Present: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and
Agee, JJ., and Carrico, S.J.
CLEAN SWEEP PROFESSIONAL PARKING
LOT MAINTENANCE, INC., ET AL.
OPINION BY
v. Record No. 030058 JUSTICE DONALD W. LEMONS
January 16, 2004
FRANK TALLEY, SR.
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
William H. Ledbetter, Jr., Judge
In this appeal, we consider whether the trial court erred
in overruling pleas in bar based upon the exclusivity
provisions of the Virginia Workers’ Compensation Act, Code
§ 65.2-100 et seq. (“the Act”).
I. Facts and Proceedings Below
In August 1997, Virginia Paving Company (“Virginia
Paving”) was engaged in the repaving of certain portions of
Interstate Highway 95 in Spotsylvania County, under a contract
from the Virginia Department of Transportation (“VDOT”). The
contract required Virginia Paving to undertake all aspects of
the repaving process including milling the existing road
surface, removing the milled asphalt, sweeping away loose
debris, and repaving the roadway with fresh asphalt supplied
by Virginia Paving.
Because of the size of the project, in addition to
utilizing its own equipment and workforce, Virginia Paving
hired subcontractors to assist in certain portions of the
work. Virginia Paving hired J. E. Coleman Trucking Company
(“Coleman Trucking”) to assist Virginia Paving in transporting
asphalt from Virginia Paving’s plant to the jobsite, loading
asphalt into the paving machines, and hauling the millings
from the jobsite back to the plant. Virginia Paving also
hired Clean Sweep Professional Parking Lot Maintenance, Inc.
(“Clean Sweep”) to help Virginia Paving clear the roadway of
asphalt after it was loosened by the milling machines.
On August 27, 1997, Frank Talley, Sr. (“Talley”), a truck
driver employed by Coleman Trucking, loaded fresh asphalt at
the Virginia Paving plant, delivered it to the jobsite, dumped
the asphalt into the paving machine, and reloaded the truck
with asphalt millings. Before returning to the Virginia
Paving plant, Talley responded to a call to diagnose a
disabled Coleman truck that was also at the site. While
Talley was underneath the truck, it was struck by one of Clean
Sweep’s sweeper trucks operated by John J. O’Connor
(“O’Connor”). As a result of the accident, Talley sustained
back injuries.
Talley sued Clean Sweep and O’Connor, alleging that
Talley was injured by O’Connor’s negligence and recklessness
in operating the sweeper truck. Clean Sweep and O’Connor
filed pleas in bar stating that the Act is Talley’s sole
avenue for recovery and precludes any and all other remedies.
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The trial court overruled the pleas in bar. The jury
subsequently returned a verdict in favor of Talley in the
amount of $900,000. Clean Sweep and O’Connor appeal the trial
court’s judgment refusing to sustain the pleas in bar.
II. Analysis
On appeal, Clean Sweep and O’Connor maintain that the
trial court erred by failing to sustain the pleas in bar.
They assert that Coleman Trucking and Clean Sweep were both
subcontractors of Virginia Paving and they were engaged in the
trade, business, or occupation of Virginia Paving. Further,
they maintain that because Coleman Trucking’s employee,
Talley, was injured by the actions of Clean Sweep’s employee,
O’Connor, Talley’s exclusive remedy is provided by the Act.
Whether a person is subject to the exclusivity provision
of the Act presents a mixed question of law and fact that must
be resolved in light of the facts and circumstances of each
case. Burch v. Hechinger Co., 264 Va. 165, 169, 563 S.E.2d
745, 747 (2002). We review de novo the trial court’s
determination that Talley and O’Connor were not statutory
fellow employees.
The rights and remedies provided in the Act are exclusive
of all other rights and remedies of an employee or his estate
at common law or otherwise. Peck v. Safway Steel Prods.,
Inc., 262 Va. 522, 525, 551 S.E.2d 328, 329 (2001). The only
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exception to this exclusivity provision is provided in Code
§ 65.2-309(A) permitting an action to be maintained against an
“other party.” “[T]o be an ‘other party,’ a defendant must
have been a stranger to the trade, occupation, or business in
which the employee was engaged when he was injured.” 262 Va.
at 525, 551 S.E.2d at 329. Additionally, we have held:
[B]ecause he is not a “stranger to the
employment,” an allegedly negligent employee of
one contractor, engaged in the same business or
project of an owner as an injured employee of
another contractor, is not an “other party”
amenable to suit . . .
