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Virginia workplace shooting lawsuits shine light on comp exclusivity


A lawsuit filed in Virginia following a work-related shooting at a Walmart has gotten past a workers compensation exclusive remedy defense, and experts say the case shows the changing legal landscape regarding workplace violence.

A Virginia judge ruled Nov. 15 that Briana Tyler, a store employee present during a shooting at a Walmart in Chesapeake in November 2022, can move forward with her $50 million lawsuit alleging she was specifically targeted in the shooting. Ms. Tyler was not physically injured, as the assailant shot at her but missed.

The decision followed a similar ruling in another Virginia lawsuit involving a former elementary school teacher who was shot in a classroom by a 6-year-old student, who she alleges had a history of violence and reportedly told other students he had a gun in school on the day of the shooting. 

A judge on Nov. 3 allowed that $40 million suit to proceed despite the exclusive remedy defense argued by the Newport News Public School District, which is accused of ignoring concerns regarding the student.

Both cases are rare examples of lawsuits proceeding in cases typically governed by Virginia’s strong workers comp exclusivity provisions, experts say.

J.H. (Rip) Verkerke, a professor at the University of Virginia School of Law in Charlottesville, said the state’s workers comp statute generally only allows a plaintiff to get past exclusivity if the injury stems from a sexual assault or sexual harassment, although there’s a longstanding doctrine permitting a tort suit if any assault is personal in nature.

“I was frankly a little surprised to see the judge rule that that particular assault was personal in nature,” Mr. Verkerke said of the classroom case.

The former teacher, Abigail Zwerner, was performing employment duties at the time she was shot, and it didn’t appear she and the child had any personal connection outside of the teacher-student relationship, he said. School board attorneys raised the same arguments.

In the Walmart case, Ms. Tyler’s lawyers argued the shooting was personal in nature, but Walmart disagreed, saying the fact that multiple victims were targeted in the mass shooting proves the matter should remain in workers comp.

“The grand bargain of workers comp contemplated industrial accidents and accidental injuries,” Mr. Verkerke said. “Violent assaults I don’t think were originally contemplated to be part of that.”

Some attorneys say claimants may have better success through workers comp than through litigation.

If the classroom case goes to trial and Ms. Zwerner loses, she stands to recover nothing, and even if she wins damages she would have to wait until the end of the legal proceedings to recover funds, said Anne Lahren, an attorney with Virginia Beach, Virginia-based law firm Pender & Coward P.C., which represents the Newport News School Board.

In comp, Ms. Zwerner would immediately be able to be paid for medical treatment, she said.

Virginia also provides injured workers up to 500 weeks of wage replacement, plus lifetime medical benefits, said Richard Matthews, a senior litigation partner with Pender & Coward who is also involved with defending the school board.

“That is a substantial benefit,” he said.

The school board attorneys are appealing the judge’s ruling in Ms. Zwerner’s case, reiterating their argument that the case belongs in workers comp. 

In a court filing, they wrote that the school board believes Ms. Zwerner is “entitled to receive workers compensation benefits for her workplace injury that undisputedly occurred during the course of her employment and do not want to see Plaintiff left with nothing at all if no action is taken until after the scheduled trial in January 2025.”

Furthermore, if Ms. Zwerner loses her lawsuit and then decides to petition for workers comp, it would be too late because her comp claim would be “forever barred” due to a statute of limitations, the attorneys wrote.