UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CLYDE W. BANKS; MARGARET L.
BANKS,
Plaintiffs-Appellants,

v.

VIRGINIA ELECTRIC & POWER
                                                                      No. 99-1392
COMPANY, a Corporation of the
Commonwealth of Virginia,
licensed to do business in the State
of Maryland,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams Jr., District Judge.
(CA-98-3585-AW)

Argued: December 2, 1999

Decided: February 17, 2000

Before TRAXLER and KING, Circuit Judges, and
Margaret B. SEYMOUR, United States District Judge
for the District of South Carolina,
sitting by designation.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Traxler wrote the majority
opinion, in which Judge Seymour joined. Judge King wrote a dissent-
ing opinion.

_________________________________________________________________
COUNSEL

ARGUED: Robert C. McDonald, HERMANN, SILVERMAN &
MCDONALD, Wilmington, Delaware, for Appellants. Earle Duncan
Getchell, Jr., MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P.,
Richmond, Virginia, for Appellee. ON BRIEF: Barbara J. Gadbois,
HERMANN, SILVERMAN & MCDONALD, Wilmington, Dela-
ware, for Appellants. Elizabeth Butterworth-Stutts, Joseph M.
English, IV, MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P.,
Richmond, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

TRAXLER, Circuit Judge:

Plaintiffs Clyde W. Banks ("Banks") and Margaret L. Banks appeal
the district court's dismissal of their action against Virginia Electric
& Power Company ("Virginia Power") under Federal Rule of Civil
Procedure 12(b)(1). The district court concluded that Banks was the
statutory employee of Virginia Power and, therefore, that Banks'
exclusive remedy was for workers' compensation benefits. We affirm.

I.

Defendant Virginia Power is a Virginia public service corporation
that produces, distributes, and sells electrical service. In September
1996, Hurricane Fran hit the Commonwealth of Virginia, resulting in
fallen trees and limbs damaging Virginia Power's lines and interrupt-
ing electrical service. Pursuant to an existing contract between
Asplundh Expert Tree Company ("Asplundh") and Virginia Power,
Asplundh work crews from the state of Maryland traveled to Virginia
to assist in cleaning up the fallen trees and limbs so that power could
be restored to the affected areas.

                    2
At the time, plaintiff Banks, a resident of Delaware, was employed
by Asplundh as a supervisor of tree trimming crews. Although Banks
primarily worked in the state of Maryland, his crew was assigned to
work in Virginia pursuant to the Asplundh-Virginia Power contract.
Around midnight on September 10, while Banks and his crew were
removing tree limbs from a Virginia Power distribution line in Clo-
ver, Virginia, the power line became re energized and Banks received
a severe electrical shock. Banks sought and received workers' com-
pensation benefits for his injuries from Asplundh pursuant to the
Maryland workers' compensation laws. At the time, however, Vir-
ginia Power was self-insured for workers' compensation benefits and,
had Asplundh failed to provide such benefits, Virginia Power would
have been liable under Virginia law to pay workers' compensation
benefits to Banks.

Asserting that the power line was either negligently or intentionally
re-energized by Virginia Power employees, Banks and his wife insti-
tuted this action against Virginia Power in the state circuit court for
Prince George's County, Maryland, for negligence, gross negligence
and loss of consortium. Pursuant to 28 U.S.C.A.§§ 1332(a) (West
1993 & Supp. 1998) and 28 U.S.C.A. § 1446 (West 1994 & Supp.
1998), Virginia Power removed the action to the federal district court
in Maryland on the basis of diversity of citizenship.

Virginia Power then filed a motion to dismiss the action, pursuant
to Rule 12(b)(1), asserting that the court lacked subject matter juris-
diction because Virginia Power was Banks' statutory employer at the
time of his accident and, therefore, that Banks' exclusive remedy
under Virginia law was for workers' compensation benefits. See Va.
Code Ann. §§ 65.2-307 (Michie Supp. 1999), 65.2-700 (Michie
1995). The district court agreed, and dismissed the action. We affirm.

II.

A.

