Demetres v. East West Construction, Inc.

Filing 28

OPINION AND ORDER that the 6 Defendant's Motion to Dismiss is GRANTED, and the case is DISMISSED for lack of subject matter jurisdiction in this federal court in the Eastern District of Virginia. Signed by Chief District Judge Rebecca Beach Smith and filed on 1/28/2014. (rsim, )

UNITED

STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

Norfolk Division

JAMES THOMAS DEMETRES,

Plaintiff,
CIVIL ACTION NO.

EAST WEST CONSTRUCTION,

2:13cvl55

INC.,

Defendant.

OPINION AND ORDER

This

Dismiss

matter

comes

("Motion")

before

and

the

court

accompanying

on

the

Memorandum

Motion

in

to

Support,

filed by the Defendant, East West Construction, Inc., pursuant
to

Federal

Therein,

Rule

the

of

Civil

Defendant

Procedure

alleges

12(b)(1).

that

this

ECF

No.

court

6.

lacks

jurisdiction over the dispute because the Plaintiff's claims
are

preempted

("VWCA").

For

by
the

the

reasons

the Defendant's Motion,

subject

matter

Virginia
set

Workers'

forth

below,

Compensation
the

court

Act

GRANTS

and the case is DISMISSED for lack of

jurisdiction

in

this

federal

court

in

the

Eastern District of Virginia.1

1 In so doing,

this court makes no decision on the subject

matter jurisdiction or merits of this matter in any other
state or federal court, namely in North Carolina, given that
North Carolina law appears to allow this suit. See infra

I.

This

suit

construction

FACTUAL AND

arises

site

in

March 28, 2011. Am.
discovery,
("SOF").

the

out

of

an

the

BACKGROUND

accident

City

of

Compl. 1 1. ECF No.

parties

ECF No.

PROCEDURAL

24.

filed

an

that

occurred

Virginia

on

Beach

a

on

4. After a period of

Agreed

Statement

The following facts,

of

Facts

which are relevant

to the jurisdictional analysis, are undisputed.
At

the time of

Demetres

the accident,

("Plaintiff"),

a

the Plaintiff,

citizen

of

North

James Thomas

Carolina,

was

an

employee of Ashland Construction Company ("Ashland"), a North

Carolina

corporation.

Am.

Compl.

11 1, 3;

SOF

11 1,

3.

Ashland,

a general contractor, assigned the Plaintiff "to work

as

superintendent

the

pharmacy"

for

in Virginia Beach.

East West Construction,
subcontractor

property

and

for

bulldozer,

extensive

Inc.

Am.

Compl.

Virginia

a

new

CVS

Ashland hired

a site and utility

corporation,

Am.

of

1 10.

("Defendant"),

construction.

March 28, 2011,

a

a

construction

the

to

Compl. 11

prepare

7,

11.

the

On

one of the Defendant's employees was operating

which

injuries.

he

Am.

backed

over

the

Compl. 11 11,

Plaintiff,

13.

causing

Following

the

note 4 and accompanying text. Moreover, whether the Defendant
has the requisite contacts for personal jurisdiction in North
Carolina is not in any way addressed herein.

accident,

the

Plaintiff

received

North

Carolina

workers'

compensation benefits on behalf of his employer, Ashland. Am.

Compl. 1 4;

SOF 1 6.

On March 27, 2013,

the Plaintiff filed

this diversity action against the Defendant in federal court,

alleging

that

the

negligence

caused the accident,

of

the

Defendant's

employee

and seeking $100,000,000 in damages.

Am.

Compl. 11 19-20.
II.

STANDARD

OF

REVIEW

The plaintiff bears the burden of proving that subject

matter jurisdiction exists by a preponderance of the evidence.
See,

e.g. , United States ex rel.

337,

347-48

1213,

1219

subject

(4th Cir.
(4th

matter

12(b)(1),

Cir.

2009)

jurisdiction

pleadings

without

When

is

(4th

Cir.

1999)

Potomac R.R.

Co.

1991)).

district

The

v.

converting

motion to dismiss

(quoting

United States,

court

Bain,

defendant

to

Fed.

555 F.3d
697

F.2d

challenges

R.

Civ.

P.

to regard the pleadings as

and may consider evidence outside

summary judgment.'" Evans v. B.F.
647

a

pursuant

court

mere evidence on the issue,

the

(citing Adams v.

