¶ 14. (Ret.), Specially Assigned, dissenting. To exist in “virtual” form means “in effect or essence though not in actual fact, form or name.” Webster’s II New Riverside University Dictionary 1290 (1984).
¶ 15. Although defendant landowners in this ease — two trusts and a limited liability corporation — have separate legal identities from the employers that created them, they are separate in “form or name” only. Hence, they fall squarely within the statutory definition of “employer” under the Workers’ Compensation Act, as the
owner ... of premises ... who is virtually the proprietor or operator of the business there carried on, but who, by reason of there being an independent contractor or for any other reason, is not the direct employer of the workers there employed.
21 V.S.A. § 601(3) (Emphasis added.) Defendants here were decedent’s employer in all but name, and as such should be immune from suit under the exclusive remedy provision of the Act for injuries he sustained in the course of employment. Accordingly, I would affirm the judgment of the trial court, which reached the same conclusion in a thorough and persuasive decision.
¶ 16. The material facts are undisputed. Raymond Palmer and several family members owned a funeral home business, and the property where it operated, for over sixty years. In 1992, Raymond and his wife Gertrude transferred ownership of the property to two trusts — the Raymond Palmer Trust and the Gertrude Palmer Trust — which leased the property back to the business. In January 2002, Raymond’s daughter, defendant Pamela Hanley, acquired the business and property and continued the same lease arrangement. Later that year, Hanley conveyed the property to a separate entity, defendant C-P Burlington Properties, LLC, a single member limited Lability corporation of which Hanley is the sole member, which maintained the same lease agreement.
¶ 17. The record thus leaves no doubt that the owners of the funeral home business and the owners of the funeral home property are ‘Virtually” the same. Indeed, if these circumstances do not establish “virtual” employer status for workers’ compensation purposes, it is difficult to imagine what would.
¶ 18. The Court holds otherwise based on a line of decisions, culminating with Vella v. Hartford Vermont Acquisitions, Inc., 2003 VT 108, 176 Vt. 151, 838 A.2d 126, that is simply inapposite. These cases instruct that the critical inquiry in determining whether a defendant meets the definition of a “virtual” employer is whether the work carried out by the direct employer is the kind that would have been performed by the defendant but for the fact that the work was subcontracted out. See Edson v. State, 2003 VT 32, ¶ 6,175 Vt. 330, 830 A.2d 671 (observing that “virtual employer” statute generally applies where business owners “hire[] independent contractors to do what they would otherwise have done themselves”). Thus, Edson held that the State Department of Liquor Control was the “virtual” employer of a driver employed by a trucking company that contracted with the State because the driver was injured “while engaged in the State’s business of distributing liquor to its local agencies.” Id. ¶ 9; see also In re Chatham Woods Holdings, LLC, 2008 VT 70, ¶ 12, 184 Vt. 163, 955 A.2d 1183 (holding that real estate development company that also engaged in construction and sale of residential units was statutory employer of construction subcontractor’s employees because “services contracted for were plainly a part of... its business” (quotation omitted)); Frazier v. Preferred Operators, Inc., 2004 VT 95, ¶ 10, 177 Vt. 571, *612861 A.2d 1130 (mem.) (holding that owner of lumber yard was statutory employer of truck driver injured on its premises where trucking-company employer was performing various phases of lumber yard’s normal business).
¶ 19. In Vella, the Court applied these principles to hold that a commercial landlord which leased a garage to the direct employer — a bus company called Premier Coach — was not the statutory employer of a bus driver injured on the premises. 2003 VT 108, ¶ 15. Although the defendant in Vella — like defendants here — owned the property and leased it to the direct employer, there any similarity to this case ends. As Vella cogently explained, the “defendant [was] not in the busing business” but instead was “a commercial landlord and a distinct, separately owned corporation that leases space to Premier, but otherwise has no ties to Premier and no supervisory control or authority over Premier or its employees.” Id. ¶ 8. The facts here are entirely different. Defendants are not “distinct, separately owned” entities with “no ties” to the funeral-home employer, but are indistinguishable from, and intertwined with, the funeral home in every respect save for their legal forms. Unlike Vella, moreover, where the defendant landlord operated a commercial-leasing business entirely independent of its bus-company tenant, nothing in the record here suggests that defendants operated anything; they are simply legal shells established by the funeral-home employer to collect rent and provide certain tax advantages. The same trustees and principals that formed and comprise defendants also run the funeral-home business and exercise complete control and authority over its operations. They are identical in all but form and thus fully meet the definition of virtual employer.*
¶ 20. This Court has held that the purpose of workers’ compensation “is to provide employees with a remedy independent of proof of fault, and employers with a limited and determinate liability,” and “[t]o effectuate this purpose we favor an ‘all embracing’ definition of employee and employer where such a construction is reasonable.” In re Chatham, Woods, 2008 VT 70, ¶ 9 (quoting Fotinopoulos v. Dep’t of Corr., 174 Vt. 510, 512, 811 A.2d 1227, 1229 (2002) (mem.)). In applying this policy, furthermore, the Court has been careM to recognize “the realities of running a small business,” Gerrish v. Savard, 169 Vt. 468, 473, 739 A.2d 1195, 1199 (1999), realities which frequently result in precisely the sort of dual-entity employer presented here, where one owns the busi*613ness and the other the land on which it operates, but with no substantive difference. In looking solely to the legal form of ownership and ignoring the substance of authority and control, the Court here departs from these sound policies. The legal effect of the Court’s holding is to eliminate the fact-based test for determining virtual-employer status set forth in Vella and to substitute instead a shortcut to tort liability by label. The practical effect is to create a real risk of double recovery against the employer, a result this Court has in the past scrupulously sought to avoid. See, e.g., Garrity v. Manning, 164 Vt. 507, 510, 671 A.2d 808, 810 (1996) (citing the policy of avoiding “double recovery against the employer” in holding that corporation’s principal officer and stockholder was immune from suit under the workers’ compensation statute). I discern no sound reason to reach such a result and therefore respectfully dissent.
¶21. I am authorized to state that Justice Burgess joins this dissent.
Motion for reargument denied February 28, 2011.
Other courts have similarly concluded that legal form must yield to practical substance in such circumstances. See, e.g., Jackson v. Gibson, 409 N.E.2d 1236, 1238-39 (Ind. Ct. App. 1980) (holding that workers’ compensation statute barred plaintiff’s negligence action against property owner who was also the principal owner of plaintiff’s employer); Heritage v. Van Patten, 453 N.E.2d 1247, 1248 (N.Y. 1983) (concluding that exclusive remedy provision of workers’ compensation act barred injured employee from suing owner of building who was also plaintiff’s employer, since “[r]egardless of his status as owner of the premises where the injury occurred,” in reality the owner’s status remained unchanged “in his relations with plaintiff in all matters arising from and connected with their employment”); Braham v. Country Life Realty Co., 801 N.Y.S.2d 110, 112 (App. Div. 2005) (holding that “the employee is precluded from bringing an action against the employer in its capacity as a property owner for job-related injuries sustained while working on the employer’s premises, since the obligation to provide a safe workplace simply cannot be separated in a logical and orderly fashion from the duties owed by the employer to his employees” (quotation omitted)).