Zion Church Designers and Builders v. McDonald

• Decision Date: 28 June 1994
• Docket Number: No. 2023-93-4,2023-93-4
• Citation: 445 S.E.2d 704,18 Va.App. 580
• Parties: ZION CHURCH DESIGNERS AND BUILDERS and Continental Casualty Company v. Donald Wayne McDONALD and First Church of the Nazarene. Record
• Court: Virginia Court of Appeals

Page 704

445 S.E.2d 704

18 Va.App. 580

ZION CHURCH DESIGNERS AND BUILDERS and Continental Casualty Company v. Donald Wayne McDONALD and First Church of the Nazarene.

Record No. 2023-93-4.

Court of Appeals of Virginia.

June 28, 1994.

Christopher P. Schewe, Alexandria, for appellants.

Lawrence J. Pascal, Alexandria (Ashcraft & Gerel, on brief), for appellee Donald Wayne McDonald.

Susan A. Evans, Fairfax (Siciliano, Ellis, Dyer & Boccarosse, on brief), for appellee First Church of the Nazarene, to argue its motion to dismiss.

Present: MOON, C.J., and WILLIS and ELDER, JJ.

WILLIS, Judge.

Zion Church Designers and Builders (Zion) appeals the decision of the Virginia Workers' Compensation Commission awarding benefits to Donald Wayne McDonald. Zion contends (1) that McDonald's injury did not arise out of and in the course of his employment, (2) that McDonald was not its employee, but was employed by First Church of the Nazarene (the Church), (3) that the Church was obligated to provide workers' compensation coverage to McDonald, and (4) that the Church is the party liable to provide benefits to McDonald. Zion failed to note its appeal timely with respect to the Church, a necessary party. Therefore, we dismiss the appeal.

On March 23, 1990, Zion and the Church entered into a contract. Zion, designated the agent, was to advise and aid the Church, designated the principal, "in the proper selection of a structure and the financing thereof" and "directing the construction of the structure itself...." The contract provided that "the Agent will act for the Principal in the hiring of labor, arranging for the material, and supervising the contractors necessary to complete the structure...." Zion agreed "to utilize all workmen and material in the most economical manner" and to "maintain a competent Project Superintendent on the job-site during the progress of construction. The project superintendent shall represent the agent in his absence...." The contract provided Zion a fixed fee of $79,000, which was ten percent of the estimated cost of the project.

The contract provided that Zion would pay a General Superintendent, who would check on the project periodically. The Church's responsibilities included paying the salary of the project superintendent and paying the payroll and bills as they accrued. The Church also agreed to provide general liability insurance and to "arrange for Workmen's Compensation ... for 'all employees' for the protection of the principal in the event of an accident."

On October 23, 1990, Donald Wayne McDonald, a workman on the project, arrived at approximately 6:20 a.m. and proceeded to check the site as instructed by the job foreman. McDonald noticed a box of tar paper, weighing 35-50 pounds, sitting on a wall. He retrieved the box and, as he carried it off the wall, a board upon which he was walking broke, causing him to fall, injuring both legs.

On May 17, 1991, McDonald filed an application with the Workers' Compensation Commission seeking benefits as a result of his injury. He joined both Zion and the Church. Both Zion and the Church denied liability, each contending that McDonald was the other's employee. On September 9, 1993, the commission entered an award, affirming the earlier decision of a deputy commissioner, finding that McDonald was Zion's employee and awarding him temporary total disability benefits from Zion. On October 8, 1993, Zion filed with the clerk of the commission a notice of appeal naming McDonald as appellee, but making no reference to the Church. On October 18, 1993, Zion filed with the clerk of the commission an "Addendum to Notice of Appeal" adding the Church as an appellee.

The applicable statutes and rules of court set forth the jurisdictional requirements for perfecting an appeal to this Court.

The notice of appeal in all cases within the jurisdiction of [The Court of Appeals] shall be filed with the clerk of the trial court or the clerk of the Industrial Commission, as appropriate, and a copy of such notice shall be mailed or delivered to all opposing counsel and parties not represented by counsel and to the clerk of the Court of Appeals.

Code § 17-116.05:2(A).

The notice of appeal to the Court of Appeals shall be filed in every case within the Court's appellate jurisdiction as provided in § 8.01-675.3.

Code § 17.116.05:3.

[A] notice of appeal to the Court of Appeals in any case within the jurisdiction of the Court shall be filed within thirty days from the date of any final judgment order, decree or conviction.

Code § 8.01-675.3.

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