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Carter v. Fred's Plumbing & Heating Inc.11/4/2002
ENTRY ORDER
In the above-entitled cause, the Clerk will enter:
Plaintiff appeals a summary judgment by the Commissioner of Labor and Industry, which held that his claim against defendants was barred by the five-year statute of limitations encompassed in the Occupational Disease Act, 21 V.S.A. § 1006(a) (1987) (repealed by 1999, No. 41, § 8(a)(1) (the "ODA"). We affirm.
From 1957 until 1988, plaintiff worked as a plumber. He was employed first by Hackett's Plumbing and Heating, and then by Hackett's successor in interest, defendant Fred's Plumbing and Heating, Incorporated. Until 1981, he worked in the field. Over the course of his career, it is alleged that plaintiff was exposed to asbestos. After being diagnosed with pulmonary asbestosis on June 4, 1999, plaintiff filed a Worker 's Compensation claim on July 7, 1999. Eighteen years lapsed between his last allegedly injurious exposure to asbestos in 1981 and his diagnosis with the disease in 1999.
After plaintiff filed his claim, five insurance companies moved for summary judgment, arguing that any claim was barred by the statute of limitations. Additionally, each denied its own specific liability. At the time of those motions, however, the employer was unrepresented and had not yet participated in the case. After the Commissioner of Labor and Industry issued an order granting the insurers' motions, plaintiff filed a notice of appeal with the Orleans Superior Court. Promptly thereafter, the Commissioner withdrew her decision and invited an appearance from the employer. The Commissioner then received a motion for summary judgment from the employer, as well as renewed motions for summary judgment from the insurers, and granted all in an amended ruling.
In so ruling, the Commissioner relied primarily on the fact that the ODA and its five-year limitations period was in effect both at the time plaintiff was alleged to be injured by asbestos, and when he was finally diagnosed with pulmonary asbestosis, the date of disablement. In either case, the Commissioner held that the limitations period ran from the "last injurious exposure." Id. § 1006(a) (1987).
Defendant-insurers maintain that the Commissioner's jurisdiction was lost at the time claimant appealed the first summary judgment ruling to the Orleans Superior Court. They argue that the Commissioner lacked the jurisdiction to unilaterally withdraw her June 6, 2001 ruling. Therefore, defendants argue that her amended ruling has no legal effect and cannot now be properly appealed. Claimant argues that Commissioner's order was never final, because it preceded any appearance by the true party defendant the employer.
In her amended ruling, the Commissioner noted that "any determination as to the liability of the insurers is one for the superior court, not this department." Indeed, while the liability of an insurer under the statute is primary when the insurer undertakes to defend an employer, Morrisseau v.Legac, 123 Vt. 70, 78, 181 A.2d 53, 59 (1962), where an issue arises between insurers and the employer as to coverage, the primary question facing the court is the liability of the employer. Issues of rights and liabilities which arise between insurers and the employer are not within the jurisdiction of the Commissioner. Id.
While it is true that an appeal from a final order concludes the agency's jurisdiction, prior to entry of a final order in an action involving multiple claims or parties any "other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and rights and liabilities of all the parties." V.R.C.P. 54(b); see also Szirbik v. R.K. Miles, Inc., 137 Vt. 1
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