¶ 1. Plaintiff Charles Vella, who suffered a work-related injury for which he collected workers’ compensation benefits from his employer, appeals the superior court’s order dismissing his tort suit against defendant Hartford Vermont Acquisitions, the owner of the commercial garage leased to his employer. The trial court determined that defendant is a “statutory employer” under 21 V.S.A. § 601(3) and thus immune from the suit filed by plaintiff, whose exclusive remedy is his workers’ compensation award. Based on our conclusion that defendant is not a “statutory employer,” we reverse the court’s judgment and reinstate plaintiffs suit.
¶ 2. In reviewing the superior court’s order dismissing plaintiffs suit for failure to state a claim upon which relief can be granted, we assume that plaintiffs factual allegations, and any reasonable inferences that may be drawn therefrom, are true.
1
See
Richards v. Town of Norwich,
¶ 3. Defendant moved to dismiss the suit for failure to state a claim, see V.R.C.P. 12(b)(6), arguing that the Wоrkers’ Compensation Act’s exclusivity provision barred plaintiffs suit because defendant was plaintiffs “statutory employer,” as defined by 21 V.S.A § 601(3). Defendant relies upon the workers’ compensation exclusivity provision that prohibits an employee’s suit against the employer. See 21 V.S.A. § 622 *153 (except as provided in §§ 618(b) and 624, workers’ compensation award excludes all other rights and remedies for work-related personal injuries); see 21 V.S.A. § 624(a) (in addition to workers’ compensation award, employee may enforce liability of “person other than the employer”). According to defendant, because it had contractually assumed Premier’s duty to maintain the safety of plaintiffs workplace, it was also entitled to assume Premier’s immunity from suit under § 601(3), which defines “employer” to include “the owner or lessee of premises or other person who is virtually the proprietor or operator of the business there carried on, but who, by reason of there being an independent contractor or for any other reason, is not the direct employer of the workers there employed.” (Emphasis added.)
¶ 4. The superior court agreed, ruling that defendant was plaintiffs “statutory employer” because plaintiff had not alleged any negligent acts independent of the employer’s nondelegable duty to -maintain a safe workplace. Plaintiff appeals, arguing that the trial court’s analysis is faulty because, notwithstanding defendant’s agreement to maintain the premises in a safe condition, defendant is merely a landlord and not the virtual proprietor or operator of the business carried оn by plaintiffs employer. Therefore, according to plaintiff, defendant is not a “statutory employer” entitled to immunity from plaintiffs negligence suit.
¶ 5. Neither party disputes that the clause “who is virtually the proprietor or operator of the business there carried on” contained in § 601(3) modifies not only its immediate antecedent phrase “other person,” but also the previous phrase “the owner or lessee of premises.” We agree with this construction. The Legislature did not immunize from liability all property owners and lessees, irrespective of their relationship to the direct employer. Indeed, the undеrlying policy concerns discussed below suggest that the virtual proprietor or operator language applies in any case governed by § 601(3). Hence, we construe the qualifying clause “who is virtually the proprietor or operator of the business there carried on” to modify both the immediate antecedent phrase “other person” and the previous phrase “the owner or lessee of premises.”
2
The highest court
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in the only other state with a nearly identical statute reached the same conclusion, holding that “ ‘[a] statutory employer does not include the mere owner of the premises, unless the owner is also the virtual proprietor or operator of the business there carried on.’ ”
Robison v. Bateman-Hall, Inc.,
¶ 6. The two Idaho cases are instructive. I
nHarpole,
the state sold the timber rights on its land to the plaintiffs employer. After the plaintiff was injured while logging the land, he collected workers’ compensation benefits from his employer and then filed a tort suit against the state. In
Robison,
thе plaintiff was injured while repairing a mall roof for an independent contractor hired by a general contractor, who, in turn, was hired by the mall owner. The plaintiff collected workers’ compensation benefits from the independent contractor and then sued the general contractor and thе mall owner. Recognizing that the expanded statutory definition of employer was designed to prevent employers from avoiding workers’ compensation liability by subcontracting work that they could have done themselves, the court concluded in those cases that the landowners had failed to satisfy the “true test” of determining who is a virtual proprietor or operator — whether the work being done by the direct employer could have been done by the party claiming “statutory employer” status. See
Robison,
¶ 7. We recently reached the same conclusion, holding that the “critical inquiry” in determining whether an indirect employer is a “statutory employer” as defined by § 601(3) “is whether the type of work being carried out by the [direct employer] is the type of work that could have been carried out by the [indirect employer’s] employees as part of the regular course of the business.”
