Present: All the Justices
LOUISE V. BURCH
v. Record No. 991490 OPINION BY JUSTICE CYNTHIA D. KINSER
JUNE 7, 2002
HECHINGER COMPANY
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
J. Howe Brown, Judge
In this personal injury action, the question on appeal
is whether the plaintiff-appellant was a statutory employee
of the defendant-appellee when she was injured. Because we
answer that question affirmatively, we will affirm the
circuit court’s judgment sustaining the defendant’s plea in
bar based on the exclusivity provision of the Virginia
Workers’ Compensation Act, Code § 65.2-307(A).
FACTS AND MATERIAL PROCEEDINGS
Louise V. Burch was employed as a sales representative
by Greenhost, Inc. (Greenhost). Greenhost grew plants and
flowers and sold them on a wholesale basis to various
retailers, including Hechinger Company (Hechinger).
In the spring of 1997, Burch negotiated an order for
Greenhost flowers to be sold at a Hechinger store in
Springfield during a “truckload sale” advertised to take
place over a Friday, Saturday and Sunday in May. Burch
agreed to be present during part of the truckload sale to
assist in displaying the flowers and to answer
horticultural questions for Hechinger retail customers.
A problem arose when one of the trailers of flowers
arrived at the Springfield Hechinger store a day earlier
than anticipated and Hechinger did not have staff available
to unload the flowers and arrange the display that day. If
the plants remained inside the trailer all day, the heat
would cause them to wilt and die and Burch “would have to
go up there and write a return.” Therefore, at the request
of her supervisor, Burch went to the Hechinger store the
day before the sale was scheduled to begin and assisted in
arranging the display of flowers as they were unloaded from
the trailer.
Hechinger’s garden clerk and acting manager on duty
that day, Richard Lawrence Scherer, was responsible for
unloading the trailer. The flowers had been stored for
transport inside the trailer on carts, each of which held
approximately 42 flats with about 36 flowering plants in
each flat. While Scherer used a hydraulic lift to remove
the carts of flowers from the trailer, Burch and at least
one other Hechinger employee began rearranging Hechinger’s
existing stock to make room for the new delivery of
flowers.
2
Burch was engaged in this task when two women
approached her and asked for assistance in locating red
impatiens, a particular color and type of flower. Aware
that no red impatiens were on display, Burch invited the
customers to accompany her to the trailer to ascertain
whether any were in the delivery being unloaded.
Only three or four carts had been unloaded from the
trailer at that time, and Scherer attempted to look for the
red impatiens among the carts remaining on the trailer.
However, he was unable to maneuver the carts to view the
contents of each, so he returned to unloading carts from
the trailer while the customers waited. At this point, one
of the carts filled with potted flowers rolled off of the
trailer’s tailgate, falling onto Burch and injuring her.
Burch subsequently filed suit alleging that the
accident resulted from the negligence of Hechinger’s
employee and that Hechinger was vicariously liable for his
negligent acts. In its defense, Hechinger filed a plea in
bar alleging that at the time of her injury, Burch was a
statutory employee of Hechinger and that her negligence
action was therefore barred by the exclusivity provision of
the Virginia Workers’ Compensation Act, Code § 65.2-307.
The circuit court found that Burch’s injury occurred
while she was consolidating and rearranging flowers, a task
3
ordinarily performed by Hechinger employees. Thus, the
court ruled that Burch was a statutory employee of
Hechinger and that her exclusive remedy was a claim for
workers’ compensation benefits. The court sustained
Hechinger’s plea in bar and dismissed Burch’s negligence
action. Burch appeals that dismissal, contending that the
court erred in ruling that she was a statutory employee of
Hechinger. 1
ANALYSIS
The rights and remedies provided in the Virginia
Workers’ Compensation Act (the Act) are exclusive of all
other rights and remedies for employees who fall within the
scope of the Act. Code § 65.2-307(A). See Feitig v.
Chalkley, 185 Va. 96, 98, 38 S.E.2d 73, 73-74 (1946)
(discussing rationale of workers’ compensation system and
the exchange of the right to a jury trial for a faster and
guaranteed recovery). Therefore, the sole issue in this
appeal is whether the trial court was correct in
designating Burch as a statutory employee of Hechinger at
1
Burch also asserts that the circuit court erred in
failing to consider that the contractual relationship
between Greenhost and Hechinger was that of vendor-vendee
and thus outside the scope of Code § 65.2-302(A). However,
because Burch failed to raise that issue in the proceedings
below, we will not consider that assignment of error. See
Rule 5:25.
4
the time of her injury. If so, then her negligence action
seeking damages from Hechinger is barred by Code § 65.2-
307(A).
