Tavarez v. Klingensmith

• Court: Court of Appeals for the Third Circuit
• Decided: June 15, 2004
• Docket: 03-2815
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

6-15-2004

Tavarez v. Klingensmith Precedential or Non-Precedential: Precedential

Docket No. 03-2815

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Recommended Citation "Tavarez v. Klingensmith" (2004). 2004 Decisions. Paper 553. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/553

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL Joel H. Holt, Esq. Law Offices of Joel H. Holt UNITED STATES COURT OF 2132 Company Street, Suite 2 APPEALS Christiansted, St. Croix FOR THE THIRD CIRCUIT United States Virgin Islands 00820 Counsel for Appellant

No. 03-2815 Susan B. Moorehead, Esq. John E. Stout, Esq. Sandra A. Nabozny-Younger, Esq. ORLANDO TAVAREZ, Grunert, Stout & Bruch Appellant 24-25 Kongensgade, P.O. Box 1030 Charlotte Amalie, St. Thomas v. United States Virgin Islands 00804 Counsel for Appellee ALLAN KLINGENSMITH _______________________ _____________________ OPINION OF THE COURT On Appeal from the District Court _______________________ of the Virgin Islands Division of St. Croix, Appellate Division SMITH, Circuit Judge (D.C. Civil No. 99-cv-00212) This appeal requires that we Chief District Judge: determine whether the immunity afforded Honorable Raymond L. Finch to an employer under the Workers’ District Judge: Compensation Act of the Virgin Islands Honorable Thomas K. Moore shields Allan Klingensmith, Orlando Territorial Judge: Tavarez’s supervisor, from personal Honorable Brenda J. Hollar liability for allegedly tortious acts _____________________ committed as a manager of the employer’s business. We conclude that the injured Submitted pursuant to employee’s suit against his supervisor is Third Circuit LAR 34.1 barred and affirm the judgment of the May 7, 2004 Appellate Division.1 I. Before: BARRY, AMBRO and SMITH, Circuit Judges The facts are not disputed. In 1995,

(Filed: June 15, 2004) 1 See Tavarez v. Klingensmith, 267 F.Supp. 448 (D.V.I. 2003). Orlando Tavarez was employed by V.I. contention that he was immune from suit Cement & Building Products, Inc. (“VI under § 284 of the WCA. The Territorial Cement”). His duties included driving a Court granted the motion and explained dump truck. During early 1995, Tavarez that Klingensmith, in his capacity as a asked Allan Klingensmith, one of VI manager of VI Cement, had failed to grant Cement’s managers, to replace the tires on permission to replace the tire and that this Tavarez’s truck. Although Klingensmith omission occurred “solely and only agreed to change some of the tires, he because of the employment relation refused to grant permission to have the left between the parties.” As a result, the front tire of the truck replaced. On March Territorial Court determined that 21, 1995, the left front tire blew out while Klingensmith had breached the employer’s Tavarez was driving the truck and he was non-delegable duty to provide a safe seriously injured. workplace and that Klingensmith was entitled to the immunity afforded Tavarez filed a claim under the employers under the WCA. Virgin Islands Workers’ Compensation Act (“WCA” or the Act), 24 V.I.C. § 250 Tavarez filed a timely appeal with et seq., and was awarded benefits. the Appellate Division of the District Thereafter, Tavarez filed this negligence Court of the Virgin Islands. The Appellate action in the Territorial Court of the Virgin Division affirmed the decision of the Islands alleging that Klingensmith was T e r r i t o ri a l C o u r t , h o ld i n g t h at personally liable for the injuries Tavarez Klingensmith was immune under the sustained. Tavarez averred that WCA.2 Klingensmith was liable because he had II. refused, as VI Cement’s manager, to grant Tavarez’s request to replace the left front Because Tavarez claims that the tire on the dump truck. According to express language of the statute allows him Tavarez, his injuries were the direct and to assert a negligence claim against his proximate result of Klingensmith’s refusal. supervisor, we begin with the plain text of the statute. United States v. Ron Pair Klingensmith moved for summary judgment, contending that he was immune from suit under the WCA. The Territorial 2 The Appellate Division of the District Court denied the motion and the matter Court had jurisdiction pursuant to 48 proceeded to trial. The evidence at trial U.S.C. § 1613a(b). We have appellate established that K ling ens mith , as jurisdiction pursuant to 28 U.S.C. § 1291 Tavarez’s supervisor, had refused to grant and 48 U.S.C. § 1613a(c). We exercise Tavarez’s request to replace the left front plenary review over issues of statutory tire of the truck. At the close of the interpretation. Moody v. Sec. Pac. Bus. evidence, Klingensmith moved for Credit, Inc., 971 F.2d 1056, 1063 (3d judgment as a matter of law, reiterating his Cir. 1992).

