Wilson v. Fireman's Fund Ins.

41 Va. Cir. 248, 1997 Va. Cir. LEXIS 3

Opinion

By Judge Robert P. Doherty, Jr.

The Defendant’s demurrer is based in part on a technical distinction he sees between the concept of workers’ compensation liens, as opposed to the concept of an employer’s rights of subrogation. I think that these concepts are one and the same. The Code of Virginia refers to it both ways. Section 65.2-313 calls it an employer’s compensation lien, while § 65.2-309 calls it the employer’s subrogation right to the employee’s rights against third parties. The Supreme Court and the Court of Appeals make reference to this right of subrogation as a lien in the following cases: Tomlin v. Vance, 22 Va. App. 448 (1996); Bohle v. Henry County Sch. Bd., 246 Va. 30 (1993); Henrico School Board v. Bohle, 14 Va. App. 801 (1992); Circuit City Stores, Inc. v. Bower, 243 Va. 183 (1992); Ball v. C.D.W. Inters., Inc., 13 Va. App. 470 (1992); and ABC Trucking, Inc. v. Griffin, 5 Va. App. 542 (1988).

Based on the allegations in the Plaintiff’s Motion for Judgment, a contract was entered into between the parties. The Defendant breached that contract and caused damages to the Plaintiff. The Plaintiff is asking to be compensated. The pleading is sufficient in both form and substance. The demurrer is overruled.