Present: All the Justices
JOHN H. YANCEY
v. Record No. 951568 OPINION BY JUSTICE ELIZABETH B. LACY
June 7, 1996
JTE CONSTRUCTORS, INC.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Thomas S. Kenny, Judge
In this appeal, we determine whether the trial court erred
in holding that a general contractor was the statutory employer
of a subcontractor's injured employee.
The Virginia Department of Transportation (VDOT)
contracted with JTE Constructors, Inc. (JTE) to design,
furnish, and install a sound barrier wall on Interstate Highway
66. JTE, as prime contractor, executed a subcontract with the
Reinforced Earth Company (RECO) to design, manufacture, and
deliver sound barrier wall panels to the job site.
John H. Yancey, an employee of RECO, was at the
construction site inspecting one of the three-ton panels when
the panel fell on him, severing his left leg below the knee.
Yancey applied for and received workers' compensation benefits
from RECO under the Workers' Compensation Act, Code §§ 65.2-100
through -1310. Yancey then filed a motion for judgment against
JTE alleging that JTE was negligent in failing to warn him "to
avoid unsafe conditions and recognize adequate bracing
required" for the panels. This negligence, Yancey asserted,
was the proximate cause of his injuries.
JTE filed responsive pleadings and a motion for summary
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judgment asserting that Yancey's exclusive remedy was under the
Workers' Compensation Act because, at the time of the accident,
JTE was Yancey's statutory employer. Following argument of
counsel, the trial court held that Yancey was the statutory
employee of JTE at the time of the accident and granted JTE's
summary judgment motion. We awarded Yancey an appeal.
The principle is well established that a general
contractor is the statutory employer of a subcontractor's
employee under Code § 65.2-302(B) of the Workers' Compensation
Act if the employee is engaged in the trade, business, or
occupation of the general contractor at the time of his injury.
Sykes v. Stone & Webster Eng'g Corp., 186 Va. 116, 122, 41
S.E.2d 469, 472 (1947). "But when the employe[e] reaches an
employer in the ascending scale, of whose trade, business or
occupation the work being performed by the employe[e] is not a
part," that employer is not the statutory employer of the
employee. Id. 1
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Relying on Nichols v. VVKR, Inc., 241 Va. 516, 403
S.E.2d 698 (1991), and Carmody v. F.W. Woolworth Co., 234 Va.
198, 361 S.E.2d 128 (1987), JTE argues that the trade,
business, or occupation of the owner, VDOT, is relevant to
resolving the issue in this case. These cases are inapposite
here. Neither involved a contract between the general
contractor and subcontractor as the basis for determining the
general contractor's amenability to a negligence action. In
Carmody, the injured employee was seeking to recover from the
owner, not a general contractor. Nichols involved statutory
fellow employees. The owner's trade, business, or occupation
was critical because the defendant architectural firm and the
injured employee's construction firm had contracts only with
the owner, not with each other. Thus, fellow employee status
existed only if both firms were engaged in the trade, business,
or occupation of the owner.
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While each case turns on its own facts, we have held that
an employee of a company supplying materials is not engaged in
the trade, business, or occupation of the general contractor
when the employee is injured while delivering the materials to
the job site. Burroughs v. Walmont, Inc., 210 Va. 98, 99, 168
S.E.2d 107, 108 (1969). However, if an employee undertakes
activities which incorporate the delivered materials into the
construction project, such as spreading and preparing the sand
that the employee delivered to the job site, the employee has
gone beyond the activities required for delivery and engaged in
construction activities. Bosher v. Jamerson, 207 Va. 539, 151
S.E.2d 375 (1966). Under such circumstances, we have held that
the general contractor is the statutory employer of the
subcontractor's employee because, at the time of injury, the
employee was engaged in the trade, business, or occupation of
the general contractor. Id. at 542, 151 S.E.2d at 377.
In this case, the contract between JTE and RECO required
that RECO "provide on site patching at its cost for materials
delivered damaged to the job site." At the job site, JTE's
crane unloaded a panel from RECO's delivery truck and placed it
on a trailer for inspection and patching, rather than moving
each panel directly from the delivery truck to placement in the
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sound barrier wall. Following the inspection, the crane again
2
Considering the "severe traffic conditions" under which
the wall would be constructed, the contract provided that RECO
accommodate JTE's intention to unload the panels from the "drop
trailers," rather than the truck, into the wall. The parties
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lifted the panel and moved it to its place in the wall. This
procedure allowed the crane to place an inspected panel into
the wall while another panel was being inspected. Yancey was
inspecting a panel on the trailer when he was injured.
JTE argues that Yancey's actions in inspecting and
repairing the concrete panels were not part of the delivery of
the panels, but of providing "field technical services" as
required in the contract. 3 These "field technical services,"
JTE asserts, were activities connected with JTE's trade,
business, or occupation to furnish, design, and install the
sound walls as required in its contract with VDOT. We
disagree.
The panels manufactured and delivered by RECO were not the
sound wall, but were component parts of the wall, much like
nails, boards, and sheetrock are component parts of a house.
RECO agreed to repair sound panels damaged during transit.
Yancey's inspection and patching activities were the final acts
of delivery required by the contract. Yancey's actions did not
extend to incorporating the panels into the sound wall.
Therefore, Yancey was not involved in furnishing, designing, or
deleted the provision of the form contract requiring the
supplier to "deal with all crating conditions" so that the
panels could be off loaded "directly from the truck into the
walls."
3
The contract provided that the supplier would "design,
engineer, manufacture, and supply sound barrier panels
including . . . technical services." The contract did not
define "technical services."
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installing a sound wall.
Characterizing Yancey's activities at the time of the
accident as "field technical services" does not change the
substance of what he was doing. Yancey was completing the act
of delivering sound barrier wall panels as required by the
contract.
Under the circumstances of this case, we conclude that
Yancey was not engaged in the trade, business, or occupation of
JTE at the time he was injured. Thus, JTE was not the
statutory employer of Yancey. Accordingly, we will reverse the
judgment of the trial court and remand the case for further
proceedings.
Reversed and remanded.
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