We begin with Banks' contention that the district court erred in dis-
missing the case under Federal Rule of Civil Procedure 12(b)(1) for
lack of subject matter jurisdiction because the case had already been
properly removed on the basis of diversity of citizenship. Basically,

                    3
Banks asserts that because the parties were diverse and the jurisdic-
tional minimum was met, Virginia Power could only have moved to
dismiss the action on the basis of Federal Rule of Civil Procedure
12(b)(6). Apparently, Banks believes that he would have had a better
chance of prevailing on a motion under this latter rule because the
inquiry would have been limited to the complaint allegations.

We find this position untenable. Based upon the complaint allega-
tions, the district court had original jurisdiction over this matter by
virtue of the diverse nature of the parties and the jurisdictional
amount, see 28 U.S.C.A. § 1332(a), and the case was properly
removed, see 28 U.S.C.A. § 1441(a). This does not, however, deter-
mine the question of whether the district court lacked subject matter
jurisdiction over the state causes of action because Banks was acting
as a statutory employee of Virginia Power when he was injured. And,
of course, Virginia Power's removal cannot forever bar it from raising
a subject matter jurisdiction defense, which can be raised at any time.
See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999).

Nor are we persuaded that Rule 12(b)(1) is otherwise an improper
vehicle for raising the issue before the district court. Indeed, we
recently affirmed a district court's dismissal of a tort action, for lack
of subject matter jurisdiction pursuant to Rule 12(b)(1), because the
plaintiff was the statutory employee of the defendant and, therefore,
limited to an action for workers' compensation benefits before the
state's workers' compensation tribunal. See Evans v. B.F. Perkins
Co., 166 F.3d 642, 647-50 (4th Cir. 1999). In that case, we specified
our standard of review as follows:

          The plaintiff has the burden of proving that subject matter
          jurisdiction exists. See Richmond, Fredericksburg & Poto-
          mac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.
          1991). When a defendant challenges subject matter jurisdic-
          tion pursuant to Rule 12(b)(1), "the district court is to regard
          the pleadings as mere evidence on the issue, and may con-
          sider evidence outside the pleadings without converting the
          proceeding to one for summary judgment." Id. The district
          court should grant the Rule 12(b)(1) motion to dismiss "only
          if the material jurisdictional facts are not in dispute and the
          moving party is entitled to prevail as a matter of law." Id.

                     4
          A district court's dismissal of a case for lack of subject mat-
          ter jurisdiction pursuant to Rule 12(b)(1) is subject to de
          novo review.

Evans, 166 F.3d at 647.

In summary, we find no merit to plaintiff's contention that the dis-
trict court improperly utilized Rule 12(b)(1) to dismiss his action.
There is no dispute as to the underlying jurisdictional facts, only as
to whether Maryland law or Virginia law should decide the question
of whether Banks, when he was injured, was acting as a statutory
employee of Virginia Power. Accordingly, we now turn to this ulti-
mate question.

B.

1.

Although a resident of Delaware and primarily employed in the
state of Maryland, Banks was injured in the Commonwealth of Vir-
ginia. The Maryland district court, applying Virginia law, dismissed
Banks' action against Virginia Power because in the Commonwealth
of Virginia, an employee's exclusive remedy against his employer for
an on-the-job injury is one for workers' compensation benefits:

          The rights and remedies herein granted to an employee
          when his employer and he have accepted the provisions of
          this title respectively to pay and accept compensation on
          account of injury or death by accident shall exclude all other
          rights and remedies of such employee, his personal repre-
          sentative, parents, dependents or next of kin, at common law
          or otherwise, on account of such injury, loss of service or
          death.

Va. Code Ann. § 65.2-307(A) (emphasis added).

The benefits of this exclusive remedy provision also run to an
employee's "statutory employer," who, under certain circumstances,
may be held liable for workers' compensation benefits under Virginia
law:

                    5
          When any person (referred to in this section as"owner")
          undertakes to perform or execute any work which is a part
          of his trade, business or occupation and contracts with any
          other person (referred to in this section as "subcontractor")
          for the execution or performance by or under such subcon-
          tractor of the whole or any part of the work undertaken by
          such owner, the owner shall be liable to pay to any worker
          employed in the work any compensation under this title
          which he would have been liable to pay if the worker had
          been immediately employed by him.

