Burch v. Hechinger Co.

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.

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 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

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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.

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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).

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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.

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 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

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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

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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.

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