Present: All the Justices
MONA B. FOWLER
OPINION BY
v. Record No. 000177 CHIEF JUSTICE HARRY L. CARRICO
November 3, 2000
INTERNATIONAL CLEANING
SERVICE, INC.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge
This case is a corollary to Stone v. Door-Man Mfg. Co., 260
Va. ___, ___ S.E.2d ___ (Record No. 000175), this day decided.
There, we held that an employee of an owner whose business
consisted of manufacturing and selling motor vehicles was not
the statutory fellow employee of the architect and contractors
involved in a construction project at the owner’s plant. Here,
the issue is whether a worker in the employ of the owner of a
retail furniture business was the statutory fellow employee of a
firm that regularly provided cleaning and janitorial services at
the owner’s store.
The question stems from an action brought by Mona B. Fowler
(Fowler) against International Cleaning Service, Inc.
(International) for personal injuries sustained when Fowler
slipped on a tile floor in the store of her employer, Sears
Homelife Furniture (Sears), after the floor had been “wet-
mopped” by an International employee. Fowler claimed that
International negligently failed to place signs or otherwise
warn of the dangerous condition which existed. In response,
International filed a special plea asserting that Fowler’s
exclusive remedy was provided by the Workers’ Compensation Act
(the Act) and that her action was barred by the Act’s
exclusivity provision. 1
After a hearing on the special plea, the trial court held
that International “is a statutory employee of Sears and
[Fowler’s action] against [International] is barred by the
worker’s compensation law.” From an order dismissing the action
with prejudice, we awarded Fowler this appeal.
At the time of her injury on May 19, 1997, Fowler was an
employee of Sears at its store in Chesterfield County. Sears is
engaged in the business of selling furniture at retail,
including sofas, living room sets, dining room sets, and bedroom
sets. International was engaged in the business of providing
cleaning and janitorial services and had been under contract to
provide such services at Sears’ Chesterfield store since it
opened in 1994.
Sears gave International a set of guidelines delineating
what was to be cleaned. International regularly cleaned the
store on Mondays and Fridays of each week, spending two to three
hours per day at the store during the same hours Sears’
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1
The record shows that Fowler received workers’
compensation benefits as a result of her injury.
2
employees were on the job. International furnished its own
cleaning supplies and kept them in an unlocked janitor’s closet
at the store.
Sears hired no maintenance staff and its employees did not
clean bathrooms or mop floors. However, Sears’ employees were
expected to wipe up anything they spilled. They also swept the
concrete floor of the store’s warehouse about once a week. In
addition, they routinely carried trash to a dumpster located on
store premises.
Sears furnished paper towels, hand soap, and toilet paper
for use in the store. Sears’ personnel also had access to the
janitor’s closet and used International’s equipment and cleaning
supplies when needed, including International’s vacuum cleaner.
Sears provided half the “[w]et floor signs” used at the store
because, if International personnel were stripping floors,
International’s signs were insufficient to cover the whole area
involved.
Sears considered it important to keep its work area, its
showroom, and other parts of the store clean, attractive, and
safe. It was part of every employee’s job description to
participate in making a good appearance to the public.
As noted supra, International’s special plea asserted that
Fowler’s action was barred by the Act’s exclusivity provision.
3
The provision is found in Code § 65.2-307, which reads as
follows: 2
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
representative, 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).
Whether a person or entity is a statutory employee is a
jurisdictional matter presenting a mixed question of law and
fact that 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.
International Bus. Mach. Corp., 238 Va. 471, 474, 384 S.E.2d
618, 619 (1989).
With respect to the issue whether International and Fowler
are statutory fellow employees, Fowler argues for application of
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2
Code § 65.2-307 was amended in 1999 to add a new
4
the “normal work” test and International for application of the
“stranger to the work” test. 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 the
lessee of a service station owned by Shell Oil Company. 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)).
The “stranger to the work” 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 injury against an “other party.” The test was
first applied in Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73
(1946), where we said:
The remedies afforded the employee under the act are
exclusive of all his former remedies within the field 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
paragraph, inapplicable here.
5
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
. . . .
Id. at 102, 38 S.E.2d at 75-76 (emphasis added).
Although the “normal work” test had been discussed numerous
times in our decisions subsequent to Shell Oil, it was not until
Stone that we were presented with the situation we have here,
where the question is whether a worker employed by an owner is a
statutory fellow employee of a contractor engaged to perform
work on the owner’s premises. 3 We found “closely analogous,”
however, the case of Whalen v. Dean Steel Erection Co., 229 Va.
164, 327 S.E.2d 102 (1985). Stone, 260 Va. at ___, ___ S.E.2d
at ___.
In Whalen, 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. In resolving this issue,
we said the “normal work” test was “inapplicable,” 229 Va. at
170, 327 S.E.2d at 106, and that the “stranger to the work” test
was the appropriate measure, id. at 169, 327 S.E.2d at 105.