Va. Code Ann. § 65.2-302(A) (Michie Supp. 1999). In return for this
potential liability, the exclusive remedy provisions of § 65.2-307
extend to the statutory employer, regardless of whether the immediate
employer can pay or has paid workers' compensation benefits to the
employee. See Sykes v. Stone & Webster Eng'g Co. , 41 S.E.2d 469
(Va. 1947).

If Virginia law is applicable to Banks' action, Banks' was the statu-
tory employee of Virginia Power at the time of his accident and,
therefore, his action against Virginia Power would indeed be barred
by the exclusive remedy provision of the Virginia Workers' Compen-
sation Act. Thus, we turn to Banks' contention that Maryland law,
instead of Virginia law, governs resolution of his status in this regard.
If so, Banks asserts, Maryland law would not bar his claims.

2.

"[A] federal court sitting in diversity jurisdiction must apply the
choice-of-law rules of the forum state." Motor Club of Am. Ins. Co.
v. Hanifi, 145 F.3d 170, 177 (4th Cir.), cert. denied, 119 S.Ct. 509
(1998). As a general rule, Maryland follows the rule of lex loci delicti.
See Hauch v. Connor, 453 A.2d 1207, 1210 (Md. 1983). In Hauch,
however, the Maryland Court of Appeals carved out a narrow excep-
tion to this traditional rule in cases where an employee brings suit
against his co-employee for injuries sustained in another jurisdiction.

Specifically, Hauch involved a tort action brought by a Maryland
resident against his co-employee, also a Maryland resident, for an
accident which happened to occur during a trip into Delaware. Under

                     6
the workers' compensation laws of Delaware, such a suit between co-
employees was barred, while Maryland law would permit it. Noting
the "distinct policy questions" presented by such cases, the Maryland
Court of Appeals rejected application of the traditional rule of lex loci
delicti in favor of a "greater interest" test and, after determining that
Maryland had the greater interest in the case before it, allowed the
suit to proceed. Id. at 1214.

This case does not involve a co-employee suit. However, Hauch is
instructive by virtue of the distinction the Maryland Court of Appeals
drew between co-employee lawsuits and lawsuits, such as the one
before us, which are brought by an employee against a statutory
employer:

          Suits by employees against their immediate employers for
          injuries arising out of and in the course of employment are
          now barred by virtually all workmen's compensation stat-
          utes in this country. Nevertheless, "because of the varying
          rules as to the availability of the exclusive-remedy defense
          to the statutory employer," choice of law issues arise with
          respect to suits against statutory employers. In these suits,
          it is generally held that the forum state will enforce a bar
          created by the exclusive remedy statute of any state in which
          the employer may be liable for workmen's compensation
          benefits.

Id. at 1211 (internal citation omitted) (emphasis added). Having rec-
ognized this virtually unanimous rule, and noting no exception to it,
the court went on to recognize the policy considerations which war-
rant the distinction:

          Although the outcome in some of these cases is the same as
          it would be if the rule of lex loci delicti were applied, the
          underlying rationale in holding the employer immune is dif-
          ferent. The rationale is that the employer has undertaken the
          burden of supplying workmen's compensation insurance in
          return for immunity from suit. . . . The rationale for preclud-
          ing employee-employer suits, however, does not apply in
          actions by employees against fellow employees.

                     7
Id. at 1211-12 (internal citations omitted) (emphasis added). Simply
stated, the Maryland court recognized that policy counsels in favor of
according statutory employers the benefit of the jurisdictional bar in
suits against them because, unlike in the case of co-employees, the
statutory employer is also subject to the burden of liability for work-
ers' compensation benefits to the injured employee in the other
jurisdiction.1

