Stone v. Door-Man Manufacturing Co.

Present: All the Justices

DANIEL F. P. STONE
OPINION BY
v. Record No. 000175 CHIEF JUSTICE HARRY L. CARRICO
November 3, 2000

DOOR-MAN MANUFACTURING CO., ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Junius P. Fulton, III, Judge

The question for decision in this appeal is whether a

worker in the employ of the owner of a manufacturing

business was a statutory fellow employee of the architect

and contractors involved in a construction project at the

owner’s plant. The question arose in a personal injury

action brought by the plaintiff, Daniel F. P. Stone

(Stone), an employee of the Ford Motor Company (Ford) at

its motor vehicle assembly plant in Norfolk, against the

defendants, Gala & Associates, Inc. (Gala), the

architectural firm involved in the project, and

Rudolph/Libbe, Inc. (Rudolph/Libbe), Door-Man Manufacturing

Co. (Door-Man), Lake Erie Electric, Inc. (Lake Erie), and

E. G. Middleton, Inc. (Middleton), the contractors and

subcontractors involved in the project.

The defendants filed motions to dismiss for lack of

subject matter jurisdiction, alleging that Stone’s sole

remedy was provided by the Workers’ Compensation Act (the
Act). 1 Finding that the defendants were engaged in the

trade, business, or occupation of Ford and, consequently,

were deemed to be statutory fellow employees of Stone, the

trial court held that Stone's personal injury action was

barred by the exclusivity provision of the Act and

sustained the defendants’ motions to dismiss. We awarded

Stone this appeal.

At the time he was injured on April 11, 1996, Stone

was employed as a utility upgrader at Ford's assembly

plant. While operating a "tow-motor vehicle" or "tug" in

the course of his employment, Stone attempted to drive

through the doorway of the body shop where he worked.

However, the overhead door "unexpectedly closed and struck

[him] in the head and chest," paralyzing him from the mid-

chest down.

The door in question was opened and closed

automatically by a device activated by electrical

"inductive loops." One loop was installed in the concrete

floor immediately inside the shop door and another in the

concrete ramp immediately outside the door. Stone claimed

the loops were incorrectly positioned with the result that

1
Rudolph/Libbe states in a memorandum found in the
appendix that “[i]t is uncontested [Stone] in this matter
has been paid benefits pursuant to the Virginia Workers’

2
when he attempted to exit the shop through the open doorway

at an angle, rather than head-on, the inside loop failed to

detect the presence of his tug and to activate the device

that would have kept the door from descending.

The door and the body shop were located in a former

warehouse that had been remodeled and enlarged during a

renovation of the assembly plant undertaken by Ford in 1994

to implement the manufacture of its redesigned F-150 pickup

truck. Completed several months before Stone’s accident,

the new body shop was one phase of a five-phase project. 2

Designated the "PN96 Body Shop Project," the proposal for

development of the shop had been the subject of an

eighteen-month effort by Ford personnel to prepare a

layout, together with "global specifications," showing

"exactly how this building should be shaped; how all the

toolings are going to fit inside; how the material is going

to be brought in; how the material is going to be arranged

together; and how it's going to be shipped from point A to

point B."

Ford then entered into a contract with Gala for

"Engineering Services for [the] Body Shop Building

Compensation Act.” This fact is not otherwise disclosed in
the record.
2
Rudolph/Libbe states on brief that the body shop was
a $25 million phase “of the total $125 million project.”

3
Addition." Gala’s services were to consist, inter alia, of

the review of "new proposed layout" and "construction shop

drawings" as well as the preparation of "complete design

and bid documents for bid purpose," "complete

specifications," and "as-built drawings." Stone claimed in

his motion for judgment that Gala negligently designed the

body shop and the overhead door system, negligently

supervised and inspected the installation of the system,

and negligently approved or failed to disapprove the design

of the system, proximately causing Stone’s injuries.

