Filed: Jun. 15, 2004
Latest Update: Mar. 02, 2020
Summary: 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United 2004 Decisions States Court of Appeals for the Third Circuit 6-15-2004 Tavarez v. Klingensmith Precedential or Non-Precedential: Precedential Docket No. 03-2815 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Tavarez v. Klingensmith" (2004). 2004 Decisions. Paper 553. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/553 This decision is brought to you for free and open access by the Opinions of t
Summary: 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United 2004 Decisions States Court of Appeals for the Third Circuit 6-15-2004 Tavarez v. Klingensmith Precedential or Non-Precedential: Precedential Docket No. 03-2815 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Tavarez v. Klingensmith" (2004). 2004 Decisions. Paper 553. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/553 This decision is brought to you for free and open access by the Opinions of th..
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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Precedential or Non-Precedential: Precedential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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Tavarez v. Klingensmith" (2004). 2004 Decisions. Paper 553.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/553
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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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 Va. 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.