1982)).

"'the district

Vuyyuru v. Jadhav,

the

proceeding

Perkins Co.,
Richmond,

grant

one

the

for

166 F.3d 642,

Fredericksburg

945 F.2d 765,

should

to

&

768

(4th Cir.

Rule

12(b)(1)

"xonly if the material jurisdictional facts

are not in dispute and the moving party is entitled to prevail

as a matter of law.'"

Id.

(quoting Richmond,

Fredericksburg &

Potomac R.R. Co., 945 F.2d at 768).2
III.

ANALYSIS

A. Applicable Law

A

federal

district

diversity jurisdiction,

court

hearing

a

case

such as the instant case,

the law of the state in which the court sits.

E.g.,

2 Because the United States Court of Appeals
Circuit has affirmed a 12(b)(1)

based

on

must apply
Klaxon Co.

for the Fourth

dismissal for lack of subject

matter jurisdiction in a similar case involving the VWCA, this
court conducts a Rule 12(b) (1) analysis. See Evans, 166 F.3d
at 647-50. However, this court acknowledges that, subsequent
to
Evans,
some
district
courts
have
questioned
the
classification
of
cases
like
the
instant
dispute
as
"jurisdictional." See, e.g., Harvard v. Perdue Farms, Inc. ,

403 F. Supp. 2d. 462, 464-65 (D. Md. 2005) (explaining that
although Virginia courts treat dismissal of cases pursuant to
the VWCA's exclusivity provision as jurisdictional, federal
jurisdictional rules do not "import such Virginia procedural
law").

One rationale,

however,

for the motion to be considered

as jurisdictional is that, if the cause of action is barred
under Virginia law, then there can be no claim for damages to
meet the threshold federal diversity jurisdictional amount of
$75,000.

In any event,
this court does not need to reach the
question of whether conversion into a motion to dismiss under
Federal Rule

of

Civil

Procedure

12(b)(6)

for

failure

to state

a claim upon which relief can be granted, or conversion into
one for summary judgment under Federal Rule of Civil Procedure
56, is required. The material facts before the court are
undisputed, and all parties have had ample opportunity to
conduct discovery on jurisdiction and to submit relevant
materials

to

the

court.

Consequently,

were

the

court

to

convert the pending motion into either a Rule 12(b)(6) motion
to dismiss or a Rule 56 motion for summary judgment, the
result

would

be

same—judgment

termination of this action.

for

the

Defendant

and

v.

Stentor

Elec.

America Online,

89, 92

Mfg.

Inc.

Co.,

v.

St.

313
Paul

U.S.

487,

Mercury

496-97

Ins.

Co.,

(1941);
347

F.3d

(4th Cir. 2003) . Virginia applies the lex loci delecti

rule for determining the applicable law in tort actions. Jones
v.

R.S.

Garcia

Jones

v.

and

Assoc,

Pittsylvania

(4th Cir.

1988)

Inc.,

Cnty.

246

Serv.

(stating that

"the

Va.

3,

845

Auth.,

5

F.2d

law of

(1993) ;

see

467

State of

the

465,

the

accident controls the remedy sought in that particular forum")
(citing McCann v.

Newport News

177

913

F. Supp.

909,

(E.D. Va.

Shipbuilding & Dry Dock Co. ,
1959)).

Moreover,

the United

States Court of Appeals for the Fourth Circuit has determined
that Virginia law applies to a diversity tort action brought

in a Virginia federal court regarding whether the exclusivity
provision of the VWCA bars the claim. See Garcia,
466-68. In Garcia,

as in the instant case,

North Carolina residents,
that

was

84 5 F.2d at

the plaintiffs were

working for a North Carolina company

performing work

in Virginia

for a

Virginia

entity.

Id. at 466-68. The plaintiffs were injured in an accident that
occurred

in

Virginia.

Id.

The

Fourth

Circuit

held

that

the

VWCA applied and that it provided the exclusive remedy for the
plaintiffs under Virginia law.

bears

the

provision

burden
does

of

not

proving
preclude

Id. at 468. Thus,

that

the

VWCA's

this

court's

the plaintiff

exclusivity

subject

matter

jurisdiction.3 See Jadhav,

555 F.3d at 347-48 (citing Adams,

697 F.2d at 1219).

B. The VWCA's Exclusivity Provision

The VWCA bars actions against both an employee's "direct"

employer and his or her "statutory employer,"
an

injured employee's

exclusive

remedy

providing that

lies under

the

VWCA.