Rudolph/Libbe won the bid and was awarded the contract

for construction of the body shop. In what was termed a

"Full Service Contract," Rudolph/Libbe as "Contractor"

agreed to "furnish all materials, tools, equipment,

facilities, labor, means, supervision and management to

perform all work required to investigate, study, design,

detail, fabricate, deliver, construct, install, launch and

document this new PN96 Body Shop project . . . in strict

accordance with the Owner's Instructions to Bidders,

Project Specifications, Project Timing and Standard

Specifications."

Specifically, Section 08200 of the Full Service

Contract, termed "Vertical Lift Doors,” provided for the

furnishing of "all materials, equipment and labor necessary

4
to provide and install new vertical lift doors at docks and

ramps" and the submission of "complete shop drawings

showing details of construction, fabrication and

installation of all components for all work." Section

08200 also specified the use of a vertical lift door "as

manufactured by" Door-Man and one other supplier. Stone

claimed Rudolph/Libbe negligently installed the door

system, negligently supervised the design, manufacture, and

installation of the system by others, failed to inspect

and/or negligently inspected the system, and failed to test

and/or negligently tested the system, proximately causing

Stone’s injuries.

Rudolph/Libbie entered into a subcontract with Door-

Man, requiring the latter to furnish and install the door

that was later involved in Stone's injury. Door-Man

manufactured the door, but subcontracted with another firm,

not a party to this proceeding, to perform the actual

installation. Stone claimed that Door-Man negligently

breached its duties to design, manufacture, distribute,

sell, install, inspect, and test the overhead door system,

breached its express and implied warranties that the system

was of good merchantable quality fit for its ordinary

purposes and knew or had reason to know the particular

purpose for which the door was being purchased, yet

5
breached its implied warranty that the door was fit for its

particular purpose, proximately causing Stone’s injuries.

Rudolph/Libbie also entered into a subcontract with

Lake Erie to perform the electrical work in connection with

the installation of the door involved in Stone’s injury.

Lake Erie then subcontracted with Middleton for the actual

performance of the electrical work. Stone claimed that

Lake Erie and Middleton negligently installed the door

system and its wiring and, after installation, failed to

test and/or negligently tested the system, proximately

causing Stone’s injuries.

Stone also claimed that all the defendants: (1) failed

to instruct the users of the door system how to operate it

safely, (2) failed to warn the users of the dangers

inherent in the design and manufacturing of the system, and

(3) failed to warn the users of the risk of injury when

using the system in a reasonably foreseeable manner and for

its intended purpose, proximately causing Stone’s injuries.

Stone moved for entry of judgment jointly and severally

against all defendants in the sum of $30 million

compensatory damages and $350,000 against each defendant in

punitive damages.

As noted supra, the trial court found that because the

defendants were engaged in the trade, business, or

6
occupation of Ford and, consequently, were fellow statutory

employees of Stone, his personal injury action was barred

by the Act’s exclusivity provision. All the defendants

contend this finding was correct and should be affirmed.

The exclusivity provision is found in Code § 65.2-307,

which reads as follows: 3

The rights and remedies herein granted to an employee
when his employer and he have accepted the provisions
of this title respectively to pay and accept
compensation on account of injury or death by accident
shall exclude all other rights and remedies of such
employee, his personal representatives, parents,
dependents or next of kin, at common law or otherwise,
on account of such injury, loss of service or death.

The exclusivity provision does not apply, however, to a

common law action for an employee’s injury or death against

an “other party.” Code § 65.2-309; Stewart v. Bass Constr.

Co., 223 Va. 363, 365, 288 S.E.2d 489, 490 (1982).

“The issue whether a person is a statutory employee

presents a mixed question of law and fact which must be

resolved in light of the facts and circumstances of each

case.” Cooke v. Skyline Swannanoa, Inc., 226 Va. 154, 156,

307 S.E.2d 246, 247 (1983). Where, as here, the facts

relevant to resolution of the jurisdictional issue are not

in dispute, “we must determine whether the trial court

correctly applied the law to those facts.” Cinnamon v.

7
International Bus. Mach. Corp., 238 Va. 471, 474, 384

S.E.2d 618, 619 (1989).

