COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Bray
Argued at Norfolk, Virginia
HUNTON & WILLIAMS
and VIGILANT INSURANCE COMPANY
v. Record No. 2437-94-4 OPINION BY
CHIEF JUDGE NORMAN K. MOON
SUE S. GILMER AUGUST 8, 1995
FROM THE VIRGINIA
WORKERS' COMPENSATION COMMISSION
Charles P. Monroe (Frank R. Kearney; Mell,
Brownell & Baker, on brief), for appellants.
Karen M. Rye (Melody L. Cockrell, on brief),
for appellee.
Hunton & Williams and Vigilant Insurance Company
("appellant") appeal a decision of the Virginia Workers'
Compensation Commission awarding benefits to Sue S. Gilmer for
injuries she sustained when she slipped on ice and fell while
walking from her parking space to her place of employment.
Appellant argues that the commission erred in awarding Gilmer
compensation because the "going and coming" rule barred a
determination by the commission that Gilmer suffered an injury by
accident arising out of and in the course of employment. We
agree and reverse the commission's ruling.
The evidence established that Gilmer worked as a legal
secretary for Hunton & Williams, which had offices in Crestar
Bank's downtown Norfolk building. On February 2, 1994, shortly
before 8:30 a.m., Gilmer arrived at the Crestar Bank parking
garage, across the street from the bank building. Snow was
falling and a light coating of snow covered the garage deck where
Gilmer parked. As Gilmer walked down a ramp from the level on
which her car was parked to the next level, she slipped on ice
and fell, injuring her back.
Hunton & Williams neither owns nor maintains the parking
garage. Gilmer had a regular parking space in the garage for
which she paid seventy dollars per month via a payroll deduction
from her earnings at Hunton & Williams. She was not required to
park in the Crestar garage.
Crestar Bank permits Hunton & Williams's employees to park
in the Crestar garage because Hunton & Williams is a tenant of
Crestar Bank. Crestar requires Hunton & Williams to pay by one
check for the parking of all its employees who park in Crestar's
garage. However, Hunton & Williams does not receive a group rate
parking discount from Crestar and does not subsidize parking for
its employees. Rather, Hunton & Williams deducts the cost of
parking from each employee's paycheck.
Hunton & Williams informed all of its employees that though
they were not required to park in the Crestar garage, they might
do so if space was available. The record does not reveal whether
Crestar designated a certain area in the garage to be used
exclusively by employees of Hunton & Williams. The record also
does not reveal whether members of the general public were
allowed to park in Crestar's garage or whether parking was
restricted to customers and employees of Crestar and its tenants.
The Supreme Court of Virginia drew a "bright line" at the
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employer's door in Brown v. Reed, 209 Va. 562, 565, 165 S.E.2d
394, 397 (1969), when it held that if an employee is injured
while going to and from his work and while on the employer's
premises, the injury is treated at law as though it happens while
the employee is engaged in his work at the place of its
performance. See also Jones v. Colonial Williamsburg Found.,
8 Va. App. 432, 437-38, 382 S.E.2d 300, 303 (1989), aff'd en
banc, 10 Va. App. 521, 392 S.E.2d 848 (1990). Virginia is among
a majority of states that now consider parking lots owned by the
employer or maintained by the employer for its employees part of
the "premises," whether within or separated from company
premises. See 1 Arthur Larson, The Law of Worker's
Compensation, § 15.42(a), 4-104 (1995); see also Reed, 209 Va. at
565, 165 S.E.2d at 397; Painter v. Simmons, 238 Va. 196, 380
S.E.2d 663, 665 (1989).
In Barnes v. Stokes, 233 Va. 249, 355 S.E.2d 330 (1987), the
Supreme Court affirmed a circuit court ruling barring a personal
injury suit brought by an employee who was injured when struck by
a motor vehicle operated by a fellow employee in a parking lot
adjacent to their place of employment while both were departing
from work. The Court extended the exception to the general rule
of "going and coming" to cover a section of a parking lot that
was neither owned nor maintained by the employer, but was used
exclusively, at the owner's direction, by the employees of the
employer. The Court held that the employee's exclusive remedy
was under the Worker's Compensation Act because she
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sustain[ed] an injury while passing, with the express
or implied consent of the employer, to and from [her]
work by a way . . . "over [the premises] of another in
such proximity and relation as to be in practical
effect a part of the employer's premises."