Edson v. State,
¶ 8. In this case, it is undisputed that defendant is not in the busing business. Rather, defendant is a commercial landlord and a distinct, separately owned corporation that leases space to Premier, but otherwise *155 has no ties to Premier and no supervisory control or authority over Premier or its employees. Nonetheless, defendant argues that it is plaintiffs “statutory employer” and therefore entitled to immunity from plaintiffs tort suit because it contractually assumed Premier’s duty to maintain a safe premises where plaintiff worked.
¶ 9. We find this argument unpersuasive. Undoubtedly, many commercial landlords contractually assume the obligation to maintain their premises in a safe condition — an obligation that has a common law basis. See
Favreau v. Miller,
¶ 10. Plainly, the Legislature never intended § 601(3) to sweep so broadly. As noted, § 601(3) was intended to prevent indirect employers from avoiding workers’ compensation liability by hiring out work that they would have otherwise done themselves. Generally, such incentives do not exist in the context of а commercial lease arrangement when the lessor is uninvolved in the lessee’s business. Cf.
Robison,
¶ 11. Dеfendant maintains, however, that, by agreeing to keep its premises safe, it assumed Premier’s duty to provide a safe workplace, and thus is immunized from tort suits under our previous case law holding that workers’ compensation is the exclusive remedy when the injury
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arose from a breach of the duty to provide a safe workplace. See
Garrity v. Manning,
¶ 12. For at least two reasons, we reject this argument. First, the cases that defendant relies upon adopted a rule applied in the context of suits against corporate officers, employees, or shareholders of the employer that рrovided workers’ compensation benefits. In those cases, we determined the circumstances under which persons directly involved in the business operation could be sued by an injured employee who had collected workers’ compensation benefits from the business. We held that to avoid the emрloyer’s immunity the plaintiff must show that the duty owed by the defendant officer- or employee of the business was a “personal duty” independent of the “corporate duty to maintain a safe workplace.”
Dunham,
¶ 13. In contrast, the instant case does not concern a suit against someone directly involved in the employer’s business operations. Nor does this case present the danger of double recovery against the employer, a policy concern in cases involving tort suits against corporate officers or co-employees. See
Gerrish,
¶ 14. Second, even assuming that our prior case law on co-employee liability governed this case, defendant would not be immune from suit. We are not persuaded that defendant’s duty to maintain the premises is the same as Premier’s duty to provide a safe workplace for its employees. In fact, it is the kind of independent, personal duty that is inconsistent with the status of a “virtual employer.” While there certainly is overlap between the employer’s duty and the landlord’s duty, the duty assumed by defendant is both underinclusive and overinclusive when cоmpared to Premier’s duty to provide a safe workplace. Any duty that arises from defendant’s contractual obligation to maintain the premises is not limited to employees. In that sense, defendant’s duty is broader than the employer’s duty to provide a safe workplace. On the other hand, defendant’s duty tо maintain the premises is narrower in the sense that Premier’s duty to provide a safe workplace includes every aspect of the workplace. See 21 V.S.A. § 223(a) (defining employer’s duties);
Gerrish,
¶ 15. In sum, we conclude that defendant was not “virtually the proprietor or operator of the business” carried on by Premier at defendant’s premises, and thus is not a “statutory employer,” as defined in 21 V.S.A. § 601(3). Accordingly, we reverse the superior court’s order dismissing plaintiffs complaint.
Reversed and remanded.
Notes
Plaintiff filed a complaint without alleging specifically that defendant had contractually assumed the obligation to clear the ice and snow in its leasе with Premier. After the court dismissed the complaint, plaintiff moved to amend to allege specifically that defendant had the duty to remove the ice and snow under its lease. The court denied the motion to amend, ruling that the added allegation did not change the result. Because the court reachеd the merits with respect to the added language, we treat the complaint as amended for purposes of this decision.
In
Welch v. Home Two, Inc.,