Burch v. Hechinger Co., Record No. 991490.
| Decision Date | 07 June 2002 |
| Docket Number | Record No. 991490. |
| Citation | 264 Va. 165,563 S.E.2d 745 |
| Court | Virginia Supreme Court |
| Parties | Louise V. BURCH v. HECHINGER COMPANY. |
Steven W. Bancroft (Michael J. Carita, Fairfax; Kenneth Falkenstein, Arlington; Phillip Sasser, Jr., Spotsylvania; Trichilo, Bancroft, McGavin, Horvath & Judkins, Fairfax; Jarrell, Hicks & Sasser, Spotsylvania, on brief), for appellant.
Christopher E. Hassell (Lucy C. Chiu, Washington, DC; Bonner, Kiernan, Trebach & Crociata, on brief), for appellee.
Present: All the Justices.
Opinion By Justice CYNTHIA D. KINSER.
In this personal injury action, the question on appeal is whether the plaintiff-appellant was a statutory employee of the defendant-appellee when she was injured. Because we answer that question affirmatively, we will affirm the circuit court's judgment sustaining the defendant's plea in bar based on the exclusivity provision of the Virginia Workers' Compensation Act, Code § 65.2-307(A).
Louise V. Burch was employed as a sales representative by Greenhost, Inc. (Greenhost). Greenhost grew plants and flowers and sold them on a wholesale basis to various retailers, including Hechinger Company (Hechinger).
In the spring of 1997, Burch negotiated an order for Greenhost flowers to be sold at a Hechinger store in Springfield during a "truckload sale" advertised to take place over a Friday, Saturday and Sunday in May. Burch agreed to be present during part of the truckload sale to assist in displaying the flowers and to answer horticultural questions for Hechinger retail customers.
A problem arose when one of the trailers of flowers arrived at the Springfield Hechinger store a day earlier than anticipated and Hechinger did not have staff available to unload the flowers and arrange the display that day. If the plants remained inside the trailer all day, the heat would cause them to wilt and die and Burch "would have to go up there and write a return." Therefore, at the request of her supervisor, Burch went to the Hechinger store the day before the sale was scheduled to begin and assisted in arranging the display of flowers as they were unloaded from the trailer.
Hechinger's garden clerk and acting manager on duty that day, Richard Lawrence Scherer, was responsible for unloading the trailer. The flowers had been stored for transport inside the trailer on carts, each of which held approximately 42 flats with about 36 flowering plants in each flat. While Scherer used a hydraulic lift to remove the carts of flowers from the trailer, Burch and at least one other Hechinger employee began rearranging Hechinger's existing stock to make room for the new delivery of flowers.
Burch was engaged in this task when two women approached her and asked for assistance in locating red impatiens, a particular color and type of flower. Aware that no red impatiens were on display, Burch invited the customers to accompany her to the trailer to ascertain whether any were in the delivery being unloaded.
Only three or four carts had been unloaded from the trailer at that time, and Scherer attempted to look for the red impatiens among the carts remaining on the trailer. However, he was unable to maneuver the carts to view the contents of each, so he returned to unloading carts from the trailer while the customers waited. At this point, one of the carts filled with potted flowers rolled off of the trailer's tailgate, falling onto Burch and injuring her.
Burch subsequently filed suit alleging that the accident resulted from the negligence of Hechinger's employee and that Hechinger was vicariously liable for his negligent acts. In its defense, Hechinger filed a plea in bar alleging that at the time of her injury, Burch was a statutory employee of Hechinger and that her negligence action was therefore barred by the exclusivity provision of the Virginia Workers' Compensation Act, Code § 65.2-307.
The circuit court found that Burch's injury occurred while she was consolidating and rearranging flowers, a task ordinarily performed by Hechinger employees. Thus, the court ruled that Burch was a statutory employee of Hechinger and that her exclusive remedy was a claim for workers' compensation benefits. The court sustained Hechinger's plea in bar and dismissed Burch's negligence action. Burch appeals that dismissal, contending that the court erred in ruling that she was a statutory employee of Hechinger.1
The rights and remedies provided in the Virginia Workers' Compensation Act (the Act) are exclusive of all other rights and remedies for employees who fall within the scope of the Act. Code § 65.2-307(A). See Feitig v. Chalkley, 185 Va. 96, 98, 38 S.E.2d 73, 73-74 (1946) (). Therefore, the sole issue in this appeal is whether the trial court was correct in designating Burch as a statutory employee of Hechinger at the time of her injury. If so, then her negligence action seeking damages from Hechinger is barred by Code § 65.2-307(A).
With regard to when an individual may be properly considered a statutory employee, the Act provides:
When any person (referred to in this section as "owner") undertakes to perform or execute any work which is a part of his trade, business or occupation and contracts with any other person (referred to in this section as "subcontractor") for the execution or performance by or under such subcontractor of the whole or any part of the work undertaken by such owner, the owner shall be liable to pay to any worker employed in the work any compensation under this title which he would have been liable to pay if the worker had been immediately employed by him.
Code § 65.2-302(A)(emphasis added).
"The issue whether a particular person or entity is the statutory employer of an injured employee is a jurisdictional matter presenting a mixed question of law and fact that must be determined under the facts of each case." Bosley v. Shepherd, 262 Va. 641, 648, 554 S.E.2d 77, 81...
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