CLEAN SWEEP PROFESSIONAL v. Talley

• Decision Date: 16 January 2004
• Docket Number: Record No. 030058.
• Citation: 591 S.E.2d 79,267 Va. 210
• Parties: CLEAN SWEEP PROFESSIONAL PARKING LOT MAINTENANCE, INC., et al. v. Frank TALLEY, Sr.
• Court: Virginia Supreme Court

591 S.E.2d 79

267 Va. 210

CLEAN SWEEP PROFESSIONAL PARKING LOT MAINTENANCE, INC., et al. v. Frank TALLEY, Sr.

Record No. 030058.

Supreme Court of Virginia.

January 16, 2004.

Julia B. Judkins (Melissa H. Katz; Trichilo, Bancroft, McGavin, Horvath & Judkins, on brief), Fairfax, for appellants.

Thomas W. Williamson, Jr. (Charles F. Purcell; Michael C. Kildoo, Louisa; Williamson & Lavecchia, Richmond; Purcell & Purcell, Louisa, on brief), for appellee.

Present: HASSELL, C.J., LACY, KEENAN, KINSER, LEMONS, and AGEE, JJ., and CARRICO, S.J.

OPINION BY Justice DONALD W. LEMONS.

In this appeal, we consider whether the trial court erred in overruling pleas in bar based upon the exclusivity provisions of the Virginia Workers' Compensation Act, Code § 65.2-100 et seq. ("the Act").

I. Facts and Proceedings Below

In August 1997, Virginia Paving Company ("Virginia Paving") was engaged in the repaving of certain portions of Interstate Highway 95 in Spotsylvania County, under a contract from the Virginia Department of Transportation ("VDOT"). The contract required Virginia Paving to undertake all aspects of the repaving process including milling the existing road surface, removing the milled asphalt, sweeping away loose debris, and repaving the roadway with fresh asphalt supplied by Virginia Paving.

Because of the size of the project, in addition to utilizing its own equipment and workforce, Virginia Paving hired subcontractors to assist in certain portions of the work. Virginia Paving hired J.E. Coleman Trucking Company ("Coleman Trucking") to assist Virginia Paving in transporting asphalt from Virginia Paving's plant to the jobsite, loading asphalt into the paving machines, and hauling the millings from the jobsite back to the plant. Virginia Paving also hired Clean Sweep Professional Parking Lot Maintenance, Inc. ("Clean Sweep") to help Virginia Paving clear the roadway of asphalt after it was loosened by the milling machines.

On August 27, 1997, Frank Talley, Sr. ("Talley"), a truck driver employed by Coleman Trucking, loaded fresh asphalt at the Virginia Paving plant, delivered it to the jobsite, dumped the asphalt into the paving machine, and reloaded the truck with asphalt millings. Before returning to the Virginia Paving plant, Talley responded to a call to diagnose a disabled Coleman truck that was also at the site. While Talley was underneath the truck, it was struck by one of Clean Sweep's sweeper trucks operated by John J. O'Connor ("O'Connor"). As a result of the accident, Talley sustained back injuries.

Talley sued Clean Sweep and O'Connor, alleging that Talley was injured by O'Connor's negligence and recklessness in operating the sweeper truck. Clean Sweep and O'Connor filed pleas in bar stating that the Act is Talley's sole avenue for recovery and precludes any and all other remedies. The trial court overruled the pleas in bar. The jury subsequently returned a verdict in favor of Talley in the amount of $900,000. Clean Sweep and O'Connor appeal the trial court's judgment refusing to sustain the pleas in bar.

II. Analysis

On appeal, Clean Sweep and O'Connor maintain that the trial court erred by failing to sustain the pleas in bar. They assert that Coleman Trucking and Clean Sweep were both subcontractors of Virginia Paving and they were engaged in the trade, business, or occupation of Virginia Paving. Further, they maintain that because Coleman Trucking's employee, Talley, was injured by the actions of Clean Sweep's employee, O'Connor, Talley's exclusive remedy is provided by the Act.

Whether a person is subject to the exclusivity provision of the Act presents a mixed question of law and fact that must be resolved in light of the facts and circumstances of each case. Burch v. Hechinger Co., 264 Va. 165, 169, 563 S.E.2d 745, 747 (2002). We review de novo the trial court's determination that Talley and O'Connor were not statutory fellow employees.

