Demetres v. East West Construction, Inc. – Near-Fatal Bulldozer Injuries and Exclusive Remedy

After being nearly killed by a subcontractor employee operating a bulldozer, a former general contractor supervisor, of North Carolina, attempted to pursue a negligence lawsuit against the subcontractor and its worker.
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However, the U.S. Court of Appeals for the Fourth Circuit ruled in Demetres v. East West Construction, Inc. the subcontractor was protected per the exclusive remedy provision of Virginia’s workers’ compensation law.

Exclusive remedy means injuries arising out of and in the course of one’s employment are only compensable by workers’ compensation – so far as the employer is concerned. While third-party negligence lawsuits are sometimes pursued, co-workers, sub-contractors and general contractors may be protected under this provision too, depending on the details of the relationship and incident.

According to court records, claimant is a North Carolina resident who worked for a North Carolina company that hired a subcontractor to prepare a site in Virginia Beach for construction of a drug store. Claimant was designated as superintendent of the project.

One day, while at the job site, a subcontractor employee was operating a bulldozer when that worker backed over claimant. This resulted in significant injuries and, in fact, nearly killed him.

Claimant received workers’ compensation benefits through his employer under North Carolina’s workers’ compensation law.

He subsequently filed a personal injury lawsuit in Virginia against subcontractor seeking $100,000 in damages for negligence. Defendant filed motion to dismiss for lack of subject matter jurisdiction based on the fact that Virginia’s Workers’ Compensation Act barred such action per the exclusive remedy provision. Trial court agreed and dismissed the action, and that decision was appealed to the 4th Circuit.

Claimant argued on appeal the Full Faith and Credit Clause mandates Virginia defer to North Carolina – the state that paid his benefits – in determining whether the lawsuit is indeed barred. He asserted Virginia Supreme Court precedent backs this argument, even though injury occurred in Virginia.

Our Charlotte workers’ compensation attorneys note the reason worker wanted the action moved to North Carolina is that our courts have had a more lax interpretation of the protections allowed to subcontractors and general contractors per the exclusive remedy provision.

Unfortunately for this worker, however, the court ruled the subcontractor is legally considered his statutory co-employee per Virginia Supreme Court precedent, and as such, the firm was entitled to common law immunity under the exclusivity provision – even though worker had received benefits in another state and argued that state’s laws were controlling. Prior case law held Virginia isn’t required to relax its more restrictive workers’ compensation bar to hear a lawsuit permitted under the laws of another state – even in spite of the federal Full Faith and Credit Clause.

Claimant asserted Virginia case law was wrongly decided.

The federal appellate court did not disagree with this assertion, but ruled that only a the full state supreme court, sitting in banc, could overrule an earlier panel decision. As that had not happened, it was bound by the state supreme court’s prior precedent.

If you have been injured at work, contact the Lee Law Offices at 800-887-1965.

Additional Resources:
Demetres v. East West Construction, Inc., Jan. 15, 2015, U.S. Court of Appeals for the Fourth cuit

More Blog Entries
Youth Unemployment in North Carolina Can Exacerbate Work Safety Concerns, Jan. 15, 2015, Charlotte Workers’ Compensation Lawyer Blog

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