David White Crane Serv. v. Howell

Decision Date16 September 2011
Docket NumberRecord No. 100981.
Citation282 Va. 323,714 S.E.2d 572
CourtVirginia Supreme Court


Kenneth F. Hardt (Sinnott, Nuckols & Logan, on briefs), for appellants.J. Brian Slaughter (George J. Dancigers; Kira A. Ligato; McKenry, Dancigers, Dawson & Lake, on brief), for appellee.Present: KINSER, C.J., LEMONS, GOODWYN, MILLETTE, and MIMS, JJ., and RUSSELL and KOONTZ, S.JJ.Opinion By Justice CHARLES S. RUSSELL.

This appeal involves the exclusivity provisions of the Virginia Workers' Compensation Act (the Act), Code § 65.2–100 et seq. An employee of the general contractor on a construction site was allegedly injured by the negligent act of the employee of a subcontractor who carried no workers' compensation insurance. The injured party brought a common-law action against the uninsured subcontractor and its employee, the alleged tortfeasor. This appeal presents the question whether the circuit court correctly ruled that the common-law action could proceed, denying the subcontractor's plea in bar based on the exclusivity provisions of the Act.

Facts and Proceedings

On May 7, 2007, James S. Green Contractor, Inc. (Green) was the general contractor engaged in the construction of an industrial facility known as the “Peanut Patch” in Southampton County. Green contracted with David White Crane Service, a partnership consisting of David W. White, Sr. and David W. White, Jr. (collectively, White Crane) to hoist structural steel beams into position at the construction site, a part of Green's trade, business or occupation.

On the date in question, David L. Howell (the plaintiff), an employee of Green, acting within the scope of his employment, was engaged in the placement of the steel beams as they were lifted into place by White Crane. White Crane employed Kenneth Burgess (Burgess) as a crane operator to lift the beams. The plaintiff alleges that Burgess negligently operated the crane while hoisting a beam, causing the crane to tip over, losing control of the beam and allowing it to swing into a man-lift upon which the plaintiff was standing, striking and injuring the plaintiff.

The plaintiff brought this action in the circuit court against White Crane and Burgess (the defendants). Green is not a party. The defendants filed a plea in bar, asserting that the Act provided the plaintiff's sole remedy. For the purpose of the plea in bar, the parties entered into a stipulation of facts relevant to the plea as well as certain conclusions of law to which they agreed. The stipulation stated that the defendants were uninsured for workers' compensation liability as required by the Act; * the plaintiff had claimed and received workers' compensation benefits from his employer, Green; the defendants would ordinarily have been deemed to be the plaintiff's statutory co-employees; and, if the defendants had carried workers' compensation insurance, this action would have been barred by the Act. The parties agreed in their stipulation that the dispositive question on the plea in bar was whether the defendants' lack of workers' compensation insurance deprived them of the protection of the exclusivity provisions of the Act.

The court considered the briefs of counsel, the pleadings and the stipulations of the parties. In a letter opinion, the court held that the defendants' failure to carry workers' compensation insurance deprived them of the protections afforded by the Act because they were not participants in the statutory workers' compensation system. The court denied the plea in bar, permitting this action to go forward but, with the agreement of the parties, certified this case for an interlocutory appeal pursuant to Code § 8.01–670.1. We awarded the defendants an interlocutory appeal.


Because no evidence was taken on the plea in bar, we will review the circuit court's ruling upon the pleadings, supplemented by the facts as stipulated by the parties. Gray v. Virginia Sec'y of Transp., 276 Va. 93, 97, 662 S.E.2d 66, 68 (2008); Ola v. YMCA of S. Hampton Roads, Inc., 270 Va. 550, 555, 557–59, 621 S.E.2d 70, 72–74 (2005). There are no disputed facts relevant to the plea in bar and it presents a pure question of law, to which we apply a de novo standard of review. Hilton v. Martin, 275 Va. 176, 179–80, 654 S.E.2d 572, 574 (2008). We are, therefore, not bound by or limited to the conclusions of law to which the parties agreed in the circuit court.

Code § 65.2–307 provides that the rights and remedies granted by the Act to an employee, when he and his employer have accepted its provisions, shall exclude all other rights and remedies the employee may have on account of injury or death by accident. The injured employee may have a common-law action against a third-party tortfeasor for accidental injuries sustained while working for his employer, but only if the third-party tortfeasor is a “stranger to the work.” Whalen v. Dean Steel Erection Co., 229 Va. 164, 167–68, 327 S.E.2d 102, 104–05 (1985); Slusher v. Paramount Warrior, Inc., 336 F.Supp. 1381, 1383 (W.D.Va.1971).

The defendants were not “strangers to the work.” Both the plaintiff and the defendants were engaged in the same construction project at the time of the accident and both were engaged in the trade, business and occupation of Green, the general contractor. The defendants were subcontractors under Green and the plaintiff was Green's direct employee. The parties to this action were therefore statutory co-employees. Pfeifer v. Krauss Constr. Co. of Va., Inc., 262 Va. 262, 266–67, 546 S.E.2d 717, 718–19 (2001). Because the purpose of the Act is to bring within its operation all persons who are engaged in the trade, business or occupation of the contractor who engages to perform the work, all such persons are entitled to the protection afforded by Code § 65.2–307. Id. at 266, 546 S.E.2d at 719. Thus, the parties' agreement, in their stipulation, that the plaintiff and the defendants would “ordinarily” be deemed statutory co-employees and that the defendants would therefore have been entitled to immunity from a common-law action in tort if they had carried workers' compensation insurance, is based upon correct principles of law.

The dispositive question remains: Did the defendants forfeit that protection by failing to carry insurance as required by the Act? That is a question of first impression, but our prior decisions are instructive.

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