2008 VT 45


Chayer
v. Ethan Allen, Inc. (2006-124)
 
2008 VT 45
 
[Filed 11-Apr-2008]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports. 
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109
  State Street, Montpelier, Vermont05609-0801
of any errors in order that corrections may be made before this opinion goes to
press.

 
 

2008 VT 45

 

No. 2006-124

 

Rodney Chayer


Supreme Court


 


 


 


On Appeal from


     v.


Orange Superior Court


 


 


 


 


Ethan Allen, Inc., Travelers


September Term, 2007


Insurance Company, et al.


 


 
 


 


Mary
  Miles Teachout, J.


 


Duncan Frey Kilmartin of Rexford & Kilmartin,
  Newport, for
  Plaintiff-Appellant.
 
Carrie J. Legus
  of Legus and Bisson, PLC,
  Montpelier
  for Defendants-Appellees.

 
 
PRESENT:  Reiber, C.J.,
Dooley, Johnson, Skoglund and Burgess, JJ.
 
 
¶ 1.            
REIBER, C.J.   Plaintiff Rodney Chayer
appeals from the trial court’s grant of defendants’ motion to dismiss his claim
for civil damages arising out of a workplace accident for which he had
previously received workers’ compensation benefits.  We affirm.
¶ 2.            
In 1996, plaintiff was employed at the Ethan Allen furniture
manufacturing plant in Orleans,
 Vermont.  As part of his
employment, he operated a double-end tenoning
machine.  The machine includes a moving “table”—essentially a conveyor
belt—on which wooden workpieces rest as they move
toward the machine’s saw blades.  The workpieces are held in place from above by rubber pads that
descend automatically.  Plaintiff inadvertently placed his hand on the
belt while cleaning up some debris near the machine.  His hand was caught
in a “pinch point” and was drawn into and amputated by the blades.  His
attempt to flip the machine’s shutoff switch was to no avail. 
¶ 3.            
Plaintiff’s injury was compensable under the workers’ compensation law,
21 V.S.A. §§ 601-711, and plaintiff has received ongoing compensation under the
provisions thereof.  In addition to his workers’ compensation recovery,
plaintiff sought civil damages against Ethan Allen, Inc., twelve named
co-employees, Travelers Insurance Company, and the “Employer/Employee/Insurance
Safety Committee of Ethan Allen, Inc.”  The civil complaint alleged
that at least three of the named co-employees were members of the committee,
along with Ethan Allen and Travelers.  In Count I, plaintiff sought a
multi-faceted declaratory judgment which, among other things, plaintiff hoped
would construe all of the subsections of § 624, including subsection (h).
 That subsection, read literally and in isolation, would appear to allow
damage claims against such a committee “in the case of gross negligence or
willful misconduct.”  In Count II, labeled “Tort Action Against
Co-Employees,” plaintiff alleged that all of the defendants, including his
co-employees, “by their malicious, willful, intentional, knowing, reckless,
grossly negligent, and negligent failure to fulfill their duties to
[plaintiff], caused the amputation of his right hand above the wrist, and the
consequent damages and injuries which he has received.”  Count III
was titled “Liability for Conducting Work Place Inspections — 21 V.S.A. §
624(h).”  In this count, plaintiff alleged that the committee and
its members had a duty to conduct workplace inspections, to ensure compliance
with state and federal workplace-safety regulations, and to pursue remedial
safety measures when appropriate.  Count III further alleged that
defendants “maliciously, willfully, knowingly, intentionally, recklessly,
grossly negligently, and negligently failed to make the [double-end tenoning] machine safe for the use for which it was
supplied, while knowing in detail” what measures they could have taken to
prevent harm to plaintiff.  Next, in Count IV, plaintiff generally realleged the assertions in Count III with specific
reference to the co-employee members of the safety committee.  Finally,
plaintiff alleged in Count V that defendants had intentionally inflicted
emotional distress on him by failing to take the remedial measures detailed above.
¶ 4.            
All defendants except Travelers responded to the complaint with a motion
to dismiss, claiming that the complaint failed to state a claim upon which
relief could be granted.  V.R.C.P. 12(b)(6). 
Defendants asserted generally that workers’ compensation benefits were
plaintiff’s exclusive remedy.  More specifically, defendants claimed that
plaintiff had failed to allege that any defendant had breached any duty other
than the employer’s non-delegable duty to provide a safe workplace, and that
this breach of that duty was not actionable in tort due to the exclusive-remedy
