Employers which Fail to Insure under the Virginia Act are Liable in Tort, as in Other States — But Must The Injured Worker Plead and Prove Negligence?

            As is the case under most workers' compensation acts, a Virginia employer which fails to insure is subject to being sued at common law.  The Virginia employer is, in such suits, unable to raise the common law defenses of fellow servant rule, assumption of the risk, and contributory negligence.  This scheme is also common among states.  

            However, because of an oddity in the Virginia law’s language – and because of certain language in a state supreme court case – a fundamental ambiguity exists in interpretation of the law. In this regard, lawyerly thinking is not unanimous that, in such suits against the uninsured employer, the plaintiff must actually plead that the employer was negligent.  One school of thought in Virginia has apparently posited that the uninsured employer is strictly liable.

            The author of a new, well-crafted article, methodically dismantles that thinking and argues that the plaintiff in such cases must, indeed, plead negligence.   See D. Paul Holdsworth, Analyzing the Virginia Workers’ Compensation Act’s Governance of Employer Non-Compliance, 51 University of Richmond Law Review 193 (2016).

            The author acknowledges that the law does not come out and say so, but he insists that familiar rules of statutory construction compel the conclusion that negligence must be asserted.  For one thing, why list the defenses which are not available, if the employer is strictly liable in the first place? 

            The author also undertakes a multi-jurisdictional examination of states where the precise issue has reached the high courts of other states.  At least under the author’s recounting, all states require a showing of negligence.  Indeed, if any state has concluded that strict liability is the rule in this familiar situation, the author does not report on the same. 

            Of special intrigue is the fact that the Virginia Act was patterned on that of Indiana, and it turns out that the difficult proviso in question has in fact been interpreted in Indiana to require negligence.  The author points out that Virginia courts have long held that “‘judicial construction placed on the [Indiana] Act … will be considered to have been adopted along with the act in this State.’ … Accordingly, the supreme court has consistently reiterated that ‘because the Virginia Act is based upon that of Indiana,’ Indiana decisions construing its workers’ compensation legislation are ‘peculiarly applicable’ to Virginia courts.”  This point seems to be a powerful one supporting the author’s advocacy.   

            As for Pennsylvania (my state):  This writer has always taken for granted that, under the Pennsylvania law and practice, the plaintiff would have to prove negligence in uninsured employer cases. The obscure, but current, provisos of Article II of the Act, which set the rules for civil actions against uninsureds, bear out that view.  These provisos do not purport to set forth the elements of a negligence cause of action, but that is presumably because the common law action in general survives in this context and is defined in the cases.  What the law does do, at Section 202, is to make clear that, in these types of cases, the fellow servant rule is not applicable, and the employer “shall be liable for the negligence of all employes ….”  77 P.S. § 51.  If the employer is vicariously liable for negligence, this fact presupposes that the plaintiff must prove negligence. 

            It is thus submitted that the ambiguity with which the Virginians have struggled is not present in our law.