The language in Hauch seems clear to us, and its rationale is sound.
Under Maryland choice-of-law principles, a tort action by an
employee against his co-employee for injuries occurring during the
employment may not be barred pursuant to another jurisdiction's
workers' compensation laws if Maryland has a greater interest in the
lawsuit.2 But a suit by a statutory employee against a statutory
employer will be barred pursuant to another jurisdiction's workers'
compensation laws if the statutory employer could also be held liable
for workers' compensation benefits to the employee in the other juris-
diction. Accordingly, we agree with the district court's conclusion
that Maryland state courts would enforce Virginia's exclusive remedy
bar in this case.
_________________________________________________________________
1 Banks has offered an alternative argument that Hauch's rationale for
distinguishing statutory employer suits from co-employee suits is not
applicable in this case because Virginia Power did not procure "workers'
compensation insurance" and, instead, is self-insured. Obviously, this
proffered distinction is meaningless. Under the Virginia Workers' Com-
pensation Act, an employer is required to insure his liability either
through self-insurance, achieved by meeting the solvency and other
requirements necessary to obtain certification to self-insure from the Vir-
ginia Workers' Compensation Commission, or through"an insurer
authorized to transact the business of workers' compensation insurance
in th[e] Commonwealth." Va. Code Ann. § 65.2-801(A) (Michie Supp.
1999). Because a statutory employer has a duty to insure the payment of
workers' compensation, either through commercial insurance or self-
insurance, he is immune from a suit in tort.

2 Banks reliance upon the later cases of Bishop v. Twiford, 562 A.2d
1238 (Md. 1989), and Powell v. Erb, 709 A.2d 1294 (Md. 1998), adds
nothing to his argument. Both were similarly concerned solely with suits
between co-employees, not suits against statutory employers.

                    8
In so holding, we obviously disagree with the assertion that the
general rule of applying another state's jurisdictional bar has no appli-
cation simply because the statutory employer has contractually
required the subcontractor to obtain and maintain its own workers
compensation policy. First, it is unlikely that a statutory employer
could ever shift the entire risk of liability to a subcontractor, which
can become insolvent and/or uninsured at any time. And just as the
actual payment of workers' compensation benefits is not a condition
precedent to a statutory employer gaining the benefit of an exclusive
remedy provision, attempts on the part of a statutory employer to
reduce its risk as a means of escaping workers' compensation liability
have been rejected. See Commercial Union Ins. Co. v. Harleysville
Mut. Ins. Co., 675 A.2d 1059, 1067 (Md. Ct. Spec. App. 1996).

In Commercial Union, the Maryland court, presented with a simi-
lar, albeit "flip-side," claim, rejected a principal contractor's assertion
that it was entitled to escape workers' compensation liability to an
injured subcontractor's employee because the principal contractor had
requested a certificate of insurance from the subcontractor showing
that the subcontractor had obtained a workers' compensation insur-
ance policy. The subcontractor had obtained workers' compensation
insurance, but limited it to coverage within Virginia, and the accident
occurred on a work site in Maryland. The court, while "empathiz[ing]
with the plight of [the] general contractor in this situation," held that
the insurer for the statutory employer was nonetheless liable for work-
ers' compensation benefits, noting that "we need not detain ourselves
long in resolving this question because neither the language of the
statute itself, nor caselaw interpreting it, creates an escape hatch based
upon commercially reasonable behavior by a statutory employer." Id.
at 1067; see also Para v. Richards Group of Washington Ltd.
Partnership, 661 A.2d 737, 746-47 (Md. 1995) (holding statutory
employer, who had contractually required subcontractor to maintain
workers' compensation insurance covering its own employees and
naming the statutory employer as an insured, immune from suit under
Maryland workers' compensation laws); Cogley v. Schnaper & Koren
Constr., 286 A.2d 819, 824-25 (Md. Ct. Spec. App. 1972) ("We think
the legislative purpose in enacting [the statutory employer provision
of the Workmen's Compensation Act] was to further the benevolent
concept of Workmen's Compensation and to achieve that result by
providing an incentive to the principal contractor to see that his sub-

                     9
contractors carry Workmen's Compensation insurance upon their
employees."). Accordingly, we fail to see how VEPCO's attempts to
ensure that its subcontractors carried workers' compensation insur-
ance would either insulate it from potential workers' compensation
liability or deprive it of the benefit of the exclusive remedy bar.

C.

