Barr v. Town & Country Properties, Inc.
| Decision Date | 21 September 1990 |
| Docket Number | No. 891253,891253 |
| Citation | 240 Va. 292,396 S.E.2d 672 |
| Court | Virginia Supreme Court |
| Parties | Lisa D. BARR v. TOWN & COUNTRY PROPERTIES, INC. Record |
Jack T. Burgess, for appellant.
Gary B. Mims (Brault, Palmer, Grove & Zimmerman, on brief), for appellee.
Present: All the Justices.
The dispositive issue in this appeal is whether the appellant, Lisa D. Barr, is an employee as defined by Code § 65.1-4 of the Workers' Compensation Act and, consequently, barred under § 65.1-40 from pursuing a common law tort action against the appellee, Town & Country Properties, Inc.
Barr is a real estate agent. She executed an employment contract with Town & Country Properties, Inc. and Town & Country Properties, Incorporated of Maryland (Town & Country), dated December 14, 1979. The contract described Town & Country as a real estate broker and Lisa Barr as a real estate sales associate. Paragraph 7 of the contract, which delineated the rights and obligations of the parties, states:
Broker shall not be liable to Sales Associate for any expenses incurred by him, or for any of his acts, nor shall Sales Associate be liable to Broker for office help or expense, and Sales Associate shall have no authority to bind Broker by any promise or representation, unless specifically authorized in a particular transaction; but expenses for attorney's fees, costs, revenue stamps, title contracts, and the like which must, by reason of some necessity, be paid from the commission, or are incurred in the collection of, or the attempt to collect the commission, shall be paid by the parties in the same proportion as the commission is divided. Suits for commissions shall, agreeably to the law, be maintained only in the name of the Broker, and Sales Associate shall be construed to be a subagent only with respect to the clients and customers for whom services shall be performed, and shall otherwise be deemed to be an independent contractor and not a servant, employee or partner of Broker.
On February 25, 1986, Barr was injured when she slipped and fell in a parking lot owned by Fairfax, Ltd. and leased to Town & Country. Barr filed a motion for judgment against Town & Country and others, alleging that her injuries were caused by their negligence. In a motion to dismiss, Town & Country argued that Code § 65.1-4.3 of the Workers' Compensation Act precluded Barr from pursuing any tort action against it. The trial court considered memoranda submitted by counsel and oral argument and granted the motion to dismiss.
Code § 65.1-4, which defines an employee for purposes of the Act, states that "[u]nless the context otherwise requires, 'employee' includes every person ... in the service of another under any contract of hire or apprenticeship, written or implied, except one whose employment is not in the usual course of the trade, business, occupation or profession of the employer." Code § 65.1-4.3, enacted in 1984, states For purposes of this Act, any person who is a licensed real estate salesperson, or a licensed real estate broker associated with a real estate broker, shall not be deemed an "employee" if (i) substantially all of the salesperson's or associated broker's remuneration is derived from real estate commissions, (ii) the services of the salesperson or associated broker are performed under a written contract specifying that the salesperson is an independent contractor, and (iii) such contract includes a provision that the salesperson or associated broker will not be treated as an employee for federal income tax purposes.
We must apply the tests specified in Code § 65.1-4.3 rather than the definition of employee contained in Code § 65.1-4 because established principles of statutory construction require that "when one statute speaks to a subject in a general way and another deals with a part of the same subject in a more specific manner, the two should be harmonized, if possible, and where they conflict, the latter prevails." Virginia Nat. Bank v. Harris, 220 Va. 336, 340, 257 S.E.2d 867, 870 (1979).
Barr and Town & Country agree that the contract complies with the tests enumerated in part...
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