                                                                                                                           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Precedential or Non-Precedential: Precedential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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Recommended Citation
"Tavarez v. Klingensmith" (2004). 2004 Decisions. Paper 553.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/553


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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.
