In a case involving an injury at a West Virginia workplace, does the election-of-remedies doctrine apply where the employee is unable to elect and the employer unilaterally files a worker’s compensation claim in Pennsylvania?
Respondent, Tucker Bell, was seriously injured while working at a power plant in Monongalia County, West Virginia. Bell is a Pennsylvania resident who was working for Respondent, Nicholson Construction Company, a Pennsylvania company with its principal office in Pennsylvania. Nicholson was a subcontractor on the job responsible for designing and installing deep foundation elements. Petitioner, Southern Environmental, Inc. (“SEI”), was the general contractor.
After he was injured, Bell remained in critical condition and his employer, Nicholson, unilaterally filed a worker’s compensation claim on his behalf in Pennsylvania. Thereafter, Bell sued SEI and others alleging negligence. SEI moved to dismiss, arguing that Bell had elected Pennsylvania law and that it was entitled to immunity as the “statutory” employer under the Pennsylvania worker’s compensation system. The trial court denied the motion, then certified its order under Rule 54(b) to make it final and appealable.
Petitioner agrees that Bell was eligible for coverage under both Pennsylvania and West Virginia law. However, by filing a claim in Pennsylvania, Bell elected to proceed under Pennsylvania law--which is “now the exclusive remedy through which he can recover.” Under Pennsylvania law, SEI, as a general contractor, is a “statutory” employer entitled to worker’s compensation immunity. Accordingly, the trial court should have granted SEI’s motion to dismiss.
Respondent, Bell, says that he did not elect to proceed under Pennsylvania law. In fact, he was unconscious and critically injured and, therefore, unable to make any decisions at that time It was Nicholson that filed the worker’s compensation claim--a fact undisputed by anyone. Bell himself later filed a West Virginia claim. Therefore, Pennsylvania law is not the exclusive remedy and Bell is free to pursue his West Virginia common law claims against SEI.
The Supreme Court has dealt with these kinds of cross-border issues before in the context of workers compensation laws. This case adds a new twist. It seems unlikely that the Court will bar claims against SEI on an election-of-remedy basis when the employee, Bell, lacked the wherewithal to make an election.