Richfood, Inc. v. Ragsdale

• Decision Date: 10 November 1997
• Docket Number: No. 0512-97-2,0512-97-2
• Citation: 492 S.E.2d 836,26 Va.App. 21
• Parties: RICHFOOD, INC. v. Robert RAGSDALE. Record
• Court: Virginia Court of Appeals

Page 836

492 S.E.2d 836

26 Va.App. 21

RICHFOOD, INC. v. Robert RAGSDALE.

Record No. 0512-97-2.

Court of Appeals of Virginia Richmond.

Nov. 10, 1997.

R. Ferrell Newman, Richmond (Thompson, Smithers, Newman & Wade, on brief), for appellant.

Martha L. Bond, Richmond (Earl J. Gee; McEachin & Gee, P.C., on brief), for appellee.

Present: ELDER, FITZPATRICK and ANNUNZIATA, JJ.

ANNUNZIATA, Judge.

Richfood, Inc. (Richfood) appeals the decision of the commission, finding Robert Ragsdale (claimant) to be a statutory employee of Richfood and, thus, qualified for benefits under the Act. For the reasons that follow, we affirm.

Claimant operates his own trucking business as a sole proprietor and is uninsured for workers' compensation purposes. On March 2, 1993, claimant operated his truck under contract with Perdue, Inc. to deliver turkeys from Perdue's plant to Richfood's facility in Mechanicsville, Virginia. While unloading the Perdue turkeys at Richfood's warehouse, claimant was struck and injured by a pallet jack operated by a Richfood employee.

Claimant filed suit against Richfood in the Circuit Court of the City of Richmond, alleging common law negligence against Richfood under a theory of respondeat superior. In response, Richfood filed a "Plea of Worker's [sic] Compensation," alleging that claimant "was a statutory employee of Richfood at the time of the accident, [thus barring] his action against Richfood ... [under] the applicable provisions of the Worker's [sic] Compensation Act." The trial court sustained Richfood's plea, finding that the Act barred claimant's action at law and that Richfood "will cover any injuries sustained by [claimant]." Claimant did not appeal this ruling.

Claimant then pursued a claim before the Virginia Workers' Compensation Commission, which Richfood defended on the ground that claimant was not its statutory employee at the time of the accident. Richfood's defenses were sustained by the deputy commissioner but reversed by the full commission. The commission found that claimant was a statutory employee of Richfood at the time of the accident and, furthermore, that Richfood was estopped from asserting otherwise.

The issues on appeal are (1) whether, by virtue of the final order of the Circuit Court of the City of Richmond barring claimant's action at law on the ground that he was the statutory employee of Richfood, an order which was granted upon Richfood's motion, Richfood is estopped from now asserting otherwise; and (2) if not, whether claimant qualifies as a statutory employee. ¹

I.

It is well settled that in successive actions between two parties, "a party will not be permitted to maintain inconsistent positions or to take a position in regard to a matter which is directly contrary to, or inconsistent with, one previously assumed by him." 28 Am.Jur.2d Estoppel and Waiver § 68 (1966); see also Brown v. Lawson Transp. Corp., 7 Va.App. 679, 681, 377 S.E.2d 136, 137 (1989). Whether Richfood is judicially estopped from asserting claimant is not its employee for purposes of entitlement under the Workers' Compensation Act (Act) is a mixed question of law and fact, fully reviewable by this Court. Sinclair v. Shelter Constr. Co., 23 Va.App. 154, 156-57, 474 S.E.2d 856, 857-58 (1996) (citing City of Waynesboro v. Harter, 1 Va.App. 265, 269, 337 S.E.2d 901, 903 (1985)).

It is clear that Richfood defended against claimant's civil action for negligence by advancing a pleading denominated "Plea of Worker's [sic] Compensation". Seeking to have claimant's suit dismissed, Richfood contended claimant's "sole remedy," as Richfood's "statutory employee," was under the "applicable provisions" of the Act. Before the commission, Richfood argued claimant was not its statutory employee, a position which, on its face, appears precluded under the doctrine of judicial estoppel.

To avoid the reach of the doctrine, however, Richfood argues that while claimant "was, in fact, its statutory employee as regards the tort claim[,] ... Richfood's obligation to pay benefits to the claimant depends on whether he qualifies under the specific provisions of the Act." In other words, a "statutory employee" whose status as such deprives the circuit court of jurisdiction to hear a civil negligence case is not necessarily a "statutory employee" for the purposes of determining benefits entitlement under the Act. ² Richfood's position before the commission requires treating claimant's "employee" status as transformed to that of "subcontractor." Building from that unexplained premise, Richfood argued that claimant's claim under the Act was governed by the dictates of Code § 65.2-302(A) and, accordingly, should have been dismissed by the commission. ³ Implicit in the position advanced before the commission is Richfood's contention that judicial estoppel has no applicability here because the concession that claimant was its statutory employee in the tort action does not control the definition of "employee" under Code § 65.2-302(A).

We find no merit in Richfood's contention that the commission erroneously found that Richfood was judicially estopped from asserting that claimant was not an employee entitled to coverage under the Act. Richfood's reliance on Code § 65.2-302 is misplaced, as construction of the statutory provision is not at issue here. We focus instead on the estoppel effect of Richfood's conduct in the court pro...