"As a general rule, the several trades involved in

construction work are not part of the business of

manufacturing products for sale." Id. at 478, 384 S.E.2d

at 621. "Every manufacturer must have a plant, but this

fact alone does not make the work of constructing a plant a

part of the trade or business of every manufacturer who

engages a contractor to construct a plant." Raines v.

Gould, Inc., 343 S.E.2d 655, 659 (S.C. Ct. App. 1986).

To support their contention that they were engaged in

the trade, business, or occupation of Ford, the defendants

emphasize the evidence concerning Ford's eighteen months of

intensive planning for the construction project as well as

the detailed layout and "global specifications" that were

developed as a result. The defendants also cite evidence

showing that, at its assembly plant, Ford employs personnel

trained to design buildings as well as approximately 250

skilled tradesmen, including carpenters, electricians,

pipefitters, millwrights, welders, plumbers, and others.

Each defendant says the evidence showed that Ford,

with its own employees, normally performs work at its plant

3
Code § 65.2-307 was amended in 1999 to add a new
paragraph, inapplicable here. 1999 Va. Acts ch. 842.

8
similar in all respects to the construction work required

of the particular defendant in the contractual arrangements

for the project in question. In addition, some of the

defendants cite Ford’s involvement in the day-to-day

construction of the project as evidence they were involved

in Ford’s usual business.

For example, Gala, the architect, asserts that Ford

"has made and continues to make the design of its

production facilities an integral part of its 'normal'

trade, occupation or business and that it did so with

respect to the design work on the new body shop in

Norfolk." On "the very door in question," Ford "produced

and required adherence to a detailed, six page

specification with respect to door design and operation."

Rudolph/Libbe, the construction contractor, maintains

that "Ford employs personnel who are capable of and

regularly perform the type of tasks contracted to

Rudolph/Libbie in this matter, and in fact Ford's personnel

provided supervisory instruction on a daily basis to the

contractors on this job, including Rudolph/Libbe." Ford

even "specified that the external actuating loop [for the

door in question] be moved further from the door," and,

after Stone's accident, "Ford's own construction forces at

9
the Norfolk Plant added a second inductive loop on the

inside of the door in question."

Door-Man, the manufacture and installation

subcontractor, submits that Ford "manufactures its own

vertical lift doors at various Ford facilities" and "has

installed automatic opening doors at the Ford Plant." "Ford

was actively involved in all phases of the PN-96 project,

including the design, construction and installation of the

body shop and its components and particularly the overhead

door involved in this case. Ford dictated the size of the

door, where it was to be placed, the location of the

inductive loop used to operate the door as well as the

location of the guard post adjacent to the door."

Lake Erie, the electrical subcontractor, states that

"Ford electricians regularly perform the same work which

Lake Erie Electric was contracted to perform as part of the

[body shop] expansion. They have removed and replaced door

loops, relocated electric panels, and worked on the timing

and sequencing of doors.”

Middleton, the electrical sub-subcontractor, claims

that it "installed the electrical components to [the]

overhead door for use in Ford's plant" and that it is

unrefuted that Ford "routinely engaged in such work on its

own" with the "80-85 full time electricians" it employed at

10
the plant. "In short, all of Middleton's work, with

respect to this particular door, is also performed by the

Ford electricians in house."

Furthermore, in the arguments of the defendants, there

is an attempt by each to minimize its role in the

construction project, to isolate itself from the parts

played by other defendants, and to have us focus our

attention upon its own individual undertaking. To the

extent that these arguments are intended to shift blame for

Stone's accident, they deal with the question of liability

and hence are irrelevant to the issue whether Stone is the

defendants’ statutory fellow employee. To the extent that

the arguments are intended to individualize our resolution

of the statutory employee issue by reference to each

contract separately, we reject them. In determining

whether the defendants were engaged in the trade, business,

or occupation of Ford, rendering Stone a statutory

employee, we think the contractual obligations of the

parties should be considered as a whole and the

construction of the body shop as a single project.