The exclusivity provision of the VWCA provides as follows:
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.

Va.

Code § 65.2-307(A)

(emphasis added).

3 The Plaintiff cites Richardson v.

L'Eggs Brands Inc.,

Div.

of
Sara
Lee
Corp.,
No.
95-2020,
slip
op.
(4th
Cir.
June 20, 1996) , for the proposition that Virginia law would
defer to North Carolina's workers' compensation laws in these
circumstances. Pi.'s Reply and Opp'n to Def.'s Mot. Dismiss
16-17. ECF No. 13. In relying on this case, the Plaintiff
ignores Fourth Circuit Local Rule 32.1, which provides that
citation of Fourth Circuit unpublished opinions issued prior
to January 1, 2007 "is disfavored," unless the party believes
that the opinion "has precedential value in relation to a
material issue in a case and that there is no published
opinion that would serve as well." Here,
however,
Garcia
provides
a
published opinion that
expressly rejects
the
Richardson court's interpretation of the key case on which it
relies to assert that Virginia law would defer to North
Carolina law, Solomon v. Call, 159 Va. 625 (1932). See Garcia,
845 F.2d at 466-67 (discussing the Solomon case).

First,
Ashland,

the

Plaintiff

argues

that

he

and

his

did not accept the VWCA because Ashland compensated

the Plaintiff under the North Carolina Workers'
Act,

not

the VWCA.

Dismiss

9-10.

Defendant

Carolina

See PL's

ECF

made

no

No.

13.

He

financial

workers'

Def.'s Mot.

2.

also

emphasizes

contribution

compensation

Dismiss

ECF No.

to

insurance
Pi.'s Supp.

under

received workers'

North

Carolina's

that

Ashland's

policy,

the
North

under which

Reply and Opp'n to

26.

The Plaintiff's argument is unavailing.
he

Compensation

Reply and Opp'n to Def. 's Mot.

the Plaintiff was compensated.

that

employer,

It

is

compensation benefits

workers'

compensation

irrelevant

from Ashland

laws.

The

VWCA

provides that "[e]very employer and employee, except as herein
stated,

shall

provisions of
the

VWCA

be

conclusively presumed

this title."

extends

workers'

Va.

Code

to

have

accepted

§ 65.2-300(A).

compensation

coverage

state residents injured while working in Virginia.
845

F.2d

received

at

466-68.

compensation

compensation laws,
the

VWCA

Indeed,

to

the

Carolina's workers'

even

under

though

North

the

the

Moreover,
to

out-of-

See Garcia,

Plaintiff

Carolina's

has

workers'

he may be eligible for compensation under
extent

that

his

recovery

under

North

compensation laws has not compensated him

to the same extent that

the VWCA would have done.

See Va.

Code

§ 65.2-508(B). However,

coverage under the VWCA constitutes an

out-of-state resident's only remedy for injuries that occur in

Virginia
McCann,

and
177 F.

resident
under

that

Supp.

injured

the

are

by

at 913-14

in

VWCA and

caused

was

(explaining

regarding

the

that

eligible

the VWCA

against his statutory employer);
467

McCann

applicability

statutory

employer.

See

(explaining that a New Jersey

Virginia
that

a

thus

for

barred his

see also Garcia,
states

of

compensation

the

the

law

VWCA

tort

845 F.2d at
of

to

claim

Virginia

out-of-state

residents injured in Virginia).
In Garcia,

workers'

as here,

compensation

Compensation Act.

the out-of-state plaintiffs received

under

the

North

the

claims.

1,
the

4-5

VWCA's

workmen's

claim

exclusivity

for

determines

provision

1973)

barred

compensation

benefits
whether

177

Supp. at 913

F.

their

tort

353 F. Supp.

("[I]t is eligibility for benefits under

was
a

bar

laws

Supp.

909

of

actually
to

a

(citing Home Indem. v. Poladian,
McCann,

the Fourth Circuit held

Id. at 466-68; see also Wilson v. Fraser,

(D. Md.

Workers'

845 F.2d at 466. Because they were injured

in Virginia by statutory co-employees,
that

Carolina

(E.D.

Virginia,
made

common

or
law

not

whether

received,
action

1959));

which

exists.")

