Present: All the Justices
KESHA D. NAPPER
OPINION BY
v. Record No. 111300 JUSTICE DONALD W. LEMONS
June 7, 2012
ABM JANITORIAL SERVICES – MID ATLANTIC, INC., ET AL.
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N.A. Kendrick, Judge
In this appeal, we consider whether the Circuit Court of
Arlington County ("trial court") erred when it sustained the
plea in bar by ABM Janitorial Services – Mid Atlantic, Inc.,
ABM Janitorial Services – Southeast, LLC, and Monday Properties
Services, LLC (collectively, "the Defendants") and dismissed
with prejudice a personal injury suit brought by Kesha D.
Napper ("Napper"), based on its conclusion that Napper was a
statutory employee of the Defendants pursuant to the Workers'
Compensation Act ("the Act"), Code §§ 65.2-100 through -1310.
I. Facts and Proceedings Below
In November 2000, Art Associates leased commercial space
in a building it owned in Arlington, Virginia, to Kastle
Systems, Inc. ("Kastle"). The parties subsequently executed
two addenda to the lease, the second of which was executed and
signed by Kastle and Art Property Associates, LLC ("Art"). ∗ The
lease required Art to clean Kastle's office spaces as well as
∗
It would appear that "Art Associates" and "Art Property
Associates, LLC, a Delaware limited liability company" are the
the building's public areas daily. Pursuant to its
responsibilities under the lease, Art hired Monday Properties
Services, LLC ("Monday") to manage the property. Monday then
contracted with American Building Maintenance to perform the
required cleaning and maintenance for the building.
In January 2009, Napper, one of Kastle's employees,
slipped during working hours in a puddle of liquid and was
injured while walking through the building's lobby on her way
from her office to the restroom. Napper subsequently received
workers' compensation benefits as a result of her injury, and
she filed suit in the trial court alleging negligence against
ABM Janitorial Services – Mid Atlantic, Inc., ABM Janitorial
Services – Southeast, LLC (together, "ABM"), and Monday.
In response to Napper's complaint, the Defendants filed a
plea in bar, arguing that because Napper, a statutory employee,
had been receiving workers' compensation benefits in connection
with her injury, Napper's claims are barred by the workers'
compensation exclusivity provision of Code § 65.2-307(A).
In support of their plea in bar, the Defendants argued
that this case is similar to and should be decided similarly to
this Court's opinion in Fowler v. Int'l Cleaning Serv., Inc.,
260 Va. 421, 537 S.E.2d 312 (2000). Specifically, the
same entity; the parties make no mention of, and the record
does not make clear, this discrepancy between the original
lease and the second addendum to the lease.
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Defendants argued that: (1) for the purposes of Napper's
claims, Napper is the statutory co-employee of the Defendants;
(2) the services provided by the Defendants "were an 'essential
part' of Kastle's business"; and (3) the Defendants are not
"strangers to the work" performed by Kastle. Accordingly, the
Defendants argued that, just as this Court held the plaintiff's
claims barred by the exclusivity provision of the workers'
compensation statute under similar circumstances in Fowler, 260
Va. at 423-29, 537 S.E.2d at 312-16, Napper's claims are
likewise barred and her "exclusive remedy is found in the
workers' compensation statutes."
In response to the Defendants' plea in bar, Napper argued
that she cannot be a statutory co-employee of the Defendants
because she was not injured in the space leased by Kastle, but
in the building's lobby, which no Kastle employee had any
obligation to clean or maintain. Napper also argued that
Kastle operated its space in the building as a call center,
that its offices were not a place for receiving customers and
clients as an essential part of its business, and that Kastle's
employees' work did not include maintaining its space as an
essential part of Kastle's business. Napper further argued
that, unlike Fowler, where the plaintiff's injury occurred in a
retail store for which the plaintiff's employer had contracted
with a cleaning service to clean the store to aid in its
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business serving its customers, and where the plaintiff
employee's duties overlapped with those of the cleaning
service, Napper worked in a call center, not a retail store,
and was not required to perform any cleaning service or
maintenance for Kastle. Accordingly, Napper argued that the
Defendants' plea in bar must be denied.
