Current State of the Law regarding the Issue of Statutory Employees in Virginia

Copyright 2010, Joseph A. Miller Esq. and Accidental Injury Advocates, Ltd.

The law of statutory employees in Virginia basically holds that even if a worker does not directly work for a contractor, or other employer who is present at the same jobsite as the injured worker, that injured employee may still be prevented, or barred from suing said other employer or contractor for negligence in causing the employee to be hurt.

Under section 65.2-302 of the Virginia code and Virginia Workers Compensation Act, the original contractor or owner of the property where the work is being performed may still be sued by the injured worker for negligence, even if the injured worker has already received workers compensation benefits from their immediate employer. The question under this section becomes whether or not employee, at the time he was injured, was performing work which was “part of the owner’ s trade, business, or occupation.”

Section 65.2-307 of the Virginia code, addresses the exclusivity of the employee’s remedy in the event it is found that he is a statutory employer.

That means that the injured worker is stuck with workers compensation benefits, and has no right to sue the contractor or owner for negligence, unless the injured worker can show that the contractor he is trying to sue is a “stranger” to the work in which he injured employee was engaged. In other words, the injured worker has to show, as mentioned above, that he was not performing work which was part of the negligent owner or contractor’ s trade, business, or occupation.

The main thing to remember in these cases is that whether an employee is to be considered a statutory employee is always a mixed question of law and fact and has to be considered on a case-by-case basis. Burch v. Hechinger, 264 Va. 165, 563 S.E. 2d 745 (2002).

Probably one of the most helpful cases on this issue is the Virginia Supreme Court case of Hudson v. Jarrett, 269 Va. 24, 606 S.E. 2d 827, (2005). In that case, there were two workers who were unloading different barges at a barge terminal. The injured worker was run over by a truck operated by the employee that he wanted to sue. The Court held that since the two workers were employed under two completely different contracts to load and unload two completely different barges, even though they were working at the same terminal, the exclusivity provisions of 65.2-307 did not apply, and the two workers were not considered “fellow employees.” Therefore, Mr. Hudson could sue Mr. Jarrett for negligence in running him over and causing his injuries.

Another line of helpful cases deal with situations where the injured employee is making a delivery to the work site. In these cases, the employee has often been in a found to be merely engaging in work as a deliverer of goods, and not in the trade, business, or occupation of the entity whom the employee was suing. Therefore, a lawsuit for negligence by the injured employee was allowed to proceed against the owner or contractor. See Burroughs v. Walmont, 210 Va. 98, 168 S.E. 2d 107 (1969) (trucker delivering plasterboard to house and stacking same was not part of general contractors trade, business or occupation, was therefore “other party” and subject to being sued); Yancey v. JTE Constructors, Inc. 252 Va. 42, 471 S.E. 2d 473 (1996) (employee of subcontractor hired to design and deliver concrete panels to Highway site who merely suspected and patched a concrete panels engaged in a “final act of delivery,” and therefore the injured employee was not engaged in the general contractor’ s trade, business, or occupation.

But, where the plaintiff not only delivered materials, but participated in activity which might be considered part of the contractor or owner’s business, then the exclusivity provisions of the act are going to apply, and he will not be able to sue. This was the case in Bosher v. Jamerson, 207 Va. 539, 151 S.E. 2d 375 (1966). There, the trucker had not only delivered sand to a construction site, but also participated in the spreading of the sand to create a foundation under the direction of the general contractor. In that circumstance, the Court held that the driver was performing work which was part of the trade, business, or occupation of the general contractor.

In addition, if the subcontractor and employee are routinely transporting materials and cargo between an employer’ s factories or assembly plants, that is going to be considered an essential part of the business of the owner or contractor, and the plaintiff is going to be held to be a statutory employee. See Conlin v. Turner’s Express, Inc., 229 Va. 557, 331 S.E. 2d 453 (1985); Meredith v. Honeywell International, Inc., 445 F. Supp 2d 661 (E.D. Va. 2006)

And in the case of Clean Sweep Professional Parking Lot Maintenance, Inc. et. al., v. Frank Talley, 267 Va. 210, 591 S.E. 2d 79 (2004), the plaintiff was injured while returning from a delivery and was called upon to diagnose and assist one of his employer’s trucks, which had become disabled. While he was underneath the truck, he was struck by another subcontractor’ s truck. He sued the driver of that truck and his employer, who was employed on the same job as the plaintiff, which the construction of a road. The Court held that this case was more like the Bosher case, in that the plaintiff and his employer were not merely delivering parts. They were hauling asphalt millings to the contractor’s plant, and delivering those items to the road project. Therefore, the plaintiff and his direct employer engaged in an essential part of the work that the general contractor was required to form under its contract. In other words, the plaintiff and his employer or not strangers to the work going on at the work site, and since the person who ran over the plaintiff was also engaged in that same work, that employee was considered a fellow statutory employee of the plaintiff, and therefore the plaintiff’s suit was barred by the exclusivity provisions of the act.

But there is still hope and that there are several cases would say that if the employee is merely performing maintenance work at a facility which has nothing to do with the owner or contractor’s business, he would not be considered to be a statutory employee of the owner or contractor.

Such was the case in Cinnamon v. International Business Machines Corp., 238 Va 471, 384 S.E. 2d 618 (1989). There, the plaintiff was an employee of a subcontractor who was performing painting work on a semiconductor manufacturing building. Interestingly, the Court held that because IBM was a manufacturer of semiconductors for sale, and not a construction company, the employee who was performing the painting work was not engaged in the same business, trade, or occupation as the owner, in this case IBM, and therefore, he was not considered a statutory employee of IBM. Accordingly, his lawsuit, where he claimed that IBM failed to provide him with a safe workplace and personal safety equipment, contributing to his severe injuries, was not considered barred because he was a statutory employee, and the case was remanded to the lower court for further proceedings.

More importantly, there is the Fourth Circuit case of Farish v. Courion Industries and Otis Elevator Company, 722 F. 2d 74 (4th Cir. 1983). In that case, Ms. Farish, an employee of the University of Virginia, was doing plumbing work, when suddenly, the lower part of an elevator door fell to the floor, and, through a series of events, caused Ms. Farish to be struck in the head and severely injured. She sued the manufacturer and maintenance Company for the elevator. The Fourth Circuit Court of Appeals held that the specialized phase of maintenance conducted by Otis, the maintenance Company of the elevator, was not part of the University’s normal business, and that therefore the plaintiff could maintain a suit against Otis. The Court noted that while it was true that the University must maintain its physical facilities as part of its primary business of education, several cases were cited which illustrated the notion that specialized maintenance requiring skill and expertise not possessed by the contractor’s employees are considered to be outside the contractor’s regular business. Therefore, in these types of cases the owner is not considered to be a “statutory employer” of the contractors or owners, and an action may be maintained against the owner as an “other party.” In other words, the test is not whether the subcontractors activity is useful, necessary or even indispensable to the employer’s business, because that can be said of any type of repair, construction, or transportation. The question is whether or not this activity is normally carried on by employees of the owner rather than independent contractors of the owner.

But you must still beware of exceptions to this rule, and one of the main exceptions is the “subcontracted fraction exception.” That means that if the work out of which the accident arose was obviously a subcontracted fraction of the contract maintained by the general contractor, even though it was not part of the trade business or occupation of the owner, it is still going to make the injured worker a statutory employee of of the owner or contractor. See Shell Oil Co. v. Leftwich, 212 Va. 715, 187 S.E. 2d 162 (1972). This was also applied to Fourth Circuit case of Evans v. B.F. Perkins Co, et al 166 F. 3d 642 (4th Cir. 1999).