Whalen v. Dean Steel Erection Co., Inc.

• Decision Date: 08 March 1985
• Docket Number: No. 820541,820541
• Citation: 229 Va. 164,327 S.E.2d 102
• Parties: Edward T. WHALEN v. DEAN STEEL ERECTION COMPANY, INC. Record
• Court: Virginia Supreme Court

Page 102

327 S.E.2d 102

229 Va. 164

Edward T. WHALEN v. DEAN STEEL ERECTION COMPANY, INC.

Record No. 820541.

Supreme Court of Virginia.

March 8, 1985.

James A. Eichner, Richmond (Gary W. Kendall, Charlottesville; Beale, Eichner, Wright, Denton & Shields, Richmond; Michie, Hamlett, Donato & Lowry, Charlottesville, on briefs), for appellant.

Thomas G. Bell, Jr., Staunton (Timberlake, Smith, Thomas & Moses, P.C., Staunton, on brief), for appellee.

Ashcraft & Gerel, Alexandria (Lawrence J. Pascal, on brief), amicus curiae for appellant.

Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, STEPHENSON, RUSSELL and THOMAS, JJ.

RUSSELL, Justice.

This appeal turns upon the question whether a general contractor's employee may bring a tort action against a subcontractor for personal injuries caused by the subcontractor's negligence on the job. The subcontractor contends that such an action is barred by the Worker's Compensation Act.

The facts are undisputed. The Kroger Company desired to erect a grocery store building in Charlottesville. Kroger engaged Pinkerton and Laws Company as general contractor for the work. Pinkerton and Laws subcontracted the structural steel work to Dean Steel Erection Company, Inc., by a subcontract which provided that Dean Steel was to do "a complete job of steel erection" for the building.

Edward T. Whalen was a carpentry foreman employed by Pinkerton and Laws, the general contractor. On April 25, 1980, the date of his injury, he was working at the construction site, engaged in fabricating wooden forms into which concrete would be poured. His crew was responsible for installing reinforcing steel and pouring concrete into the forms when completed. Whalen's crew also set "anchor bolts" in the concrete, to which vertical steel columns would later be attached.

On the date of the accident, Whalen's carpentry crew, Dean Steel's crew, and the crew of a masonry subcontractor were working simultaneously inside the structure. The masonry walls were partially completed. Dean Steel's crew had erected some of the vertical columns and had placed on top of them fifteen of the nineteen horizontal steel girders which were ultimately to span the top of the structure from wall to wall. Dean Steel had stored the remaining four girders, which were about fifty feet long and five feet deep, inside the building. They rested on wooden supports which had been placed on the ground by Dean Steel's crew. Whalen was seriously injured when one of these girders "fell over," striking both his legs.

Whalen applied for and received benefits under the Worker Compensation coverage carried by his employer, Pinkerton and Laws. While receiving disability benefits, he brought this action against Dean Steel, contending that its negligence was the proximate cause of his injuries. Dean Steel filed a special plea, asserting that Whalen's sole remedy was under the Workers' Compensation Act. After hearing evidence, the court sustained the plea, finding that Dean Steel was "participating in the trade, business or occupation" of Pinkerton and Laws at the time of the injury, and that this action was therefore barred by the Workers' Compensation Act. On appeal, Whalen contends that the employee of a general contractor is not barred from suit against a subcontractor for the latter's negligence on the job, and that a construction of the Workers' Compensation Act that would so bar him is unconstitutional.

We have considered the underlying question in many cases. The test to be applied was most recently set forth in Stewart v. Bass Constr. Co., 223 Va. 363, 288 S.E.2d 489 (1982).

Code § 65.1-40 states that the rights and remedies granted under the Workmen's Compensation Act "shall exclude all other rights and remedies" of an employee to recover for an injury received during the course of his employment. Code § 65.1-41 provides, however, that an employee can maintain an action at law against the person causing his injury, provided such person is an "other party." Our task is to determine whether Bass was an "other party."

The test to be applied in the present case was first stated in Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73 (1946). There we said that in order to maintain a common law action the defendant had to be a stranger to the trade, occupation, or business in which the plaintiff was involved. This test has been restated and applied numerous times. See, e.g., Stout v. Onorati, 221 Va. 143, 267 S.E.2d 154 (1980); Bosher v. Jamerson, 207 Va. 539, 151 S.E.2d 375 (1966); Rea, Administratrix v. Ford, 198 Va. 712, 96 S.E.2d 92 (1957); Sykes v. Stone & Webster Eng. Corp., 186 Va. 116, 41 S.E.2d 469 (1947). Its application depends upon the facts and circumstances of the particular case. Bassett Furniture v. McReynolds, 216 Va. 897, 902, 224 S.E.2d 323, 326 (1976).

Id. at 365, 288 S.E.2d at 490.

Rea, Administratrix v. Ford, cited in Stewart, is factually similar to the present case. An employee of a general contractor engaged in the construction of a school building was killed by a falling steel truss which was being hoisted by a subcontractor's employee. The subcontractor was engaged for the purpose of providing the necessary crane and crew to lift the steel trusses into place. We affirmed the trial court's judgment striking the evidence of the decedent's personal representative in a common-law action against the subcontractor, on the ground that such an action was barred by the Workmen's Compensation Act. The result followed from the fact that the subcontractor was no stranger to the employment and the work. We said:

In the present case Ford, [the subcontractor], was no stranger to the business of Daniel, the principal contractor. On the contrary, in furnishing the equipment and crew for the purpose of erecting the steel structure Ford was a subcontractor engaged in an essential part of the work which the principal contractor had to do. Thus he was not an "other party" within the meaning of Code, § 65-38 [now Code § 65.1-41]. Like the principal contractor, Ford was under the canopy of the Workmen's Compensation Act and not subject to an action at law for damages for injury to or death of Rea who was engaged in the same work.

198 Va. at 717, 96 S.E.2d at 96.

The "stranger to the work" test, applied to varying facts, necessarily produces varying results. Thus, in Hipp v. Sadler Materials Corp., 211 Va. 710, 180 S.E.2d 501 (1971), and in Burroughs v. Walmont, 210 Va. 98, 168 S.E.2d 107 (1969), subcontractors were found to be outside the canopy of Worker's Compensation, and therefore subject to suit, because their duties consisted simply of delivering materials to a construction site, without participation in the construction work. But where a subcontractor had mixed duties, some involving mere deliveries of materials and others directly involved in the construction work, we held that he was within the canopy of Worker's Compensation, and not subject to an action for negligence at the hands of an employee of the general contractor.

In Bosher v. Jamerson, 207 Va. 539, 151 S.E.2d 375 (1966), an employee of a general contractor engaged in the construction of an industrial building was injured when struck by a truck operated by the employee of a subcontractor engaged in hauling sand to the construction site. Although the plaintiff had recovered Worker's Compensation benefits from his employer, the general contractor, he sued the subcontractor for negligence. The trial court overruled the subcontractor's plea in bar, and the plaintiff recovered a judgment. We reversed and entered final judgment for the subcontractor because his duties included not only hauling sand to the construction site and dumping it there, but also spreading it inside the foundation area to establish a sand base six inches deep. The latter activity, we held, was "part of the trade, business or occupation" of the general contractor. The subcontractor was, therefore, no stranger to the general contractor's work and not an "other party" within the meaning of Code § 65-38 (now Code § 65.1-41). As a consequence, the plaintiff's remedy was limited to Worker's Compensation. Id. at 542-43, 151 S.E.2d at 377-78.

It is clear from a comparison of these precedents that the rule of Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73 (1946), has become firmly...