There is also an attempt on the part of some

defendants to characterize Ford as its own general

contractor and Rudolph/Libbe as a mere subcontractor.

However, the obligations imposed upon Rudolph/Libbe by the

11
language quoted above from the “Full Service Contract”

clearly make Rudolph/Libbe the general contractor on the

PN96 Body Shop Project.

With respect to the law applicable to the case, there

is a lack of agreement among the parties concerning the

appropriate test to be applied in resolving the issue

whether Stone was a statutory employee. Three separate

tests are discussed in the briefs, the "normal work" test,

the "subcontracted fraction" test, and the “stranger to the

work" test.

The first, the "normal work" test, was recognized in

Shell Oil Co. v. Leftwich, 212 Va. 715, 187 S.E.2d 162

(1972). That case involved two workers employed by a

lessee of a service station owned by Shell Oil Co. We held

the workers were not the statutory employees of Shell Oil,

stating as follows:

"[T]he test is not one of whether the
subcontractor's activity is useful, necessary, or even
absolutely indispensable to the statutory employer's
business, since, after all, this could be said of
practically any repair, construction or transportation
service. The test (except in cases where the work is
obviously a subcontracted fraction of a main contract)
is whether this indispensable activity is, in that
business, normally carried on through employees rather
than independent contractors."

Id. at 722, 187 S.E.2d at 167 (quoting 1A Arthur Larson,

The Law of Workmen's Compensation § 49.12 (1973)).

12
 The "normal work" test of Shell Oil has been discussed

numerous times in our subsequent decisions, but none

involved the situation presented here, where the question

is whether a worker employed by an owner is a statutory

fellow employee of contractors and subcontractors engaged

to do construction work. 4 Closely analogous, however, is

Whalen v. Dean Steel Erection Co., 229 Va. 164, 327 S.E.2d

102 (1985), where the issue was whether a worker employed

by a general contractor may bring a tort action against a

subcontractor for personal injuries caused by the

subcontractor's negligence on the job. The worker argued

for application of the "normal work" test as enunciated in

Shell Oil and applied in Bassett Furniture Indus., Inc. v.

McReynolds, 216 Va. 897, 224 s.E.2d 323 (1976) as well as

Southeastern Tidewater Area Manpower Auth. v. Coley, 221

Va. 859, 275 S.E.2d 589 (1981).

We said that the worker "misapplies these

authorities." Whalen, 229 Va. at 170, 327 S.E.2d at 105.

These cases, we continued, involved the question "whether a

subcontractor's employee, injured by a general contractor's

4
Two cases decided since Shell Oil, Williams v. E. T.
Gresham Co., 201 Va. 457, 111 S.E.2d 498 (1959), and
Stewart v. Bass, 223 Va. 363, 288 S.E.2d 489 (1982),
involved claims by an employee of an owner but the "normal
work" test is not mentioned in either opinion. Both were

13
(or owner's) negligence on the job, may sue such general

contractor or owner at common law or whether such general

contractor or owner has become the statutory employer of

the plaintiff." Id., 327 S.E.2d at 106. "These statutory

employer cases," we stated, "present a question which is

the obverse of the one presented here, and their rule is

inapplicable where a general contractor's employee seeks to

sue a subcontractor." Id. (Emphasis added.)

The second test discussed in the briefs is the

"subcontracted fraction" test, derived from the

parenthetical language in the quotation from Professor

Larson's work. This language excepts from the "normal

work" test those "cases where the work is obviously a

subcontracted fraction of a main contract." However, in

Cinnamon v. International Bus. Mach., supra, we said of the

"subcontracted fraction" test:

In the context of the construction business, it
relates to a general contractor, the party obligated
by the main contract with the owner to complete the
whole project. If the work out of which the accident
arose was, in the language of Shell Oil, "obviously a
subcontracted fraction of [that] contract" and, in the
language of the statute, "not a part of the trade,
business or occupation of" the owner, the general
contractor who engaged the subcontractor to perform
that fraction is the statutory employer of the injured
worker, whether directly employed by the primary
subcontractor or by a secondary subcontractor.

decided under the “stranger to the work" test, discussed
infra.

