William v. City of Newport News

JUSTICE COMPTON, with whom JUSTICE RUSSELL

joins, dissenting.

The General Assembly, in unambiguous language in Title 65.1, has provided that the rights and remedies granted to an employee when he and his employer have accepted the provisions of the Workers’ Compensation Act to pay and accept compensation on account of personal injury by accident “shall exclude all other rights and remedies of such employee” at common law or otherwise, on account of such injury. Code § 65.1-40. In equally unambiguous language, the General Assembly has provided in Title 38.2, dealing with the subject of insurance, that “the provisions of *435this title shall not amend or repeal any provisions of Title 65.1 relating to workers’ compensation.” Code § 38.2-900. Yet, the majority chooses not to follow these clear legislative mandates. Instead, the majority creates an exception by implication to the bar of § 65.1-40, using a rationale mainly based on a policy argument. I cannot participate in such an exercise.

In Smith v. Horn, 232 Va. 302, 351 S.E.2d 14 (1986), decided only four years ago, the Court confronted a similar question. The issue was whether, under the Workers’ Compensation Act, an injured employee of one independent contractor was barred from instituting a common-law tort action against an employee of another independent contractor engaged by the same owner. 232 Va. at 304, 351 S.E.2d at 15. Among other contentions, the claimant argued that the Workers’ Compensation Act was not intended to cover motor vehicle accidents like the one from which that action arose. In support of this argument, the claimant relied on Code § 38.2-2207 which provides that no policy of motor vehicle liability insurance “shall exclude coverage to an employee of the insured in any controversy arising between employees even though one employee shall be awarded compensation as provided in Title 65.1.”

We rejected the argument and, applying the provisions of § 65.1-40, decided that, “had the General Assembly intended to exclude motor vehicle accidents from the coverage of the Workers’ Compensation Act, it would have done so directly in the Act itself rather than indirectly through a provision in the insurance title of the Code.” Id., 232 Va. at 309, 351 S.E.2d at 18. Moreover, the Court said, Code § 38.2-900 “provided that the provisions of the insurance title ‘shall not amend or repeal’ any provisions of the Workers’ Compensation Act.” Id.

The majority chooses not to follow the precedent of Smith and, to buttress its decision, employs a statute in the motor vehicle title, Code § 46.2-368(B), which refers to a section in the insurance title, the uninsured motorist statute, § 38.2-2206. Section 46.2-368(B) merely permits the Commissioner of Motor Vehicles to issue a certificate of self-insurance when he determines that the applicant is financially responsible and when he is satisfied “that the certificate provides for protection against the uninsured motorist to the extent required by § 38.2-2206.” Paraphrasing Smith, I am of the opinion that had the General Assembly intended to create an exception to the bar of the exclusivity provisions of § 65.1-40, *436it would have done so directly in the Workers’ Compensation Act itself rather than indirectly, as the majority reasons, through provisions in the motor vehicle and insurance titles.

And, the decision in Fidelity and Casualty Co. v. Futrell, 211 Va. 751, 180 S.E.2d 502 (1971), relied on by the majority, is not authority for disregarding Code §§ 65.1-40 and 38.2-900. Futrell solely involved the interpretation of an employer’s insurance policy under which the injured employee, who had received benefits under the Workers’ Compensation Act, qualified as an “insured.” No self-insurer was involved, and the applicability of Code §§ 65.1-40 and 38.2-900 was not an issue in the case.

I would affirm the trial court’s judgment that the City is not bound to provide uninsured motorist protection in addition to workers’ compensation benefits when its employee is injured in a motor vehicle collision caused by the negligence of an uninsured motorist.