The rights and remedies provided in the Act are exclusive of all other rights and remedies of an employee or his estate at common law or otherwise. Peck v. Safway Steel Prods., Inc., 262 Va. 522, 525, 551 S.E.2d 328, 329 (2001). The only exception to this exclusivity provision is provided in Code § 65.2-309(A) permitting an action to be maintained against an "other party." "[T]o be an `other party,' a defendant must have been a stranger to the trade, occupation, or business in which the employee was engaged when he was injured." 262 Va. at 525, 551 S.E.2d at 329. Additionally, we have held:

[B]ecause he is not a "stranger to the employment," an allegedly negligent employee of one contractor, engaged in the same business or project of an owner as an injured employee of another contractor, is not an "other party" amenable to suit . . .

Evans v. Hook, 239 Va. 127, 131, 387 S.E.2d 777, 779 (1990). See also Pfeifer v. Krauss Construction Co., 262 Va. 262, 266-67, 546 S.E.2d 717, 719 (2001).

Talley does not argue that O'Connor was not a statutory employee of the general contractor, Virginia Paving. On appeal, Talley maintains that Talley's actions on behalf of his employer, Coleman Trucking, were not in the trade, business, or occupation of Virginia Paving.

The trial court held that Coleman Trucking was engaged in "a function which was solely as a supplier or deliverer of goods and, of course, to haul off goods." Citing Burroughs v. Walmont, 210 Va. 98, 168 S.E.2d 107 (1969), the trial court concluded that Coleman Trucking's work consisted of mere delivery and hauling and as such, Coleman Trucking was not engaged in the trade, business or occupation of Virginia Paving. Consequently, Talley was not a statutory employee of Virginia Paving and could not be a statutory fellow employee of O'Connor. We disagree.

In Burroughs, the plaintiff, an employee of a trucking company, was injured while carrying plasterboard into one of several houses being constructed by the general contractor. 210 Va. at 99, 168 S.E.2d at 108. The trucking company had agreed to deliver and stack specified quantities of the plasterboard in the rooms in the various houses under construction. Id. at 98, 168 S.E.2d at 108. We held that "the stacking of [plasterboard] in the several rooms constituted the final act of delivery, not an act of construction." Id. at 100, 168 S.E.2d at 108. Consequently, the plaintiff was not engaged in the general contractor's trade, business, or occupation, and, therefore, the general contractor was an "other party" and subject to being sued. Id. at 100, 168 S.E.2d at 109.

Similarly, in Yancey v. JTE Constructors, Inc., 252 Va. 42, 471 S.E.2d 473 (1996), a general contractor was hired by the Virginia Department of Transportation to design and install a sound barrier along an interstate highway. Id. at 43, 471 S.E.2d at 474. The general contractor engaged a subcontractor merely to design, manufacture, and deliver concrete wall panels to the job site. Id. The plaintiff, an employee of the subcontractor, was injured while he was inspecting one of the panels. Id. at 43, 471 S.E.2d at 474. We held that the plaintiffs inspection and patching activities "were the final acts of delivery required by the contract" and that the plaintiff was not engaged in the general contractor's trade, business, or occupation. Id. at 45, 471 S.E.2d at 475.

But not all cases that initially appear to be "delivery" cases have resulted in a holding that the plaintiff was not engaged in the trade, business or occupation of the general contractor. In Bosher v. Jamerson, 207 Va. 539, 151 S.E.2d 375 (1966), we considered a case involving an employee of a trucking company who 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. An employee of the general contractor was injured by negligence of the employee of the trucking company during the sand spreading process. Id. at 540-41, 151 S.E.2d at 376. In applying the exclusivity rule and barring the suit for personal injuries, we held that

at the time of the accident [the driver] was performing work on behalf of his employer, [the trucking company], that was part of the trade, business or occupation of [the general contractor]. If [the driver] was performing such work, [the trucking company], though an independent contractor, is not an "other party" against whom [the general contractor's employee's] right of action is preserved under the Workmen's Compensation Act, and [the general contractor's employee's] right to recover for the injury is limited to the compensation provided under the Act.

Id. at 542, 151 S.E.2d at 377. See also Floyd v. Mitchell, 203 Va. 269, 274, 123 S.E.2d 369, 372 (1962).

Smith v. Horn, 232 Va. 302, 351 S.E.2d 14 (1986), concerned a suit for personal injuries sustained in a collision of three vehicles involving employees of two subcontractors of a coal company. One subcontractor's vehicle was delivering supplies to a mine while another subcontractor's vehicle was hauling coal from a mine to the coal company's processing plant. Id. at 307, 351 S.E.2d at 17. In approving the trial court's ruling sustaining the plea in bar, we held that the coal company's business

involved the mining, processing, and sale of coal from properties it owned or

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