Present: All the Justices 

MONENNE Y. WELCH, ADMINISTRATOR 

OF THE ESTATE OF BERNIE PRESTON 

WELCH, JR. 

 OPINION BY JUSTICE A. CHRISTIAN COMPTON 

v. Record No. 982534 November 5, 1999 

MILLER AND LONG COMPANY OF 

MARYLAND, INC., ET AL. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Kathleen H. MacKay, Judge 

 The question presented in this wrongful death action, 

stemming from an accident at a construction site, is whether the 

uninsured motorists statute, Code § 38.2-2206, permits the 

personal representative of a deceased employee to prosecute a 

common-law action against the statutory employer and a fellow 

servant, as well as two uninsured motorist carriers, and collect 

a judgment from the insurers despite the exclusive remedy 

provision of the Workers' Compensation Act (the Act). We answer 

that question in the negative. 

 The facts are not disputed. In October 1997, the 

plaintiff's decedent, Bernie P. Welch, was operating a dump 

truck for his employer, C. W. Strittmatter, Inc., at a 

construction site in Fairfax County. At that time and place, 

defendant Miller & Long Company of Maryland, Inc., owned a 

mobile crane being operated in the work by its employee, 

defendant Nathan Gunn. As a result of the alleged negligence of 
Gunn, the crane "toppled over," crushing the truck's cab and 

causing Welch's death. 

 Welch's administrator filed this common-law action against 

the foregoing defendants seeking recovery of damages under the 

Death By Wrongful Act statutes, Code § 8.01-50, et seq. The 

plaintiff joined as defendants Royal Insurance Company of 

America, the uninsured motorist carrier for the dump truck, and 

Government Employees Insurance Company (GEICO), the uninsured 

motorist carrier for the decedent's personal motor vehicle. 

 The parties agreed that the deceased was operating the 

truck in the scope of his employment with Strittmatter; that 

Miller & Long, Strittmatter, the deceased, and Gunn were all 

engaged in construction work on one project at one site; that 

Miller & Long and Strittmatter were subcontractors on the job; 

and that Miller & Long and Gunn fell within the jurisdiction of 

the Act. 

 Defendants Miller & Long (the decedent's statutory 

employer) and Gunn (the decedent's fellow servant) filed a plea 

in bar, asserting that a common-law action against them for 

negligence was barred by the exclusive remedy provision of the 

Act, Code § 65.2-307 (rights and remedies granted to employee 

for payment of workers' compensation on account of death by 

accident exclude all other rights and remedies of employee's 

personal representative at common law on account of such death). 

2
 Defendant Royal Insurance Company filed a motion for 

summary judgment (treated by the trial court as a plea in bar), 

in which GEICO joined. The insurers asserted that the plaintiff 

could not recover any uninsured motorist benefits because 

plaintiff, not being legally entitled to recover any damages 

against either Miller & Long or Gunn, could not satisfy the 

condition precedent to such uninsured motorist liability. The 

uninsured motorist statute requires motor vehicle liability 

policies to contain provisions undertaking to pay "the insured 

all sums that he is legally entitled to recover as damages" from 

an uninsured motorist. Code § 38.2-2206(A). 

 The plaintiff urged application of 1997 amendments to Code 

§ 38.2-2206(B)(v) and (F), which generally provided that 

"immunity" from liability for negligence of the operator of a 

motor vehicle shall not be a bar to an insured obtaining a 

judgment against the insurer. The plaintiff asserted that the 

crane was an uninsured motor vehicle by statutory definition 

because Miller & Long and Gunn were "immune" from liability for 

negligence under the Act. The plaintiff further asserted that 

the 1997 amendments now allow "the deceased insured" to proceed 

with the action against the "immune" defendants and that any 

judgment obtained would be enforceable only against the 

insurers. 

3
 Following consideration of argument of counsel, the trial 

court, in a letter opinion, sustained the respective pleas in 

bar. We awarded the plaintiff this appeal from a September 1998 

order dismissing the action with prejudice. 