provisions of the workers’ compensation law.  The superior court
agreed and granted defendants’ motion.
¶ 5.            
On this appeal, plaintiff raises three arguments.  First, he
contends that 21 V.S.A. § 624(h) authorizes a tort action against an
“employer–employee safety committee” when the committee engages in gross
negligence or willful misconduct.[1] 
Second, he contends that his complaint stated a claim upon which relief may be
granted under that standard, and therefore should have survived defendants’
motion to dismiss.  Third, plaintiff argues that he has stated a claim
against co-employees for negligence, even if we conclude that § 624(h) does not
provide a “third party” avenue for relief.  We consider the claims in
turn.
I.
¶ 6.            
We will affirm the trial court’s grant of a motion to dismiss only when there
are no facts or circumstances alleged in the complaint that would entitle the
non-moving party to relief.  Amy’s Enters.
v. Sorrell, 174 Vt.
623, 623, 817 A.2d 612, 615 (2002).  For purposes of evaluating the
motion, we take the following facts—and all reasonable inferences to be drawn
from them—as true.  See Faulkner v. CaledoniaCounty Fair Ass’n,
2004 VT 123, ¶ 5, 178 Vt.
51, 869 A.2d 103.   
¶ 7.            
Defendant Ethan Allen, Inc. was plaintiff’s employer at the time of the
accident.  Prior to the accident, Ethan Allen had an employer–employee
safety committee as that term is used in 21 V.S.A. § 624(h).  The
Ethan Allen defendants were present at a meeting at which the machine that
amputated plaintiff’s hand was characterized by plaintiff and others as
inherently dangerous and inadequately protected by safety devices, in
particular by brakes and guards.  The operation switches, including
the shutoff switch, were located in such a way as to pose a danger.  One
defendant had found, months before the accident, that when the machine’s
shutoff switch was tripped the saw blades took more than two minutes to come to
a complete stop.  This defendant informed several other defendants of this
finding, but none took any action in response.  In the six months
preceding the accident, employees other than plaintiff provided written
complaints to defendants about the dangers posed by the tenoning
machine.  None were acted on.  Two weeks before the amputation,
plaintiff and a co-worker delivered a written work order requesting new brakes
for the machine to the maintenance department.  Again, no action was
taken.
¶ 8.            
Based on these alleged facts, plaintiff claimed that defendants had all
breached the following duties owed to plaintiff:
A.               
The duty to provide a safe work place;
B.                
The duty to provide adequate safety devices on the
machine on which [plaintiff] was injured;
C.                
The duty to maintain the machine and its safety devices, so that the
machine was safe for operation;
D.               
The duty to timely inspect the machine for its safety hazards and
defects, and to eliminate those hazards and correct those defects, which caused
or contributed to its defective and unsafe condition on September 9, 1996;
E.                
The duty to fill or cause to be filled outstanding requests by Plaintiff
and other co-employees that proper safety devices be installed, that already
existing safety devices that had failed be repaired and consistently
maintained;
F.                 
That State and Federal regulations and laws concerning the safety of
work places and the machine in question be consistently observed and
followed[;]
G.               
To ensure that the double end [tenoning]
machine on which [plaintiff] was working, was not defective, dangerous,
unguarded, unbraked and unsafe[;]
H.               
To regularly inspect and take remedial action in order to prevent the
machine from becoming unreasonably unsafe, defective, dangerous, unbraked, unguarded and maintained in such a manner as to
become dangerous[;]
I.                  
To determine if the machine, which amputated [plaintiff’s] right wrist
and hand, would endanger him by its probable use in the manner for which it was
intended to be used, and upon said determination, to exercise immediate and
reasonable care and to take all necessary steps to make the machine safe for
the use for which it was supplied to [plaintiff], or in the alternative,
prevent its use by [plaintiff] until it was placed in a safe condition for
use[;]
J.                  
To have competent engineers and other persons trained in safety and
human engineering, for the purpose of inspecting [the] machine on which
[plaintiff] was injured, and engineering and design appropriate safety devices
in order to make the machine safe for its intended use.
 
