Before Farrell, Ruiz, and Washington, Associate Judges.
The opinion of the court was delivered by: Washington, Associate Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Russell F. Canan, Trial Judge)
Argued September 14, 1999
The principal issue on appeal is whether the trial court erred in denying appellant's motion to dismiss the complaint or alternatively for summary judgment, rejecting his contention that the Police and Firefighters Retirement and Disability Act, D.C. Code §§ 4-601 et seq. (1981 & Supp. 1987) ("Disability Act"), provides the exclusive remedy for uniformed personnel injured by co-employees while in the performance of duty. *fn1 In addition, appellant contends that the trial court erred in (1) denying his motion for leave to file a third party complaint for indemnification due to its untimeliness; (2) denying his motion to exclude the testimony of witnesses disclosed to him the day of the trial; (3) allowing the jury to use Health and Human Services Tables of Mortality ("HHS") to calculate permanent disability and lost income; and (4) denying his motion for remittitur of jury award because calculation of the award was based on the assumption that appellee would continue to work until the age of seventy-two years (72). For the following reasons, we affirm.
This case arises from a shooting incident which occurred on or about January 28, 1994 between appellant, Jeffrey Mayberry, and appellee, James Dukes, both of whom are Metropolitan Police Department officers. The incident happened at 12:40 a.m. in the office of the Homicide Division while both Mayberry and Dukes were on duty. Dukes alleges that Mayberry was negligent in his handling of his service weapon by pointing the weapon at Dukes after attaching a laser sight to the weapon in violation of police department regulations and that Mayberry fired the gun intentionally, striking Dukes. Mayberry contends that the gun accidentally discharged as he was attempting to reholster his weapon, striking Dukes.
On September 22, 1994, Dukes filed a complaint for damages in the trial court alleging negligence and battery against Mayberry. Dukes specifically claims that his injuries from the shooting were a direct and proximate result of the negligence of Mayberry in the handling and pointing of his gun at Dukes. Dukes also alleges that the shooting was the deliberate action of Mayberry, in which Mayberry was substantially certain that by his pointing a gun at Dukes and pulling the trigger, a bullet would discharge, thereby injuring him. On August 9, 1995, Mayberry filed a motion to dismiss the complaint or alternatively for summary judgment on the basis that Dukes' claims were precluded by the Police and Firefighters Retirement and Disability Act and/or the District of Columbia Merit Personnel Act. The trial court denied Mayberry's motion to dismiss the complaint or alternatively for summary judgment on October 20, 1995, at which point his counsel, the District of Columbia Office of the Corporation Counsel, withdrew from the case. Mayberry's current counsel filed a notice of appearance with the court on February 16, 1996. On July 1, 1996, Mayberry filed a motion for leave of court to file a third party complaint against the District of Columbia and Glock, Incorporated for indemnification which the court denied as untimely on August 9, 1996. The case proceeded to trial, and a jury found Mayberry liable for negligence and battery and awarded Dukes compensatory and punitive damages. The case thus comes before this court on the basis of a jury finding of an intentional tort.
Mayberry contends that his motion to dismiss the complaint or alternatively for summary judgment was erroneously denied because Dukes' claims against him are precluded by the exclusivity provision of the Disability Act. This court has previously held that the Disability Act provides a comprehensive compensation scheme for police and firefighters in the District who are temporarily injured or permanently disabled while performing their duties. Ray v. District of Columbia, 535 A.2d 868, 870 (D.C. 1987). While it is settled that the Disability Act provides the "exclusive remedy against the District of Columbia for uniformed personnel" injured on the job, Lewis v. District of Columbia, 499 A.2d 911, 915 (D.C. 1985), its language and legislative history are silent as to whether this exclusivity extends to actions against co-employees.
Mayberry argues that the Disability Act cannot be read in a vacuum and, consistent with our prior decisions, must be read in harmony with the District's other comprehensive compensation schemes. Specifically, Mayberry argues that this court should look to the District of Columbia Workers' Compensation Act, D.C. Code §§ 36-301 to 36-345 (1981) ("WCA"), for guidance in determining whether the Disability Act would permit recovery against a co-employee for intentional tortious conduct. Although we agree that the Disability Act "serves a purpose similar to that of a workers' compensation statute," *fn2 this court has never addressed the issue of co-employee liability for intentional torts under the WCA.
The WCA states in relevant part:
The compensation to which an employee is entitled under this chapter shall constitute the employee's exclusive remedy against the employer, or any . . . employee . . . of such employer . . . (while acting within the scope of his employment) for any illness, injury, or death arising out of and in the course of his employment . . . . D.C. Code § 36-304 (b) (emphasis added).
The WCA defines a compensable "injury" as an "accidental injury or death arising out of and in the course of employment . . . ." D.C. Code § 36-301 (12) (emphasis added). In Cruz v. Paige, 683 A.2d 1121 (D.C. 1996), we held that the WCA provided the exclusive remedy for accidental injuries arising out of one's employment, and thus, an injured employee was precluded from bringing an action against a co-employee for negligence. In Grillo v. National Bank of Washington, 540 A.2d 743, 748 (D.C. 1988), we addressed whether the WCA would permit an employee to bring an intentional tort action against an employer and determined that the exclusivity provision of the WCA did not bar such a suit. However, the issue of whether the WCA would permit an employee to maintain an intentional tort action against a co-employee, despite its exclusivity provision, remains an open question and one that is not before us today. *fn3 Moreover, ...