PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Lemons, JJ., and Stephenson, S.J.
LISA C. PECK, ADMINISTRATRIX OF THE ESTATE OF
WILLIAM R. PECK, JR., DECEASED
OPINION BY
v. Record No. 002255 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
September 14, 2001
SAFWAY STEEL PRODUCTS, INC.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Randall G. Johnson, Judge
In this appeal, we determine whether the trial court erred
in ruling that the plaintiff’s action is barred by Code § 65.2-
307, the exclusivity provision of the Virginia Workers'
Compensation Act, Code § 65.2-100 et seq. (the Act).
I
Lisa C. Peck, Administratrix of the Estate of William R.
Peck, Jr., deceased (Plaintiff), filed a wrongful death action
against Safway Steel Products, Inc. (Safway), alleging that her
decedent’s death was proximately caused by Safway’s negligence
and breach of warranties. Safway filed a plea in bar, alleging
that the Plaintiff’s action is precluded by the exclusive remedy
under the Act. The trial court sustained Safway’s plea and
dismissed the Plaintiff’s action. We awarded the Plaintiff this
appeal.
II
The facts are undisputed. On November 25, 1997, William R.
Peck, Jr., while in the employ of White Construction Company
(White), was killed when he fell from scaffolding on which he
was working. The Plaintiff and her two daughters applied for
and received workers’ compensation benefits from White and its
insurer.
At the time of the accident, White was the general
contractor on a project to repair and replace brick masonry on
the exterior of Sanger Hall on the campus of the Medical College
of Virginia. Sanger Hall is a 12-story building owned by
Virginia Commonwealth University (VCU).
Pursuant to its contract with VCU, White agreed to "provide
and pay for all material, labor, tools, equipment . . . and
other services or facilities of every nature whatsoever
necessary to execute completely and deliver the Work within the
specified time." White had discretion regarding the means and
method of completing the contracted work.
White engaged Safway to supply and install scaffolding for
the project. The subcontract between White and Safway provided
the following:
THE WORK: Subcontractor shall furnish all
supervision, labor, materials, tools, equipment and
services, permits, fees, and taxes required by the
Contract Documents in the following
division(s)/section(s) together with all work
reasonably inferable therefrom: – Furnish, engineer
and erect all scaffolding per contract document
requirements including stair tower to roof and
equipment hoist. Erect first two decks for two
months. Erect remaining scaffolding to roof for an
additional two months. There shall be two working
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deck levels available at all times and an additional
non loaded deck for logistics purposes. There are to
be twelve additional deck moves as requested by
contractor. Rental time starts when scaffolding is
complete and ready for use.
The size and height of the scaffolding system required
Safway to tie the scaffolding to the building. This was
accomplished by drilling into the brick walls and installing
anchors. The scaffolding system, however, could support only
two working deck levels at one time. Therefore, as work
progressed, White called on Safway to remove the walk boards,
brackets, and other equipment comprising the working decks and
to reassemble them at different locations within the system.
All deck moves were performed at White’s direction, and Safway
provided all labor for the moves. Although the subcontract
originally called for Safway to provide on-site labor for twelve
deck moves, problems discovered at the site required change
orders to cover additional deck moves. Including the extra work
required by the change orders, Safway performed over 5,000 man-
hours of labor in erecting, modifying, and dismantling the
scaffolding system.
III
Code § 65.2-307 provides that the rights and remedies
granted under the Act "shall exclude all other rights and
remedies" of an employee or his estate at common law or
otherwise. The only exception to this exclusivity provision is
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set forth in Code § 65.2-309(A), which states, in pertinent
part, that an employee or his personal representative can
maintain an action at law against the person who caused the
injury, provided such person is an "other party." We have said
that, to 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. See, e.g., Pfeifer v.
Krauss Construction Co., 262 Va. 262, 267, 546 S.E.2d 717, 719
(2001); Fowler v. International Cleaning Service, 260 Va. 421,
428, 537 S.E.2d 312, 315 (2000). Thus, in the present case, we
must determine whether the trial court correctly ruled that
Safway was engaged in White’s trade, occupation, or business,
thereby barring the Plaintiff’s action.
The Plaintiff contends that Safway was a stranger to
White's work and, therefore, an "other party" subject to suit.
The Plaintiff asserts that, in leasing, delivering, and
installing scaffolding, Safway's conduct was merely "an act of
delivery by [a] subcontractor and is not tantamount to being
engaged in the trade, business or occupation of the general
contractor." The Plaintiff relies on a number of cases in which
we have held that a subcontractor that merely delivers materials
or equipment to a job site is not engaged in the general
contractor's work. See, e.g., Yancey v. JTE Constructors, Inc.,
252 Va. 42, 471 S.E.2d 473 (1996); Hipp v. Sadler Materials
4
Corp., 211 Va. 710, 180 S.E.2d 501 (1971); Burroughs v. Walmont,
210 Va. 98, 168 S.E.2d 107 (1969).
In Burroughs, the plaintiff, an employee of a trucking
company that delivered plasterboard to a construction site, was
injured while carrying the materials into one of the 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. The plaintiff sued the general contractor to recover for
his injuries. 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., 168 S.E.2d at 109.