Banks' final assertion that the district court erred in concluding that
Virginia Power was his statutory employer is based exclusively upon
his contention that he is not such an employee under Maryland's
workers' compensation laws. Banks has not appealed, and does not
argue, that Virginia Power would not be his statutory employer under
Virginia workers' compensation laws.3 Because Virginia law governs
the issue, the district court did not err in dismissing Banks' tort action
under Rule 12(b)(1) for lack of subject matter jurisdiction.

III.

For the foregoing reasons, the decision of the district court is
affirmed.

AFFIRMED.

KING, Circuit Judge, dissenting:

I disagree with the determination that Maryland's choice-of-law
principles would result in the application of Virginia law to this case,
and I would therefore reverse the district court's judgment. Alterna-
tively, the question merits certification to the Court of Appeals of
Maryland. For these reasons, I respectfully dissent.
_________________________________________________________________

3 It appears that Banks asserted before the district court that he was not
a statutory employee under Virginia law because his injury was the result
of intentional conduct and, thereby, excepted from the exclusive remedy
provisions of the Virginia act. Banks has not pursued this claim on
appeal.

                     10
I.

While Mr. Banks was working for Asplundh on Virginia Power's
(VEPCO's) downed power lines, VEPCO energized the lines, electro-
cuting him twice. Mr. Banks was severely injured and, during his sev-
eral hospitalizations, endured multiple surgeries, skin grafts, and
amputation. My conclusion is that, applying Maryland law, Maryland
has the "greater interest" in this action; consequently, Maryland work-
ers' compensation law applies. As a result, VEPCO is a third-party
tortfeasor rather than a statutory employer, and Mr. Banks may main-
tain his action against VEPCO.

Under Maryland's workers' compensation law, the"threshold
question" of Mr. Banks's right to maintain this personal injury action
against VEPCO must be resolved by Maryland's "greater interests"
test, before looking to any state's definition of a"statutory employer."1
Hauch v. Conner, 453 A.2d 1207, 1214 (Md. 1983). This test permits
courts to implement the "extremely important" public policy of the
forum state, i.e., Maryland. Id. The Court of Appeals of Maryland has
explained the logic of its Hauch decision as follows:

          [T]his Court was concerned with the determination of the
          rights of litigants under the different workers' compensation
          laws of two states. We resolved the issue by looking to the
          public policy of the forum state [Maryland] and weighing its
          interest against that of the state in which the wrongful act
          occurred.

Powell v. Erb, 709 A.2d 1294, 1299 (Md. 1998) (expanding the
"greater interests" test to encompass wrongful death actions, notwith-
standing a Maryland statute directing application of the substantive
law of another state, if the death occurs outside of Maryland).
_________________________________________________________________
1 Workers' compensation law governs whether an employee may main-
tain a personal injury action based on injuries arising within the scope of
his employment. States' rules vary with regard to the scope of the
exclusive-remedy defense, thus raising workers' compensation choice-
of-law issues, as in this case. See, e.g., Hauch v. Conner, 453 A.2d 1207,
1211 (Md. 1983). Because Maryland is the forum state for this diversity
action, we must look to Maryland choice-of-law principles.

                     11
In Hauch, where an employee brought an action in Maryland for
an employment-related injury that occurred in another state, the court
applied the "greater interests" test by analyzing public policy ratio-
nales supporting the general workers' compensation exclusive-
remedy rule. Id. at 1211 & n.3 (citing cases). The Hauch court noted
that judicial decisionmakers rarely view competing public policies in
the abstract, but instead examine those policies within the context of
the specific facts confronting them; blanket application of a general
rule should be avoided. See id. The court concluded that the reasons
for barring employee suits against employers did not support such a
bar under the circumstances in Hauch, a suit by an employee against
a co-employee. Id.

The Court of Appeals in Hauch discussed-- in dicta -- the general
rule in actions by an employee against his employer, that the forum
state will usually enforce a bar created by the exclusive-remedy stat-
ute of any state in which the employer may be liable for workers'
compensation benefits. Id. This general rule relies on a shared burden
rationale, that is, where the employer has shared the burden by insur-
ing its employees against workplace injury, it receives immunity from
suit.2 Id. However, application of the shared burden rationale support-
ing employer immunity does not dictate the result of this case, just as
it did not dictate the result in Hauch.

