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ESTATE OF KIMMELL v. SEVEN UP BOTTLING CO.

No. 91-1878.

993 F.2d 410 (1993)

The Estate of Bernard C. KIMMELL, through his co-representatives Margaret and David KIMMELL and Virginia Jones, Plaintiffs-Appellants, and Virginia Jones, Administratrix of the Estate of Bernard Cameron Kimmell, Plaintiff, v. SEVEN UP BOTTLING COMPANY OF ELKTON, INCORPORATED, Defendant-Appellee, and Clark Material Systems Technology Company, formerly known as Clark Equipment Company, d/b/a C.E.C. & Clark; Homestead Materials Handling Company; Jefferds Corporation; Potomac Industrial Trucks; Cumberland Clarklift; Clarklift of Virginia; Richmond Clarklift, Defendants.

United States Court of Appeals, Fourth Circuit.

Decided May 18, 1993.

Attorney(s) appearing for the Case

Eric Busch, Mayerson, Munsing, Corchin, Rosato & Ostroff, P.C., Spring City, PA (Peter N. Munsing, on brief), for plaintiff-appellant.

Robert Mark McAdam, Wooten & Hart, P.C., Roanoke, VA (David B. Hart, on brief), for defendant-appellee.

Before ERVIN, Chief Judge, HAMILTON, Circuit Judge, and WARD, Senior United States District Judge for the Middle District of North Carolina, sitting by designation.

OPINION

HIRAM H. WARD, Senior District Judge:

This diversity case raises an issue under the Virginia Workers' Compensation Act, Va. Code Ann. § 65.1-1 et seq. (Michie 1987) (recodified as Va.Code Ann. § 65.2-100 et seq. (Michie 1992)) ("Act"). The issue is whether the exclusivity provision of the Act would preclude a minor employee's estate from maintaining a common law negligence action against the deceased minor's employer. We hold...

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