Applying the latter test, we held that the worker’s action was
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3
Two cases decided post-Shell Oil and pre-Stone involved
claims by an employee of an owner but the “normal work” test was
not mentioned in either opinion. Both were decided under the
“stranger to the work” test. Stewart v. Bass Constr. Co., 223
6
barred. Id. We stated that the subcontractor “was no stranger
to the work in which [the worker’s] employer was engaged, but
was, on the contrary, performing an essential part of it.” Id.
(Emphasis added.) 4
We also stated in Stone that an employee of an owner is on
at least an equal legal footing as an employee of a general
contractor. 260 Va. at ___, ___ S.E.2d at ___. Combining the
language in Whalen and Feitig and applying the holdings to the
situation in Stone, we found that “ ‘the work in which [Stone’s]
employer was engaged’ was [Ford Motor Company’s] ‘particular
business’ of manufacturing and selling motor vehicles” and that
“[t]he defendants were strangers to that business.” 260 Va. at
___, ___ S.E.2d at ___. Accordingly, we concluded that Stone’s
common law action for personal injuries against the defendants
was not barred. Id. at ___, ___ S.E.2d at ___.
Va. 363, 288 S.E.2d 489 (1982); Williams v. E. T. Gresham Co.,
201 Va. 457, 111 S.E.2d 498 (1959).
4
Fowler correctly points out that in Whalen we also said
the “stranger to the work” test requires an analysis of the
facts of each case to determine whether a defendant is “a
stranger to the work in which the plaintiff was engaged.” 229
Va. at 169, 327 S.E.2d at 105. Yet, Fowler complains,
International presented no evidence concerning the work in which
Fowler, the plaintiff here, was engaged. However, the language
from Whalen quoted in the text above, which appears in the
Whalen opinion just seven lines below the language Fowler
quotes, makes it clear “the work in which the plaintiff was
engaged” means “the work in which [the plaintiff’s] employer was
engaged.” Id.
7
Here, Fowler argues that because the evidence showed the
provision of cleaning and janitorial services was not part of
Sears’ business, it follows that International was a stranger to
the business and subject to her action for damages. However, as
we stated in Floyd v. Mitchell, 203 Va. 269, 123 S.E.2d 369
(1962):
The test is not whether the owner, by engaging an
independent contractor to perform some part of his
business, thereby engages in the business of the
independent contractor. It is whether the independent
contractor is performing work that is part of the trade,
business or occupation of the owner. If he is, and in
doing the work injures an employee of the owner, then the
independent contractor, in the same fashion as any other
employee of the owner, is not a third party against whom
the injured employee’s right of action is preserved; but
the employee so injured is limited to the compensation
provided by the Workmen’s Compensation law . . . .
Id. at 274, 123 S.E.2d at 372.
The issue, therefore, is whether International was an
“other party” under Code § 65.2-309 and, hence, a stranger to
Sears’ “particular business” of selling furniture. Feitig, 185
Va. 102, 38 S.E.2d at 75. In resolving that issue, a key
consideration is whether, in providing cleaning and janitorial
services to Sears, International was “performing an essential
part” of Sears’ furniture business. Whalen, 229 Va. at 169, 327
S.E.2d at 105.
This Court has not previously considered the question
whether the provision of cleaning and janitorial services is a
8
part of an owner’s trade, business, or occupation. However, in
Doane v. E.I. DuPont de Nemours & Co., 209 F.2d 921 (4th Cir.
1954), the United States Court of Appeals for the Fourth
Circuit, interpreting Virginia law, considered whether a
chemical firm furnishing the material to clean an owner's oil
tank, as well as a safety engineer to supervise the cleaning,
was liable to the owner's employees injured by the inhalation of
noxious fumes. The Court found that “the cleaning of the tank
was an operation performed in the course of the [owner’s]
business,” id. at 923, that the chemical firm’s safety engineer
and the injured workers “were both engaged in the operation of
[that] business,” id. at 924, and that the employees had no
common law right of action against the chemical firm because it
was not a stranger to the business, id. at 925-26.
Here, both International and Sears were involved in
cleaning Sears’ premises. Sears' employees cleaned up spills,
swept the warehouse floor, and carried trash to the dumpster.
International’s personnel cleaned bathrooms, mopped floors,
stripped floors, and performed other cleaning functions. Sears'
personnel used International’s cleaning supplies and equipment,
which were stored in a closet provided on Sears' premises. When
International stripped floors, Sears provided half the signs
needed to warn of possible danger.
9
The combined efforts of International and Sears were
designed to accomplish Sears’ goal of making its store clean,
attractive, and safe — a goal necessary to the successful
operation of Sears' furniture business. And, by its
participation in those efforts, International was "performing an
essential part" of Sears' business. Whalen, 229 Va. at 169, 327
S.E.2d at 105. Hence, International was not a stranger to
Sears’ business. The trial court did not err, therefore, in
dismissing Fowler’s action with prejudice. For this reason, we
will affirm the judgment of the trial court.
Affirmed.
10