Va. SC: Asbestos victim's estate can sue shipbuilder

By Nathan Bass | Nov 8, 2012

RICHMOND, Va. (Legal Newsline) - The Virginia Supreme Court has found that the estate of a man who had been exposed to asbestos in a private shipbuilding company while he served in the Navy was not barred by the Virginia Workers' Compensation Act from filing suit against the shipbuilder.

In mid-1965, Navy seaman Kenneth Gibbs was ordered to be part of the USS Lewis and Clark's pre-commissioning crew. His job was to test systems on the nuclear submarine during the six months prior to its delivery to the Navy.

In 2008, Gibbs filed suit against the shipbuilder, Newport News Shipbuilding and Drydock Company, alleging that while performing his Navy duties on the sub, he had been exposed to asbestos, causing his development of malignant mesothelioma.

Upon Gibbs' death in January 2009, his widow, Dorthe Crisp Gibbs, amended the complaint to a claim for "wrongful death" under a statute other than the Workers' Comp Act.

The shipyard answered the amended complaint by asserting that the Workers' Comp Act provided the estate's "exclusive remedy." They argued that since this action came within the purview of the Act, then an award under the Act would have been his estate's exclusive remedy and, therefore, this action is barred.

The exclusivity provision of the Act provides:

"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 representative, parents, dependents or next of kin, at common law or otherwise, on account of such injury, loss of service or death."

The trial court sustained the defense plea and dismissed the case with prejudice, prompting an appeal to the Supreme Court.

Supreme Court Justice Charles S. Russell, writing for the Court, declared, "The Shipyard contends that the Navy was the Shipyard's statutory employer, that Gibbs was the Navy's employee, and that Gibbs and the Shipyard were therefore statutory co-employees between whom the exclusivity provision applies... We do not agree with that analysis."

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