14
238 Va. at 476, 384 S.E.2d at 620 (emphasis added). 5 Hence,

the "subcontracted fraction" test does not relate to the

situation involved here, where the employee of an owner,

not a subcontractor, is the injured worker. 6

The third test is the "stranger to the work" test.

This test is derived from the language of Code § 65.2-

309(A), noted above, which recognizes the right of an

injured worker to maintain a common law action for personal

5
The reference in the quotation to "the statute" is to
Code § 65.2-302(B), which specifies when a general
contractor becomes a statutory employer, making him liable
for compensation under the Workers' Compensation Act for a
worker's injury or death.
6
Rudolph/Libbe cites Evans v. Hook, 239 Va. 127, 387
S.E.2d 777 (1990), as "instructive on [the] issue" whether
"Ford subcontracted out a fraction of the PN-96 Project to
Rudolph/Libbe and the other defendants herein."
Rudolph/Libbe says that "[i]n Evans, this Court found that
a contractor building a building to be used as a used car
dealership was in the same business trade or occupation as
the used car dealer." Rudolph/Libbe misreads the case.
The owners in that case were not in a used car dealership
but a partnership formed for the purpose of acquiring,
owning, and developing a tract of land on which it planned
to construct a building "to rent to a car dealer." Id. at
129, 387 S.E.2d at 777. An employee of a contractor
engaged to construct the building was injured during the
course of construction and sued the masonry subcontractor
and the architect who designed the building and supervised
the construction. The trial court sustained pleas to the
jurisdiction. The employee appealed only the judgment in
favor of the architect. We affirmed. Contrary to the way
Rudolph/Libbe reads the case, we did not find that the
architect was "in the same business trade or occupation as
the used car dealer" but that he was engaged in the same
"business or project" as the owners of the property, i.e.,
land development. Id. at 131, 387 S.E.2d at 779.

15
injury against an “other party." This is the test we

applied in Whalen, supra, after we ruled that the "normal

work" test is inapplicable when an employee of a general

contractor makes a personal injury claim against a

subcontractor.

The worker in Whalen, a carpenter employed by the

general contractor on a construction project, was engaged

with a crew in fabricating wooden forms into which concrete

would be poured. The crew was also responsible for

installing reinforcing steel and pouring concrete into the

forms, then setting anchor bolts in the concrete, to which

vertical steel columns would later be attached. At the

time the worker was injured, his crew was working at the

construction site simultaneously with the crew of a

subcontractor engaged to do the steel erection work. The

subcontractor had stored a steel girder at the site, which

fell over and injured the worker. He brought a tort action

against the subcontractor.

In Whalen, applying the "stranger to the work” test,

we held that the worker’s action was barred. 229 Va. at

169, 327 S.E.2d at 105. We stated that the steel

subcontractor "was no stranger to the work in which [the

worker's] employer was engaged, but was, on the contrary,

16
performing an essential part of it." Id. (Emphasis

added.)

As noted in Whalen:

"The test to be applied in the present case was
first stated in Feitig v. Chalkley, 185 Va. 96, 38
S.E.2d 73 (1946). There we said that in order to
maintain a common law action the defendant had to be a
stranger to the trade, occupation, or business in
which the plaintiff was involved. This test has been
restated and applied numerous times. See, e.g., Stout
v. Onorati, 221 Va. 143, 267 S.E.2d 154 (1980); Bosher
v. Jamerson, 207 Va. 539, 151 S.E.2d 375 (1966); `
Administratrix v. Ford, 198 Va. 712, 96 S.E.2d 92
(1957); Sykes v. Stone & Webster Eng. Corp., 186 Va.
116, 41 S.E.2d 469 (1947).”

