Canova Electrical etc. v. LMI Insurance Co.

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Fitzpatrick
Argued at Richmond, Virginia
CANOVA ELECTRICAL CONTRACTING, INC.,
and ROYAL INSURANCE COMPANY OF AMERICA
OPINION BY
v. Record Nos. 0157-96-2 and JUDGE JAMES W. BENTON, JR.
0221-96-2 JUNE 18, 1996
LMI INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Benjamin J. Trichilo (Trichilo, Bancroft,
McGavin, Horvath & Judkins, P.C., on briefs),
for appellants.
William F. Karn (Cathie W. Howard; Williams &
Pierce, on briefs), for appellee.
These appeals arise from the commission's denial of motions
to dismiss two separate petitions for review. Canova Electrical
Contracting, Inc. and Royal Insurance Company of America contend
that the commission erred in denying the motions to dismiss
because the commission lacked jurisdiction to consider a dispute
solely involving coverage between insurers. For the reasons that
follow, we dismiss the appeals.
I.
The evidence proved that Canova contracted to provide
electrical contracting services for a building project in
Alexandria, Virginia. In January 1994, Canova entered into an
agreement with Tower Electric Co., in which Tower agreed to
provide electricians to work at the building project at a rate
specified in the agreement. Canova agreed to provide all
supervision of the electricians at the building project and
further agreed not to hire any Tower employees before one year
after completion of the building project.
James Foley began working for Tower in May 1994. He
sustained an injury by accident on July 10, 1994, while working
at the building project. Foley filed a worker's compensation
claim against Tower and its insurer, LMI Insurance Co. Later, at
Foley's request, the commission added Canova and its insurer,
Royal, to the claim as defendants. Foley alleged that he was
working for Canova on loan from Tower at the time of the
accident.
Carlos Real was employed by Tower in February 1994. He
sustained an injury by accident on June 21, 1994, while working
at the building project and filed a worker's compensation claim
against Tower. Contending that Canova was Real's statutory
employer at the time of the accident, Tower requested that Canova
be included as a defendant to the claim. The commission granted
the request.
Following separate evidentiary hearings on these two claims,
a deputy commissioner ruled in each case that "it was the
parties' intent that Tower employees would continue to be
employees of Tower and not the servants of Canova." The deputy
commissioner entered awards on behalf of "Foley against Tower
Electric Co. and LMI Insurance Co." and "Real against Tower
Electric Co. and LMI Insurance Co."
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LMI filed requests for review from both decisions. Canova
filed motions to dismiss the requests for review, alleging, in
part, that LMI was acting on its own behalf, that "no appeal has
been filed on behalf of the insured of LMI Insurance Company,
Tower Electric Company," and that "LMI Insurance Company has no
standing to file an appeal where there is an adjudication by the
commission that its insured, Tower Electric Company, is obligated
under a final Order of the commission to pay compensation
benefits."
In denying the motions to dismiss, the commission issued
separate opinions containing identical language. In pertinent
part, the commission ruled as follows:
An award of the commission is at issue in the
current proceeding because the Deputy
Commissioner has decided which of two named
defendant employers is responsible for the
payment of benefits. In the present appeal,
fundamental issues of liability are still at
issue since a decision of the Commission is
not final until all appeals have been
exhausted or until the time for appeal has
passed. As a result of this consideration
regarding finality, there has been no final
determination regarding the employer in the
present matter. Therefore, the issue before
the Commission affects the employee's
rights. . . . [T]he matter before the
Commission is not solely a contest between
two compensation carriers.
In addition, Code of Virginia § 65.2-101
provides a definition of an employer as
follows:
(i) any person, the Commonwealth or
any political subdivision thereof
and any individual, firm,
association or corporation, or the
receiver or trustee of the same, or
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the legal representative of a
deceased employer, using the
service of another to pay for (ii)
any volunteer fire company or
volunteer lifesaving or rescue
squad electing to be included and
maintaining coverage as an employer
under this title. If the employer
is insured, it includes his insurer
so far as applicable.
(emphasis added).
Even though LMI's Petition for Review to the
full Commission did not name the employer,
given the statutory inclusion of an insurer
in the definition of employer found in
§ 65.2-101, in a workers' compensation
proceeding, the identities of an employer and
insurer are by their nature intertwined.
Therefore, Tower Electric Company is
necessarily a party to the review.
Canova appeals to this Court from that ruling by the
commission denying Canova's motion to dismiss.
II.
The Court of Appeals of Virginia is a court of limited
jurisdiction. West v. Commonwealth, 18 Va. App. 456, 457, 445
S.E.2d 159, 159 (1994), appeal dismissed, 249 Va. 241, 455 S.E.2d
15 (1995). Unless a statute confers jurisdiction in this Court,
we are without power to review an appeal. Polumbo v. Polumbo, 13
Va. App. 306, 307, 411 S.E.2d 229, 229 (1991). Code
§ 17-116.05(2) grants this Court the authority to hear "[a]ny
final decision of the Industrial Commission of Virginia."
(Emphasis added).
In this case, Canova and Royal appealed the commission's
denial of their motions to dismiss two companion cases. Although
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the commission initially expressed its intent to decide the
motions to dismiss contemporaneously with its review of the
deputy commissioner's decisions upon the merits, the commission,
instead, at the request of the parties, first ruled upon the
motion to dismiss. It overruled the motions to dismiss prior to
reviewing the merits of the deputy commissioner's opinion.
Indeed, the record contains no indication that the commission has
reviewed the merits of the case. A decision denying a motion to
dismiss is not a final order. See West, 249 Va. at 242-43, 455
S.E.2d at 1-2 (the denial of a motion to dismiss a criminal
charge is not a final judgment); 4 Am. Jur. 2d Appellate Review
§ 165 (1995 & Supp. 1996). Thus, this appeal does not meet the
requirement of Code § 17-116.05(2).
This Court may also review, however, "[a]ny interlocutory
decree or order . . . (i) granting, dissolving, or denying an
injunction or (ii) adjudicating the principles of a cause" in a
case over which this Court has jurisdiction. Code
§ 17-116.05(4); West, 18 Va. App. at 457, 445 S.E.2d at 159,
appeal dismissed, 249 Va. at 241, 455 S.E.2d at 1. This appeal
does not involve an injunction. Furthermore, an order
adjudicates the principles of a cause only if it determines the
rights of the parties and affects the final order in the case.
Pinkard v. Pinkard, 12 Va. App. 848, 851, 407 S.E.2d 339, 341
(1991).
"The [order] must determine that 'the rules
or methods by which the rights of the parties
are to be finally worked out have been so far
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determined that it is only necessary to apply
those rules or methods to the facts of the
case in order to ascertain the relative
rights of the parties, with regard to the
subject matter of the suit.'"
Id. (citation omitted).
In ruling upon the motions to dismiss, the commission did
not resolve any factual or legal issues concerning the merits of
the cases. The commission's denial of the motions will not
affect its final decision of the cases. Except in those
instances defined by Code § 17-116.05(4), no provisions of Code
§ 17-116.05 or any other statute allow this Court to review
interlocutory appeals. Thus, lacking jurisdiction, we dismiss
the appeals.
Dismissed.
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