PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and Agee,
JJ., and Stephenson, S.J.
PATRICIA CROCKER
OPINION BY
v. Record No. 060469 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
January 12, 2007
RIVERSIDE BRICK & SUPPLY COMPANY, INC.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Theodore J. Markow, Judge
The sole issue in this appeal is whether the trial court
erred in ruling that the plaintiff's personal injury action was
barred pursuant to the Virginia Workers' Compensation Act, Code
§ 65.2-100, et seq. (the Act).
I
Patricia M. Crocker filed in the Circuit Court of the City
of Richmond a motion for judgment against Riverside Brick &
Supply Company, Inc. (Riverside), alleging that she had
sustained severe injuries that had been proximately caused by
the negligence of Riverside's employees. Riverside filed a plea
in bar, asserting that the trial court lacked subject matter
jurisdiction because Crocker's claim was barred by Section 65.2-
302 of the Act. The trial court ruled that Crocker, at the time
of her injury, was the statutory employee of Riverside and,
therefore, her sole right and remedy was under the Act.
Accordingly, the trial court sustained Riverside's plea and
dismissed the motion for judgment. We awarded Crocker this
appeal.
II
Riverside is in the business of selling masonry materials.
Riverside purchased from Van Sant Equipment (Van Sant) stone
that was to be delivered on pallets. Van Sant hired Jevic, a
shipping company, to deliver the stone to Riverside. Crocker
was employed by Jevic as a tractor-trailer driver.
On November 19, 2002, Crocker drove a tractor-trailer with
a load of stone to Riverside's facility. When she arrived at
Riverside's delivery yard, she was met by Charlie W. Weeks, a
Riverside employee, and he told her where to park.
Riverside did not have a loading dock, and it was very rare
for materials to be delivered to Riverside by tractor-trailer.
On the rare occasion that a delivery was made by tractor-
trailer, the truck driver ordinarily moved the freight to the
trailer's tailgate using a device called a "pallet jack." It
was unusual for a tractor-trailer to arrive without a pallet
jack, but Crocker did not have one.
Weeks told Crocker that Riverside's employees would remove
the pallets after they were dragged by a forklift to the
trailer's tailgate. From the tailgate, the pallets would be
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lifted off the trailer by another forklift located on the
∗
ground.
In order to drag the pallets to the tailgate, each pallet
needed to be hooked by a strap attached to a forklift. Weeks
testified that he told Crocker that she would have to attach the
strap hook to each pallet because Riverside employees were not
allowed to go inside the trailer and that Crocker agreed to
attach the strap. Weeks, however, also testified that it was
his responsibility to get the trucks unloaded and that, most of
the time, he did it himself. Crocker testified that "the
company that we deliver to is supposed to unload the freight,
because [Jevic] said all we're supposed to do is . . . back up
to the dock, and [Riverside is] supposed to, with a forklift,
take the pallets off."
Nevertheless, Crocker attached the strap hook to each of
the pallets in the Jevic trailer. She would then stand aside as
Weeks, operating a forklift, dragged each pallet to the tailgate
so that it could then be lifted off the trailer by another
forklift, also operated by a Riverside employee. When the next-
to-the-last pallet was to be unloaded, Crocker informed Weeks
that there was a height change in the trailer's floor that would
prevent the pallet from readily sliding across the floor, and
∗
If Riverside had had a loading dock, the pallets of stone
could have been unloaded by a forklift.
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she told Weeks to wait for her to exit the trailer before
dragging the pallet.
Crocker attached the strap hook to the pallet and
immediately moved away from it and toward the trailer's
tailgate. Weeks, however, did not wait, and, before Crocker
could exit the trailer, a board broke from the pallet, flew
through the air, and hit her.
Notwithstanding its judgment, the trial court found that
"the parties agree that it was the responsibility of Riverside
employees to remove pallets from the delivery truck. . . .
Delivering to Riverside[] . . . was the only responsibility of
Ms. Crocker as an employee of Jevic." The trial court made no
finding that any contractual obligation existed for Jevic,
through its employee Crocker, to assist in unloading the
trailer.
III
The Act, in Code § 65.2-307, prohibits an employee from
maintaining a tort action against his employer for an injury
sustained during the course of his employment. An injured
employee also is precluded from bringing a personal injury
action against a party, who is not his employer, if that party
is deemed to be his "statutory employer."
Code § 65.2-302(A) sets forth the test for determining
whether a party qualifies as a statutory employee as follows:
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When any person (referred to in this section as
"owner") 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") 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.