270 F.2d 156 (4th Cir.
Va.

a

McCann,

1959);
177

F.

(explaining that "Virginia intended to grant such
8

remedies

upon,

to,

and

impose

such

such non-residents

to

restrictions

the

same

and

extent

limitations

as

though they

were residents and employed by a Virginia employer.").
because

the

Plaintiff's

injury occurred

in Virginia

Thus,

and was

caused by a statutory co-employee, compensation under the VWCA

is his only remedy under Virginia law,
barred here.

See

infra at

The Plaintiff

and his tort suit is

10-16.

further argues

that Garcia does not apply

to his case because Garcia considered the pre-1991 version of
the VWCA's exclusivity provision. See PL's Reply and Opp'n to
Def.'s Mot.

Dismiss

Opp'n to Def.'s

13-14.

Mot.

ECF No.

Dismiss

13;

6-7.

PL's Supp.

ECF No.

26.

Reply and

However,

the

pre-1991 version of the VWCA's exclusivity provision on which
Garcia is based is materially the same as the current version
quoted

above.

Former

Va.

Code

§ 65.1-40

(recodified

as

Va.

Code § 65.2-307(A)) provided as follows:

The
rights
and
remedies
herein
granted
to
an
employee when he and his employer have accepted the
provisions of
this Act respectively to pay and
accept compensation on account of personal 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.
Former

307(A))

Va.

Code

(emphasis

§ 65.1-4 0

added).

(recodified

The

only

as

Va.

differences

Code

in

§ 65.2-

language

between

the

pre-1991

version

of

the

VWCA's

exclusivity

provision and the current version have been underlined in the

quote above. The provisions are substantially the same; thus,
the Plaintiff's argument on this point is without merit.
Finally,

the

VWCA's

provision

exclusivity

extends

to

"statutory employers," defined in relevant part as follows:

When

any

"owner")

person

(referred

undertakes

to

in

this

to perform or

section

execute

as

any work

which is a part of his trade, business or occupation
and contracts with any other person
this

section

as

"subcontractor")

(referred to in

for

the

execution

or performance by or under such subcontractor of the
whole or any part of the work undertaken by such
owner,

the

owner

shall

be

liable

to

pay

to

any

worker employed in the work any compensation under
this title which he would have been liable to pay if
the worker had been immediately employed by him.

When

any

person

"contractor")

(referred

contracts

to

to

in

this

perform

or

section
execute

as
any

work for another person which work or undertaking is
not a part of the trade, business or occupation of
such other person and contracts with any other
person
(referred
to
in
this
section
as
"subcontractor") for the execution or performance by
or under the subcontractor of the whole or any part
of the work undertaken by such contractor, then the
contractor shall be liable to pay to any worker

employed in the work any compensation under this
title which he would have been liable to pay if that
worker had been immediately employed by him.
Va.

Code.

The

defining

§ 65.2-302(A),

purpose

of

"statutory

(B).

Va.

Code

employer,"

§ 65.2-302,

is

"to

the

bring

provision

within

the

operation" of the VWCA "all persons engaged in work that is a
10

part

of the trade,

business,

or occupation of the party who

undertakes as owner or who contracts as contractor to perform

the

work,"

and to

"make

liable

to

every employee engaged in

the work every such owner contractor,

such

employee."

Inc. , 262 Va.
302,

305

Pfeifer

262,

(1986)).

266

v.

Krauss

(2001)

or

subcontractor above

Const.

Co.

of

Virginia,

(quoting Smith v. Horn,

232 Va.

The VWCA thus bars all actions by statutory

employees against their statutory employers and statutory coemployees. See Nichols v. WKR,
("Contractors,

in

the

subcontractors,

trade,

project

are

business,

deemed

to

or

be

Inc., 241 Va. 516, 519 (1991)
and all workers who are engaged

occupation

statutory

of

the

fellow

owner

employees.

of

a

The

remedy for any injury suffered by one of them as a result of
the alleged negligence of another, while engaged in the trade,
business,

or

occupation

of

the

owner,

is

limited

available under the Workers' Compensation Act.")
v.

Hook,

239 Va.

127

(1990);

Lucas v.

