PRESENT: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and Agee,
JJ., and Carrico, S.J.
ROBERT I. JONES, SR.
OPINION BY
v. Record No. 030310 JUSTICE DONALD W. LEMONS
JANUARY 16, 2004
COMMONWEALTH OF VIRGINIA, ET AL.
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
PAUL M. PEATROSS, JR., Judge
In this appeal, we consider whether the University of
Virginia (“the University”) is a governmental entity for the
purposes of determining its status as a statutory employer under
the Virginia Workers’ Compensation Act (“the Act”), Code
§§ 65.2-100 to –1310.
I. Facts and Proceedings Below
Robert I. Jones, Sr. (“Jones”) was employed by Waco, Inc.
(“Waco”), an independent contractor employed by the University
to perform asbestos abatement in a building on the grounds.
Part of this work included the removal of electrical conduits.
Jones received an electrical shock while attempting to remove an
electrical conduit.
Jones filed a motion for judgment against the University
and its employees alleging that they had negligently informed
him that the electrical power to that conduit had been turned
off when the conduit actually contained live wires. The
defendants each filed pleas in bar based on the Act. The
Commonwealth of Virginia, on behalf of the University, and the
individual defendants asserted that the University was the
statutory employer of Jones because it is a governmental entity
with a statutory mandate to maintain its buildings and Jones was
engaged in the maintenance of a University building.
The trial court sustained the defendants’ pleas in bar,
dismissing Jones’s action, and denied Jones’s motion to
reconsider on November 20, 2002. Jones appeals the adverse
judgment of the trial court.
II. Analysis
Jones asserts that the trial court erred by holding that
the University is a governmental entity and that its trade or
business included asbestos removal from buildings under its care
and control. Further, Jones argues that the trial court erred
in applying the exclusivity provision of the Workers’
Compensation Act despite the language of the Virginia Tort
Claims Act stating that “the Commonwealth shall be liable . . .
where the Commonwealth . . ., if a private person, would be
liable . . . .” Code § 8.01-195.3.
The Virginia Workers’ Compensation Act provides that:
When any person (referred to in this section as
“owner”) undertakes to perform or execute any
work which is a part of his trade, business or
occupation and contracts with any other person
(referred to in this section as “subcontractor”)
for the execution or performance by or under such
subcontractor of the whole or any part of the
work undertaken by such owner, the owner shall be
liable to pay to any worker employed in the work
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any compensation under this title which he would
have been liable to pay if the worker had been
immediately employed by him.
Code § 65.2-302(A). This “statutory employer” provision is
designed to ensure that owners do not escape liability for
workers’ compensation benefits by having their work performed by
others. Henderson v. Central Tel. Co., 233 Va. 377, 381, 355
S.E.2d 596, 598-99 (1987); Smith v. Horn, 232 Va. 302, 305-06,
351 S.E.2d 14, 16 (1986).
In this case, the University was the owner of the building
on which Jones was working when he was injured. Once an owner
is found to be a statutory employer, it is subject to all the
mandates, duties, and rights as to its statutory employee
mandated by the Act, including the “exclusivity rule.” The
exclusivity rule provides that when an employee is eligible for
remedy under the Act, he or she may not seek any other remedy
against the employer or his fellow employees. See Code § 65.2-
307(A).
As discussed below, the analysis of the liability as an
owner for governmental entities and private entities differs.
In other words, state agencies, municipalities, and counties are
treated differently from private corporations and individuals.
Jones argues that we have never extended governmental entity
status to a college or university under the Act. However, both
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statutory language and case law indicate that the University is
entitled to governmental entity status.
The most obvious difference between a governmental entity
and a private entity is that the control of a governmental
entity ultimately lies with publicly elected officials. Code
§ 23-69 establishes the Board of Visitors of the University as a
public corporation that is “at all times subject to the control
of the General Assembly.” It would challenge reason to suggest
that an institution, subject at all times to the control of the
legislature, is not a governmental entity.
In Phillips v. Rector and Visitors of Univ. of Va., 97 Va.
472, 474, 34 S.E. 66, 67 (1899), we held that buildings owned by
the University could not be subject to mechanic’s liens because
the University’s buildings were protected by the general rule
that mechanic’s liens “do not, in the absence of express
provisions, apply to public buildings erected by States,
counties, and towns for public uses.” In determining “the
nature of the University of Virginia,” we noted that “the
University, from its foundation, has been wholly governed,
managed, and controlled by the State . . . and private
individuals have no interest in or control over it.” Id. at
475, 34 S.E. at 67. We pointed to language nearly identical to
that in the current Code “provid[ing] that the Rector and
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Visitors should be at all times subject to the control of the
General Assembly.” Id. We concluded that the University’s
property should be treated like the property of a state, county,
or town because
the University . . . is in the strictest sense a
public institution, and that its grounds and
buildings are public property, the property of
the State; that it is governed and controlled
solely by the State; that its grounds and
buildings are wholly dedicated to public uses;
and that the interest of the public constitutes
its ends and aims.
Id. at 475-76, 34 S.E. at 67.
The reasoning that led to our holding in Phillips applies
here with equal force. The characteristics of the University
informing our decision in that case are the same here. Although
we did not use the specific term “governmental entity” in
Phillips, certainly an entity that is established by statute, is
governed and controlled solely by the General Assembly, owns
property through money appropriated by the General Assembly, and
whose very essence is public use and service is a governmental
entity, is to be treated in the same manner as municipalities
for the purposes of the Act.