2 Enter., 489 U.S. 243, 241 (1989). If the Thrift Supervision, 963 F.2d 567, 574 (3d statutory language of § 284(b) is Cir. 1992)); see also Hudson United Bank susceptible to different interpretations, we v. Chase Manhattan Bank of Conn., 43 must look to the surrounding words and F.3d 843, 849 n.14 (3d Cir. 1994) provisions and their context. Whitman v. (observing that “consideration of Am. Trucking Ass’n, 531 U.S. 457, 466 legislative history would be appropriate” (2001). This requires applying the in appeal involving statutory construction “cardinal rule that a statute is to be read as of venue provision of the Financial a whole, . . . since the meaning of statutory Institution Reform, R ecovery, and language, plain or not, depends on Enforcement Act). context.” King v. St. Vincent’s Hosp., 502 Most of the Virgin Islands WCA U.S. 215, 221 (1991) (internal citation has been in existence since 1954. See omitted). If possible, we must “‘give Anthony v. Lettsome, 22 V. I. 328, 329 effect . . . to every clause and word of a (D.V.I. 1986); 24 V.I.C. ch. 11, historical statute,”’ Duncan v. Walker, 533 U.S. 167, ann. The Act mandates that “[e]very 174 (2001) (quoting United States v. employer shall pay compensation as . . . Mensache, 348 U.S. 528, 538-39 (1955)), specified for the disability . . . of an and be “‘reluctan[t] to treat statutory employee resulting from a personal injury terms as surplusage.’” Id. (quoting Babbitt . . . arising out of and in the course of his v. Sweet Home Chapter of Cmtys. for a employment, irrespective of fault.” 24 Great Oregon, 515 U.S. 687, 698 (1995)). V.I.C. § 252(a). Employers fulfill this To that end, we must be mindful of the obligation by insuring against liabilities application of the statutory canon of with the Government Insurance Fund. 24 “ejusdem generis, . . . ‘[w]here general V.I.C. § 272. When an employer is words follow specific words in a statutory insured, the injured employee’s right to enumeration, the general words are obtain compensation from his employer is construed to embrace only objects similar limited to the remedies set forth in the in nature to those objects enumerated by WCA. 24 V.I.C. § 284(a). the preceding specific words.’” Circuit City Stores, Inc. v. Adams, 532 U.S. 105, In 1984, the Virgin Islands’ 114-15 (2001) (quoting 2A N. Singer, legislature amended the WCA, adding § Sutherland on Statutes and Statutory 263a, which provides: Construction § 47.17 (1991)). In matters It shall not be a defense to of statutory construction, we may consider any action brought by or on the legislative history, as well as the behalf of an employee, that “‘atmosphere in which [the statute] was the employee at the time of enacted.’” New Rock Asset Partners v. his injury or death, was the Preferred Entity Advancements, Inc., 101 borrowed, loaned, or rented F.3d 1492, 1498 (3d Cir. 1996) (quoting e m p l o y e e o f a n o t h er Carteret Savings Bank, F.A. v. Office of

3 employer. Any oral or issued under section 272 of written agreement between this title. an employer and employee 24 V.I.C. § 284(b). Although this which makes the employee provision was substantively similar to § the borrowed, loaned, or 263a, this new provision was applicable to rented employee of another all claims pending on the effective date of employer shall be null and the Act. See Nieves v. Hess Oil Virgin void as being against the Islands Corp., 819 F.2d 1237, 1241 (3d public policy of this Cir. 1987). Territory. III. 24 V.I.C. § 263a; see Vanterpool v. Hess Oil Virgin Islands Corp., 766 F.2d 117, Tavarez argues that the “express 119 n.1 (3d Cir. 1985). This amendment language of the statute . . . clearly permits made explicit that the immunity afforded a claim against a co-worker or supervisor by § 284(a) did not shield a borrowing for their specific negligent acts which employer from liability under the common cause injury.” According to Tavarez, this law. is evident from the fact that § 284(b) allows an injured employee to sue any Two years later, in 1986, the person except the employer named in the legislature enacted § 284(b), which certificate of insurance issued pursuant to provides: § 272 of the WCA. See 24 V.I.C. § For the purposes of this 284(b). In short, Tavarez contends that section, a contractor shall be immunity under the WCA is limited to the deemed the employer of a employer named in the certificate of subcontractor’s employees insurance. only if the subcontractor Tavarez is correct that § 284(b), fails to comply with the like § 263a, limits those persons who may provisions of this chapter be entitled to the immunity afforded under with respect to being an the WCA. The plain words of these insured employer. The statutory provisions elimin ate the “statutory employer and possibility that a borrowing employer or a borrowed servant” doctrine statutory employer may qualify as an are not recognized in this “employer” entitled to immunity under § jurisdiction, and an injured 284(a) of the WCA. Indeed, the initial employee may sue any clause of the second sentence of § 284(b) person responsible for his abrogates the viability of the statutory injuries other than the employer or borrowed servant doctrine in employer named in a the Vir gin Islands for wo rkers’ certificate of insurance compensation purposes and expressly

