Tort Law

Brien Roche Law > Tort Law Resources > Tort Case Law > Tort Law Cases – W > Workers Compensation-Exclusiveness of Remedy

Workers Compensation-Exclusiveness of Remedy

Fairfax Injury Lawyer Brien Roche Addresses Workers Compensation-Exclusiveness of Remedy

Brien Roche

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Workers’ Compensation-Exclusiveness of Remedy.  

Workers Compensation-Exclusiveness of Remedy-Statutes

See Va. Code § 65.2-101 stating that employees of independent contractors are not to be construed as employees of person or corporation employing contractor.

See Va. Code § 65.2-101 stating that casual employees are not covered by Workers’ Compensation Act.

See Va. Code § 65.2-302 as to liability of owner to workmen of subcontractor.

See Va. Code § 65.2-302 as to liability of general contractor to workers of subcontractor.

See Va. Code § 65.2-304 indicating that general contractor has indemnity claim against subcontractor, if benefits should have been paid by subcontractor. When principal contractor is sued by worker of subcontractor, contractor has right to join that subcontractor as defendant.

See Va. Code § 65.2-307 indicating that employee’s rights under Act exclude all others.

See Va. Code § 65.2-301 which overrules decision in Kelly which held that exclusive remedy for sexual harassment was under Workers’ Compensation Act.

Workers Compensation-Exclusiveness of Remedy-Cases

2014 Kohn v. Marquis, 288 Va. 142, 762 S.E.2d 755.
Recruit police officer killed during training process. There was an identifiable event that was thought to be the cause of his death. Subsequent suit against police department is barred under exclusive remedy rule.

2012 Napper v. ABM Janitorial Services, 284 Va. 55, 726 S.E. 2d 313. Trial court improperly held that plaintiff’s personal injury suit arising from fall in public lobby of building where she worked was barred by workers’ compensation immunity. Mere fact that cleaning company that cleaned the public area also cleaned the plaintiff’s office area did not mean that plaintiff’s employer and the janitorial company were engaged in the same trade business or occupation.

2012 Giordano v. McBar Industries, Inc., 284 Va. 259, 729 S.E.2d 130.
In this wrongful death action, decedent had been hired by general contractor on construction project. Administrator of estate sought to file wrongful death action against general contractor and subs and also building supply company. Action against general and subcontractors is barred. Supplier of product that was used on the job was not engaged in trade business or occupation of the decedent’s employer was subject to suit.

2012 Gibbs v. Newport News Shipbuilding, 284 Va. 677, 733 S.E.2d 648.
Navy seaman assigned to perform testing and inspection duties on nuclear submarines under construction at shipyard brought claim for asbestos exposure. US Navy could not be held liable to pay compensation under Virginia Workers’ Compensation Act and likewise could not be statutory employer of the shipyard and as such there is no workers’ compensation bar as to claim against the shipyard.

2012 Redifer v. Chester, 283 Va. 121, 720 S.E.2d 66.

Employee injured on the job was awarded workers’ compensation benefits and received some benefits, and was assured of receiving the balance of the benefits either from the employer or from the Uninsured Employer’s Fund. This barred any civil action against the employer. An employee may pursue alternative relief at the same time and if the employee fails to collect under one remedy, then he may pursue the other but may not have a double recovery.

2012 Moore v. Virginia Int’l. Terminals, 283 Va. 232, 720 S.E.2d 117.

Decedent in this wrongful death action was an employee of a private stevedore company assisting in the loading and unloading of a vessel. The Virginia Port Authority created a non-profit, non-stock terminal corporation to perform certain functions. An employee of this latter corporation was responsible for the death of the decedent. The Trial Court incorrectly determined that the parties were statutory employees of the Virginia Port Authority. In this case, there was no contract between the plaintiff’s employer and the Port Authority. Under the terms of Virginia Code § 65.2-302, the work must be part of the owner’s trade business or occupation and the owner must have contracted with another to perform the work. In this case, there was no such contract.

2011 David White Crane Service v. Howell, 282 Va. 323, 714 S.E.2d 572.
Employee of general contractor on construction site sued uninsured subcontractor for negligence. Uninsured subcontractor is statutory employer even though uninsured. Claim barred.

