PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Kinser, and
Lemons, JJ., and Compton, S.J.
GERALD ANDERSON OPINION BY
SENIOR JUSTICE A. CHRISTIAN COMPTON
v. Record No. 003017 November 2, 2001
GEORGE A. DILLOW, JR., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Charles E. Poston, Judge
In this tort action seeking recovery for personal injuries
sustained in a work environment, the sole question is whether
the action is barred by the exclusivity provision of Code
§ 65.2-307 of the Virginia Workers' Compensation Act, §§ 65.2-
100 through -1310 (the Act).
In April 1997, plaintiff Gerald Anderson, an employee of a
general contractor, Virginia International Terminals (VIT), was
injured by the alleged negligence of defendant George A. Dillow,
Jr., an employee of defendant subcontractor Waste Management
(sued as Waste Management of Hampton Roads and Waste Management
of Virginia, Inc.). The accident occurred on the premises of
the Norfolk International Terminal (NIT). Subsequently, the
plaintiff received workers' compensation benefits from his
employer.
Later, the plaintiff filed this action against Dillow and
Waste Management seeking recovery for personal injuries
sustained in the accident. In a motion to dismiss pursuant to a
special plea, defendants asserted that the Act barred
plaintiff's common law action because Waste Management was not
an "other party" within the meaning of the Act.
During a hearing on the motion to dismiss, the trial court
considered a deposition of defendant Dillow; affidavits; answers
to interrogatories; a "Service Agreement" between the owner,
Virginia Port Authority, and VIT; a "Solid Waste Removal and
Disposal" contract between VIT and Waste Management; memoranda
of law; and argument of counsel.
In a September 2000 letter opinion, the court granted the
motion and sustained the special plea, ruling that the
plaintiff's exclusive remedy was his claim under the Act. From
a final order entering judgment for the defendants, we awarded
the plaintiff this appeal.
The law upon the issue presented here is settled and has
been established in the numerous cases arising under the
relevant portions of the Act. Code § 65.2-307 (formerly § 65.1-
40) provides that the rights and remedies granted by the Act to
an employee, on account of personal injury or death by accident,
exclude all other rights and remedies of such employee, or the
employee's personal representative, at common law or otherwise.
But an exception to the foregoing exclusivity provision is found
in Code § 65.2-309(A) (formerly § 65.1-41). The statute
provides that such employee, or the personal representative, is
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authorized to maintain an action at law against the tortfeasor
if the wrongdoer is an "other party" within the meaning of
§ 65.2-309.
Whether a person is subject to the exclusivity provision
presents a mixed question of law and fact that must be resolved
on appeal in light of the facts and circumstances of each case.
Fowler v. Int'l Cleaning Serv., 260 Va. 421, 425, 537 S.E.2d
312, 314 (2000). When, as here, the facts relevant to this
jurisdictional issue are not in dispute, we must determine
whether the trial court correctly applied the law to those
facts. Id.
VIT, the general contractor, is a nonprofit, nonstock
corporation that entered into the Service Agreement with the
Virginia Port Authority to manage, operate, and conduct the
business of NIT, the terminal, for the Commonwealth of Virginia.
NIT is a commercial port whose operations include loading and
unloading commercial freight, storing commercial freight in
warehouses, breaking down freight from shipping containers,
removing shipping material from freight, and general maintenance
of port facilities.
The general contractor is required to operate and maintain
the terminal so that commercial traffic can be accommodated in a
clean, safe, and orderly manner, and thus ensure that shipping
debris and other generated waste is removed from the terminal.
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According to an affiant, removal of shipping debris and waste
from the port "was an essential part of VIT's business of
operating the port and maintaining NIT in a clean, safe and
orderly manner under the Service Agreement with the Commonwealth
of Virginia."
In 1986, VIT contracted with Service Disposal Corporation,
an entity acquired by Waste Management in 1988, "to assist in
the maintenance of the port by, among other things, removing
shipping debris and waste" from the terminal. Upon Waste
Management's acquisition of Service Disposal, Waste Management
assumed those contractual responsibilities.