In a situation in which an employee of an independent
contractor sues a private entity that owns a project, we have
applied the “normal work test” to determine whether the injured
party was engaged in the trade, business, or occupation of the
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owner at the time of his or her injury. See Bassett Furniture
Indus., Inc. v. McReynolds, 216 Va. 897, 902-03, 224 S.E.2d 323,
326-27 (1976); Johnson v. Jefferson Nat’l Bank, 244 Va. 482,
485, 422 S.E.2d 778, 780 (1992). However, the normal work test
does not apply to the determination of the trade, business, or
occupation of a governmental entity.
In Nichols v. VVKR, Inc., 241 Va. 516, 403 S.E.2d 698
(1991), we held:
A governmental entity or a public utility
does not share the ability to choose its
activities. Therefore, if the project’s
owner is a governmental agency or a public
utility, any activity which the owner is
authorized or required to do by law or
otherwise, is considered the trade,
business, or occupation of the owner.
Id. at 521, 403 S.E.2d at 701. See Henderson, 233 Va. at 383-
85, 355 S.E.2d at 599-601; Ford v. City of Richmond, 239 Va.
664, 667, 669, 391 S.E.2d 270, 271-73 (1990). The unique nature
of a governmental entity requires examination of statutory
authorization and mandated duties to determine the entity’s
trade, business, or occupation. What the legislature has
authorized or required an entity to do is the trade, business,
or occupation of the entity, whatever the frequency with which
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the task is performed or the number of employees directly
employed to perform the task. *
Jones relies on Board of Supervisors v. Boaz, 176 Va. 126,
10 S.E.2d 498 (1940), to support his argument that the
University was not his statutory employer because building
repair is not the University’s trade, business, or occupation.
Boaz, however, is inapplicable. The opinion in Boaz was based
largely on the fact that the Act at that time did not include
the Commonwealth and its political subdivisions in its
provisions. Id. at 130, 10 S.E.2d at 499. The Act has long
*
We have held cities, a ferry district, and a turnpike
authority to be governmental entities whose trade, business, or
occupation is defined by statute, irrespective of the number of
the entity’s own employees engaged in the work that resulted in
injury to a contractor’s employee. See Ford v. City of
Richmond, 239 Va. 664, 669, 391 S.E.2d 270, 273 (1990) (holding
that the city of Richmond was the statutory employer of the
employee of a contractor hired to repair the roof on a water
reservoir); Roberts v. City of Alexandria, 246 Va. 17, 19-20,
431 S.E.2d 275, 276-77 (1993) (holding that the City of
Alexandria was the statutory employer of an employee of a
medical services provider contracted to provide medical services
at the city jail); Williams v. E.T. Gresham Co., 201 Va. 457,
464-65, 111 S.E.2d 498, 503-04 (1959) (holding that the
Chesapeake Bay Ferry District was the statutory employer of the
employees of a contractor hired to drive piles for a ferry
landing even though Ferry District employees had never driven
piles on their own); Anderson v. Thorington Construction Co.,
201 Va. 266, 271-72, 110 S.E.2d 396, 400-01 (1959) (holding that
a turnpike authority was the statutory employer of the employee
of an engineering firm contracted to consult on the construction
on a portion of the turnpike despite the fact that the Authority
did not directly employ any individuals engaged in construction-
related work). The statutory language on which these decisions
have been based has not been materially altered and the
reasoning in these cases is instructive here.
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since been amended to specifically include the Commonwealth and
its subdivisions. We have previously noted that Boaz is no
longer applicable law. See Ford at 668-69, 391 S.E.2d at 272-
73.
The University is a governmental entity. Its powers and
duties, exercised by the Rector and Visitors of the University,
are created by statute and are controlled by the General
Assembly. Code §§ 23-62 to –91.23:1. Applying the rule
established in Nichols, any activity of the University
authorized or required by statute is the trade, business, or
occupation of the University for purposes of the Act. Pursuant
to Code § 23-76, the University’s Board of Visitors “shall be
charged with the care and preservation of all property belonging
to the University.” Accordingly, the care and preservation of
the University’s buildings is part of the trade, business, or
occupation of the University. The asbestos abatement performed
by Jones and Waco was part of the maintenance of the
University’s buildings; therefore, Jones was involved in the
trade, business, or occupation of the University at the time of
his injury. The University was his statutory employer;
consequently, Jones is barred from seeking a remedy in tort
against the University and its employees.
Additionally, Jones argues that the Virginia Tort Claims
Act, Code §§ 8.01-195.1 to –195.9, requires the court to treat a
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governmental entity as though it were a private person under the
Workers’ Compensation Act. We disagree. The Tort Claims Act is
a waiver of the state’s sovereign immunity in certain
circumstances allowing the imposition of liability equivalent to
that of a private entity. Id. Because the Tort Claims Act is a
statute in derogation of the common law, its limited waiver of
immunity must be strictly construed. See Baumgardner v.
Southwestern Va. Mental Health Inst., 247 Va. 486, 489, 442
S.E.2d 400, 402 (1994); Hyman v. Glover, 232 Va. 140, 143, 348
S.E.2d 269, 271 (1986); Norfolk & W. Ry. v. Virginian Ry., 110
Va. 631, 646, 66 S.E. 863, 868 (1910). The Tort Claims Act does
not waive other jurisdictional bars or defenses available to the
Commonwealth and its agencies. Code § 8.01-195.3. The
exclusivity bar under the Workers’ Compensation Act is a
jurisdictional bar independent of the doctrine of sovereign
immunity, applying to private and governmental entities in like
manner.
For the reasons stated, we hold that Jones is a statutory
employee of the University of Virginia and is barred by the
workers’ compensation exclusivity rule from pursuing his tort
claim against the University and its employees. The trial court
did not err in granting the defendants’ pleas in bar and we will
affirm its judgment.
Affirmed.
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