BRUCE RAY PFEIFER v. KRAUSS CONSTRUCTION COMPANY OF VIRGINIA, INC.
Record No. 001615
Supreme Court of Virginia
June 8, 2001
A. Bonwill Shockley, Judge
Present: Carrico, C.J., Lacy, Keenan, Koontz, Kinser, and Lemons, JJ., and Whiting, S.J.
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
This appeal of a personal injury claim involves
The parties stipulated the facts. Linkhorn Bay Associates, L.L.C. (Linkhorn Bay) was the owner of a project known as Linkhorn Bay Condominiums in the City of Virginia Beach. Linkhorn Bay had no employees, and subcontracted all the work to various subcontractors. One such contract was an oral contract
The gas company subcontracted its contractual obligation to Krauss Construction Company of Virginia, Inc. (Krauss). While Krauss’ employees were testing the gas line, a plastic gas cap blew off the line, striking and injuring Pfeifer, who was working on the job.
Pfeifer filed a personal injury action against Krauss.2 Krauss filed a plea in bar in which it maintained that the court had no jurisdiction to adjudicate Pfeifer‘s common-law claim because Krauss was Pfeifer‘s co-employee under the terms of the Act, and therefore his exclusive remedy was under
After hearing argument, the trial court sustained Krauss’ plea. We granted this appeal to Pfeifer.
Because Pfeifer was not Krauss’ common-law employee, the controlling statute is
§ 65.2-302. Statutory employer.
A. When any person (referred to in this section as “owner“) [Linkhorn Bay] undertakes to perform or execute any work which is a part of his trade, business or occupation and contracts with any other person (referred to in this section as “subcontractor“) [the gas company] 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 worker employed in the work any compensation under this title which he would have been liable to pay if the worker had been immediately employed by him.
. . . .
C. When the subcontractor [the gas company] in turn contracts with still another person (also referred to as “subcontractor“) [Krauss] for the performance or execution by or under such last subcontractor of the whole or any part of the work undertaken by the first subcontractor, then the liability of the owner or contractor shall be the same as the liability imposed by subsections A and B of this section. [Emphasis added.]
Under this statute, even though a third party subcontractor like Krauss may not have a common-law employer-employee
The purpose of [
Code § 65.2-302 ]3 is to bring within the operation of the Act all persons engaged in work that is a part of the trade, business, or occupation of the party who undertakes as owner or who contracts as contractor to perform the work, and to make liable to every employee engaged in the work every such owner contractor, or subcontractor above such employee.
Smith v. Horn, 232 Va. 302, 305, 351 S.E.2d 14, 16 (1986). If the injured worker has a remedy against his statutory employer, that remedy is exclusive under
If a particular subcontractor and an injured employee‘s common law or statutory employer are both working on the same project and are also engaged in the owner‘s or general contractor‘s work, that particular subcontractor, as a statutory co-employee of the injured worker, is also entitled to the common law immunity provided by the exclusivity provision. Evans v. Hook, 239 Va. 127, 131, 387 S.E.2d 777, 779 (1990). Because Krauss contends that it and Tidewater were both
On the other hand, if a subcontractor like Krauss had been engaged in work that was not a part of the trade, business, or occupation of the injured party‘s common law or statutory employer, as Pfeifer asserts, that subcontractor would be “another party” or a “stranger to the employment,” and not a statutory co-employee under the provisions of
First, Pfeifer argues that the gas company was a mere supplier of materials to the job and was not engaged in the trade, business, or occupation of Linkhorn Bay. In support of this position, Pfeifer cites the case of Burroughs v. Walmont, Inc., 210 Va. 98, 168 S.E.2d 107 (1969). In Burroughs, a worker for a sheetrock supplier was injured on a construction job and
However, the facts in this case indicate more than a mere sale and final act of delivery. Before the gas company could deliver the natural gas, its oral contract with Linkhorn Bay required it to dig the ditches, install the gas lines, connect them to the condominium buildings, and test them. Those contractual obligations were subcontracted to Krauss and, as it dug the ditches, installed the gas lines, connected them to the condominium buildings and tested them, Krauss was engaged in a part of the construction process. Thus, the circumstances in
In Bosher, an employee of a material supplier was spreading sand as contractually required and as directed on the job by the general contractor when his truck struck and injured an employee of the general contractor. The injured employee sued the material supplier at common law claiming that it was a mere supplier of materials and not his statutory employer. Because spreading the sand was a part of the construction process, we held that the truck driver was engaged in the construction process and applied the exclusive remedy provision of the Act, dismissing the tort claim.
We conclude that digging the necessary trenches, installing the gas lines, connecting them to the buildings, and testing them was more than a simple supply and delivery of materials. Hence, Pfeifer‘s contention that Krauss was simply a supplier and deliverer is without merit.
Next, Pfeifer argues that Krauss was a stranger to Linkhorn Bay‘s business of building the condominium units since digging ditches outside those units “was not aiding in the construction of those units.” In support of this argument, he notes that we last applied the “stranger to the work test” in Stone v. Door-Man Manufacturing Co., 260 Va. 406, 417-19, 537 S.E.2d 305, 310-12 (2000). In Stone, an employee of a manufacturer was injured
Krauss responds that it was not a stranger to the work of Linkhorn Bay, but was performing an essential part of that work. We agree with Krauss because Linkhorn Bay had been formed solely to build and develop these condominiums. Unlike the manufacturer in Stone, Linkhorn Bay had no other function, and the installation of the gas lines was part of Linkhorn Bay‘s construction project covered by the terms of Linkhorn Bay‘s oral contract with the gas company. Thus, we conclude that Krauss was not a stranger to Linkhorn Bay‘s business and reject this contention.
Finally, Pfeifer contends that the digging, placing, connecting, and testing of the gas lines could never “have been a part of Linkhorn Bay‘s business, or the business of any other owner or general contractor on a construction project,” because the gas company and Krauss as its agent are “both subject to
Pfeifer quotes from provisions in a gas company tariff, allegedly filed in the records of the State Corporation Commission, which he says support his contention. We do not consider these provisions, because neither they nor the tariff was brought to the attention of the trial court.5 Rule 5:25; Commonwealth v. Woodward, 249 Va. 21, 23, 452 S.E.2d 656, 656 (1995).
We conclude that Krauss was doing work that was a part of Linkhorn Bay‘s construction of the condominium project and, therefore, a part of Linkhorn Bay‘s trade, business, or occupation. Hence, Krauss was Pfeifer‘s statutory co-employee and the trial court correctly held he had no common-law remedy against Krauss.
Accordingly, the judgment will be
Affirmed.
Notes
A. The rights and remedies herein granted to an employee [against his employer]. . . shall exclude all other rights and remedies of such employee . . . at common law or otherwise, on account of such injury, loss of service or death.