Snead v. NELLO L. TEER COMPANY

• Decision Date: 26 January 1973
• Docket Number: Civ. A. No. 72-C-100-R.
• Citation: 353 F. Supp. 434
• Parties: Frank Howard SNEAD, Plaintiff, v. NELLO L. TEER COMPANY, Defendant.
• Court: U.S. District Court — Western District of Virginia

353 F. Supp. 434

Frank Howard SNEAD, Plaintiff, v. NELLO L. TEER COMPANY, Defendant.

Civ. A. No. 72-C-100-R.

United States District Court, W. D. Virginia, Roanoke Division.

January 26, 1973.

Gordon H. Shapiro, Roanoke, Va., for plaintiff.

S. D. Roberts Moore, Gentry, Locke, Rakes & Moore, Roanoke, Va., for defendant.

DALTON, Chief Judge.

The plaintiff, a Virginia citizen, is suing the defendant, a Delaware corporation, whose principal place of business is not in Virginia, for injuries sustained while he was working on the construction of the Roanoke Civic Center. The defendant was the general contractor on the project and the plaintiff was employed by Shaw Paint and Wallpaper Company, a subcontractor, when the injuries were sustained. The amount in controversy exceeds $10,000.

The defendant has moved to dismiss this suit, claiming that the plaintiff's exclusive remedy is under the Virginia Workmen's Compensation Act, and that this court therefore lacks jurisdiction over the suit because of § 65.1-40 of the Virginia Code, which makes this Act the employee's exclusive remedy. The plaintiff is currently receiving compensation under the Act from his immediate employer, Shaw Paint and Wallpaper Company.

In a memorandum filed by the defendant in support of its motion to dismiss, the defendant relies on § 65.1-29. This section reads as follows:

"When any person (in this section . . . referred to as `owner') undertakes to perform or execute any work which is part of his trade, business or occupation and contracts with any other person (in this section . . . referred to 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 workman employed in the work any compensation under this Act which he would have been liable to pay if the workman had been immediately employed by him." The court believes, however, that reliance upon this section is misplaced, for § 65.1-29 concerns only suits by employees of subcontractors against the owners of the project.

As interpreted by the Virginia Supreme Court, owners of projects are liable under the Workmen's Compensation Act to employees of subcontractors, if these subcontractors are performing work which is part of the trade, business, or occupation of the owner. Turnage v. Northern Virginia Steel Corp., 336 F.2d 837 (4th Cir. 1964); Walker v. United States Gypsum Co., 270 F.2d 857 (4th Cir. 1959); Sears, Roebuck & Co. v. Wallace, 172 F.2d 802 (4th Cir. 1949); Holt v. Bowie, 343 F.Supp. 962 (W.D.Va.1972); Anderson v. Thorington Constr. Co., 201 Va. 266, 110 S.E.2d 396 (1959); Sykes v. Stone & Webster Engineering Corp., 186 Va. 116, 41 S.E. 2d 469 (1947).

In the present case the owner of the project is the City of Roanoke which is not a party to the suit. In order for § 65.1-29 to be the controlling statute, the City of Roanoke would have had to have been supervising the construction of the Civic Center as part of its daily business; and the defendant would then have had to have sued the City of Roanoke.

Nevertheless, although the defendant may not be relying upon the appropriate section to support its motion, the issue raised is one of jurisdiction. Therefore if some section does exist under the Act which would prevent this court from assuming jurisdiction over the case, then the court may on its own recognize the section.

An examination of the Workmen's Compensation Act discloses the existence of such a section. § 65.1-30 concerns the liability of a contractor under the Act to the workmen of subcontractors. This section reads as follows:

"When any person (in this section . . . referred to 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 (in this section . . . referred to 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 workman employed in the work any compensation under this Act which he would have been liable to pay if that workman had been immediately employed by him."

While these sections place the liability under the Act on different people, they do have the same purpose and effect, and are in reality almost identical in operation. The Virginia Supreme Court discussed both sections and their effect in Sykes v. Stone & Webster Engineering Corp., 186 Va. 116, 41 S.E.2d 469 (1947). The court stated:

"It is to be noted that the present section 20(a) now §§ 65.1-29, -30, -31 contains four paragraphs. The first covers a case where the `owner' undertakes to perform work which is part of his trade, business or occupation and contracts with a `subcontractor' to do all or part of it. In that case the owner is liable to pay compensation to any workman employed in the work (by any subcontractor) just as if the workman had been immediately employed by the owner."

"The second paragraph covers the case where a `contractor' contracts to perform work for another person (e. g. the owner), which work is not part of the trade, business or occupation of such other person (owner), and contracts with a `subcontractor' to do all or part of it, then the contractor (but not the owner) shall be liable to pay compensation to any workman employed in the work (by any subcontractor) just as if the workman had been immediately employed by the contractor."

"And so on as to owner, or principal contractor, and subcontractors, in descending order, in the manner provided by the last two paragraphs."

"The section makes 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 the last...