Present:   All the Justices


MONENNE Y. WELCH, ADMINISTRATOR
OF THE ESTATE OF BERNIE PRESTON
WELCH, JR.
                          OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 982534                   November 5, 1999

MILLER AND LONG COMPANY OF
MARYLAND, INC., ET AL.


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                     Kathleen H. MacKay, Judge

     The question presented in this wrongful death action,

stemming from an accident at a construction site, is whether the

uninsured motorists statute, Code § 38.2-2206, permits the

personal representative of a deceased employee to prosecute a

common-law action against the statutory employer and a fellow

servant, as well as two uninsured motorist carriers, and collect

a judgment from the insurers despite the exclusive remedy

provision of the Workers' Compensation Act (the Act).     We answer

that question in the negative.

     The facts are not disputed.   In October 1997, the

plaintiff's decedent, Bernie P. Welch, was operating a dump

truck for his employer, C. W. Strittmatter, Inc., at a

construction site in Fairfax County.   At that time and place,

defendant Miller & Long Company of Maryland, Inc., owned a

mobile crane being operated in the work by its employee,

defendant Nathan Gunn.   As a result of the alleged negligence of
Gunn, the crane "toppled over," crushing the truck's cab and

causing Welch's death.

     Welch's administrator filed this common-law action against

the foregoing defendants seeking recovery of damages under the

Death By Wrongful Act statutes, Code § 8.01-50, et seq.     The

plaintiff joined as defendants Royal Insurance Company of

America, the uninsured motorist carrier for the dump truck, and

Government Employees Insurance Company (GEICO), the uninsured

motorist carrier for the decedent's personal motor vehicle.

     The parties agreed that the deceased was operating the

truck in the scope of his employment with Strittmatter; that

Miller & Long, Strittmatter, the deceased, and Gunn were all

engaged in construction work on one project at one site; that

Miller & Long and Strittmatter were subcontractors on the job;

and that Miller & Long and Gunn fell within the jurisdiction of

the Act.

     Defendants Miller & Long (the decedent's statutory

employer) and Gunn (the decedent's fellow servant) filed a plea

in bar, asserting that a common-law action against them for

negligence was barred by the exclusive remedy provision of the

Act, Code § 65.2-307 (rights and remedies granted to employee

for payment of workers' compensation on account of death by

accident exclude all other rights and remedies of employee's

personal representative at common law on account of such death).


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     Defendant Royal Insurance Company filed a motion for

summary judgment (treated by the trial court as a plea in bar),

in which GEICO joined.   The insurers asserted that the plaintiff

could not recover any uninsured motorist benefits because

plaintiff, not being legally entitled to recover any damages

against either Miller & Long or Gunn, could not satisfy the

condition precedent to such uninsured motorist liability.    The

uninsured motorist statute requires motor vehicle liability

policies to contain provisions undertaking to pay "the insured

all sums that he is legally entitled to recover as damages" from

an uninsured motorist.   Code § 38.2-2206(A).

     The plaintiff urged application of 1997 amendments to Code

§ 38.2-2206(B)(v) and (F), which generally provided that

"immunity" from liability for negligence of the operator of a

motor vehicle shall not be a bar to an insured obtaining a

judgment against the insurer.   The plaintiff asserted that the

crane was an uninsured motor vehicle by statutory definition

because Miller & Long and Gunn were "immune" from liability for

negligence under the Act.   The plaintiff further asserted that

the 1997 amendments now allow "the deceased insured" to proceed

with the action against the "immune" defendants and that any

judgment obtained would be enforceable only against the

insurers.




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       Following consideration of argument of counsel, the trial

court, in a letter opinion, sustained the respective pleas in

bar.   We awarded the plaintiff this appeal from a September 1998

order dismissing the action with prejudice.

       On appeal, the plaintiff advances the same arguments

presented below, and contends the trial court erred in

dismissing the action.   We do not agree.

       In Aetna Casualty and Surety Co. v. Dodson, 235 Va. 346,

367 S.E.2d 505 (1988), we considered a case with facts virtually

identical to those presented here, and interpreted the version

of the uninsured motorist statute effective at that time.     We

held that Virginia law did not permit recovery by an insured's

estate under the uninsured motorist provisions of the insured's

motor vehicle liability policy issued by Aetna, when the insured

was killed in a work-related motor vehicle accident and when the

employer/vehicle owner and co-employee/vehicle operator both

were insured under other policies, but when the exclusive remedy

provision of the Act barred recovery under those other policies.

       In Dodson, we said:   "Because workers' compensation

afforded the exclusive remedy against the decedent's employer

and fellow employees for his accidental death, his statutory

beneficiaries are not 'legally entitled to recover' damages

against them.   It follows that a condition precedent to Aetna's




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liability under its [uninsured motorist] endorsement was not

met."     Id. at 351, 367 S.E.2d at 508.

        Nine years after Dodson, the General Assembly amended

portions of the uninsured motorist statute pertinent here.       See

Acts 1997, ch. 170, 191.    The statutory definition of "Uninsured

motor vehicle" was amended to provide that the term "means a

motor vehicle for which . . . (v) the owner or operator of the

motor vehicle is immune from liability for negligence under the

laws of the Commonwealth or the United States, in which case the

provisions of subsection F shall apply and the action shall

continue against the insurer."    Code § 38.2-2206(B).

        At the same time, subsection (F) was amended to provide:

"Notwithstanding the provisions of subsection A [containing the

'legally entitled to recover' language], the immunity from

liability for negligence of the owner or operator of a motor

vehicle shall not be a bar to the insured obtaining a judgment

enforceable against the insurer for the negligence of the immune

owner or operator, and shall not be a defense available to the

insurer to the action brought by the insured."    Code § 38.2-

2206(F).

        We reject the plaintiff's argument that only the foregoing

amendments control here.    Initially, we disagree with the

plaintiff that, because the alleged tortfeasors, defendants

Miller & Long and its employee Gunn, are not subject to a


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common-law judgment in an action by the plaintiff, due to the

exclusive remedy provision of the Act, the amendment terms

"immune" and "immunity" describe the status of those defendants.

     In this context, the terms contemplate total exemption from

tort liability, such as that generally enjoyed by state and

local governments.   In the present situation, the tortfeasors

were not exempt from liability.   Rather, they, and their

workers' compensation insurance carrier, were strictly liable to

the plaintiff for payment of workers' compensation benefits.

     Moreover, a clear statutory mandate trumps the plaintiff's

effort effectively to disregard provisions of the Workers'

Compensation Act and to focus solely on the uninsured motorist

statute, a part of the insurance laws.   Code § 38.2-900,

contained within the insurance title of the Code, provides:

     "All acts and   parts of acts inconsistent with the
     provisions of   this title are hereby repealed to the
     extent of the   inconsistency. However, the provisions
     of this title   shall not amend or repeal any provisions
     of Title 65.2   relating to workers' compensation."

     Therefore, the exclusive remedy provision of the Act is not

affected by the amendments to the uninsured motorist statute.

Acceptance, as here, of workers' compensation benefits on behalf

of the deceased employee excludes all other rights and remedies

of such employee, his personal representative, and next of kin

at common law or otherwise on account of the death.




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     Accordingly, because the Act afforded the exclusive remedy

against the decedent's statutory employer (Miller & Long) and a

fellow servant (Gunn), the decedent's statutory beneficiaries

under the wrongful death statutes are not legally entitled to

recover damages against them.   Thus, a condition precedent to

the insurers' liability under the uninsured motorist statute was

not met.

     Consequently, the judgment of the trial court will be

                                                         Affirmed.




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