Wolfe v. Yudichak

571 A.2d 592, 153 Vt. 235

• Court: Supreme Court of Vermont
• Decided: May 15, 1990
• Docket: 86-176
• Status: Published

Opinions

Dooley, J.

Plaintiff appeals from a decision of the Washington Superior Court granting defendant summary judgment on the ground that the Vermont Workers’ Compensation Act, 21 V.S.A. ch. 9, provides the exclusive remedy for plaintiff’s injury. See 21 V.S.A. § 622. Because we find that plaintiff is not entitled to workers’ compensation benefits, we reverse.

The facts are not in dispute. Allen Yudichak and Thomas Wolfe were students at Norwich University and members of the Norwich University Fire Brigade, a volunteer fire department sponsored by the University. Although the fire brigade is a student activity of Norwich University, it does have a constitution, bylaws and a membership roll. The fire brigade refers to itself as “this organization” throughout its constitution and bylaws. The brigade elects its own officers, prepares its own budget and develops and implements its own training procedures. The primary purpose of the brigade is to educate its members in firefighting. The members are not paid.

On April 29, 1984, in response to an alarm, defendant Yudichak drove the brigade fire truck on which plaintiff Wolfe rode. On the way to the fire, the truck skidded off the road and rolled over. One student was killed and plaintiff Wolfe was seriously injured.

Plaintiff alleged that Yudichak operated the truck in a negligent fashion in large part because he was under the influence of alcohol at the time. Because the students were acting in the scope of their duties as firefighters, Wolfe filed suit against Norwich University alleging respondeat superior and negligence for failing to properly supervise and train the student firefighters. Norwich University moved to dismiss this action, asserting that it had elected to provide members of the Norwich University Fire Brigade with workers’ compensation coverage by the purchase of an insurance policy covering the accident that was the subject of the complaint. Because Wolfe was covered by workers’ compensation, Norwich argued, the claims against it were barred by the exclusivity provision of 21 V.S.A. § 622. The superior court agreed with Norwich and dismissed the complaint.

Plaintiff asserts four claims on appeal. He argues that: (1) the court erred by determining that the Norwich University administration could elect to provide workers’ compensation for the- Norwich University Fire Brigade; (2) the court’s interpretation of Workers’ Compensation Act to include volunteers violates chapter II, § 20 of the Vermont Constitution; (3) the failure of the Act to provide wage compensation to plaintiff violates Chapter I, Article 4 of the Vermont Constitution; and (4) the failure of the Act to provide wage compensation to volunteer' firefighters who have no other employment violates the equal protection clause of the Fourteenth Amendment to the United States Constitution and Chapter I, Article 7 of the Vermont Constitution. We agree with plaintiff’s first claim and, therefore, reverse and remand without reaching the remaining claims.

The superior court’s decision is based on 21 V.S.A. § 601(12)(L), which defines “public employment” to include:

(L) members of any regularly organized private volun: teer fire department while acting in the line of duty after election by the organization to have its members covered by this chapter;

This subsection is part of a list of alternative types of public employment, which, pursuant to 21 V.S.A. § 601(4), is defined as part of “employment” and pursuant to 21 V.S.A. § 616(a) creates coverage by the Workers’ Compensation Act. If § 601(12)(L) applies in this case, there is no question that plaintiff was in public employment and is covered by the Workers’ Compensation Act. Thus, he is entitled to compensation under 21 V.S.A. § 618 and is barred from other remedies by 21 V.S.A. § 622.

The statutory provision, 21 V.S.A. § 601(12)(L), contains three elements as follows: (1) the injured person must be a member of a regularly organized private volunteer fire department; (2) the injury must have occurred while the injured per-. son was acting in the line of duty; and (3) “the organization” must have elected to cover its members under the Workers’ Compensation Law. Both parties agree that the first two elements are present. Plaintiff argues that the third element is not present in this case because “the organization” specified in the statute is the Norwich Fire Brigade and the brigade has never elected to cover its members. Norwich counters that the organization is Norwich University and it has made a valid election to cover the members of its fire brigade. Four reasons lead us to conclude that the plaintiff has the better argument and that no valid election of workers’ compensation coverage was made in this case. Therefore, plaintiff is not entitled to workers’ compensation for his injuries and the exclusivity bar of 21 V.S.A. § 622 does not apply. As a result, it was error to grant the motion to dismiss.