Like the plaintiffs in Hauch, Mr. Banks's regular place of employ-
ment is Maryland; he was sent by his employer to Virginia in 1996
on a short-term, emergency basis after Hurricane Fran struck the
Commonwealth. Asplundh is a Maryland-based employer, and
VEPCO is licensed and does business in Maryland. Like the plaintiffs
in Hauch, Mr. Banks claimed and received benefits under the Mary-
land Workers' Compensation Act. Further, VEPCO had contractually
shifted the entire risk of workers' compensation claims to Asplundh,
requiring it to fully insure its employees. Also, by agreement with
VEPCO, Asplundh was required to secure an endorsement to its
workers' compensation insurance policy providing that the policy
_________________________________________________________________
2 Indeed, in most states, employers who do not fulfill their insurance
obligations are not immune from suit. See, e.g., Md. Code § 9-509(b)
(employee may bring an action for damages where employer fails to
secure workers' compensation insurance).

                    12
could not be cancelled, non-renewed, or materially changed by
Asplundh without a thirty-day prior written notice to VEPCO. Thus,
on the facts here, VEPCO could not be held responsible to Mr. Banks
on a workers' compensation claim.

Because VEPCO did not in fact share the risks of Mr. Banks's
injury, the shared burden rationale supporting the general rule of
employer immunity does not apply.3 Thus, under the Hauch "greater
interests" test, Maryland's public policy governs here, and it requires
application of Maryland law rather than Virginia law. Under Mary-
land law, VEPCO is not Mr. Banks's "statutory employer;" instead,
VEPCO is merely a third-party tortfeasor. See Md. Code § 9-508
(defining "statutory employer"); Matthews v. United States, 825 F.2d
35, 37 (4th Cir. 1987). In these circumstances, I am convinced that
Maryland would recognize that Mr. Banks has the right to maintain
this action against VEPCO.

As I observed earlier, the majority grounds its analysis of Maryland
law on dicta found in the Hauch decision, that:

        [I]t is generally held that the forum state will enforce a bar
        created by the exclusive remedy statute of any state in which
        the employer may be liable for workmen's compensation
        benefits.
_________________________________________________________________

3 The majority relies on inapposite Maryland authorities to suggest that,
under Virginia law, VEPCO did not contractually shift the entire risk of
workers' compensation liability to Asplundh. See ante at 8-9. In fact,
Asplundh (and not VEPCO) was responsible for Mr. Banks's workers'
compensation benefits. Further, in the Maryland authorities relied on by
the majority, the principal contractors were "statutory employers" under
Maryland law -- unlike VEPCO here -- and were therefore liable for
Maryland workers' compensation benefits. See cases cited ante at 8-9.

In any event, the question is whether the Maryland courts would find
that VEPCO bore sufficient risk to justify a conclusion that Virginia has
"greater interests" than Maryland in this action. The majority provides no
authority contrary to my view that Maryland has the"greater interests"
here, and that its courts would permit Banks to pursue a judicial remedy
against VEPCO.

                    13
Hauch, 453 A.2d at 1211 (citing Larson, Workmen's Compensation
Law, § 88.10 at 16-132 (1982)). The majority decision would elevate
the Hauch dicta to the high status accorded a rule of law, and it would
inflexibly apply that rule to the facts here. To do so is incorrect, in
my view, because the only applicable rule of law to be drawn from
Hauch is the "greater interests" test. Applied here, the "greater inter-
ests" test requires that we reinstate Mr. Banks's action.

II.

In the alternative, I would certify the question to the Court of
Appeals of Maryland, seeking its determination of whether the
"greater interests" test applies to the circumstances here. See, e.g.,
Flannery v. United States, 649 F.2d 270 (4th Cir. 1981) (certifying
question to the Supreme Court of Appeals of West Virginia, where
the state court decisions recognized a right but offered no guidance
on the resolution as applied to the facts before the court); Md. Code
§§ 12-601 through 12-613 (authority and procedures for certifying
questions to the Maryland courts).

III.

For the reasons stated above, I would reverse and remand, or in the
alternative, certify the question to the Court of Appeals of Maryland.
I respectfully dissent.

                    14