Evans v. Hook, 239 Va. 127, 131, 387 S.E.2d 777, 779 (1990).
See also Pfeifer v. Krauss Construction Co., 262 Va. 262, 266-
67, 546 S.E.2d 717, 719 (2001).
Talley does not argue that O’Connor was not a statutory
employee of the general contractor, Virginia Paving. On
appeal, Talley maintains that Talley’s actions on behalf of
his employer, Coleman Trucking, were not in the trade,
business, or occupation of Virginia Paving.
The trial court held that Coleman Trucking was engaged
in “a function which was solely as a supplier or deliverer of
goods and, of course, to haul off goods.” Citing Burroughs v.
Walmont, 210 Va. 98, 168 S.E.2d 107 (1969), the trial court
concluded that Coleman Trucking’s work consisted of mere
delivery and hauling and as such, Coleman Trucking was not
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engaged in the trade, business or occupation of Virginia
Paving. Consequently, Talley was not a statutory employee of
Virginia Paving and could not be a statutory fellow employee
of O’Connor. We disagree.
In Burroughs, the plaintiff, an employee of a trucking
company, was injured while carrying plasterboard into one of
several houses being constructed by the general contractor.
210 Va. at 99, 168 S.E.2d at 108. The trucking company had
agreed to deliver and stack specified quantities of the
plasterboard in the rooms in the various houses under
construction. Id. at 98, 168 S.E.2d at 108. We held that
“the stacking of [plasterboard] in the several rooms
constituted the final act of delivery, not an act of
construction.” Id. at 100, 168 S.E.2d at 108. Consequently,
the plaintiff was not engaged in the general contractor’s
trade, business, or occupation, and, therefore, the general
contractor was an “other party” and subject to being sued.
Id. at 100, 168 S.E.2d at 109.
Similarly, in Yancey v. JTE Constructors, Inc., 252 Va.
42, 471 S.E.2d 473 (1996), a general contractor was hired by
the Virginia Department of Transportation to design and
install a sound barrier along an interstate highway. Id. at
43, 471 S.E.2d at 474. The general contractor engaged a
subcontractor merely to design, manufacture, and deliver
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concrete wall panels to the job site. Id. The plaintiff, an
employee of the subcontractor, was injured while he was
inspecting one of the panels. Id. at 43, 471 S.E.2d at 474.
We held that the plaintiff’s inspection and patching
activities “were the final acts of delivery required by the
contract” and that the plaintiff was not engaged in the
general contractor’s trade, business, or occupation. Id. at
45, 471 S.E.2d at 475.
But not all cases that initially appear to be “delivery”
cases have resulted in a holding that the plaintiff was not
engaged in the trade, business or occupation of the general
contractor. In Bosher v. Jamerson, 207 Va. 539, 151 S.E.2d 375
(1966), we considered a case involving an employee of a
trucking company who delivered sand to a construction site but
also participated in the spreading of the sand to create a
foundation under the direction of the general contractor. An
employee of the general contractor was injured by negligence
of the employee of the trucking company during the sand
spreading process. Id. at 540-41, 151 S.E.2d at 376. In
applying the exclusivity rule and barring the suit for
personal injuries, we held that
at the time of the accident [the driver] was
performing work on behalf of his employer, [the
trucking company], that was part of the trade,
business or occupation of [the general
contractor]. If [the driver] was performing
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such work, [the trucking company], though an
independent contractor, is not an “other party”
against whom [the general contractor’s
employee’s] right of action is preserved under
the Workmen’s Compensation Act, and [the
general contractor’s employee’s] right to
recover for the injury is limited to the
compensation provided under the Act.
Id. at 542, 151 S.E.2d at 377. See also Floyd v. Mitchell,
203 Va. 269, 274, 123 S.E.2d 369, 372 (1962).
Smith v. Horn, 232 Va. 302, 351 S.E.2d 14 (1986),
concerned a suit for personal injuries sustained in a
collision of three vehicles involving employees of two
subcontractors of a coal company. One subcontractor’s vehicle
was delivering supplies to a mine while another
subcontractor’s vehicle was hauling coal from a mine to the
coal company’s processing plant. Id. at 307, 351 S.E.2d at
17. In approving the trial court’s ruling sustaining the plea
in bar, we held that the coal company’s business
involved the mining, processing, and sale of
coal from properties it owned or leased. [The
subcontractors] were independent contractors
engaged to mine coal on land owned or leased by
[the coal company] and to transport the coal to
[the coal company’s] preparation plant. Horn
and Smith, as employees of these two
contractors, were performing duties within this
purpose – Smith hauling supplies to the Carrie
mine and Horn driving a load of coal from the
Potter mine to the [coal company’s] plant. As
both Smith and Horn were acting within the
scope of their employment and as both
contractors were carrying out a part of the
trade, business, or occupation of [the coal
company], Smith and Horn were fellow statutory
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employees of [the coal company] and Smith’s
common-law action against Horn was barred under
[the exclusivity provision of the Act].