229 Va. at 167, 327 S.E.2d at 104 (quoting Stewart v. Bass,

supra, 223 Va. at 365, 288 S.E.2d at 490) (employee of pulp

manufacturer, injured by a crane while removing for repair

an aerator used in manufacturing process, barred under the

"stranger to the work" test from maintaining personal

injury action against owner of crane who regularly assisted

manufacturer in removal of aerators). See also Williams v.

E. T. Gresham Co., 201 Va. 457, 111 S.E.2d 498 (1959)

(employee of ferry district injured while repairing dock

facilities barred from maintaining personal injury action

against owner of pile driving equipment regularly engaged

to assist in such work).

We said in Feitig v. Chalkley:

The remedies afforded the employee under the act are
exclusive of all his former remedies within the field

17
 of the particular business, but the act does not
extend to accidents caused by strangers to the
business. If the employee is performing the duties of
his employer and is injured by a stranger to the
business, the compensation prescribed by the act is
available to him, but that does not relieve the
stranger of his full liability for the loss . . . .

185 Va. at 102, 38 S.E.2d at 75-76 (emphasis added).

We think the "stranger to the work" test applied in

Whalen is the appropriate test for application to the

present case. Although the injured worker in Whalen was

the employee of a general contractor while the employee of

an owner is the injured claimant in this instance, the

latter stands on at least an equal legal footing with the

former.

Here, combining the language in Whalen and Feitig and

applying the holdings to this case, we find that "the work

in which [Stone's] employer was engaged" was Ford's

"particular business" of manufacturing and selling motor

vehicles. The defendants were strangers to that business.

Therefore, the Act does not bar Stone's common law action

for personal injuries against the defendants.

However, we would reach the same result even if we

applied the "normal work" test. Although Ford engaged in a

protracted period of intensive planning for the

construction project and exercised a degree of supervision

in the course of construction, this is not atypical conduct

18
for an owner, especially one engaged in an undertaking of

the scope and size of the PN96 Body Shop Project. And it

is not unusual for an owner to make changes as a project

progresses, as Ford did here when it "recommended" a

relocation of the outside inductive loop.

Nor do we think it is of significance that Ford itself

corrected the location of the interior inductive loop after

Stone was injured. This action may have been prompted by

Ford's concern for the safety of its employees and its

unwillingness to trust the correction to others.

With respect to design work, it is true that Ford

previously used its own personnel to do the design work for

construction projects and still does on “smaller . . . or

mid-sized projects.” However, "on a major project like

[the PN96 Body Shop]," Ford "use[s] the outside help such

as [Gala]," which works "with Ford Motor Company

exclusively." 7

Furthermore, while Ford employs a sizeable number of

skilled tradesmen on a permanent basis, the evidence shows

that these tradesmen “are mainly concerned with

7
Although Gala may work “with Ford Motor Company
exclusively,” Gala is not Ford’s exclusive designer on
major projects. Gala states on brief that “[o]nly for
‘larger’ projects like the PN-96 Project does Ford
‘outsource’ some of the design work to Gala.” (Emphasis

19
maintenance.” Although, in certain instances, they “build

things as well,” including vertical lift doors similar to

the one that caused Stone's injury, we consider it

significant that "plant forces" performed "no construction

phase" of the PN96 Body Shop Project.

The “magnitude of the job” determines whether Ford

does the work with its own employees or engages outside

contractors. If the magnitude of the job is greater than

Ford’s employees can accomplish or if the cost of a job

exceeds one million dollars, outside contractors are

engaged to do the work. The renovation project in question

was the type of "major work" that Ford “historically

contracted out.” In other words, Ford's normal work

indisputably did not include in-house performance of

projects of the scope and size of the PN96 Body Shop

Project. While the magnitude of the project is not

conclusive, it is entitled to consideration in determining

whether the construction of the project was the normal work

of Ford and in reaching the conclusion that it was not.

For the foregoing reasons, we will reverse the

judgment of the trial court, reinstate Stone's motion for

judgment, and remand the case for further proceedings.

added.) Even then, Gala apparently has to bid on the
design work, like anyone else.

20
 Reversed and remanded.

21