With regard to when an individual may be properly
considered a statutory employee, the Act provides:
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.
Code § 65.2-302(A)(emphasis added).
“The issue whether a particular person or entity is
the statutory employer of an injured employee is a
jurisdictional matter presenting a mixed question of law
and fact that must be determined under the facts of each
case.” Bosley v. Shepherd, 262 Va. 641, 648, 554 S.E.2d
77, 81 (2001). If the facts establish that an individual
performs activities that are normally performed by a
person’s employees rather than by independent contractors,
then that individual is properly considered that person’s
statutory employee for purposes of the Act. Shell Oil Co.
v. Leftwich, 212 Va. 715, 722, 187 S.E.2d 162, 167 (1972).
5
See also Carmody v. F. W. Woolworth Co., 234 Va. 198, 205-
06, 361 S.E.2d 128, 132-33 (1987) (licensee portrait
photography business inside Woolworth store was engaged in
work that Woolworth normally conducted through its
employees; thus, licensee’s employee was Woolworth’s
statutory employee).
In the instant case, Burch was arranging displays of
flowers and, more immediately at the time of her injury,
she was assisting Hechinger retail customers. The
uncontroverted testimony at the hearing on Hechinger’s plea
in bar established that both of these activities were
normally performed by Hechinger employees. Burch
acknowledged that at least one other Hechinger employee was
engaging in the same work as that being performed by her
when she was injured. In fact, Burch stated on brief that
“[t]he consolidation and arranging of flowers at the
Hechinger store . . . was normally performed by Hechinger’s
employees.” However, Burch had agreed to be involved in
these tasks after delivery of the flowers because that was
part of the deal she negotiated with Hechinger for the
truckload sale. Both Scherer and Burch testified that
Hechinger employees were responsible for unloading the
trailer of flowers at the Springfield Hechinger store and
that Burch was not involved in that activity in any way.
6
Burch contends, however, that she was not furthering
Hechinger’s business when her injury occurred, but rather,
that she was completing the delivery of Greenhost’s
product. We have previously considered the point at which
an individual delivering products has completed the task of
delivery, and beyond which point, engaging in further
activities constitutes performing the work of another
entity’s trade, business or occupation. In Bosley, we held
that using a crane to deliver sheetrock to specific
locations on a jobsite was part of the delivery. 262 Va.
at 649-50, 554 S.E.2d at 82. The employee so engaged was
not a statutory employee of the general contractor because
he did not perform any other task to further the work of
the general contractor. Id.; see also Burroughs v.
Walmont, Inc., 210 Va. 98, 100, 168 S.E.2d 107, 108 (1969)
(the stacking of sheetrock in several rooms constituted the
final act of delivery, not the act of construction). In
contrast, we held that an individual who delivered sand to
a construction site and then participated in spreading the
sand to a six-inch base as required by building
specifications was a statutory employee of the general
contractor because he had proceeded beyond the task of
delivery and engaged in the contractor’s work of
7
construction. Bosher v. Jamerson, 207 Va. 539, 542-43, 151
S.E.2d 375, 377 (1966).
We think that the instant case is more like Bosher.
Although Burch contends that she was engaged in the final
act of delivery, the testimony clearly reflects that Burch
herself did not participate in the delivery of the flowers.
Rather, Greenhost’s wholesale delivery was complete when
the trailer arrived at the Springfield Hechinger store,
because it was then the responsibility of Hechinger
employees to unload the flowers and continue the retail
merchandising process from that point forward.
Burch was involved in discrete activities both prior
to and after the delivery. Before the delivery, she
represented Greenhost in negotiating the sale to Hechinger.
Once the trailer of flowers arrived at the Hechinger store,
Hechinger employees were then responsible for unloading the
flowers from the trailer, as well as arranging the flowers
on display and assisting Hechinger retail customers.
Thus, when Burch’s involvement resumed, after the
delivery, her activities – that is, arranging the display
of flowers and answering the questions of Hechinger retail
customers – were, as previously noted, tasks that were
normally performed by Hechinger employees. That she was
motivated to perform such tasks by the prospect of
8
increased future sales does not change the fact that both
activities further the retail business of Hechinger and are
normally performed by Hechinger employees.
CONCLUSION
The evidence at the hearing on Hechinger’s plea in bar
was sufficient to support the circuit court’s finding that,
by virtue of engaging in work normally performed by
Hechinger employees, Burch was a statutory employee of
Hechinger at the time of the accident. Thus, her sole
remedy lies in workers’ compensation and her negligence
action against Hechinger is barred by the exclusivity
provision of the Act. For this reason, we find no error
and will affirm the judgment of the circuit court
dismissing this action.
Affirmed.
9