C. Richard Bogese Builder, Inc. v. Robertson
| Decision Date | 15 February 1994 |
| Docket Number | No. 1535-93-2,1535-93-2 |
| Citation | 17 Va.App. 700,440 S.E.2d 622 |
| Court | Virginia Court of Appeals |
| Parties | C. RICHARD BOGESE BUILDER, INC. v. Antonio L. ROBERTSON, et al. Record |
Sarah Y.M. Kirby, Richmond (Mary Louise Kramer, Sands, Anderson, Marks & Miller, on briefs), for appellant.
Gerald G. Lutkenhaus, Richmond (Law Offices of Gerald G. Lutkenhaus, on brief), for appellee Antonio L. Robertson.
Christopher D. Eib, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., Mary Yancey Spencer, Deputy Atty. Gen., on brief), for appellee Uninsured Employers' Fund.
Present: BENTON, KOONTZ and ELDER, JJ.
C. Richard Bogese Builders, Inc. (hereinafter Bogese) appeals the Workers' Compensation Commission's award of temporary total disability benefits and permanent partial disability benefits to Antonio L. Robertson. On appeal, it argues that the commission erred in finding (1) that it was the general contractor on the job on which Robertson was injured; (2) that it was Robertson's statutory employer; (3) that Robertson was entitled to benefits for the period prior to his giving notice of the accident to Bogese; and (4) that the delay in giving notice did not bar recovery because the delay was reasonable and Bogese suffered no prejudice from the delay. For the reasons that follow, we affirm the commission's award.
In 1991, Don Flack contracted with Bogese, whose owner was his personal friend and a general contractor, to construct a house for Flack on a lot owned by Bogese. Bogese itemized the construction costs on a project-by-project basis (i.e., foundation work, framing, electrical work, plumbing) and agreed to allow Flack, who was an employee of a building supply company and therefore had a variety of contacts in the building industry, to select subcontractors to do specific projects if he could find someone else (including himself) to complete it at a cost lower than that itemized by Bogese. Bogese would then credit any savings to reduce the final purchase price of the home. Bogese arranged the construction and permanent loans, obtained the building permit on which it was listed as the general contractor, approved or disapproved of all subcontractors located by Flack, monitored their work, and remained responsible for seeing that the construction complied with relevant building codes. In addition, Bogese retained ownership of the lot during construction and paid all subcontractors after inspecting their completed work.
Pursuant to the work-equity arrangement, Flack contacted Richard Sears, of Sta-Dri Custom Builders, to prepare the lot and footings for the construction of the house. Richard Bogese, owner of Bogese, then met Sears at the lot and showed him how to comply with the setback rules. Sears testified that Richard Bogese told him "where the house would actually be sitting," but Richard Bogese testified that it was up to Flack and Sears to "put the house where they wanted it." Bogese hired an engineer to help rectify problems which arose with the footers, and Bogese paid Sears upon satisfactory completion of the work. Richard Bogese and Sears met at the site a total of three to five times. On December 5, 1991, the first day of Sears' work, Antonio Robertson, an employee of Sears, was injured while working at the site. Robertson reported his injury to Sears, his immediate employer, and Sears reported it to Flack. Flack and Sears both testified that they believed they notified Bogese but could not be certain.
Sears instructed Robertson that Lambert Construction was the general contractor for that site and that Robertson should report his claim to that company. In December of 1991, within two weeks of his release from the hospital, Robertson learned that Lambert was not the general contractor. When he informed Sears of this fact, Sears initially acted surprised but then admitted that he might be suspected of insurance fraud based on the false information he had given Robertson. However, Sears volunteered no additional information about the identity of the general contractor. Robertson employed a lawyer and filed a claim against Sears for compensation benefits. Through interrogatories of April 17, 1992, Robertson learned of Bogese's role in the construction after he had filed his application for benefits and hired an attorney. On April 30, 1992, within two weeks of the discovery, he gave notice to Bogese.
The commission found that Bogese, as opposed to Flack, was the general contractor on this project and was also claimant's statutory employer pursuant to Code § 65.2-302. It also found as a fact that Bogese did not receive notice of the injury until April 30, 1992, but that claimant's delay in notifying him was reasonable because claimant himself had been misled as to the identity of the general contractor and notified Bogese within two weeks of being advised of this fact. Finally, the commission found nothing in the record to show that Bogese had been prejudiced by this late notice. It then entered an award against Sears and Bogese and in favor of claimant for temporary total disability benefits for December 6, 1991, to April 5, 1992. It also entered an award for permanent partial disability benefits for April 6, 1992, through August 6, 1992.
The critical issue in this case is whether the evidence supports the commission's finding that Bogese was Robertson's statutory employer under Code § 65.2-302. The decisions of the commission as to questions of fact are conclusive and binding upon this Court if supported by credible evidence. Code § 65.2-706; see Manassas Ice & Fuel Co. v. Farrar, 13 Va.App. 227, 229, 409 S.E.2d 824, 826 (1991). We must view the evidence in the light most favorable to the prevailing party below, and "[t]he fact that contrary evidence may be found in the record is of no consequence if credible evidence supports the commission's finding." Manassas, 13 Va.App. at 229, 409 S.E.2d at 826 (citations omitted).
Code § 65.2-302 provides as follows:
A. 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.
B. When any person (referred to in this section as "contractor") contracts to perform or execute any work for another person which work or undertaking is not a part of the trade, business or occupation of such other person and contracts with any other person (referred to in this section as "subcontractor") for the execution or performance by or under the subcontractor of the whole or any part of the work undertaken by such contractor, then the contractor 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 that worker had been immediately employed by him.
"While these sections place liability under the Act on different people, they do have the same purpose and effect, and are in reality almost identical in operation." Snead v. Nello L. Teer Co., 353 F.Supp. 434, 435 (W.D.Va.1973) (). Taken together, these sections make
the owner liable if the workman, no matter how far down the line, is doing work which the owner has undertaken to perform as a part of his own trade, business or occupation. But if the work which the workman is doing is not a part of the trade, business or occupation of the owner, and the owner contracts with a contractor to do it, the contractor is liable to the workman, but not the owner. As between the owner and such contractor, the latter is an independent contractor, and ... such workman shall not be taken to be the employe[e] of such owner. And such liability remains on the contractor so long as any workman in the descending scale is performing work which is part of the trade, business or occupation of the contractor; but such liability does not extend to a workman who is performing work which may have some relation to the work of the original contractor but which is not part of the trade, business or occupation of the original contractor.
Sykes v. Stone & Webster Eng'g Corp., 186 Va. 116, 122, 41 S.E.2d 469, 472 (1947); see Smith v. Weber, 3 Va.App. 379, 382-83, 350 S.E.2d 213, 214-15 (1986). The purpose of this provision is to prevent an owner, contractor or...
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...to sufficiently investigate a claim or prepare a defense because of the delay. See, e.g., C. Richard Bogese Builder, Inc. v. Robertson, --- Va.App. ----, ----, 440 S.E.2d 622, 626 (1994) (affirming commission's finding of no prejudice based on evidence that statutory employer " 'presented a......