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
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