In Hipp, the plaintiff was injured by an employee of Sadler
Materials Corporation (Sadler), a subcontractor engaged to
furnish and pour concrete at a job site. The plaintiff was an
employee of another subcontractor and was injured when struck by
a concrete truck. 211 Va. at 710, 180 S.E.2d at 501. We held
that the plaintiff could maintain an action against Sadler. In
so holding, we explained that "Sadler was required only to
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deliver concrete where directed, not to spread or finish the
concrete," and that, in performing Sadler's obligation, its
employee was performing "the final act of delivery, not an act
of construction constituting the trade, business or occupation
of the general contractor." Id. at 711, 180 S.E.2d at 502.
Finally, in Yancey, a general contractor was engaged by the
Virginia Department of Transportation to design and install a
sound barrier along an interstate highway. The general
contractor engaged a subcontractor to design, manufacture, and
deliver concrete wall panels to the job site. 252 Va. at 43,
471 S.E.2d at 474. The subcontract also required the
subcontractor to provide on-site patching for materials
delivered in a damaged condition. Id. at 44, 471 S.E.2d at 475.
The plaintiff, an employee of the subcontractor, was injured
while he was inspecting one of the panels for any damage. Id.
at 43, 471 S.E.2d at 474. We held that the plaintiff was not
engaged in the general contractor's trade, business, or
occupation when he was injured. In so holding, we concluded
that the plaintiff's inspection and patching activities "were
the final acts of delivery required by the contract." Id. at
45, 471 S.E.2d at 475.
Safway contends, on the other hand, that, under the facts
in the present case, it was not a stranger to White's trade,
occupation, or business. Thus, it was not an "other party"
6
subject to being sued. Safway relies primarily upon our holding
in Rea v. Ford, 198 Va. 712, 96 S.E.2d 92 (1957).
In Rea, a general contractor was engaged to construct a
high school building. The general contractor rented from
Woodrow W. Ford a crane, an operator, and a helper to hoist into
place certain steel trusses necessary for the building's
construction. 198 Va. at 713, 96 S.E.2d at 93. The trusses
were fastened to the structure by the general contractor's
employees. While the crane operator was using the crane to
position a truss, the truss fell, killing Rea, an employee of
the general contractor. Id. at 714, 96 S.E.2d at 93-94. Rea's
widow and personal representative brought a wrongful death
action against Ford.
We held, in Rea, that Ford was not a stranger to the
general contractor's business, and, therefore, Rea's personal
representative was precluded from suing Ford. We explained
that, "in furnishing the equipment and crew for the purpose of
erecting the steel structure[,] Ford was a subcontractor engaged
in an essential part of the work which the principal contractor
had to do." Id. at 717, 96 S.E.2d at 96.
In the present case, we reject the Plaintiff's contention
that Safway was just a supplier of materials. To the contrary,
we think Safway's duties extended well beyond mere delivery.
Safway's contract with White required it to design and erect a
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massive, complex, 14-level scaffolding system, which included an
equipment and materials hoist and a stair tower to the roof of
the building. Additionally, Safway was required to provide two
working deck levels at all times. Safway, in fulfilling its
contractual obligations, including those imposed by change
orders, performed 16 full deck moves and 13 half deck moves. 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 White was
required to perform under its contract with VCU.
Thus, we hold that Safway is not an "other party" under the
Act. Therefore, the trial court properly ruled that the
Plaintiff is precluded from maintaining a wrongful death action
against Safway.
Accordingly, we will affirm the trial court's judgment.
Affirmed.
JUSTICE LACY, with whom JUSTICE LEMONS joins, concurring.
This case involves the application of § 65.2-307, the
exclusivity provision of the Virginia Workers' Compensation Act,
Code §§ 65.2-100 et seq. (the Act). Under that provision, an
injured employee is limited to the remedies of the Act unless
the injury sustained resulted from the actions of an "other
party," that is, one who was not performing the trade, business,
or occupation of the employee's employer. Feitig v. Chalkley,
8
185 Va. 96, 99, 38 S.E.2d 73, 74 (1946); Code § 65.2-309(A).
The question which must be resolved then is whether the actions
of Safway Steel Products, Inc. (Safway), the defendant in this
personal injury action, constituted part of the trade, business,
or occupation of White Construction Company (White), the injured
party's employer. If so, the injured employee's estate is
limited to the remedies provided in the Act.
