Connor v. Hauch

²¹⁸ Moore, J., delivered the opinion of the Court. In this appeal from a summary judgment granted by the Circuit Court for Anne Arundel County, appellants contend principally that the workmen’s compensation statute of Delaware should not bar a personal injury action against their fellow employee in Maryland under the doctrine of lex loci delicti. Maryland permits such suits between co-employees subject to workmen’s compensation, Md. Ann. Code, Art. 101 (1957, 1979 Repl. Vol., 1981 Cum.

Supp.), 1 but Delaware does not, 19 Del. Code §§ 2304 and 2363(a) (1977 Repl. Vol.), Groves v. Marvel, 213 A.2d 853 (Del.1965). For the reasons stated, we hold that the Delaware workmen’s compensation law should not have been applied in this case.

Accordingly, we shall reverse. I Both appellants, Allen G. Connor and Carolyn Mclntire, and the appellee, Laurie Ann Hauch, are residents of Maryland and employees of the Hertz Corporation, engaged in driving rental automobiles to the various locations which the company maintains. On February 6,1980, appellee was driving appellants from Baltimore-Washington International Airport outside Baltimore, Maryland, to Dover, Delaware, to pick up rental cars for return to the airport. While traveling east on Route Two in Kent County, Delaware, their car collided with another vehicle, injuring appellants who were treated at a nearby hospital.

Later, appellants filed for and were granted workmen’s compensa ²¹⁹ tion under Maryland’s statute — $29 per week for Mr. Connor and $49 per week for Miss Mclntire, payment being made for approximately two months. They did not claim benefits under the Delaware statute. Appellants thereafter filed this action, charging negligence and seeking damages of one million dollars. Appellee moved for summary judgment which, after a hearing in chambers, was granted.

This appeal followed. II The court below found that because appellants’ action against a co-employee was barred by the Delaware statute that makes workmen’s compensation an exclusive remedy, the instant action was also barred under the doctrine of lex loci delicti. His conclusion was based on traditional tort law in Maryland as stated by the Court of Appeals in White v. King, 244 Md. 348 , 223 A.2d 763 (1966): "This Court has consistently followed the rule that when an accident occurs in another state substantive rights of the parties, even though they are domiciled in Maryland, are to be determined by the law of the state in which the alleged tort took place.” 2 Id. at 352 . While place of the injury may be a deciding factor in appropriate cases, the narrow issue here is whether the Delaware statute should bar this action by Maryland employees who have neither invoked the protection of nor received benefits under Delaware’s compensation law.

In our ²²⁰ view, the doctrine of lex loci delicti is not necessarily determinative in workmen’s compensation cases. 3 We begin our analysis with the observation that actions by an employee against an employer, irrespective of the place of injury, have almost always been thwarted where "some applicable workmen’s compensation act existed under which the employee could have claimed compensation.” Jonathan Woodner Co. v. Mather, 210 F.2d 868, 873 (D.C.Cir.1954). The rationale is sometimes ambiguous, but the import is clear: "in an employee-employer suit, if some workmen’s compensation act purports to bar the action, that bar will be applied in the forum.” Id. at 873 . (Emphasis added.) See Wilson v. Faull, 141 A.2d 768 (N.J.1958) and cases cited therein at 775. As Judge Wilner appropriately stated for this Court in Keahey v. Dunagan, 39 Md. App. 393 , 386 A.2d 351 , cert. denied, 283 Md. 734 (1978), where the employee applied for and received benefits under the California Workmen’s Compensation Act following an accident in Maryland and was barred from prosecuting a tort action against the employer in this state: "Maryland must, and therefore does, recognize the exclusivity of the California workmen’s compensation remedy, where, as here, that remedy was in fact available and utilized by the injured employee.” 4 Id. at 400. ²²¹ The bar to employer-employee suits is grounded in the philosophy underlying workmen’s compensation as the statutory exception to common law negligence.

As stated in Woodner, supra: "The employer has incurred the burden of providing workmen’s compensation insurance. The employee has foregone his right to sue the employer for negligence. But both have also gained. The employer has gained an immunity from common law suit.

The employee has gained a right to relief even where his injury did not arise through the fault of his employer. The courts clearly consider that this system of mutual give and take would be upset if the employee could sue for negligence in another jurisdiction.” 210 F.2d at 873-74 . The Woodner rationale underlies Section 184, Restatement (Second) Conflict of Laws (1971), "Abolition of Right of Action for Tort or Wrongful Death”: "Recovery for tort... will not be permitted in any state if the defendant is declared immune from such liability by the workmen’s compensation statute of a state under which the defendant is required to provide insurance... and under which (a) the plaintiff has obtained an award for the injury, or (b) the plaintiff could obtain an award for the injury, if this is the state (1) where the injury occurred, or (2) where employment is principally located, or (3) where the employer supervised the employee’s activities from a place of business in the state, or (4) whose local law governs the contract of employment under the rules of §§ 187-188 and 196.” See Busby v. Perini Corp., 290 A.2d 210 (R.I.1972). ²²² Turning to employees’ suits against co-employees, the rationale of according immunity to employers as a quid pro quo for shouldering compensation liability is, of course, unavailable. Some state statutes, such as Delaware’s, generally bar common-law actions by making workmen’s compensation an exclusive remedy, 19 Del.

Code § 2304. The rationale for this approach is analyzed in Feitig v. Chalkley, 38 S.E.2d 73 (Va.1946), which concludes by quoting Chief Justice Rugg in Bresnahan v. Barre, 190 N.E. 815, 817 (Mass. 1934): "One purpose of the Workmen’s Compensation Act was to sweep within its provisions all claims for compensation flowing from personal injuries arising out of and in the course of employment by a common employer insured under the act, and not to preserve for the benefit of ... those injured liabilities ... which but for the act would exist at common law.” Id. at 78. (Emphasis added.) Maryland, however, is one of some dozen States which permit employees to pursue their common-law remedies against co-employees. There is no prohibition in the State statute; indeed, the cause of action is affirmatively recognized.

Art. 101 § 58, n. 1, supra. See generally, 101 C.J.S. Workmen’s Compensation § 985e. The rationale here is that "in the exchange for sure and swift compensation the worker has given up the right to sue his employer but not his fellow employee, because the fellow employee is not a party to such an agreement and has given up nothing in return for such an immunity.” Herbert v. Layman, 218 A.2d 706, 709 (Vt.1966). Furthermore, in many cases, the employee cannot be made whole by compensation benefits alone.

Colarusso v. Mills, 208 A.2d 381 (R.I.1965). In Larson’s view, the underlying basis for permitting co-employees’ actions is to let the ultimate loss fall on those responsible, after insuring some relief to the employee; the ultimate wrongdoer ought not to escape his obligation to pay full tort damages for the injury he caused. 2A Larson, Workmen’s Compensation § 71.10 (1976). ²²³ Judicial interpretation of Maryland’s policy regarding co-employees is scant. In the only decision of the Court of Appeals bearing on the subject, 5 the Court refused to apply the exclusivity provision of the Virginia Workmen’s Compensation statute, Va. Ann. Code, § 65.1-40 (1980 Repl.

Vol.), which covered both co-employees, to bar the negligence action. Hutzell v. Boyer, 252 Md. 227 , 249 A.2d 449 (1969). Judge Finan, writing for the Court, suggested three bases for his decision: 1) Maryland public policy, 2) the plaintiffs application for Maryland compensation benefits, but not Virginia’s, and 3) lex loci delicti. In our reading of the opinion, primary significance was attached to the first of these, namely, that allowing