Present: Carrico, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Whiting, S.J.
BRUCE RAY PFEIFER OPINION BY
SENIOR JUSTICE HENRY H. WHITING
v. Record No. 001615 June 8, 2001
KRAUSS CONSTRUCTION COMPANY
OF VIRGINIA, INC.
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
This appeal of a personal injury claim involves Code
§ 65.2-307, the exclusive remedy provision of the Virginia
Workers' Compensation Act, Code §§ 65.2-100 through –1310 (the
Act), and its applicability to a common-law claim of Bruce Ray
Pfeifer, an employee of one subcontractor on a construction job
who sued another subcontractor for personal injuries received on
the job. 1
The parties stipulated the facts. Linkhorn Bay Associates,
L.L.C. (Linkhorn Bay) was the owner of a project known as
Linkhorn Bay Condominiums in the City of Virginia Beach.
Linkhorn Bay had no employees, and subcontracted all the work to
various subcontractors. One such contract was an oral contract
1
Code § 65.2-307 provides in pertinent part:
A. The rights and remedies herein granted to an employee
[against his employer]. . . shall exclude all other rights
and remedies of such employee . . . at common law or
otherwise, on account of such injury, loss of service or
death.
with Virginia Natural Gas (the gas company), in which the gas
company agreed to dig, install, and test natural gas lines, and
to connect them to the condominium buildings on the site at no
charge to Linkhorn Bay, in return for Linkhorn Bay's agreement
to install appliances using natural gas in the planned
condominium units. Linkhorn Bay executed another contact with
Pfeifer's common-law employer, Tidewater Applicators, Inc.
(Tidewater), in which Tidewater was to "complete 'Exterior
Finish System for construction' of the Project."
The gas company subcontracted its contractual obligation to
Krauss Construction Company of Virginia, Inc. (Krauss). While
Krauss' employees were testing the gas line, a plastic gas cap
blew off the line, striking and injuring Pfeifer, who was
working on the job.
Pfeifer filed a personal injury action against Krauss. 2
Krauss filed a plea in bar in which it maintained that the court
had no jurisdiction to adjudicate Pfeifer's common-law claim
because Krauss was Pfeifer's co-employee under the terms of the
Act, and therefore his exclusive remedy was under Code § 65.2-
300. Pfeifer denied that Krauss was his statutory co-employee
2
Pfeifer's action was filed in the Circuit Court of the
City of Norfolk and, on motion by the defendant, it was later
transferred to the Circuit Court of the City of Virginia Beach
under the provisions of Code § 8.01-264.
2
and asserted that the exclusive remedy provision of the Act was
inapplicable.
After hearing argument, the trial court sustained Krauss'
plea. We granted this appeal to Pfeifer.
Because Pfeifer was not Krauss' common-law employee, the
controlling statute is Code § 65.2-302. With the names of the
parties hereto added in brackets, it provides in relevant part
as follows:
§ 65.2-302. Statutory employer.
A. When any person (referred to in this section as
"owner") [Linkhorn Bay] 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") [the gas company] 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.
. . . .
C. When the subcontractor [the gas company] in turn
contracts with still another person (also referred to as
"subcontractor") [Krauss] for the performance or execution
by or under such last subcontractor of the whole or any
part of the work undertaken by the first subcontractor,
then the liability of the owner or contractor shall be the
same as the liability imposed by subsections A and B of
this section. [Emphasis added.]
Under this statute, even though a third party subcontractor
like Krauss may not have a common-law employer-employee
3
relationship with injured workers like Pfeifer, their respective
rights and obligations may be affected.
The purpose of [Code § 65.2-302] 3 is to bring within the
operation of the Act all persons engaged in work that is a
part of the trade, business, or occupation of the party who
undertakes as owner or who contracts as contractor to
perform the work, and to make liable to every employee
engaged in the work every such owner contractor, or
subcontractor above such employee.
Smith v. Horn, 232 Va. 302, 305, 351 S.E.2d 14, 16 (1986). If
the injured worker has a remedy against his statutory employer,
that remedy is exclusive under Code § 65.2-307, and the worker
has no right to bring a common-law action against any such
statutory employer. See Smith, 232 Va. at 306-07, 351 S.E.2d at
16; Anderson v. Thorington Construction Company, Inc., 201 Va.
266, 272, 110 S.E.2d 396, 400-01 (1959), appeal dismissed, 363
U.S. 719 (1960).
If a particular subcontractor and an injured employee's
common law or statutory employer are both working on the same
project and are also engaged in the owner's or general
contractor's work, that particular subcontractor, as a statutory
co-employee of the injured worker, is also entitled to the
common law immunity provided by the exclusivity provision.
Evans v. Hook, 239 Va. 127, 131, 387 S.E.2d 777, 779 (1990).
Because Krauss contends that it and Tidewater were both
3
The reference was to Code § 65.1-29 "and related provisions" of
the Act, which are now embodied in Code § 65.2-302.
4
subcontractors under Linkhorn Bay, Krauss asserts the immunity
of a statutory co-employee here.
On the other hand, if a subcontractor like Krauss had been
engaged in work that was not a part of the trade, business, or
occupation of the injured party's common law or statutory
employer, as Pfeifer asserts, that subcontractor would be
"another party" or a "stranger to the employment," and not a
statutory co-employee under the provisions of Code § 65.2-302. 4
Therefore, Krauss would be subject to a common-law action by the
injured worker. Evans v. Hook, 239 Va. at 130-31, 387 S.E.2d at
778. Hence, the dispositive issue framed by the parties in this
case is whether Krauss' installation of the gas line was a part
of the trade, business, or occupation of Linkhorn Bay, making
Krauss Pfeifer's statutory co-employee.
