Virginia workers comp act no bar to Navy widow's wrongful death claim

A wrongful death claim filed by the widow of a U.S. Navy seaman exposed to asbestos is not barred by Virginia's workers compensation act, the Supreme Court of Virginia found in a 5-2 decision.

The ruling in Dorthe Crisp Gibbs v. Newport News Shipbuilding & Drydock Co. overturns a state circuit court's finding that Virginia's workers comp act provided Kenneth Gibb's estate an exclusive remedy and thus barred the wrongful death claim.

Mr. Gibbs was an active-duty member of the armed forces when he was injured, the court record shows. In 1965, he was ordered to be part of a nuclear submarine's pre-commission crew to test and inspect its electronic systems before Newport News completed its construction.

In 2008 he sued Newport News, alleging that he had been required to work while the shipyard installed asbestos products. The exposure to asbestos dust and fibers caused him to contract malignant mesothelioma, he alleged.

After his death in 2009, his widow qualified as his estate administrator and she sued for wrongful death.

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But the circuit court dismissed her case, agreeing with Newport News that workers comp was the estate's exclusive remedy. Newport News had argued that the Navy was the shipyard's statutory employer, making Newport News and Mr. Gibbs statutory co-employees “between whom the exclusivity provision applies.”

But the Supreme Court majority did not agree with that analysis.

It found on Nov. 1 that, because the Navy would not have been liable to pay compensation under Virginia's workers comp act, it was not Newport News' statutory employer. It also said that the state cannot subject the Navy to its workers comp act so Mr. Gibbs never acquired the right to seek compensation under the act.

It reversed the circuit court and remanded the case.

Virginia Supreme Court Justices Elizabeth A. McClanahan and William C. Mims, dissented, however. Among other conclusions, they argued that Mr. Gibbs was an employee when injured, and that he and Newport News were indeed statutory co-employees.