¶ 9.            
On appeal, plaintiff first contends that 21 V.S.A. § 624(h), as amended
in 1994, authorizes a third-party action by an injured employee against an
employer–employee safety committee when the committee engages in gross
negligence or willful misconduct that proximately causes injury to the
employee.  The construction of the statute presents a question of law,
which we review de novo.  In re Dep’t of Bldgs. & Gen. Servs.,
2003 VT 92, ¶ 8, 176 Vt.
41, 838 A.2d 78.
¶ 10.        
When interpreting statutes, we will generally apply the plain language
of the enactment except when the language itself is ambiguous.  Farris
v. Bryant Grinder Corp., 2005 VT 5, ¶ 8, 177 Vt. 456, 869 A.2d 131. 
However, where the plain language is unambiguous but would lead to an absurd
result that the Legislature cannot have intended, we will look beyond the
language of the statute to determine the Legislature’s intent.  See Judicial
Watch, Inc. v. State, 2005 VT 108, ¶ 16, 179 Vt. 214, 892 A.2d 191 (noting
that the absurd-results doctrine “permits an otherwise reasonable construction
when a plain reading of the statute ‘would produce a result demonstrably at
odds with any conceivable legislative purpose’ “ (quoting Taylor-Hurley v.
Mingo County Bd. of Educ., 551 S.E.2d 702, 710
(W. Va. 2001)).  
¶ 11.        
The conflict here arises between four statutory provisions in Title 21:
§ 622, subsections (a) and (h) of § 624, and § 223.  The first is the
exclusivity provision of the workers’ compensation law, which provides:
  Except as provided in subsection 618(b) and section
624 of this title, the rights and remedies granted by . . . this chapter to an
employee on account of a personal injury for which he is entitled to
compensation under . . . this chapter shall exclude all other rights and
remedies of the employee . . . .
 
21 V.S.A. § 622.  Section 622 thus bars civil recovery
for injuries compensable under the workers’ compensation laws except as
provided in § 618(b) and § 624.[2] 
Section 624 is central to our task here.  Subsection (a) of § 624 provides
as follows:
  Where the injury for which compensation is payable
under the provisions of this chapter was caused under circumstances creating a
legal liability to pay the resulting damages in some person other than the
employer, the acceptance of compensation benefits . . . shall not act as an
election of remedies, but the injured employee or the employee’s personal
representative may also proceed to enforce the liability of such third party
for damages in accordance with the provisions of this section.
 
Id. § 624(a)
(emphasis added).  Subsection (h) of § 624 provides
that:
  The injured employee or the employee’s personal representative
shall be prohibited from commencing a civil action to enforce liability against
the workers’ compensation insurance carrier for conducting workplace
inspections, or an employer-employee safety committee except in the case
of gross negligence or wilful misconduct. 
 
