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October 9, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. Evelyn E. Crawford Queen, Trial Judge)

Before Terry, Schwelb and Farrell, Associate Judges.

The opinion of the court was delivered by: Farrell

FARRELL, Associate Judge:

This case presents a choice of law question arising from an accident on a construction site in the District of Columbia. Appellee Timothy Clark filed for and was awarded workers' compensation benefits in the Commonwealth of Virginia. The benefits were paid by his immediate employer, Buddy Clark Concrete. Appellee then filed suit in the District of Columbia against a subcontractor on the construction site, Dominion Caisson Corporation (appellant here), and the general contractor, Erin Construction, Inc., alleging that their negligence at the site caused his injuries. Dominion Caisson moved for summary judgment, pointing out that under Virginia law Erin Construction was Timothy Clark's "statutory employer," and that as Dominion Caisson was engaged in the same business, occupation and trade as Erin Construction at the time of the accident, Virginia law immunized it from common law suit for damages. Dominion Caisson then argued that Virginia law should apply to this case because the District of Columbia's sole connection with the action was that "it was the mere fortuitous location of the accident in question." The trial Judge denied summary judgment, concluding that District of Columbia law applied to the suit and that District law erects no barrier to a suit against third parties such as Dominion Caisson and Erin Construction. The Judge denied Dominion Caisson's motion for reconsideration, but permitted it to file an interlocutory appeal under D.C. Code § 11-721 (d) (1989); this court granted Dominion leave to appeal on April 19, 1991. *fn1 We now affirm.


The general contractor on the site of the injury was Erin Construction, a Virginia corporation with its principal place of business in Virginia. *fn2 Appellant Dominion Caisson, also a Virginia corporation with its principal place of business in Virginia, was acting as a subcontractor to Erin Construction at the site. Appellee Timothy Clark, a Virginia resident, was a direct employee of Buddy Clark Concrete, which was a subcontractor to First Choice Concrete, Inc.; First Choice Concrete, in turn, was a subcontractor to Erin Construction. It does not appear disputed that all of the contracts for employment were entered into in Virginia.

After appellee was injured, he was paid workers' compensation under Virginia law by his direct employer, Buddy Clark Concrete. *fn3 Under Virginia law, all of the named employers -- including Dominion Caisson -- were protected from suit for damages by Timothy Clark by virtue of the "canopy" of Erin Construction's status as Clark's statutory employer, since all were engaged at the time in work that was part of the trade, business or occupation of Erin Construction. E.g., Smith v. Horn, 351 S.E.2d 14 (Va. 1986); Anderson v. Thorington Construction Co., 110 S.E.2d 396 (Va. 1959), appeal dismissed, 363 U.S. 719 (1960). Specifically, Virginia's concept of statutory employer

bring within the operation of the Compensation Act all persons engaged in any work that is a part of the trade, business or occupation of the original party who undertakes as owner, or contracts as contractor, to perform that work, and . . . makes liable to every employee engaged in that work every such owner, or contractor and subcontractor, above such employee.

Bessett Furniture Indus. v. McReynolds, 224 S.E.2d 323, 326 (Va. 1976). See VA. CODE ANN. § 65.2-302 (Michie 1991). *fn4 In return, however, the exclusivity Provision of Virginia's compensation law bars an injured employee from suing for damages any subcontractor performing the trade or business of the owner or general contractor at the time of injury. Smith v. Horn, 351 S.E.2d at 16; Anderson v. Thorington Construction Co., 110 S.E.2d at 399-400. "If the defendant was engaged in work which was part of the undertaking of the owner or general contractor, regardless of his relationship to the injured workman and his immediate employer," Virginia law "operate to place the economic loss upon the project and to limit the workman's recovery to that specified in the Act." Bergen v. Fourth Skyline Corp., 501 F.2d 1174, 1175-76 (4th Cir. 1974). Therefore, if Virginia's workers' compensation law governs this case, Timothy Clark's suit against Dominion Caisson for negligence was barred.

In his suit in Superior Court, however, appellee maintained -- and the trial Judge agreed -- that District of Columbia law applied to this case. Unlike Virginia, the District's workers' compensation scheme has no statutory employer provision extending liability (and corresponding tort immunity) up the ladder of subcontractors to the owner or general contractor. Under the District's scheme, an "employer" is only the entity with whom the employee is in a direct employment relationship. D.C. Code § 36-301 (10) (1988). *fn5 Thus, although the District's scheme also contains an exclusivity provision, D.C. Code § 36-304, it bars common law suits only against the injured employee's immediate employer and allows suits against all others as third parties. See Meiggs v. Associated Builders, Inc., 545 A.2d 631 (D.C. 1988), cert. denied, 490 U.S. 1116,109 S.Ct. 3178, (1989). *fn6 In concluding that District of Columbia law should apply here, the trial Judge relied on this court's explanation in Meiggs of the legislative decision generally to bar suits only against an employee's immediate employer. Echoing that Discussion, the Judge reasoned that "the District of Columbia has an overriding interest in holding corporations liable to the full extent of the law in negligence actions arising out of employment in the District and in protecting members of the work force who are injured in the performance of their duties in the District."


The question on appeal is thus one of choice of law, an issue concerning which we apply District of Columbia choice of law rules. Kaiser-Georgetown Community Health Plan v. Stutsman, 491 A.2d 502, 507 (D.C. 1989). As we stated in Moore v. Ronald Hsu Constr. Co., 576 A.2d 734 (D.C. 1990), to decide such questions

this court employs a modified governmental interests analysis which seeks to identify the jurisdiction with the most significant relationship to the dispute. We must evaluate the governmental policies underlying the applicable laws and determine which jurisdiction's policy would be most advanced by having its law applied to the facts of the case under review.

Id. at 737 (internal citations and quotation marks omitted). Dominion contends that Virginia's public policy "as expressed in statutory employer law" would be unnecessarily frustrated by allowing suit in this case, which involves Virginia employers and a Virginia employee, based solely upon the occurrence of the alleged tort and injury in the District of Columbia. Appellee counters that the District has a strong interest in deterring preventable accidents and in protecting the rights of employees engaged in work in the District of Columbia, an interest paramount to Virginia's stake in restricting liability of subcontractors such as Dominion ...

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