4 allows that an injured employee may sue a grounds, 475 U.S. 1105 (1986). For that secondary employer who is not named in reason, an employer would normally the certificate of insurance. indemnify or assume the defense of its employee sued for negligence. The Tavarez argues, however, that § employer, however, is supposed to be 284(b) is broader. He contends that the immune under § 284(a) from liability for right to sue “any person” in the second injuries sustained by its employee arising sentence of subsection (b) encompasses out of and in the course of employment. the right to sue his supervisor regardless of Therefore, despite the immunity afforded the fact that his employer is entitled to under § 284(a), an employer may immunity under the Act. At first blush, the ultimately be faced with defending itself as apparent breadth of the term “any person,” a principal vicariously liable for the acts of combined with the fact that Klingensmith its agents who may have caused another was not personally named in the certificate employee’s injuries. of insurance, appears to give Tavarez’s argument some support. Application of the statutory canon of ejusdem generis yields a more logical However, upon examination of the result. That is, the general term “any statutory scheme of the WCA as a whole, person” in the second sentence of § 284(b) we conclude that § 284(b) is not so is a reference to the preceding specific sweeping as Tavarez would have us hold. t e r m i n o lo g y d i s c u s s i n g s t a t u t o ry First, while § 284(b) limits who is entitled employers and borrowed servants. Thus, to immunity under the WCA, scrutiny of § 284(b) alters only the immunity that the plain language of § 284(b) fails to statutory employers previously enjoyed, reveal any intent by the Virgin Islands’ subjecting these statutory employers to legislature to address whether an injured personal liability if they are not named in employee may initiate a civil action against the certificate of insurance. a co-employee or a supervisor of the same employer. This interpretation is consistent with the history surrounding § 263a and § Second, the broad reading of § 284(b) of the WCA. As the Vanterpool, 284(b) that Tavarez urges would frustrate 766 F.2d at 119, and Nieves, 819 F.2d at the exclusivity of the remedy available 1240-41, decisions pointed out, both under the WCA. The exclusivity provision sections were in response to ongoing would be undermined because a corporate litigation regarding a borrowed employee’s employer “can act only through its agents” right to recover from his borrowing and the “acts of corporate . . . employees employer. Indeed, in Gass v. Virgin on behalf of the corporation are the acts of Islands Tel. Corp., 311 F.3d 237, 245 (3d the corporation.” Tunis Bros. Co. v. Ford Cir. 2002), we noted that an explanation Motor Co., 763 F.2d 1482, 1496 n.21 (3d attached to the bill enacting § 284(b) Cir. 1985), rev’d and remanded on other stated:

5 This bill is needed to assist IV. person [sic] who are injured Although § 284(b) does not allow while on the job . . . This Tavarez to proceed with his personal need arises because the liability suit against Klingensmith, we courts have been have yet to determine whether the interpreting Section 284 of employer’s immunity under § 284(a) of the Title 24 of the Workmen’s WCA extends to a supervisor for acts Compensation Act to grant committed as a manager of the employer’s immunity not only to a business. The Appellate Division of the work er’s imm ediate D i s t r ic t C o u r t d e t er m i n e d t h a t employer, but also to Klingensmith was immune from liability s e condary e m p l o y ers because the duty which he breached, by although the Legislature refusing to change the tire, was the never intended immunity for employer’s non-delegable duty to provide these secondary a safe workplace. This rationale is wrongdoers. consistent with the statutory scheme of the Id. at 245 (quoting Bill No. 498, 16th WCA and general principles of agency Legislature (1986)). Notably absent from law. See Restatement (Second) of Agency § 284(b) or this explanation is any § 492 (1958); Tunis Bros. Co., 763 F.2d at expression of intent to expose the 1496 n.21 (observing that corporation can supervisors of an injured employee to act only through its agents). Thus, we personal liability. conclude that the immunity afforded to an employer under the WCA also shields a In sum, we conclude that § 284(b) supervisor from personal liability for harm relates only to the liability of secondary caused by his negligent failure to provide employers and does not affect the ability a safe workplace for the employer’s of an injured employee to sue his workers. 4 supervisor for tortious acts committed in his managerial capacity.3 4 We recognize that there are several decisions in which a co-worker was held 3 We recognize that § 263 allows for personally liable because the breach in claims against third persons responsible those cases was of a personal duty, such for an employee’s injuries and provides a as exercising care in driving a vehicle or right of subrogation to the Administrator. in handling dangerous materials. See Tavarez did not rely on § 263 below, nor Lettsome, 22 V.I. at 328; Stokes v. does he even mention the provision here. George, Civ. No. 401-1998, (Terr. Ct. For that reason, we have limited our V.I. Sept. 4, 1998). We need not analysis, as argued by Tavarez, to § determine whether a co-worker or 284(b). supervisor may be personally liable

6 Accordingly, we affirm the judgment of the Appellate Division.

under such circumstances inasmuch as the breach in this case was of the employer’s non-delegable duty to provide a safe workplace.