Id. § 624(h)
(emphasis added).  
¶ 12.        
Finally, 21 V.S.A. § 223(a) mandates that employers shall provide “a
place of employment . . . free from recognized hazards that are causing or are
likely to cause death or significant physical harm to . . . employees.” 
As we have repeatedly noted, this duty to provide a safe workplace is not
delegable.  See, e.g., Gerrish v. Savard, 169 Vt. 468,
473, 739 A.2d 1195, 1199 (1999) (“An employer in Vermont also has a nondelegable
duty to provide a safe work place and safe tools and equipment.”).  The
duty is nondelegable in the following sense: “ ’the employer cannot escape liability for breach
either by purporting to delegate to another the duty itself, or by delegating
merely the performance of the duty.’ “  Id. at 474, 739
A.2d at 1200 (quoting Rounds v. Standex
Int’l, 550 A.2d 98, 101-02 (N.H. 1988)).
¶ 13.        
The plain language of § 624(h) arguably allows injured employees who
have received workers’ compensation benefits also to proceed in tort against an
“employer–employee safety committee” when such a committee is either grossly
negligent or has committed willful misconduct.  This statutory language,
however, is in direct conflict with our prior holdings construing the bar to
recovery from employers.  But the statute nowhere defines
“employer–employee safety committee,” nor does it specify how such an entity
might be sued as a practical matter.  Central to this appeal is how §
624(h), if it allows suit “against the committee,” could also authorize suit
against the members of the committee, who in this case allegedly include the
employer and the named individual defendants.  Plaintiff contends that subsection (h)—by its plain language—authorizes such
suits.
¶ 14.        
If § 624(h) authorizes tort suits against employers via their safety
committees when those committees are grossly negligent or engage in willful
misconduct, it amounts to a serious recalibration of the balance struck in the
workers’ compensation act.  That balance, in general terms, is that “the
employee gives up the right to sue the employer in tort in return for which the
employer assumes strict liability and the obligation to provide a speedy and
certain remedy.”  Lorrain v. Ryan, 160 Vt. 202, 214, 628 A.2d
543, 551 (1993).  As we stated in Lorrain, “[t]he corollary
is that employees have a similar quid pro quo with each other: they give up the
right to sue each other” and in exchange receive the benefits provided by
workers’ compensation.  Id. 
Accordingly, as we noted in Garrity v.
Manning, under the workers’ compensation act “an injured employee who has
received workers’ compensation benefits may not bring a common-law negligence
action against the employer, but may bring such an action against any other
party.”  164 Vt.
507, 509, 671 A.2d 808, 809 (1996) (emphasis added).  
¶ 15.        
Under plaintiff’s construction of § 624(h), the Legislature would have,
without explicitly defining what an employer–employee safety committee is,
nonetheless treated it as a liable “other party” that is legally distinct from
the employer or co-employees it comprises.  Employers and co-employees are
not otherwise liable in tort for workplace injuries arising from the failure to
maintain a safe workplace, see Gerrish, 169 Vt. at 474, 739 A.2d at
1200, and plaintiff’s construction would therefore render the statute
internally inconsistent.  We are reluctant to construe the vague language
of subsection (h) as so curtailing the scope of the employer immunity upon
which the entire workers’ compensation scheme is premised.  
¶ 16.        
That plaintiff’s construction would have this effect is inherent in the
nature of an employer–employee safety committee, under any plausible definition
of the term.  Absent a statutory definition imbuing such committees with
an independent legal status, they are simply a subpart of the employer and they
comprise individuals: either employees or employers.[3]  Moreover, as their name implies,
such committees are presumably charged with performing the employer’s nondelegable duty to maintain a safe workplace.  
¶ 17.        
Plaintiff’s plain-language reading of subsection (h) would also create a
strong disincentive for employers considering establishing employer–employee
safety committees.  An employer without such a committee would be liable
in tort only for intentional misconduct, while an employer who established a
committee would be liable for gross negligence or willful misconduct.  See
Mead v. W. Slate, Inc., 2004 VT 11, ¶ 19, 176 Vt. 274, 848 A.2d 257. 
Indeed, in light of the lack of a statutory definition of “employer–employee
safety committee,” plaintiff’s construction of § 624(h) would discourage employers
from engaging in any conduct that might be construed as establishing—or even
implying the existence of—such a committee.  That disincentive is directly
contrary to the Legislature’s express imposition on employers of the nondelegable duty to maintain a safe workplace.  21 V.S.A. § 223(a).  We think it unlikely that the
Legislature intended, by a single clause in § 624(h), to so deeply undermine
the remedial goals of § 223 and the Workers’ Compensation Act.
¶ 18.        
Plaintiff next contends that the legislative history of the 1994
amendment to § 624(h) compels the conclusion that the Legislature intended
to “add a new cause of action, based upon gross negligence, against ‘an
employer–employee safety committee.’ “ (Emphasis
omitted.)  We do not agree.  Even assuming that any
legislative history would suffice to override the policy concerns reflected in
the Workers’ Compensation Act, the history plaintiff offers provides little
support for the conclusion he would have us draw.  Plaintiff’s argument,
as to § 624, amounts to a simple ipse dixit purportedly
based on the plain language of the enactment.  Noting that the proposed
version of subsection (h) mentions an entity, the “employer–employee safety
committee,” that is not elsewhere defined, plaintiff concludes that it is
indisputable from the language of the legislation that the Legislature intended
to create a “new ‘ambit of liability’ for the employer and fellow employees,
a/k/a ‘employer–employee safety committee.’ “  In
one fell swoop, according to plaintiff, the Legislature not only created a
wholly undefined new entity, but also delegated to it the very duty that the
Legislature has elsewhere explicitly imposed on the employer itself. 
