts, the result would be a denial of substantive federal rights based on the mere happenstance of location. We believe that this is precisely the kind of disparity that the general maritime law was developed to avoid.

The wholly maritime nature of Mizenko’s employment is another factor which we must consider. As stated in Flowers v. Travelers Ins. Co., 258 F.2d 220 (5th Cir. 1958), cert. denied, 359 U.S. 920 (1959), “the repair of an existing vessel is one of the most ancient of maritime transactions.” 258 F.2d at 221. In holding that the welding activity involved was maritime in nature, the court in Flowers rejected an argument that the activity was not maritime simply because it could have been performed equally on land or at sea. Id. We reject the similar argument put forth by Electric and we hold, as did the court in Flowers, that whether the worker’s activity could also be performed on land is “completely irrelevant” to our determination that the work of ship repair is distinctly maritime in nature. Id.

We also reject Electric’s assertion that the case before us is one of “maritime but local” concern and, thus, that the Virginia Act may be applied to bar Mizenko’s claim. Electric relies on a line of United States Supreme Court decisions which recognize that some injuries fall under maritime jurisdiction but are local in character. See Rohde, 257 U.S. at 476. Within this “maritime but local” area, workers may receive compensation benefits under either federal or state compensation statutes. Calbeck v. Travelers Ins. Co., 370 U.S. 114, 124-25 (1962). None of these cases, however, addresses under what circumstances a state exclusivity provision can bar a federal cause of action in maritime tort.

Electric also relies substantially on this Court’s decision in American Foods v. Ford, 221 Va. 557, 272 S.E.2d 187 (1980). In Ford, a welder was killed in the course of repairing a ship moored at his employer’s dock. His widow received compensation under the Virginia Act. Relying on Calbeck, this Court held that both federal and state governments are constitutionally competent to provide workers’ compensation benefits to workmen killed or injured on navigable waters in Virginia. 221 Va. at 561, 272 S.E.2d at 190.

As we recognized in Ford, there is a zone of concurrent jurisdiction in ‘ ‘maritime but local’ ’ cases in which state or federal workers’ compensation benefits may be sought. However, neither Ford, nor Sun-Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980), also cited by Electric, establishes a zone of concurrent jurisdiction for any type of claim other than workers’ compensation.⁴ Further, unlike Ford, the issue before us is not whether workers’ compensation benefits may be sought under the state or federal scheme. Instead, we are presented with the question whether the exclusivity provision of the Virginia Act may bar an injured worker from asserting a federal cause of action in maritime tort.

Electric contends that because Mizenko sustained a work-related injury, his maritime tort action is controlled by Ford. We disagree. As stated above, Ford addressed only a jurisdictional question regarding the filing for workers’ compensation benefits. It did not address the applicability of the Virginia Act’s exclusivity provision or whether an injured worker can maintain an action in federal maritime tort.

We also find that, unlike the cases relied upon by Electric, there are no overriding state law components which would make the case before us one where state interests in the application of its law outweighs federal interests. In Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469 (1922), where the Supreme Court allowed the exclusivity provision of the Oregon workers’ compensation statute to be given effect, the Court emphasized the fact that construction work on an uncompleted vessel was not an activity having any direct relation to navigation and commerce. 257 U.S. at 476. In reaching its decision, the Court also relied heavily on the fact that, according to the provisions in the worker’s employment contract, he had agreed to be bound by the terms of the Oregon statute. Id. In contrast, we observe that these significant factors of state concern are not present in the case before us.

In the cases of Brockington v. Certified Electric, Inc., 903 F.2d 1523 (llth Cir. 1990), cert. denied, 111 S.Ct. 676 (1991), and P. J. Carlin Constr. Co. v. Heaney, 299 U.S. 41 (1936), also relied on by Electric, there was another significant state interest not present in the case before us. In both Brockington and Heaney, the work involved totally land-based construction. The workers in both of these cases were injured on ferry boats which were transporting them to their job sites on nearby islands. Thus, the nexus to maritime activity in these cases was very slight since the actual work performed by these employees was completely non-maritime in nature.

The case before us presents a distinct contrast. We find that there is a strong nexus to maritime activity here, as well as serious concerns regarding uniformity in the application of the general maritime law. Further, we hold that the state interest in this case is minimal. Since Mizenko is receiving workers’ compensation benefits under the Longshore Act, rather than the Virginia Act, we are not confronted with a situation where a worker is attempting to repudiate one portion of the Virginia Act, while he is accepting benefits under another portion of the Act. Thus, the balance struck by the Virginia Act, in providing compensation to workers, in return for which immunity is afforded to defined employers, is not implicated in this case.