2008 Hilton v. Martin, 275 Va. 176, 654 S.E.2d 572.Decedent was an emergency medical services employee who was seated on the passenger side of an ambulance owned by her employer. A co-worker brought highly charged electrical defibrillator paddles in contact with the decedent and she died. Trial court improperly upheld worker’s compensation bar. In this instance, the assault had no relationship with the decedent’s status as an employee. The assault was purely personal and thus the resulting injury and death did not arise out of the employment.

2005 Butler v. Southern States Coop., Inc., 270 Va. 459, 620 S.E.2d 768.Plaintiff alleged assault by fellow employee. Plaintiff further alleged that the assault was the result of that fellow employee’s personal attraction to her. Where the assault is personal to the employee, and not directed against her as an employee or because of her employment, then her injury does not arise out of the employment and therefore, is not covered by the Workers’ Compensation Act. The fellow employee may still be within the scope of the employment however.

2005 Hudson v. Jarrett, 269 Va. 24, 606 S.E.2d 827.Plaintiff was a longshoreman working for a stevedore company that had a contract with Colombia Coastal to unload its barge. Plaintiff was injured while the vehicle he was driving on the dock collided with a similar vehicle driven by the defendant. The defendant was an employee of a stevedore company but was unloading another shipment. The port terminal was operated by the Virginia International Terminals, Inc. (VIT). Neither of the shipping companies or the stevedore companies had contracts with VIT. In the absence of any contract between VIT and Columbia for the loading and unloading of Columbia’s barge or between VIT and the stevedore company, VIT cannot be plaintiff’s statutory employer.

2005 Safeway, Inc. v. DPI Midatlantic, Inc., 270 Va. 285, 619 S.E.2d 76.Employee injured on premises of Safeway. Safeway had indemnity agreement with plaintiff’s employer for such claims where the employer agreed to indemnify Safeway. Employee thereafter asserted a third-party claim against Safeway and Safeway invoked indemnity clause. That was not a violation of exclusivity provision of the Workers’ Compensation Act and therefore, Safeway may be entitled to indemnity.

2004 Clean Sweep Prof’l Parking Lot Maint., Inc. v. Talley, 267 Va. 210, 591 S.E.2d 79.Plaintiff was employee of trucking company that was subcontractor to Virginia Paving who had contract to repave part of highway. Virginia Paving subcontracted with Clean Sweep to clear roadway of asphalt after it was loosened. Plaintiff was under a truck attempting repair at job site when vehicle was struck by a sweeper truck of Clean Sweep. Plaintiff maintains that his actions on behalf of his employer at the time of the accident were not in the trade, business, or occupation of Virginia Paving. Supreme court disagrees and concludes that plaintiff’s activities were part of the trade, business, and occupation of Virginia Paving and as such, claim is barred.

2004 Jones v. Commonwealth, 267 Va. 218, 591 S.E.2d 72.Plaintiff was employed by Waco as independent contractor which was employed by University of Virginia for asbestos removal in university building. While so employed, plaintiff received an electrical shock and claimed that university had failed to inform him that power had not been turned off. Plaintiff sues Commonwealth and university. Supreme court holds that university was statutory employer of plaintiff because it is a governmental entity with statutory mandate to maintain its buildings and plaintiff was engaged in the maintenance of a university building. Claim is barred. When dealing with a governmental entity or public utility, any activity which it is authorized or required to do by law is considered to be part of its trade, business, or occupation. In dealing with a private entity, the court typically would apply the normal work test to determine whether the injured plaintiff was engaged in the trade, business, or occupation of the owner at the time of the injury. That test is not applicable in regards to a governmental entity.

2002 Burch v. Hechinger Co., 264 Va. 165, 563 S.E.2d 745.Burch was an employee of Greenhost who sold a truck load of flowers to Hechingers for delivery to their store for display and sale at their store. Burch, in the course of her employment with Greenhost, was arranging the display of the flowers and answering questions of Hechinger retail customers when she was injured as a result of a Hechinger employee. Trial court properly held that this Hechinger employee was a statutory co-employee of Burch since the delivery process had been completed and Burch at the time of the injury was undertaking the task of Hechinger employees.

2001 Adams v. Alliant Techsystems, Inc., 261 Va. 594, 544 S.E.2d 354.Plaintiff alleged hearing loss during course of employment. Workers’ Compensation Act did not bar this personal injury action. Employer maintained unsafe, hazardous, and excessive noise levels. Gradual hearing loss was not covered under Workers’ Compensation Act at time employee’s cause of action accrued. Employee in this instance is not required to file workers’ compensation claim before filing personal injury action.

