Virginia Supreme Court Affirms Finding that Employee Murdered at Work Limited to Workers’ Compensation Benefits

Days ago the Virginia Supreme Court issued an Opinion in Gladys Lopez, As Personal Representative of the Estate of Lizeth Lopez v. Intercept Youth Services, Inc., Record No. 191545 (August 5, 2021). In Lopez, the decedent, an Evening Support Counselor for at-risk youth in a residential program, was murdered by one of the residents. The trial court sustained the Plea in Bar filed by the employer. The Virginia Supreme Court held that the trial court did not err in finding that the exclusive remedy available to the Estate were those benefits available under the Virginia Workers’ Compensation Act (“the Act”).

The decedent managed residents’ prescription medications, assisted with their schoolwork, and remained on-call during her shift to meet their needs. During the evening shift, the decedent and other evening counselors kept the door to the office locked, but the residents were welcome to come to the office and request her assistance. The assailant in Lopez had been diagnosed in the past with depression, anxiety, and enuresis. On the evening of April 17, 2016, the assailant appeared at the locked door of the decedent’s office and stated that he needed medication. The decedent unlocked the door and was then strangled to death by the assailant. The assailant dragged Ms. Lopez out of her office and threw her body into a drainage ditch. Four months later, the assailant murdered another program counselor. After the second murder, the assailant was identified and arrested for both murders.

The personal representative filed suit against the employer alleging negligence and sought $10,000,000 in damages.

The Virginia Supreme Court rejected the Estate’s argument that the trial court erred because the Act provided no remedy for Mr. Lopez’s death. The Virginia Supreme Court found since the decedent suffered a fatal assault that both occurred “in the course of” and “arose out of” her employment that her exclusive remedy pursuant to Va. Code Section 65.2-307 was under the Act. The Virginia Supreme Court cited the well-established legal principle that workplace assaults that are augmented either because of the particular character of the job or the work conditions will be found to have arisen out of the employment. Further, those assaults that are purely personal in nature or random will not be found to have arisen out of the employment. The Virginia Supreme Court found that the trial court properly held that facts in the instant matter demonstrate that the decedent’s probability of assault was augmented either because of the particular character of the decedent’s job or because of the special liability to assault associated with the environment in which she was required to work.

An important takeaway for the Virginia adjuster is to be mindful of the exclusivity provision available in Va. Code Section 65.2-307. In catastrophic cases involving death or serious injuries be sure to weigh the risk of civil liability outside of the Act. In some cases, this risk could be significant and an agreement to pay benefits under the Act so as to take advantage of the exclusivity provision of Va. Code Section 65.2-307 may make sense. Once an Award has been entered a claimant cannot come back later and assert tort liability against the employer. In cases that involve potential civil employer liability, it is advisable to consult with competent legal counsel that understands both the Act and civil tort liability.

Read the full Opinion

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