Based on these considerations, we hold that there is no state interest present in this case which outweighs the need for uniformity in the application of the general maritime law. To take away Mizenko’s federal right of action, merely because his ship was located in navigable waters in a Virginia port, would undermine basic principles of federal uniformity with no measurable benefit resulting to the state. Thus, under the principles set forth in Chelentis, we conclude that we cannot give effect here to the Virginia Act’s exclusivity provision in Mizenko’s action against Electric, since it would work “material prejudice to the characteristic features of the general maritime law,” and it would interfere with “the proper harmony and uniformity of that law.” 247 U.S. at 381.

Additionally, we find that our decision in McBride v. Metric Constructors, 239 Va. 138, 387 S.E.2d 780 (1990), is consistent with this result. In McBride, a worker, who was injured on land in an area subject to the concurrent jurisdiction of the Virginia and Longshore Acts, received compensation under the Longshore Act. At the time of his injury, McBride was working on the construction of a tunnel in a shipyard. He brought a common law negligence action to recover damages for his injuries. Under the Virginia Act, the defendants were immune from liability. We held that the exclusivity provisions of the Virginia Act operated to bar McBride’s action for common law negligence. 239 Va. at 140-41, 387 S.E.2d at 781-82.

Unlike the case before us, the activity giving rise to McBride’s injury was not one that is traditionally related to maritime activity. Rather, it was land-based work which involved the painting of a mechanical tunnel. Thus, McBride did not have a cause of action for negligence under the general maritime law and the circumstances surrounding his injury were not distinguishable from those in any other common law negligence claim. For this reason, the compelling considerations of federal uniformity and substantive rights under the general maritime law, which are present here before us, were not factors in McBride 5

Accordingly, we will affirm the trial court’s dismissal of Mizenko’s action against Metro in accordance with this Court’s opinion in Metro Machine and, with respect to Mizenko’s claim against Electric, we will reverse the judgment of the trial court and remand this cause for further proceedings consistent with the principles stated herein.

Affirmed in part, reversed in part, and remanded.

1 Under former Code § 65.1-41 (now Code § 65.2-309), Mizenko may only bring a negligence action against an “other party.” Neither Metro nor Electric qualify as “other parties” within the meaning of Code § 65.1-41 because Metro is Mizenko’s employer and Electric is engaged in a part of the trade, business, or occupation of Metro. Smith v. Horn, 232 Va. 302, 306, 351 S.E.2d 14, 16 (1986). Thus, application of the Virginia Act would bar Mizenko’s action against both Metro and Electric.

2 In Metro Machine Corp. v. Mizenko, 244 Va. 78, 419 S.E.2d 632, this Court held that Mizenko was a borrowed servant of Metro under the general maritime law. Accordingly, Mizenko’s exclusive remedy is workers’ compensation and Metro is immune from any claim of negligence made by Mizenko. See id.

3 The few cases which address the meaning of “persons in the same employ” under the Longshore Act do not address whether subcontractors are “persons in the same employ” with employees of the prime contractor. See Traywick v. Juhola, 922 F.2d 786 (11th Cir. 1991); Calder v. Crall, 726 F.2d 598 (9th Cir. 1984), cert. denied, 469 U.S. 857 (1984). Rather, these cases hold only that an injured employee of a non-appropriated fund instrumentality, located on a federal military base, is a “person in the same employ” with military personnel because the parties were both federal employees under the jurisdiction of a branch of the military. Colder, 726 F.2d at 601; Traywick, 922 F.2d at 788.

4 Additionally, “maritime but local” was developed as a remedial concept to ensure that no worker is denied compensation due to a situs dispute. Thus, the purpose of the “maritime but local” concept is not to exclude remedies, but to enhance them. Sun-Ship, 447 U.S. at 723-24. Accordingly, Electric’s reliance on Sun Ship and other similar cases is misplaced, since these cases seek to provide, rather than deny, a remedy to the injured worker.

5 Also, unlike McBride, Mizenko did not assert that the Longshore Act created a federal cause of action. As we have stated, Mizenko’s cause of action arises out of the general maritime law. The general maritime law is separate and distinct from the Longshore Act. Thus, our recognition in McBride, that the Longshore Act did not create a federal cause of action in negligence against a general contractor and an owner, has no impact on a claim such as Mizenko’s.