The facts of this case, like those in most of the cases
that come before us, do not fit neatly into a fact pattern
addressed in a prior case. I agree that Safway's activities in
this case go beyond those of delivery. In those cases in which
we found the activity causing the injury to be delivery only,
and thus not covered under the exclusivity provision of the Act,
the activities were limited to delivery and were not the doing
of construction. See, e.g., Burroughs v. Walmont, Inc., 210 Va.
98, 100, 168 S.E.2d 107, 108-09 (1969). Here, although the
scaffolding was not incorporated into the construction by the
general contractor, and Safway's employees were not under the
supervision and control of the general contractor, Safway's
continuing presence on the project performing tasks necessary to
allow the general contractor's employees to carry out their
work, extends beyond the act of delivery and distinguishes
Safway from other entities which we have concluded were engaged
in delivery of material or tools. However, the fact that
9
Safway's activities were not limited to acts of delivery is
insufficient to support the affirmative conclusion that such
activities constitute the trade, business, or occupation of
White, the general contractor.
The majority bases its conclusion that the work done by
Safeway was "an essential part of the work of the general
contractor" and, therefore, that Safway was not an "other
party," on the following criteria: (1) Safway's contract
required it to design and erect a complex scaffolding system
including two working decks at all times; (2) numerous deck
moves were required; and (3) Safway performed over 5,000 man-
hours of work on the project. This recitation of activities
describes the work Safway did, but, it does not, in my opinion,
provide any rationale or explain why or how this work was part
of the trade, business, or occupation of the general contractor.
The quantity or complexity of the work performed is not the
salient factor in determining whether an entity is an "other
party" for purposes of Code § 65.2-307. Nor are activities
which may be essential to the work of the general contractor
necessarily activities which are part of the general
contractor's work. See, e.g., Stone v. Door-Man Manufacturing
Co., 260 Va. 406, 413, 537 S.E.2d 305, 308 (2000) (stating that
a manufacturer needs a plant, but that constructing a plant does
not make construction the manufacturer's business); Burroughs,
10
210 Va. at 99-100, 168 S.E.2d at 108 (gathering material
essential for construction of building but does not make
material delivery part of construction). Rather the analysis
must focus on the nature of the work in question as it relates
to the trade, business, or occupation of the general contractor.
This required analysis is based on the underlying rationale
for the Act and the exclusivity provision. An employee subject
to the Act does not lose his common-law right of action against
a stranger to the business, an "other party," "for the reason
that, though the accident may arise out of and in the course of
the employment, the dominant cause of the accident is not
inherent in the business and is not a loss which the act
contemplates that the industry should ultimately bear." Feitig,
185 Va. at 99, 38 S.E.2d at 74 (emphasis added).
An example of the application of this rationale is seen in
Rea v. Ford, 198 Va. 712, 96 S.E.2d 92 (1957). In that case, a
general contractor contracted to build a school building for the
city of Norfolk. In constructing the building, the general
contractor was required to hoist certain steel trusses and
attach them to the top of 30-foot high columns. Raising the
trusses was work required of the general contractor, and, since
the contractor's "equipment on the job was not capable of
lifting these trusses," the general contractor had to rent a
crane and crew to perform this work. 198 Va. at 713, 96 S.E.2d
11
at 93. An employee of the general contractor was killed when a
truss, dislodged by the crane, fell on him.
The work of the general contractor was to construct the
building and, to do so, it had to raise the trusses. Thus, in
performing this work, the subcontractor in Rea was "engaged in
an essential part of the work which the principal contractor had
to do." Id. at 717, 96 S.E.2d at 96. The risk of injury from
this work was inherent in the work of the general contractor and
one borne as a cost of doing business by the general contractor.
In this case, the business of the general contractor White
was to repair and replace brick masonry. White's vice president
and project manager, Johnny L. Powers, testified that White did
not have the technical capacity to install multi-level
scaffolding of the type provided by Safway. However, when asked
if White could have performed its work without the scaffolding
provided by Safway, Powers testified that, in several instances
during the project, Safway did not have scaffold decks in areas
in which White's workers needed to work and White constructed
its own system "like window washers use on [a] high-rise" to
provide access to the brick wall above ground level. Thus,
while White did not erect the type of scaffolding provided by
Safway, White considered access to its renovation activities in
areas above ground level as a part of its work and, in fact, on
occasion, provided a system for that purpose. The risk of
12
injury from providing such access was inherent in the work of
the general contractor and, accordingly, was a cost of doing
business by White.
Providing access to the brick masonry was part of White's
work and, when Safway provided such access through a system of
scaffolding, it was performing part of the trade, business, and
occupation of White. Therefore, Peck is limited to the remedies
available under the Workers' Compensation Act for injuries
suffered as a result of the negligence of Safway's employees.
For these reasons, I concur in the result reached by the
majority.
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