The first reason is that an election by the brigade, as opposed to Norwich University, is commanded by the literal and plain meaning of the language of the statute. Although our overall aim is to determine the intent of the Legislature, we must first look to the plain meaning of the words. See Derosia v. Book Press, Inc., 148 Vt. 217, 222, 531 A.2d 905, 908 (1987). The operative wording here is “after election by the organization to have its members covered by this chapter.” In this context, the “organization” must be the fire brigade. It cannot be Norwich University because the firefighting students are not “members” of Norwich University. The requirement that the department be “regularly organized” underscores this interpretation in two ways. First, it uses a form of the root word — “organize”—the same root word for the term “organization” in the clause we are interpreting. Thus, it is logical that the “organization” in the third clause is the entity that has been “organized” in the first clause. That entity is the fire brigade, not the whole university. Second, the requirement mandates a sufficient governing structure to make an election. If the fire brigade is “regularly organized,” it has sufficient structure to make an election — its constitution and bylaws support the adequacy of its organization in this case.

Second, we must read the operative section in context and the entire scheme in pari materia. See In re Reclassification of Ranch Brook, 146 Vt. 602, 605, 508 A.2d 703, 705 (1986); Paquette v. Paquette, 146 Vt. 83, 86, 499 A.2d 23, 26 (1985). There are other definitional sections that help us in interpreting the one before us. Those sections clearly specify who must make the election so that coverage is extended. Thus, § 601(12)(J) makes volunteer reserve police officers public employees where the selectmen of a town or the trustees of a village so vote. Section 601(12)(K) makes “other municipal workers, including volunteer fire fighters” public employees if the “governing officials” of the municipal body so vote. The fact that these other sections clearly specify who decides whether to elect workers’ compensation coverage cuts against a similar result where the statute does not clearly specify. State v. Tierney, 138 Vt. 163, 165, 412 A.2d 298, 299 (1980) (if, in its next clause, a statute was to achieve a particular result, the Legislature could have achieved this result as it did in earlier clause); see also Philbrook v. Glodgett, 421 U.S. 707, 713 (1975) (when interpreting a statute a court should not be guided by a single sentence or member of a sentence, but must look to the provision of the whole law); State v. Teachout, 142 Vt. 69, 72, 451 A.2d 819, 820 (1982) (“In construing a statute we consider it as a whole, and, if possible, give effect to every word, clause, and sentence.”). If the Legislature had intended to specify that the election be made by the employer, the surrounding sections show that it knew how to implement that intent. It did not demonstrate that intent in § 601(12)(L).

We recognize that other parts of the public employment definition allow election of coverage solely by the decision of the employer. We do not believe, however, that these subsections should be taken as a general endorsement of placing elections in the hands of the employer. The subsections which allow for employer election, 21 V.S.A. §§ 601(12)(J) and (K), apply to municipal volunteer police officers and firefighters. Volunteers in municipal government are faced with a very different situation because communities are protected against negligence actions by sovereign immunity. Welsh v. Village of Rutland, 56 Vt. 228 (1883) (an incorporated village is not liable for injuries resulting from negligence of an engineer of fire department); see also Cronin v. State, 148 Vt. 252, 256 n.5, 531 A.2d 929, 932 n.5 (1987) (this Court refuses to abolish sovereign immunity doctrine); Lomberg v. Crowley, 138 Vt. 420, 424, 415 A.2d 1324, 1327 (1980) (sovereign immunity remains a viable doctrine); Marshall v. Town of Brattleboro, 121 Vt. 417, 424, 160 A.2d 762, 767 (1960) (doctrine reaffirmed). Thus, the decision whether to accept liability through workers’ compensation or the tort system normally resides with the municipality. Such a decision is exercised through the purchase of insurance. See 29 V.S.A. § 1403 (purchase of insurance is waiver of sovereign immunity). The employees of a municipality have no real election since their common-law remedies are barred by sovereign immunity solely. Such employees have a remedy due to the election of their employer.

On the other hand, Vermont has rejected the rule that charitable institutions are immune from suit. Foster v. Roman Catholic Diocese, 116 Vt. 124, 133-34, 70 A.2d 230, 235-36 (1950). It is very likely, therefore, that the Legislature intended to treat public and private volunteer fire departments differently.

Third, it is likely that the workers’ compensation law offers plaintiff no effective remedy. The Workers’ Compensation Act provides compensation of two-thirds of the employee’s average weekly wage in cases of total disability. 21 V.S.A. § 645. Since that method of calculating compensation would lead to no award for volunteer firemen, the Legislature has provided two alternative methods of calculating compensation. The statute provides that the average weekly wage of a volunteer fireman injured in his duties as a fireman “shall be his average weekly wage in his regular employment.” 21 V.S.A. § 650(a). It also provides that in instances where “it is impracticable” to compute the employee’s rate of remuneration, compensation can be based on the earnings of other persons employed in the same work by the employer or “by a person in the same grade employed in the same class of employment and in the same district.” Id.

