Tavarez v. Klingensmith

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Precedential or Non-Precedential: Precedential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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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.