2001 Anderson v. Dillow, 262 Va. 797, 553 S.E.2d 526.Plaintiff was employee of general contractor. Defendant was employee of subcontractor on job site. Defendant’s employer had responsibility of trash removal on job site. General contractor was responsible for managing commercial shipping terminal. General contractor’s employee filed suit due to injury caused by employee of subcontractor who was performing waste removal services. Court concluded that duties of subcontractor were within the trade, business, or occupation of the general contractor and therefore, claim is barred under Workers’ Compensation Act.

2001 Bosley v. Shepherd, 262 Va. 641, 554 S.E.2d 77.General contractor was not statutory employer of injured worker who delivered sheet rock at construction site. Worker used crane to place sheet rock at locations as directed by general contractor but did not engage in any other action to further the work of the general contractor. Claim is not barred by workers’ compensation immunity. Likewise, worker was not statutory employee of government owner of construction project even though government owner was authorized by law to engage in construction activities and could sometimes engage in delivery of materials to job site.

2001 Peck v. Safway Steel Prods., Inc., 262 Va. 522, 551 S.E.2d 328.Subcontractor that provided and installed scaffolding from which worker for general contractor fell and was killed was operating within trade, business, or occupation of decedent’s employer and therefore, was not other party within meaning of Workers’ Compensation Act. Subcontractor in this case did not merely deliver material to job site but provided over 5,000 man hours in installing the scaffolding. This third-party claim is therefore deemed to be barred by the Workers’ Compensation Act.

2001 Pfeifer v. Krauss Constr. Co. of Va., Inc., 262 Va. 262, 546 S.E.2d 717.Employee of exterior finish subcontractor brought common-law action against gas line installation subcontractor relating to injury on job site. Gas line installation subcontractor was immune on grounds that it was statutory co-employee of plaintiff and therefore, workers’ compensation is exclusive remedy. All persons are within operation of the Workers’ Compensation Act who are engaged in work that is part of the trade, business, or occupation of the party who undertakes as owner or who contracts as contractor to perform the work. In this case, gas line installation subcontractor who was responsible for digging trenches, installing gas lines, connecting them to buildings, and testing them was statutory co-employee of injured employee of exterior finish subcontractor and therefore, Workers’ Compensation Act’s exclusive remedy provision precluded injured employee from bringing common-law action against this other contractor.

2000 Combs v. Virginia Elec. & Power Co., 259 Va. 503, 525 S.E.2d 278.Virginia Power arranged for independent instructors to teach aerobics class for benefit of employees. Participation was voluntary. Plaintiff was employee of Virginia Power. During class, employee developed severe headache. Health Services employee of Virginia Power assisted. Employee was thereafter left alone and after two hours, she was in coma and thereafter transported to hospital. Virginia Power asserted plea of worker’s compensation. Trial court concluded that aggravation and acceleration of pre-existing aneurysm was injury by accident arising out of the course of the employment and therefore, claim is barred. Decision affirmed on appeal.

2000 Fowler v. International Cleaning Servs., Inc., 260 Va. 421, 537 S.E.2d 312.Plaintiff was employee of Sears Store injured as a result of negligence of cleaning company that cleaned store. Sears, as part of its business, was involved in the cleaning of its own store. Court applied “stranger to business” test and determined that since both Sears and International were involved in the cleaning of store, that therefore, International was not a stranger to the business of Sears and therefore, plaintiff’s suit against International is barred.

2000 Stone v. Door-Man Mfg. Co., 260 Va. 406, 537 S.E.2d 305.Plaintiff in this case was employee of Ford Motor Company. He was injured in vehicle, in course of his employment, when he attempted to drive through doorway of body shop where he worked. The overhead door unexpectedly closed and struck him in the head and chest. The court applied the “stranger to the work” test and held that since the business of Ford Motor is the manufacturer of cars and since the business of the defendants was something other than that, then therefore, the worker’s compensation bar did not apply. Although applying the “normal work” test in this instance would have produced the same result since handling of construction jobs of the magnitude in question was not something that was performed in-house by Ford but normally was contracted out.

1999 Welch v. Miller & Long Co., 258 Va. 447, 521 S.E.2d 767.Plaintiff’s decedent in this wrongful death action attempted to sue statutory employer and to recover uninsured motorist benefits. Exclusive remedy of workers compensation act bars any such uninsured motorist claim.