The trial court held a hearing on the Defendants' plea in
bar, at which evidence was introduced demonstrating that: (1)
Kastle leased office space in a twelve and a half story office
building occupied by multiple tenants; (2) Kastle occupied
office space on five or six different floors, including the
first floor where the building's main lobby was located; (3)
Kastle operated twenty-four hours a day, seven days a week; (4)
ABM cleaned Kastle's offices, pursuant to ABM's contract with
Monday, as well as the common areas of the building five nights
a week; (5) Kastle contracted directly with ABM for ABM to
clean Kastle's kitchen; (6) Kastle contracted to have a person
not employed by ABM clean on the weekends; (7) Kastle had
"Windex, Clorox, toilet paper and paper towel[s]" in its suite;
(8) the common areas, including the main lobby where Napper was
injured, were accessible to all of the building's tenants and
the general public; and (9) no Kastle employee had any
obligations or responsibilities to clean the building's common
areas or bathrooms.
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Following the hearing on the Defendants' plea in bar, the
trial court found that the Defendants "are not strangers to
[Kastle's work]," "janitorial services . . . are an essential
part of Kastle's business" and, as a result, Napper and the
Defendants are statutory co-employees for purposes of the
workers' compensation scheme. The trial court sustained the
Defendants' plea in bar and dismissed Napper's complaint with
prejudice.
Napper timely filed her notice of appeal, and we granted
an appeal on the following assignments of error:
1. The Trial Court erred in granting Appellees' Plea in
Bar that Kesha Napper's exclusive remedy is Workers'
Compensation, finding that the Appellees were not
"strangers to the work of Kastle Systems because the
performance of janitorial and other cleaning services
[would] be necessary for Kastle to perform anyway
. . ."
2. The Trial Court erred in granting Appellees' [P]lea
in Bar that Kesha Napper's exclusive remedy is
Workers' Compensation, finding that the janitorial
services provided by the Appellees were "an essential
part of Kastle's business, thus, Appellant is a
statutory fellow employee of Appellees."
3. The Court erred in granting Appellees' Plea in Bar
that Kesha Napper's exclusive remedy is Workers'
Compensation, finding that there was a sufficient
factual predicate that cleaning services were an
essential part of Kastle's business when there were
no facts as to what was required of Kastle employees
or what the business of Kastle was at this location
other than to serve as a call center.
4. The Court erred in granting Appellees' Plea in Bar
that Kesha Napper's exclusive remedy is Workers'
Compensation, essentially ruling that the provision
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of cleaning services is essential to the business of
any commercial tenant in a commercial building.
II. Analysis
A. Standard of Review
It is well-settled that we review "questions of law de
novo, including those situations where there is a mixed
question of law and fact." Westgate at Williamsburg Condo.
Ass'n v. Philip Richardson Co., 270 Va. 566, 574, 621 S.E.2d
114, 118 (2005).
We have stated that "[w]hether a person or entity is a
statutory employee is a jurisdictional matter presenting a
mixed question of law and fact that must be resolved in light
of the facts and circumstances of each case." Fowler, 260 Va.
at 425, 537 S.E.2d at 314. "Where, as here, the facts relevant
to resolution of the jurisdictional issue are not in dispute,
'[this Court] must determine whether the trial court correctly
applied the law to those facts.'" Id. (quoting Cinnamon v.
International Bus. Mach. Corp., 238 Va. 471, 474, 384 S.E.2d
618, 619 (1989)).
B. The Trial Court Erred in
Sustaining the Defendants' Plea in Bar
The Defendants' plea in bar asserted that Napper's action
was barred by the Act's exclusivity provision found in Code
§ 65.2-307(A), which states:
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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
representative, parents, dependents or next of
kin, at common law or otherwise, on account of
such injury, loss of service or death.
The exclusivity provision does not apply, however, to a common
law action for an employee's injury or death against an "other
party." Code § 65.2-309; Fowler, 260 Va. at 425, 537 S.E.2d at
314.
The trial court applied the "stranger to the work" test
when it sustained the Defendants' plea in bar, and the parties
have not disputed that, with respect to the issue of whether
the Defendants and Napper are statutory fellow employees, the
"stranger to the work" test applies.
We have previously observed that the "stranger to the
work" test "is derived from the language of Code § 65.2-309(A)
. . . which recognizes the right of an injured worker to
maintain a common law action for personal injury against an
'other party.' " Id. at 426, 537 S.E.2d at 314. We observed
in Fowler that the "stranger to the work" test was first
applied in Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73 (1946),
and we stated:
The remedies afforded the employee under the
[A]ct are exclusive of all his former remedies
within the field of the particular business, but
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the [A]ct does not extend to accidents caused by
strangers to the business. If the employee is
performing the duties of his employer and is
injured by a stranger to the business, the
compensation prescribed by the act is available
to him, but that does not relieve the stranger of
his full liability for the loss . . . .