Biller,

204 Va.

309

Smith v.
(1963);

Horn,
Va.

to

that

(citing Evans

232 Va.

at 307-09;

Code §§ 65.1-29,

-31,

-40) .4

4 In contrast

to Virginia

law,

North Carolina law seems to

permit an employee injured by a third-party subcontractor to
bring a tort action against the third-party subcontractor,
despite having received workers' compensation benefits from
the employer, as the third-party subcontractor is not deemed
to be a "statutory employer" of the plaintiff. See Braxton v.
11

An

injured employee

has a common law action against a

third-party tortfeasor for an injury sustained while working
for

his

employer,

"stranger to

that
the

Va.

the

of

the plaintiff's

v.

Howell,

third-party

282 Va.

Dean Steel Erection Co.,

Slusher v.

(W.D.

if

work"

the

White Crane Serv.
Whalen v.

only

Paramount

1971)).

Warrior,

"The

323,

336

'stranger to the

employer.

is

a

David

327

(2011)

(citing

164,

229 Va.

Inc.,

tortfeaser

167-68

(1985);

F.

Supp.

work'

1381,

test

1383

requires

'the facts of each case be analyzed to determine whether
defendant

plaintiff's

in a

injury,

plaintiff was

a

stranger

engaged.'"

Atl. , Inc. , 284 Va.

169).

common-law action was,

55,

to

the

at

the time of

work

in

which

the

the

Napper v. ABM Janitorial Servs.-Mid
62

(2012)

(quoting Whalen,

229 Va.

at

If the defendant was not a "stranger" to the plaintiff's

work or that of

the plaintiff's employer,

then the VWCA bars

the plaintiff's tort action against the defendant. Whalen,

229

Va.

Va.

at

167-69;

406,

418

(2000);

421,

428

see

also

Stone

Fowler v.

v.

Door-Man Mfg.

Int'1 Cleaning Serv.,

Co.,

260

(2000).

The Virginia Supreme Court applies the
work"

test

to

cases

like

the

Anco Elec.,
Inc.,
330 N.C.
Barnhill, 267 N.C. 457, 464-67

instant

124,
125-29
(1966).

12

Inc.,

260 Va.

"stranger to

case,

in

(1991) ;

the

which

Lewis

a

v.

subcontractor's employee has caused injury to an employee of
the general contractor. Stone,
Va.

at

169.

The

Virginia

260 Va. at 418-19; Whalen,
Supreme

Court

has

stated

229
the

"stranger to the work" test as follows:
The test is not whether

[a company] , by engaging an

independent contractor to perform some part of his
business, thereby engages in the business of the
independent
contractor.
It
is
whether
the
independent contractor is performing work that is
part of the trade, business or occupation of the
[company] . If he is, and in doing the work injures
an employee of the [company] , then the independent
contractor,
in
the
same
fashion
as
any
other

employee of the [company] , is not a third party
against whom the injured employee's right of action
is preserved; but the employee so injured is limited
to
the
compensation provided by
the Work[ers']
Compensation law ....
Napper,

284 Va.

at 63-64

269, 274

(1962))

in

case

this

Defendant
trade,

whether,

when

"'performing work

Floyd,

Chalkley,

(emphasis added). Thus,

is

business

(quoting

In

was

(quoting Floyd v. Mitchell,

185 Va.

applying

or

the

that

occupation.'"

203

Va.

96,

this

102

at

274

203 Va.

the dispositive issue

accident

is

part

Napper,

occurred,

of

284

the

[Ashland's]
Va.

at

(emphasis

added);

Feitig

Virginia

Supreme

Court

64
v.

(1946)).

test,

the

has

held that mere suppliers are strangers to the work of general
construction contractors.

98,

99-100

(1969).

Burroughs v.

In Burroughs,

13

the

Walmont,

Inc.,

210 Va.

Virginia

Supreme

Court

permitted
general

the

employee

construction

of

a

sheetrock

contractor

supplier

where

the

to

sue

supplier

the

solely

functioned as a deliverer of supplies and did not perform any
construction

work.

Id.

The

court

explained

that

merely

supplying materials was not part of the general contractor's
"trade, business or occupation." Id.

By

comparison,

the

Supreme

Court

of

Virginia has

found

that a subcontractor spreading sand at a construction site was

engaged

in

the

occupation."

In Bosher,
sand as

general

Bosher v.

an

contractor's

Jamerson,

"trade,

207 Va.

employee of a material

539,

business
540-43

supplier was

or

(1966).

spreading

contractually required and as directed on the job by

the general contractor,

when his truck struck and injured the

general

employee.

contractor's

Id.

at

540-41.