Id. at 307, 351 S.E.2d at 17.
In Peck, an employee of a general contractor was killed
when he fell from scaffolding on which he was working. 262
Va. at 524, 551 S.E.2d at 328. The subcontractor, Safway, was
contracted to supply and install scaffolding for the project
to repair and replace brick masonry on a 12-story building.
Id. In erecting, modifying, and dismantling the scaffolding
system, Safway provided over 5,000 man-hours of labor.
Clearly, Safway was engaged in an essential part of the work
that the general contractor was required to perform under its
contract. Id. at 528, 551 S.E.2d at 330. Accordingly, we
held that Safway was not merely engaged in a final act of
delivery, was not a stranger to the general contractor’s work,
and that Safway’s work was integral to the construction done
on the building. Id. We approved the trial court’s
sustaining of the plea in bar.
In Burch, the plaintiff was employed as a sales
representative for a plant wholesaler. The plaintiff agreed
to be present after delivery of the plants to assist in the
display of the retailer and to answer customer’s questions.
She was injured by the alleged negligence of an employee of
the retailer and subsequently sued for damages. 264 Va. at
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167-68, 563 S.E.2d at 746. We rejected the plaintiff’s
contention that she was involved in mere delivery; rather, her
participation in the display of plants and providing service
to the retailer’s customers removed her from the category of
“other person” because she was then engaged in the business,
trade, or occupation of the retailer. Id. at 170-71, 563
S.E.2d at 748. We approved the trial court’s sustaining of
the plea in bar based upon the exclusivity provision of the
Act. Id. at 171, 563 S.E.2d at 748.
The case before us is less like Burroughs and Yancey and
more like Bosher, Floyd, Smith, Burch, and Peck. Coleman
Trucking was not simply delivering goods. To the contrary,
its duties extended beyond the mere delivery of fresh asphalt
and were integral to the construction process. Virginia
Paving was responsible for milling the surface of the road,
removing the milled asphalt, sweeping away loose debris, and
repaving the roadway with fresh asphalt supplied by Virginia
Paving. Virginia Paving employed its own equipment and
workforce to complete these tasks but, because of the
magnitude of the project, Virginia Paving engaged
subcontractors to assist in the project. Coleman Trucking was
not merely delivering its own independently manufactured
parts. Rather, it was hauling asphalt millings to Virginia
Paving’s plant and delivering the recycled asphalt from the
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plant back to the road project to be used in new paving.
Clearly, similar to the defendant in Peck, Coleman “was
engaged in an essential part of the work that [Virginia
Paving] was required to perform under its contract with
[VDOT.]” See 262 Va. at 528, 551 S.E.2d at 330.
Coleman Trucking was not a stranger to the work of
Virginia Paving, and its employee, Talley, was a statutory
employee of Virginia Paving. There is no controversy over
whether Clean Sweep was engaged in the trade, business, or
occupation of Virginia Paving. Consequently, Talley and
O’Connor were fellow statutory employees of Virginia Paving.
Talley’s suit is precluded by the exclusivity provision of the
Act.
Finally, we reject Talley’s claim that his investigation
of a disabled truck was a “discrete activity” “far removed
from the construction process Virginia Paving had contracted
to perform for VDOT.” We hold that the investigation of the
disabled truck on the premises of the project was not “far
removed” or “discrete” such that it removed Talley’s activity
from the trade, occupation, or business of Virginia Paving.
See Burch, 264 Va. at 170-71, 563 S.E.2d at 748.
For the reasons stated, we hold that Talley and O’Connor
are statutory fellow employees for purposes of the exclusivity
provision of the Virginia Worker’s Compensation Act.
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Accordingly, we will reverse the judgment of the trial court
and enter final judgment in favor of Clean Sweep and O’Connor
sustaining the pleas in bar.
Reversed and final judgment.
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