Further, according to plaintiff, the committee—and any employer so foolhardy as to create one, or employee so rash as to
serve on one—will be rewarded for its pains by exposure to heightened
liability.[4] 
While we acknowledge that the language of subsection (h) makes this reading
superficially plausible, we do not believe that the Legislature intended to
change so much with so little.
¶ 19.        
Plaintiff’s reliance on post-1994 amendments also does not advance his
cause.  Plaintiff contends that the Legislature’s intent in subsection (h)
must be viewed in light of the Legislature’s later enactment of subsections (j)
and (k) in § 624.  He argues that, in passing subsections (j) and (k) of §
624 in 2004, the Legislature made clear that its intent in subsections (h),
(j), and (k) was to “incentivize” employers “to carry
out the responsibilities of ensuring workplace safety” by creating safety
committees.  See 2003, No. 132 (Adj. Sess.) § 15.   As noted above, however,
subsection (h), if construed as plaintiff would have it, would not provide any
incentive to employers to establish safety committees.  Quite the
opposite, it would create a disincentive by increasing employers’ exposure to
liability if they do create such committees.
¶ 20.        
Nor do the Derosia cases convince us to
adopt plaintiff’s construction.  In the most pertinent of the three, Derosia v. Duro Metal
Products Co. (Derosia I), we held
that “if a workers’ compensation carrier undertakes to provide, rather than pay
for, benefits and services, it should be liable in tort as ‘a person other than
the employer.’ “ 147 Vt. 410, 413, 519 A.2d 601, 604 (1986)
(quoting 21 V.S.A. § 624).  We noted, in support of this holding, that “it
is not of the essence of the compensation process that the carrier should step
out of its fundamental role as financial guarantor and payor
and go into the safety inspection service or medical clinic business
directly.”  Id.
(quotation omitted).   This interpretation, as we stated then, “gives
content to the phrase ‘so far as applicable’ [in § 601(3),] as it recognizes
that the insured and the insurer are to be treated as separate and distinct
entities under certain circumstances.”[5] 
Id. at
413-14, 519 A.2d at 604; see 21 V.S.A. § 601(3) (“If the employer is insured,
‘employer’ includes the employer’s insurer so far as applicable.”).  Put
another way, we held in Derosia I that
employers and insurers, though statutorily identical for most purposes, are not
treated the same in all circumstances under the dual-liability provisions of
the Workers’ Compensation Act.  Insurers undertaking workplace safety
inspections assume a personal duty apart from the employer’s nondelegable duty to maintain a safe workplace.
¶ 21.        
While it is plain from the language of subsection (h) that the
Legislature intended to narrow our holding in Derosia
I to allow tort suits against workers’ compensation insurers conducting
workplace inspections only when they commit gross negligence or willful
misconduct, the Derosia cases neither involved
employer–employee safety committees nor discussed the standards under which
such committees might be liable in tort for employee injuries.  Nor does
the logic of Derosia I compel the
conclusion that an employer–employee safety committee conducting workplace
inspections is a person “other than the employer” under 21 V.S.A. §
624(a).  To hold otherwise would be inconsistent with the long-standing,
unmodified provisions of the Workers’ Compensation Act.
¶ 22.        
For the foregoing reasons, we hold that plaintiff may not maintain an
action against an employer–employee safety committee or its employer and
employee members for gross negligence or willful misconduct.  We recognize
that this construction of the statute is contrary to its plain language, but absent
more explicit direction from the Legislature we cannot apply the plain meaning
of the statute without contravening other statutory provisions.  See supra,
¶ 9.  We do not lightly depart from the plain meaning of a legislative
enactment, but must do so in light of the conflict presented here.[6]
II.
¶ 23.        
Plaintiff’s final appeal issue is whether he stated a claim against
co-employees for their negligence, notwithstanding our holding that their
service on the committee does not expose them to any greater liability than
they would otherwise have.  Co-employees are not liable for breaching the
employer’s nondelegable duty to maintain a safe
workplace, “including suitable machinery and tools.”  Gerrish,
169 Vt. at 474, 739 A.2d at 1200; see also Garrity, 164 Vt.
at 510-11, 671 A.2d at 810.  For a co-employee to be considered “someone
other than the employer” and thereby liable under § 624(a), the co-employee
must not be involved in performing a nondelegable
duty of the employer and must not be exercising managerial prerogatives—because
both of these activities indicate that the individual is acting as an
employer.”  Gerrish, 169 Vt. at 474, 739 A.2d at 1200.
¶ 24.        
Here, plaintiff’s allegations, numerous though they are, allege nothing
beyond a breach of the employer’s nondelegable duty
to maintain a safe workplace.  Briefly summarized, plaintiff alleged that
the co-employee defendants breached the duties to (A) provide a safe workplace,
(B) provide adequate safety devices on the machine, (C) maintain the machine,
(D) timely inspect the machine and eliminate hazards relating to it, (E) comply
with requests by plaintiff and other employees to make the machine safe, (F)
observe and follow state and federal safety regulations and laws, (G) ensure
that the machine was “not defective, dangerous, unguarded, unbraked
and unsafe,” (H) inspect and repair the machine regularly to prevent it from
becoming unsafe, (I) determine if the machine was dangerous and, if such a determination
were reached, take steps either to make it safe or prevent its use, and (J)
retain competent engineers and others to inspect the machine and design safety
devices in order to render it safe.  See supra, ¶ 8, where the
allegations are reprinted in full.  
¶ 25.        
Allegations (B) through (J) allege nothing that is not fairly subsumed
within allegation (A): the duty to maintain a safe workplace.  That duty
inures to the employer alone, and cannot be delegated. The trial court properly
dismissed plaintiff’s claims against the co-employees.
Affirmed.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Chief
  Justice