Because

spreading the sand was a part of the construction process,
court

held

it

was

business

"trade,

that

part

or

occupation"

remedy provision of the VWCA,
at
the

541-43;

see also Pfeifer,

defendant's

lines

rendered

building

and

work
the

of

of

and

general

applied

contractor's

the

exclusive

dismissing the tort claim.
262 Va.

digging

defendant

developing

the

at

trenches

no

14

and

stranger

condominiums,

plaintiff's suit under the VWCA).

267-69

to

thus

the

Id.

(holding that
installing gas
the

work

barring

of

the

Applying the "stranger to the work" test in the instant
case,

the Defendant was engaged in the

"trade,

occupation or

business" of the Plaintiff's employer, Ashland, at the time of
the accident. The instant case is analogous to Bosher. Ashland

was

in the process of constructing a CVS pharmacy,

company

hired

the

Defendant

to

prepare

the

property

the

and

for

construction. Am. Compl. 11 10-13. As in Bosher, the Defendant
here was no mere supplier,

was

only

Rather,

tangential
the

construction

Ashland's

to

Ashland's

Defendant
site,

and was not performing work that

was

grading

fundamental

construction

construction

work

project.

When

that

the

the

CVS.

preparing

and

of

the

was

central

accident

to

occurred,

the Defendant's employee operating the bulldozer was "engaged

in grading and leveling a portion of the construction site."
Am.

Compl.

1 11.

If

a

subcontractor

spreading

sand at

the

construction site constitutes work that is part of the general

contractor's

trade,

business,

Defendant's

construction

Bosher,

Va.

207

at

or occupation,

site

541-43.

preparation

Moreover,

Plaintiff was assigned by Ashland,

supervise

the

construction

of

then

for

similar

so

is

Ashland.

See

Bosher,

the

to

the general contractor,

the

new

the

CVS

pharmacy

to

on

Ashland's behalf. See Am. Compl. 1 10. Thus, the Defendant was
no

stranger

to

Ashland's

work.
15

Accordingly,

the

Plaintiff's

sole

remedy for his

injury is under the VWCA,

and his

tort

suit against the Defendant is barred.5
IV.

For

the

to Dismiss

reasons

set

is GRANTED,

subject

matter

Eastern

District

CONCLUSION

forth above,

and the case

jurisdiction

forward a copy of

of

in

Virginia.6

the

Defendant's

is DISMISSED

this

The

federal

Clerk

Motion

for lack of

court

in

the

is DIRECTED

to

this Opinion and Order to counsel for

the

parties.

5 Additionally,

the Plaintiff argues that the Defendant has

waived its "qualified immunity" under the VWCA because of
indemnification provisions in the Defendant's contract with
Ashland. PL's Supp. Reply and Opp'n to Def.'s Mot. Dismiss 27.
ECF
No. 26.
Significantly,
while
the
North
Carolina
indemnification provision requires the Defendant to indemnify
both Ashland and its employees, the Virginia indemnification

provision only requires

the Defendant

and not Ashland's employees.
to Def.'s Mot.

Dismiss 2-3.

to

indemnify Ashland,

See PL's Supp.
ECF No.

26.

Reply and Opp'n

Moreover,

the case on

which the Plaintiff relies to support his indemnification
argument held that the exclusivity provision of the VWCA did
not invalidate an express indemnification agreement between
the
plaintiff's
employer
and
the
tortfeasor,
where
the
plaintiff's employer filed a suit seeking indemnification; the
case did not involve suit by the injured employee against the
tortfeasor. See Safeway, Inc. v. DPI Midatlantic, Inc., 270
Va.
285,
290
(2005) .
Notably,
like
the
Virginia
indemnification
provision
in
the
instant
case,
the
indemnification provision in Safeway required the defendant to
indemnify only the plaintiff's employer, and not the plaintiff
himself. See Safeway, 270 Va. at 287-88.

G See supra notes 1 and 4 and accompanying text.
16

IT

IS

SO ORDERED

JsL
Rebecca Beach Smith

TT .

Chief

United States District Judge.gg>L.

REBECCA BEACH SMITH
CHIEF UNITED STATES DISTRICT JUDGE

Norfolk, Virginia

January £^$ , 2014

17