Written by Kevin Kennedy, Esq.
Edited By Janeen Koch, Esq.
Plaintiffs injured on the job often look for an entity beyond their own employer who could be an additional source of recovery. While an employee’s action against his employer is widely known to be limited to a worker’s compensation claim, Virginia law has an established history that bars many claims against independent contractors or other third party defendants. Careful analysis of the status of the parties involved in a suit can raise this valuable defense and dramatically shift the posture of the case when a plaintiff is seeking double recovery.
Virginia courts have consistently stated that the Worker’s Compensation Act was intended to be broadly construed. “It was the legislative intent to make the [Worker’s Compensation Act] exclusive in the industrial field so that, in the event of an industrial accident, the rights of all those engaged in the business would be governed solely thereby.” Feitig v. Chalkley, 185 Va. 96, 102, 38 S.E.2d 73 (1946). In other words, the Act was intended to give certainty to the parties of their rights and liabilities and courts will look with closer scrutiny at a plaintiff who was provided with worker’s compensation coverage and who is now seeking additional recovery. The “exclusivity provision” that is the basis for barring improper additional claims reads as follows:
The rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title respectively to pay and accept compensation on account of injury or death by accident shall exclude all other rights and remedies of such employee, his personal representatives, parents, dependents, next of kin, at common law or otherwise, on account of such injury, loss of service or death. Va. Code § 65.2-307.
This broad interpretation of the Act has led to some surprising applications of the exclusivity provision, including a car dealership employee being barred from suing a janitorial company and the dismissal of a truck driver’s claim against a grocery store. See Hoskey v. James River Bldg. Servs., 44 Va. Cir. 7, 1997 Va. Cir. LEXIS 488, and Walls v. Food Lion, L.L.C., 66 Va. Cir. 26, 2004 Va. Cir. LEXIS 341.
In order for the plaintiff to be able to bring a tort action in addition to a claim for worker’s compensation benefits, he has to prove that he was injured by an “other party” which “refers exclusively to those who are strangers to the employment and the work.” Floyd v. Mitchell, 203 Va. 269, 271, 123 S.E.2d 369 (1962). Whether the alleged tortfeasor is considered an “other party” or a stranger to the employment requires a factual inquiry in each case. The Virginia Supreme Court has provided guiding principles to analyze each fact pattern. An important distinction is whether the plaintiff is seeking to impose “ascending liability” by suing a general contractor or owner, or trying to maintain a “descending liability” claim by suing a subcontractor or independent contractor.
If a subcontractor’s employee is suing an owner or owner’s employee, he is suing up the chain and attempting to impose ascending liability. In those cases, the court asks whether the subcontractor is engaged in business “normally carried on through employees rather than independent contractors.” Shell Oil v. Leftwich, 212 Va. 715, 722, 187 S.E.2d 162 (1972). For example, if a store usually uses its own employees to shovel snow out of the parking lot, but a subcontractor is brought in to shovel snow due to an especially big storm, that subcontractor would be considered to be engaging in the “normal business” of that store. If the subcontractor is injured during that shoveling project, he is a “statutory employee” of the store and is barred from suing the store. However, if the store always uses subcontractors to remove snow and never uses its own employees, a snow removal worker is likely to be permitted to sue the store if he is injured by the negligence of that store’s employee.
In “descending liability” cases, an employee of an owner/general contractor is suing a subcontractor or independent contractor. In those cases, the court asks whether the defendant was performing work that was part of the “trade, business or occupation of the employer.” Floyd, Administratrix v. Mitchell, 203 Va. 269, 274, 123 S.E.2d, 369 (1962). Stated in other terms, is the subcontractor performing work that is “merely incidental” to the owner, or is the defendant performing work that is an “essential element” of the employer or owner’s business? Anderson v. Dillow, 53 Va. Cir. 255, 2000 Va. Cir. LEXIS 451 (2000). If a general contractor is in the business of building houses, a subcontractor electrician is performing an “essential element” of the general contractor’s work, regardless of whether the general contractor ever uses its own employees for that job. Conversely, while a food packaging plant appreciates the luxury of working bathrooms at its facility, a plumber injured while servicing the plant could likely sue the plant because his work was incidental to the food packaging plant’s business.
Virginia courts have drawn fine distinctions that can make outcomes in specific cases difficult to predict. However, in any case where a plaintiff was working when the event causing injury occurred, the applicability of the exclusivity provision of the Worker’s Compensation Act should always be analyzed.