Pursuant to Code § 65.2-307, the rights and remedies under the
Act "shall exclude all other rights and remedies." The only
exception to this exclusivity provision is contained in Code
§ 65.2-309(A), which permits an injured employee to maintain an
action against an "other party." An "other party" is "a
stranger to the trade, occupation, or business in which the
employee was engaged when he was injured." Peck v. Safway Steel
Products, Inc., 262 Va. 522, 525, 551 S.E.2d 328, 329 (2001).
Riverside contends that Crocker, at the time of her injury,
was engaged in an essential part of its trade, business, or
occupation. The trial court agreed, stating that "[r]emoving
the product was the responsibility of Riverside, and Ms.
Crocker's assistance in the removal qualified her as Riverside's
statutory employee."
We have decided many cases regarding the delivery of
various materials, and two of these cases have facts that are
strikingly similar to the facts in the present case. The more
recent case is Stevens v. Ford Motor Co., 226 Va. 415, 309
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S.E.2d 319 (1983), and the other is Buffalo Shook Co. v.
Barksdale, 206 Va. 45, 141 S.E.2d 738 (1965).
In Stevens, the plaintiff was a truck driver employed by a
freight line company. The plaintiff was injured while
delivering automobile parts to a plant operated by Ford Motor
Company (Ford). When the plaintiff arrived at the Ford plant,
he found that Ford's loading dock was not in alignment with the
truck's bed. He, therefore, asked a Ford forklift operator to
raise the dock leveler (a ramp connecting the truck bed to the
facility's loading dock) by using his forklift so the trailer
could be unloaded. Instead of using his forklift, the Ford
employee directed an unknown man to assist the plaintiff. While
the plaintiff and the unknown man were trying to raise the
leveler by hand, the leveler fell on the plaintiff's foot. The
plaintiff received workers' compensation benefits from his
employer for his injuries. 226 Va. at 417-19, 309 S.E.2d at
320-22.
The plaintiff then filed a tort action against Ford, which
Ford contended was barred by the Act. Id. at 417, 309 S.E.2d at
320. We held that the plaintiff was not Ford's statutory
employee, even though the plaintiff endeavored to assist in the
unloading, because unloading the freight was the sole
responsibility of Ford. The plaintiff was not engaged in Ford's
trade, business, or occupation and, thus, could maintain the
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action against Ford, who was an "other party." Id. at 420, 309
S.E.2d at 322.
In Buffalo Shook Co., the plaintiff was a truck driver
employed by Glen H. Bolt to deliver a load of lumber to Buffalo
Shook Company (Buffalo Shook). Bolt was a sawmill operator, and
Buffalo Shook was engaged in manufacturing tobacco hogsheads and
pallets from lumber purchased from Bolt and others. The
plaintiff's only duties were to drive the delivery truck and
loosen chains so the lumber could be unloaded by Buffalo Shook.
At the request of a Buffalo Shook employee, however, the
plaintiff assisted with the operation of a forklift used to take
the lumber from the truck and was injured. 206 Va. at 46-47,
141 S.E.2d at 740.
The plaintiff received workers' compensation benefits for
his injuries. Id. at 47, 141 S.E.2d at 740. He also filed a
personal injury action against Buffalo Shook and one of its
employees (the Defendants). The Defendants contended that the
plaintiff was precluded from maintaining the action because
neither defendant was an "other party" as defined by the Act.
Id. at 46-47, 141 S.E.2d at 740. In holding that the plaintiff
could maintain the action, we said the following:
Here [the plaintiff] was engaged in the business of
Bolt, which was the sawmill business. Bolt sold
lumber from his sawmill to Buffalo Shook and delivered
it on the latter's premises on a truck driven by [the
plaintiff]. It was not a part of the trade, business
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or occupation of Bolt to unload the truck. When [the
plaintiff] undertook to help he was not engaging in
the trade, business or occupation of Bolt and
defendants did not thereby become engaged in the
business of Bolt, but were clearly "other parties,"
strangers to the business of Bolt.
Id. at 48, 141 S.E.2d at 741.
We conclude that Stevens and Buffalo Shook Company are
virtually indistinguishable from the present case and hold,
therefore, that Riverside is an "other party" within the meaning
of the Act. In the present case, Crocker was not Riverside's
statutory employee because, even though she endeavored to assist
in unloading the pallets of stone, the unloading of the freight
was the sole responsibility of Riverside. Crocker was engaged
only in the business of Jevic, which was under no duty or
obligation to Riverside to unload the trailer, and therefore was
not engaged in the trade or business of Riverside. Accordingly,
Crocker is not precluded by the Act from maintaining her tort
action against Riverside.
IV
For the foregoing reasons, the trial court's judgment will
be reversed, and the case will be remanded for further
proceedings.
Reversed and remanded.
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