The wrongful death claim filed by the widow of a mesothelioma victim will be allowed to proceed, following a 5-2 ruling by the Supreme Court of Virginia.

Our mesothelioma attorneys understand that the case, Dorthe Crisp Gibbs v. Newport News Shipbuilding & Drydock Co., had run into a snag over the state’s workers’ compensation laws.

Virginia’s Workers’ Compensation Act holds that all workers injured on the job in that state are to seek remedy through the Workers’ Compensation Commission. Even injuries that occur outside the state may fall under the purview of the commission, provided the business contract was held in Virginia. The only time an employer could be civilly sued for compensation would be if that company did not purchase workers’ compensation insurance.

All of this is very straightforward. But here’s the catch: While the plaintiff’s husband in this case did work in Virginia at the time of his exposure and the suit was against a private company in that state, the man actually worked for the Navy. It had previously been determined by the courts that the Navy didn’t fall under the purview of this law.

Lower courts had been divided on this issue, but the final ruling from the state Supreme Court affirms the fact that Navy employees wouldn’t fall under the jurisdiction of state law in this regard.

Here’s what happened:

A man named Kenneth Gibbs was a U.S. Navy electronics technician. In the 1960s, the Navy commissioned a Virginia company, the Newport News Shipbuilding and Drydock Co., to build two nuclear submarines. This took several years, and the vessels cost about $46 million each. Six months before the completion of these vessels, Gibbs was sent with a Navy team to conduct inspections and testing on the ships. During the course of this work, Gibbs regularly came in contact with asbestos.

In 2008, after being given a diagnosis of mesothelioma (caused solely by asbestos exposure), Gibbs filed suit against the shipbuilding company. After he died in 2009, his wife continued the case as a wrongful death action.

However, the shipyard asserted the state’s workers’ compensation act provided exclusive remedy to the claim. The shipyard contended that both Gibbs and the Shipyard were statutory co-employees of the Navy, and as such, the exclusivity provision was applicable. Initially, the lower court agreed. However, the Supreme Court overturned this ruling, contending that no party in the case proved that the Navy had accepted the provisions of the act, or was in any way subject to it.

As such, Gibbs’ widow was given the green light to move forward with her civil litigation.

Many states have provisions about how workers’ compensation may affect a civil claim, if the latter can be filed at all. Consider that workers’ compensation will only grant you recovery from an employer, not a manufacturer. Further, there are certain types of employees who are not eligible for workers’ compensation, namely, independent contractors. Plus, workers’ compensation claims are often subject to certain time constraints, and they tend not to be as lucrative for the plaintiff as civil litigation.

You should always speak with an experienced attorney before you file either one.


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