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Nationwide Mut. Ins. Co. v. Estate of Harrison

Court of Appeals of Virginia

December 9, 2014

NATIONWIDE MUTUAL INSURANCE COMPANY
v.
THE ESTATE OF PHILLIP HARRISON AND UNINSURED EMPLOYER'S FUND

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.

Adam E. Strauchler (Robey, Teumer, Drash, Kimbrell & Counts, on brief), for appellant.

Charlene A Morring (Montagna, Klein, Camden LLP, on brief), for appellee the Estate of Phillip Harrison.

Robert A. Rapaport (Bonnie P. Lane; Clarke, Dolph, Rapaport, Hull & Brunick, P.L.C., on brief), for appellee Uninsured Employer's Fund.

Present: Judges Frank, Beales and Senior Judge Clements. OPINION BY JUDGE ROBERT P. FRANK.

OPINION

Page 155

[64 Va.App. 113] ROBERT P. FRANK, JUDGE.

Nationwide Mutual Insurance Company (" Nationwide" ), appellant, appeals the decision of the Workers' Compensation Commission (" commission" ) finding that the commission has jurisdiction to award compensation

Page 156

to the claimant. In the alternative, Nationwide challenges the commission's refusal to stay proceedings before the commission pending the outcome of a declaratory judgment action in the circuit court to resolve the coverage dispute. For the following reasons, we affirm the commission's decision.

BACKGROUND

Claimant filed a claim against D& W Garages, Inc. (" D& W" ) seeking compensation for the death of claimant's decedent, Phillip Harrison. At the time of his death, Harrison was an employee for Home Crafters of Tidewater and a statutory employee of D& W.

D& W alleged it was covered under a workers' compensation policy issued by Nationwide. Nationwide defended on the basis that its policy was void ab initio due to a material misrepresentation made by D& W, i.e., that D& W failed to disclose its use of subcontractors. The Uninsured Employer's Fund was joined in the case.

The parties stipulated that decedent was subject to the jurisdiction of the Workers' Compensation Act (" the Act" ) at all times, that he was working for Home Crafters of Tidewater on August 29, 2012 when he was electrocuted resulting in his death on September 5, 2012, that his wife was the sole dependent at the time of his death, that his average weekly wage was $78.86, and that subject to the resolution of a coverage dispute with the employer, Nationwide is responsible for any award of benefits the commission may enter.

Nationwide asked the deputy commissioner to resolve the coverage dispute between it and D& W. The deputy ruled he [64 Va.App. 114] had no jurisdiction to address the coverage dispute.[1] Nationwide then contended that the commission had no jurisdiction to enter an award against it because the deputy refused to determine coverage.

In the alternative, Nationwide moved for a stay in the proceedings pending the resolution of the declaratory judgment proceeding pending in circuit court. Nationwide did not indicate how long that proceeding would take.[2]

The deputy denied Nationwide's motions. Nationwide appealed to the full commission which ...


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