 





[1] 
Plaintiff has abandoned on appeal his claim that any defendant engaged in intentional
misconduct, stating that “[t]his is not a case of the Defendants having a
specific purpose or desire to injure Rodney Chayer,
or knowing to a substantial certainty that their actions or inactions would
injure this particular Plaintiff.”


[2]
Section 618 allows civil suits against employers who fail to secure workers’ compensation
insurance or provide other security as required by § 687. That section is not
directly pertinent to this appeal, as there is no allegation that plaintiff’s
employer failed to secure workers’ compensation coverage.  Plaintiff
argues only that the fact that § 618 authorizes civil suits against employers
who fail to comply with § 687 militates in favor of construing § 624(h) as
authorizing civil suits against employer–employee safety committees.  We
find the argument conclusory and unconvincing.


[3] 
For purposes of the workers’ compensation act, a workers’ compensation insurer
is an “employer.”  21 V.S.A. § 601(3) (“If the employer is insured,
‘employer’ includes the employer’s insurer so far as applicable.”).


[4] 
We note also that plaintiff’s proposed “new ambit of liability” begs several
questions concerning how a “committee” might be held liable as a practical
matter.  Would members be individually liable? If so, would dissenting or abstaining members be liable for the
majority’s decisions?  Would a committee that might have no power to
control corporate spending nonetheless be liable for
failing to coax open the corporate purse-strings for particular safety
projects?  We think it unlikely that the Legislature intended to create
such an ill-defined new area of liability merely by mentioning the
“employer-employee safety committee” in § 624(h).


[5] 
The second two cases in the Derosia trilogy
are only peripherally pertinent to the present appeal.  See Derosia v. Book Press, Inc., 148 Vt. 217,
222, 531 A.2d 905, 909 (1987) (holding that “[t]he express language of § 624(a)
does not, as currently written, allow a loss of consortium claim by the spouse
of an injured employee against a third party”); Derosia
v. Liberty Mut. Ins. Co., 155 Vt. 178, 187, 583 A.2d 881, 886 (1990)
(holding that the evidence of insurance carrier’s undertaking to conduct safety
inspections was sufficient to support a jury verdict premised on negligent
inspections).  Neither case has an impact on our interpretation of the
statutes at issue here.


[6] 
Because we disagree with plaintiff’s construction of § 624(h), we do not reach
his second contention on appeal: that the complaint states a claim for which
relief can be granted based on the allegations of gross negligence or willful
misconduct.