Id. (quoting Feitig, 185 Va. at 102, 38 S.E.2d at 75-76)
(emphasis omitted). Accordingly, the "stranger to the work"
test requires that
the facts of each case be analyzed to determine
whether the defendant in a common-law action was,
at the time of the plaintiff's injury, a stranger
to the work in which the plaintiff was engaged.
If the defendant was "no stranger," then he was
not an "other party" within Code § [65.2-309],
and the common-law action against him is barred
by Code § [65.2-307(A)].
Whalen v. Dean Steel Erection Co., 229 Va. 164, 169, 327 S.E.2d
102, 105 (1985). We later explained in Fowler that the
language from Whalen stating, "the work in which the plaintiff
was engaged," 229 Va. at 169, 327 S.E.2d at 105, means "the
work in which the plaintiff's employer was engaged." 260 Va.
at 427, 537 S.E.2d at 315.
Napper argues that the facts of this case are more akin to
those in Stone v. Door-Man Mfg. Co., 260 Va. 406, 537 S.E.2d
305 (2000) (decided the same day as our decision in Fowler)
than to those in Fowler. In Stone, we addressed the question
"whether a worker in the employ of the owner of a manufacturing
business was a statutory fellow employee of the architect and
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contractors involved in a construction project at the owner's
plant." Id. at 409, 537 S.E.2d at 306.
We concluded in Stone that "'the work in which [Stone's]
employer was engaged' was [Ford Motor Company's] 'particular
business' of manufacturing and selling motor vehicles" and that
"[t]he defendants were strangers to that business." Id. at
419, 537 S.E.2d at 311 (citing Feitig, 185 Va. at 102, 38
S.E.2d at 75; Whalen, 229 Va. at 169, 327 S.E.2d at 105).
Accordingly, we held that Stone's common law action for
personal injuries against the defendants was not barred. Id.
It should be noted that in deciding Stone, we relied in large
part upon our prior decisions in Feitig and Whalen. See Stone,
260 Va. at 415-20, 537 S.E.2d at 309-12.
In Whalen, the issue was "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." 229 Va. at 166, 327 S.E.2d at 103. We applied the
"stranger to the work" test and held that the worker's action
was barred. Id. at 169, 327 S.E.2d at 105. In so holding, we
stated that the subcontractor "was no stranger to the work in
which [the plaintiff's] employer was engaged, but was, on the
contrary, performing an essential part of it." Id.
Here, Napper argues that because the provision of cleaning
and janitorial services, particularly as they relate to the
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building's common areas, was not part of Kastle's business, it
follows that the Defendants were strangers to Kastle's business
and may be subject to her action for damages. We agree.
As we stated in Floyd v. Mitchell, 203 Va. 269, 274, 123
S.E.2d 369, 372 (1962):
The test is not whether [a company], by engaging
an independent contractor to perform some part of
his business, thereby engages in the business of
the independent contractor. It is whether the
independent contractor is performing work that is
part of the trade, business or occupation of the
[company]. If he is, and in doing the work
injures an employee of the [company], then the
independent contractor, in the same fashion as
any other employee of the [company], is not a
third party against whom the injured employee's
right of action is preserved; but the employee so
injured is limited to the compensation provided
by the Work[ers'] Compensation law . . . .
(Emphasis added.)
The issue in this case is whether the Defendants were
"other part[ies]" under Code § 65.2-309 and therefore strangers
to Kastle's "particular business" of operating a call center.
Feitig, 185 Va. at 102, 38 S.E.2d at 75. Based on our prior
holdings in Fowler and Whalen, in resolving the issue whether a
particular person or entity constitutes an "other party" under
Code § 65.2-309 and is, accordingly, a stranger to another
person's or entity's particular business, in this case "a key
consideration is whether, in providing . . . services to
[Kastle], [ABM] was 'performing an essential part' of
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[Kastle's] business." Fowler, 260 Va. at 428, 537 S.E.2d at
315 (quoting Whalen, 229 Va. at 169, 327 S.E.2d at 105).