First, Pfeifer argues that the gas company was a mere
supplier of materials to the job and was not engaged in the
trade, business, or occupation of Linkhorn Bay. In support of
this position, Pfeifer cites the case of Burroughs v. Walmont,
Inc., 210 Va. 98, 168 S.E.2d 107 (1969). In Burroughs, a worker
for a sheetrock supplier was injured on a construction job and
4
"Another party" or "stranger to the employment" is the
person or entity not entitled to the benefit of the exclusivity
provision of the Act against whom the injured employee (or his
employer who has a subrogation claim for benefits paid under the
Act) has a common law claim arising out of the industrial
5
was permitted to maintain a tort claim against the general
contractor. The contract between the supplier and the general
contractor required the worker to deliver and stack in each room
sufficient quantities of sheetrock to construct the walls in
that room. Noting prior cases in which we held that "persons
who function solely as suppliers and deliverers of goods" were
not within the scope of the Act, we concluded that this was the
final act of delivery and not an act of construction. Id. at
100, 168 S.E.2d at 108. Because the injured employee's employer
was not engaged in the construction process, the injured
employee was permitted to maintain a common-law action against
the general contractor. Id.
However, the facts in this case indicate more than a mere
sale and final act of delivery. Before the gas company could
deliver the natural gas, its oral contract with Linkhorn Bay
required it to dig the ditches, install the gas lines, connect
them to the condominium buildings, and test them. Those
contractual obligations were subcontracted to Krauss and, as it
dug the ditches, installed the gas lines, connected them to the
condominium buildings and tested them, Krauss was engaged in a
part of the construction process. Thus, the circumstances in
accident. Code § 65.2-309; Sykes v. Stone & Webster Eng'r
Corp,. 186 Va. 116, 120-21, 41 S.E.2d 469, 471 (1947).
6
this case are more like those in the case of Bosher v. Jamerson,
207 Va. 539, 151 S.E.2d 375 (1966), relied upon by Krauss.
In Bosher, an employee of a material supplier was spreading
sand as contractually required and as directed on the job by the
general contractor when his truck struck and injured an employee
of the general contractor. The injured employee sued the
material supplier at common law claiming that it was a mere
supplier of materials and not his statutory employer. Because
spreading the sand was a part of the construction process, we
held that the truck driver was engaged in the construction
process and applied the exclusive remedy provision of the Act,
dismissing the tort claim.
We conclude that digging the necessary trenches, installing
the gas lines, connecting them to the buildings, and testing
them was more than a simple supply and delivery of materials.
Hence, Pfeifer's contention that Krauss was simply a supplier
and deliverer is without merit.
Next, Pfeifer argues that Krauss was a stranger to Linkhorn
Bay's business of building the condominium units since digging
ditches outside those units "was not aiding in the construction
of those units." In support of this argument, he notes that we
last applied the "stranger to the work test" in Stone v. Door-
Man Manufacturing Co., 260 Va. 406, 417-19, 537 S.E.2d 305, 310-
12 (2000). In Stone, an employee of a manufacturer was injured
7
because of the negligent design and construction of an overhead
door by independent construction contractors who were held
strangers to the manufacturer's business. Id. In a common-law
action by the injured employee, we held that these contractors
were not entitled to the protection of the exclusive remedy
provisions of the Act because they were strangers to the
manufacturing work.
Krauss responds that it was not a stranger to the work of
Linkhorn Bay, but was performing an essential part of that work.
We agree with Krauss because Linkhorn Bay had been formed solely
to build and develop these condominiums. Unlike the
manufacturer in Stone, Linkhorn Bay had no other function, and
the installation of the gas lines was part of Linkhorn Bay's
construction project covered by the terms of Linkhorn Bay's oral
contract with the gas company. Thus, we conclude that Krauss
was not a stranger to Linkhorn Bay's business and reject this
contention.
Finally, Pfeifer contends that the digging, placing,
connecting, and testing of the gas lines could never "have been
a part of Linkhorn Bay's business, or the business of any other
owner or general contractor on a construction project," because
the gas company and Krauss as its agent are "both subject to
Title 56 of the Virginia Code relating to public service
companies." Although the gas company is a public service
8
company and subject to regulation as such, Pfeifer cites, and we
find, no statutory provision that regulates a subcontractor's
construction of facilities like these gas lines.
Pfeifer quotes from provisions in a gas company tariff,
allegedly filed in the records of the State Corporation
Commission, which he says support his contention. We do not
consider these provisions, because neither they nor the tariff
was brought to the attention of the trial court. 5 Rule 5:25;
Commonwealth v. Woodward, 249 Va. 21, 23, 452 S.E.2d 656, 656
(1995).
We conclude that Krauss was doing work that was a part of
Linkhorn Bay's construction of the condominium project and,
therefore, a part of Linkhorn Bay's trade, business, or
occupation. Hence, Krauss was Pfeifer's statutory co-employee
and the trial court correctly held he had no common-law remedy
against Krauss.
Accordingly, the judgment will be
Affirmed.
5
For the same reason, we do not consider Pfeifer's arguments
relating to on which side of the proposed meter or meters the
injury occurred.
9