Id. at 252, 355 S.E.2d at 331 (other citation omitted).
In the present case, appellant argues that the commission's
decision, which relies on one of its earlier rulings, Agee v.
Alexis Risk Management, 69 O.I.C. 84 (1990), is contrary to
Virginia case law on the subject of parking lots. In Agee, the
commission considered whether Agee, who slipped on ice at a
street intersection while walking to her office from a parking
lot not owned by the employer, had suffered an injury by accident
arising out of and in the course of her employment. The employer
had made arrangements for its employees to park in a particular
lot but did not require them to park there. The employer
collected the monthly parking fees from its employees and turned
the checks over to the lot's owner. The employer received no
group discount for parking but collected the checks as a courtesy
to the employees. The evidence showed that Agee used the most
direct path from her parking space to the building entrance.
The commission held that Agee's accident had arisen out of
and in the course of employment. The commission concluded:
The evidence and facts of this record when considered
with the precedent cited lead us to conclude that the
parking spaces were provided by the employer for the
use of its employees, including Agee, and that the
parking lot and direct path between it and the
employee's worksite are reasonable extensions of the
employer's premises.
Id. at 88.
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Relying on Agee, the commission ruled in the present case
that Gilmer was entitled to compensation.
By providing parking facilities for its employees
through coordination of a leasing arrangement with
Crestar, Hunton & Williams facilitated the use of those
facilities and encouraged participation, even if it was
not required and even if the employee had to pay her
share of the actual cost of the parking lease. Both
the employee and the employer benefitted from this
arrangement, in that the employee would have [a]
guaranteed parking space in the crowded business area
and she would not be late for work because she had to
find and obtain a parking space not otherwise
immediately available. Agee appropriately extends the
business premises of the employer to those parking
areas where arrangements for use by the employee have
been made and are so utilized.
Both Agee and the commission's decision in the present case
go beyond the rule established in Barnes. In holding that the
situs of Barnes's injury brought his accidental injury within the
scope of compensation, the Court stressed the fact that the
parking area in which Barnes was injured was a designated area
reserved for the employer's employees only.
Even though the evidence showed that members of the
public who were visiting other tenants in the office
building could park randomly on the lot in question,
the accident sued upon occurred in the area
specifically allocated to the employer and at the place
where the employees were required to park their
vehicles.
Barnes, 233 Va. at 252-53, 355 S.E.2d at 332. In the present
case, no evidence showed that Hunton & Williams's employees were
required to park in the Crestar parking garage or that Gilmer
sustained her injury in an area of the parking lot reserved for
Hunton & Williams's employees only. Thus, unlike in Barnes, no
evidence disclosed any control or authority by Hunton & Williams
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over the area in which Gilmer parked.
We note that the parking lot rule is one of the exceptions
to the rule that bars compensation for injuries not on the
employer's premises. This exception, unlike others, is based on
the range of risk of the employment, not the rule of respondent
superior. This is because the employer does not necessarily
control the employee during the critical period, nor is the
employee being paid wages during this time.
[I]t is not proximity, or reasonable distance, or even
the identifying of surrounding areas with the premises:
it is simply that, when a court has satisfied itself
that there is a distinct "arising out of" or causal
connection between the conditions under which claimant
must approach and leave the premises and the occurrence
of the injury, it may hold that the course of
employment extends as far as those conditions extend.
Larson, supra § 15.15, 4-73 (emphasis added).
In holding the injury compensable in Barnes, the Supreme
Court satisfied itself that there was a causal connection between
the conditions under which Barnes had to approach and leave the
premises and the occurrence of the injury. In doing so, the
Court established the extent to which compensation is to be
awarded to claimants for injuries occurring in parking lots
neither owned nor maintained by the employer. The Crestar
parking garage may have been convenient for Hunton & Williams's
employees and, therefore, valuable to Hunton & Williams.
However, absent the conditions noted in Barnes, the Workers'
Compensation Act does not apply.
Reversed.
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