It is unlikely that the statute authorizes any award in this case. Since plaintiff is a volunteer, he has no average weekly wage from firefighting. The statutory alternative for volunteer firemen — to use the average weekly wage from regular employment — gives no compensation because plaintiff is a student.

We recognize that the Commissioner of Labor and Industry has apparently adopted as a policy that for “volunteer public safety workers” without other “regular employment” the average wage is computed as the average weekly wage of “similarly responsible, paid employees in the same occupation.”

* Vermont Dep’t of Labor & Industries, Processes and Procedure for Claims Under the Vermont Workers’ Compensation and Occupational Disease Acts Rule 14, Form 25 at 11-12. The Commissioner must, however, act pursuant to statutory authority and consistent with the applicable statute. New Hampshire-Vermont Physician Service v. Commissioner, Department of Banking & Insurance, 132 Vt. 592, 596, 326 A.2d 163, 166 (1974) (“A public administrative authority has only such powers as are ' expressly granted by the Legislature, together with those implied as necessary for the full exercise of those granted.”). The only possible authority for this policy is the second alternative method of calculating average wages in 21 V.S.A. § 650(a). The statute applies, however, only where a wage calculation is otherwise “impracticable,” not, as here, where there are no wages at all, and requires a comparison to a person “in the same grade” and in the “same class of employment.” Id. A full-time fireman is not in the same grade and class as a part-time student volunteer.

Even if the statute were read to allow payment of compensation, the amount is meager at best. According to survey data from the Vermont Department of Employment and Training, the average hourly wage of firefighters in small Vermont communities (under 4000 residents) is $4.10 per hour and in large Vermont municipalities (over 4000 residents) is $7.70 per hour. Vermont Dep’t of Employment & Training, Wage and Fringe Benefits Survey 27-28 (1987). Since compensation payable equals two-thirds of average wages, the amount actually paid to plaintiff would put him under the poverty level if the average for small communities is used. See Administrative Order No. 4, Appendix B (Feb. 1989) (poverty income guidelines). If the average for larger communities, or a blend of both, were used, plaintiff’s income would exceed the poverty level but would come nowhere near the earning capacity that could be expected of a college graduate in engineering (plaintiff’s major), even at graduation. See College Placement Council, CPC Salary Survey 2 (Sep. 1988) (average 1988 starting salary for male engineering graduates varied between $24,500 and $31,500 per year).

In summary, if we adopted defendant’s position, plaintiff would be left with an uncertain and precarious entitlement to a meager income based on the income of persons in an occupation that plaintiff was never part of and was not ever to be part of. The income of firefighters has no more relevance to plaintiff’s situation than those of any other occupation selected at random. See State v. Lund, 144 Vt. 171, 177, 475 A.2d 1055, 1059-60 (1984) (“It has long been the policy of this Court to avoid a construction of a statute ‘that will render the act ineffective or lead to irrational consequences.’”) (quoting Audette v. Greer, 134 Vt. 300, 302, 360 A.2d 66, 68 (1976)); New England Power Co. v. Town of Barnet, 134 Vt. 498, 509, 367 A.2d 1363, 1370 (1976) (this Court will not presume that Legislature intended unjust or unreasonable results'). While the Legislature could decide to leave volunteer firefighters in such circumstances, we think it more likely that they enacted a check on the unwilling assumption of such a harsh result. The Legislature did this through a requirement that the election be made by affected persons, presumably after a full evaluation of the alternatives.

Finally, we can find no policy reasons why defendant, Norwich University, should have the sole right of election with no voice given to the volunteer firefighters. See, e.g., Hill v. Conway, 143 Vt. 91, 95, 463 A.2d 232, 234 (1983) (this Court considers what “public policy” a statute “appears designed to implement”). If the fire brigade were free-standing, the decision to elect workers’ compensation coverage would be made by the board of directors or officers, persons elected directly or indirectly by the members. In this case, the fire brigade has all the organizational elements of a corporation; it makes no sense to have a different election rule because the brigade happens to be affiliated with a university or, for that matter, a private business.

For the above reasons, plaintiff is not entitled to workers’ compensation for his injuries in the accident in this case and the motion to dismiss should not have been granted.

Reversed and remanded.

The policy is actually directions for completing claims forms. There is no indication in this case that it is a rule to be considered prima facie evidence of the proper interpretation of the statute under 3 V.S.A. § 845(a).