Under the contract between VIT (the general contractor) and
Waste Management (the subcontractor), VIT collected shipping
debris and waste at various areas of the terminal and deposited
this shipping debris and waste, which was generated by the
operations and maintenance functions, into containers provided
by Waste Management. VIT accomplished this activity by using
VIT employees and VIT forklifts to move Waste Management
containers to VIT-designated sites for pick-up by Waste
Management.
On Monday through Friday of each week, a Waste Management
truck emptied each of the containers located at the VIT-
designated sites throughout the terminal and removed shipping
debris and waste from the terminal premises. Under the contract
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between VIT and Waste Management, VIT was responsible for fees
incurred as a result of Waste Management's disposal of VIT's
shipping debris and waste at landfills.
On the day of the accident in question, the defendant
Dillow was an employee of Waste Management, acting within the
scope of his employment by carrying out Waste Management's
obligations under the VIT-Waste Management contract. He was
operating a front-loading collection vehicle, and his route
required him to collect shipping debris and waste located in
several Waste Management containers at locations designated by
VIT. When the accident occurred, Dillow was in the process of
emptying a series of those containers filled with shipping
debris and waste located on 6th Street near Warehouse 6K. The
number of containers at that location varied from day to day as
VIT routinely would move those containers in and around the port
facilities to accommodate port operations and maintenance.
At the time of the accident, the plaintiff was operating a
VIT "yard hustler" vehicle on 6th Street and acting within the
scope of his employment as a freight handler for VIT. The
plaintiff alleges Dillow negligently backed the Waste Management
vehicle into the left side of the hustler, causing the injuries.
Even though the broad question here is whether the
defendants were "other parties," the precise issue is whether,
at the time of the accident, the defendants were strangers to
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the trade, business, or occupation in which the plaintiff was
involved. Whalen v. Dean Steel Erection Co., 229 Va. 164, 167,
327 S.E.2d 102, 104 (1985). Accord Fowler, 260 Va. at 428, 537
S.E.2d at 315. See Peck v. Safway Steel Products, Inc., 262 Va.
522, 525, 551 S.E.2d 328, 329 (2001).
Therefore, applying this "stranger to the work" test, if
defendants were engaged in the trade, business, or occupation of
plaintiff's employer, the trial court was correct and the
plaintiff's common law action is barred. If, however,
defendants were not so engaged, the trial court erred. We hold
that the trial court was correct.
As the trial court determined, in order for VIT, the
plaintiff's employer, to reasonably operate the terminal in a
clean, safe, and orderly manner, the premises had to be kept
free of large quantities of shipping debris and waste generated
daily. This required collecting the debris and removing it from
the terminal to a landfill.
At the time of this accident, VIT was responsible for
collecting the debris and waste generated by the operations and
maintenance functions throughout the terminal and depositing the
materials into containers. VIT could have elected to complete
the effort of removing and disposing of the debris and waste
using its own employees and purchasing and operating its own
equipment. Instead, VIT chose to subcontract to Waste
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Management the final part of VIT's own responsibility to
maintain the premises free of debris and waste.
Therefore, Waste Management's actions in removing the
debris and waste from the terminal and transporting it to
landfills amounted to a continuation and extension of VIT's
effort to operate the port in the clean, safe, and orderly
manner required by the Service Agreement with the Port
Authority. As the trial court observed, VIT's obligation for
fees Waste Management incurred as the result of disposing the
material at landfills emphasizes VIT's "overarching
responsibility" for maintaining and operating NIT.
Consequently, removal of debris and waste under these
circumstances cannot be deemed merely incidental to the
operation and maintenance of this terminal facility; to the
contrary, it is an essential and indispensable part of that
business, as the trial court determined. Thus, Dillow and Waste
Management cannot be considered strangers to VIT's trade,
business, or occupation, and, as such, they are not "other
parties" within the meaning of the Act. The plaintiff's
exclusive remedy for his accidental injury lies within the
benefits afforded by the Act.
Accordingly, the judgment of the trial court will be
Affirmed.
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