
    CIRCUIT COURT OF FAIRFAX COUNTY
    Employer’s Insurance of Wausau v. Edward Hakspiel
    February 9, 1999
    Case No. (Law) 156778
   By Judge Robert W. Wooldridge, Jr.

This matter came before me on Plaintiffs Motion to Reinstate Judgment and on Defendant’s Motion to Amend the Final Order. For the reasons stated below, the Motion to Amend the Judgment is granted.

In September of 1995, Edward Hakspiel was driving on Interstate 66 trying to elude police officers who were chasing him and, in the process, struck and killed Robert Shiftier. Shiftier was working on a construction project for A.S.I. Services (“ASF’) at the time of his death.

Hakspiel was subsequently convicted of involuntary manslaughter and is currently confined in the penitentiary system. A wrongful death action was brought in the Circuit Court for the City of Winchester, Virginia, by the heirs of Robert Shiftier, and a consent order was entered in that case distributing $300,000.00 to the heirs of Robert A. Shiftier.

Shiftier’s and ASI’s Workers’ Compensation carrier, Employer’s Insurance of Wausau, brought an action pursuant to § 65.2-309 of the Code of Virginia to recover Workers’ Compensation benefits that Wausau was ordered by the Virginia Workers’ Compensation Commission to pay to Shiftier’s widow. Wausau’s Motion for Judgment also references damages allegedly suffered by § 8.01-55 (wrongful death) statutory beneficiaries, but no such relief is sought in the ad damnum clause. Those damages referenced are of the nature compensable under that statute. On April 7,1998, die Honorable Gerald Bruce Lee of this court entered judgment against Hakspiel in the amount of $800,000.00 for solace, $181,621.00 for lost income, and $350,000.00 for punitive damages. On April 22, 1998, Judge Lee suspended die judgment and Final Order until further order of the Court.

Wausau and AS1 argue that under the Workers’ Compensation Act, Wausau and ASI are subrogated to Shififler’s beneficiaries’ wrongful death claim. They concede that any judgment in excess of the workers’ compensation sum paid by the employer shall be held for Shififler’s beneficiaries. Hakspiel argues that the judgment for claims of solace and punitive damages are not permitted under the Virginia Workers’ Compensation Act and should be removed from the Final Order granted on April 7,1998.

Virginia Code § 65.2-309 grants the employer die right to recover from the wrongdoer whatever the employer had to pay and removes from die employee die right to a double recovery. Stone v. George W. Helm Co., 184 Va. 518 (1951). Under the Workers’ Compensation Act, the express inclusion of a subrogation provision prevents the employee from acquiring two separate remedies for a single injury. Crab Orchard Imp. Co. v. C. & O. Ry., 115 F.2d 277 (4th Cir. 1940), cert. denied, 312 U.S. 702 (1941). The purpose of § 65.2-309 is to reimburse an employer who is compelled to pay compensation as a rsult of the negligence of a third party. Tomlin v. Vance Int'l., 22 Va. App. 448 (1995).

Wausau and ASI concede that any award in excess of the Workers’ Compensation Claim reverts back to die beneficiaries. Thus, the awards for solace and punitive damages would be granted to the beneficiaries as they are in excess of die Workers’ Compensation award. This grant would allow the beneficiaries a double recovery, exactly what § 65.2-309 is intended to prohibit.

As the heirs of Shiftier have recovered for his wrongful death by the consent order entered in the City of Winchester, they cannot be permitted further recovery under the Workers’ Compensation Act. Under the Act, Wausau is only entitied to reimbursement for what it has paid the beneficiaries. Thus, die judgment is modified to $183,395.00. In addition, John Bancroft is awarded a guardian ad litem fee of $2,500.00 to be paid by the Plaintiff within thirty days.  