 On appeal, the plaintiff advances the same arguments 

presented below, and contends the trial court erred in 

dismissing the action. We do not agree. 

 In Aetna Casualty and Surety Co. v. Dodson, 235 Va. 346, 

367 S.E.2d 505 (1988), we considered a case with facts virtually 

identical to those presented here, and interpreted the version 

of the uninsured motorist statute effective at that time. We 

held that Virginia law did not permit recovery by an insured's 

estate under the uninsured motorist provisions of the insured's 

motor vehicle liability policy issued by Aetna, when the insured 

was killed in a work-related motor vehicle accident and when the 

employer/vehicle owner and co-employee/vehicle operator both 

were insured under other policies, but when the exclusive remedy 

provision of the Act barred recovery under those other policies. 

 In Dodson, we said: "Because workers' compensation 

afforded the exclusive remedy against the decedent's employer 

and fellow employees for his accidental death, his statutory 

beneficiaries are not 'legally entitled to recover' damages 

against them. It follows that a condition precedent to Aetna's 

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liability under its [uninsured motorist] endorsement was not 

met." Id. at 351, 367 S.E.2d at 508. 

 Nine years after Dodson, the General Assembly amended 

portions of the uninsured motorist statute pertinent here. See

Acts 1997, ch. 170, 191. The statutory definition of "Uninsured

motor vehicle" was amended to provide that the term "means a 

motor vehicle for which . . . (v) the owner or operator of the 

motor vehicle is immune from liability for negligence under the 

laws of the Commonwealth or the United States, in which case the 

provisions of subsection F shall apply and the action shall 

continue against the insurer." Code § 38.2-2206(B). 

 At the same time, subsection (F) was amended to provide: 

"Notwithstanding the provisions of subsection A [containing the 

'legally entitled to recover' language], the immunity from 

liability for negligence of the owner or operator of a motor 

vehicle shall not be a bar to the insured obtaining a judgment 

enforceable against the insurer for the negligence of the immune 

owner or operator, and shall not be a defense available to the 

insurer to the action brought by the insured." Code § 38.2-

2206(F). 

 We reject the plaintiff's argument that only the foregoing 

amendments control here. Initially, we disagree with the 

plaintiff that, because the alleged tortfeasors, defendants 

Miller & Long and its employee Gunn, are not subject to a 

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common-law judgment in an action by the plaintiff, due to the 

exclusive remedy provision of the Act, the amendment terms 

"immune" and "immunity" describe the status of those defendants. 

 In this context, the terms contemplate total exemption from 

tort liability, such as that generally enjoyed by state and 

local governments. In the present situation, the tortfeasors 

were not exempt from liability. Rather, they, and their 

workers' compensation insurance carrier, were strictly liable to 

the plaintiff for payment of workers' compensation benefits. 

 Moreover, a clear statutory mandate trumps the plaintiff's 

effort effectively to disregard provisions of the Workers' 

Compensation Act and to focus solely on the uninsured motorist 

statute, a part of the insurance laws. Code § 38.2-900, 

contained within the insurance title of the Code, provides: 

"All acts and parts of acts inconsistent with the 

provisions of this title are hereby repealed to the 

extent of the inconsistency. However, the provisions 

of this title shall not amend or repeal any provisions 

of Title 65.2 relating to workers' compensation." 

 Therefore, the exclusive remedy provision of the Act is not 

affected by the amendments to the uninsured motorist statute. 

Acceptance, as here, of workers' compensation benefits on behalf 

of the deceased employee excludes all other rights and remedies 

of such employee, his personal representative, and next of kin 

at common law or otherwise on account of the death. 

6
 Accordingly, because the Act afforded the exclusive remedy 

against the decedent's statutory employer (Miller & Long) and a 

fellow servant (Gunn), the decedent's statutory beneficiaries 

under the wrongful death statutes are not legally entitled to 

recover damages against them. Thus, a condition precedent to 

the insurers' liability under the uninsured motorist statute was 

not met. 

 Consequently, the judgment of the trial court will be 

Affirmed. 

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