However, it is important to note that, while the parties
have argued at great length regarding the essential nature of
janitorial services as they relate to Kastle's business under
the facts of this case, the test to determine whether the
Defendants were "other part[ies]" under Code § 65.2-309 and,
accordingly, strangers to Kastle's "particular business,"
Feitig, 185 Va. at 102, 38 S.E.2d at 75, is not merely whether
the Defendants were performing a service "essential" to
Kastle's business. Fowler, 260 Va. at 427, 537 S.E.2d at 314;
Whalen, 229 Va. at 169, 327 S.E.2d at 105; Floyd, 203 Va. at
274, 123 S.E.2d at 372. Rather, the test is whether the
Defendants were "performing work that is part of [Kastle's
particular] trade, business or occupation." Floyd, 203 Va. at
274, 123 S.E.2d at 372 (emphasis added); Feitig, 185 Va. at
102, 38 S.E.2d at 75. While janitorial services may be
considered essential to every business in the Commonwealth for
obvious reasons, it does not follow that janitorial services
are an essential part of every employer's particular trade,
business or occupation.
In Fowler, we considered the question "whether the
provision of cleaning and janitorial services is a part of an
[employer]'s trade, business, or occupation." 260 Va. at 428,
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537 S.E.2d at 315. We concluded that both the plaintiff's
employer, Sears, and the company Sears hired to clean its store
"were involved in cleaning Sears' premises." Id.
Specifically, we noted that
Sears' employees cleaned up spills, swept the
warehouse floor, and carried trash to the
dumpster. [The cleaning company]'s personnel
cleaned bathrooms, mopped floors, stripped
floors, and performed other cleaning functions.
Sears' personnel used [the cleaning company]'s
cleaning supplies and equipment, which were
stored in a closet provided on Sears' premises.
When [the cleaning company] stripped floors,
Sears provided half the signs needed to warn of
possible danger.
The combined efforts of [the cleaning company]
and Sears were designed to accomplish Sears' goal
of making its store clean, attractive, and safe –
a goal necessary to the successful operation of
Sears' [retail] business. And, by its
participation in those efforts, [the cleaning
company] was "performing an essential part" of
Sears' business.
Id. at 428, 537 S.E.2d at 315-16 (quoting Whalen, 229 Va. at
169, 327 S.E.2d at 105) (emphasis added). Accordingly, we held
that the hired cleaning company was not a stranger to Sears'
business and affirmed the trial court's decision that the
plaintiff's action against the cleaning company was barred by
Virginia workers' compensation law. Id. at 424, 428-29, 537
S.E.2d at 313, 316.
Unlike Fowler, however, the evidence in this case does not
demonstrate that the Defendants were "performing work that is
12
part of [Kastle's] trade, business or occupation." See Floyd,
203 Va. at 274, 123 S.E.2d at 372 (emphasis added); Fowler, 260
Va. at 428, 537 S.E.2d at 315-16. Despite evidence that Kastle
had "Windex, Clorox, toilet paper and paper towel[s]," there is
no evidence that Kastle employees were required to or were, in
fact, involved in performing any cleaning of Kastle's offices,
let alone the building's common areas, including the bathrooms
and the lobby where Napper was injured. Rather, the evidence
demonstrated that Kastle employees were not allowed to clean
the common areas or common bathrooms.
Moreover, unlike Sears in Fowler, there is no evidence
that Kastle worked with the Defendants to make its offices
clean, attractive, and safe. See id. at 428, 537 S.E.2d at
316. While such "a goal [was] necessary to the successful
operation of Sears' [retail] business" in Fowler, there is no
evidence that Kastle's business was dependent upon, or
included, receiving retail customers or clients at its offices;
rather, the evidence demonstrated that Kastle's offices were
not a place for receiving customers and clients as an essential
part of its business. Id. at 428, 537 S.E.2d at 316.
Consequently, the evidence does not demonstrate that the
Defendants, by providing janitorial services to a building
occupied by multiple tenants and in which Kastle leased space
to operate a call center, were "performing work that is part of
13
[Kastle's] trade, business or occupation." See Floyd, 203 Va.
at 274, 123 S.E.2d at 372. As a result, the Defendants were
"other part[ies]" as contemplated by Code § 65.2-309 and
strangers to Kastle's "particular business" of operating a call
center. See Whalen, 229 Va. at 169, 327 S.E.2d at 105; Floyd,
203 Va. at 274, 123 S.E.2d at 372; Feitig, 185 Va. at 102, 38
S.E.2d at 75. Accordingly, we hold that the trial court erred
in sustaining the Defendants' plea in bar because Napper's
action against the Defendants is not barred by the workers'
compensation exclusivity provision in Code § 65.2-307(A).
III. Conclusion
We hold that the trial court erred when it sustained the
Defendants' plea in bar and dismissed Napper's suit with
prejudice. Accordingly, we will reverse the judgment of the
trial court and remand for further proceedings consistent with
this opinion.
Reversed and remanded.
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