1995 Ramey v. Bobbitt, 250 Va. 474, 463 S.E.2d 437.Plaintiff was employee of Pepsi-Cola and was injured on public street adjacent to Pepsi plant by vehicle driven by Pepsi employee. Going to and from work rule states that employee is not performing service arising out of and incident to employment. There are three exceptions to this rule: (1) when means of transportation is provided by employer or time consumed is paid for or included in wages; (2) when way used is sole and exclusive way of ingress and egress or where way of ingress and egress is constructed by employer; (3) when employee on his/her way to and from work is still charged with some duty or task in connection with employment. None of those exceptions applied here and as such plaintiff’s civil claim not barred.

1995 Richmond Newspapers v. Hazelwood, 249 Va. 369, 457 S.E.2d 56.Issue is whether claim for “goosing” in newspaper press room was barred by Workers’ Compensation Act. Although conduct occurred in the course of the employment, it was found not to arise out of the employment. This was deemed to be a personal attack on plaintiff and not directed against him as an employee or because of his employment.

1994 Lichtman v. Knouf, 248 Va. 138, 445 S.E.2d 114.Plaintiff alleged intentional infliction of emotional distress by fellow employees who constantly harassed her. Court held that this does not constitute injury by accident and as such claim is not barred by Workers’ Compensation Act.

1994 Lipsey v. Case, 248 Va. 59, 445 S.E.2d 105.Employee injured in course of employment by dog belonging to co-worker who bit employee. Employee was working on a horse farm at time. Injury did not arise out of employment since under actual risk test employment did not subject employee to particular danger that brought about her injury. As such, common law action is not barred by Workers’ Compensation Act.

1994 Taylor v. Mobil Corp., 248 Va. 101, 444 S.E.2d 705.Plaintiff sued employer for negligence of doctor in clinic for failure to diagnose heart disease. Claim may be covered by Workers’ Compensation Act if it was (1) result of injury, (2) by accident, (3) arising out of employment, (4) in course of employment. Arising out of test excludes an injury which comes from hazard to which employee would have been equally exposed apart from employment. In this case employee not required to use clinic doctor. Heart condition in this case had no connection with employment. As such claim is not barred by Workers’ Compensation Act.

1994 Middlekauff v. Allstate Ins. Co., 247 Va. 150, 439 S.E.2d 394.Plaintiff alleged that supervisor engaged in a pattern of harassment and verbal abuse. Claim is not barred by Workers’ Compensation Act since gradually incurred injury as is alleged here is not injury by accident. Prior decision in Haddon is overruled to the extent it placed gradually incurred injuries within definition of injury by accident.

1993 Roberts v. City of Alexandria, 246 Va. 17, 431 S.E.2d 275.Plaintiff is employee of CMS Inc., which had contract with Sheriff of City of Alexandria to provide health care services at city jail. In determining trade, business, or occupation of governmental entity Court must look at not only what entity does, but also what they are supposed to do. In this instance City of Alexandria authorized and empowered to operate jail and to provide medical services, and as such delivery of these services is within city’s trade, business, and occupation. Plaintiff in this instance was exiting from jail when she fell on slippery area. She maintains City was negligent in operation of parking lot where she fell. City in this instance is statutory employer of plaintiff, and as such claim is barred.

1993 Patterson v. C.S.X. Transp., 245 Va. 483, 429 S.E.2d 215.Plaintiff filed motion for judgment under FELA. Trial court dismissed ruling that plaintiff’s exclusive remedy was under Longshoreman’s Act. Plaintiff in this case was held to have met status and situs requirements under Longshoreman’s Act and as such that is his exclusive remedy.

1992 Humphries v. Thomas, 244 Va. 571, 422 S.E.2d 755.Thomas was driving motor vehicle in which Humphries was passenger. Humphries was owner of Carpet Showcase. Thomas performed good deal of installation work for Carpet Showcase as independent contractor. Issue in case was whether or not Thomas at time of accident was acting as employee. In this instance he had simply been asked by Humphries to accompany him to purchase trailer for business. There was no agreement as to Thomas being compensated for this trip. Trial court held it was in Thomas’s interest and to his benefit to solidify his relationship with Humphries, and therefore he was employee. There clearly was no expressed contract of hire nor any implied contract of hire in this instance, and as such services provided by Thomas were deemed provided gratuitously, and he is not covered by act.

1992 Johnson v. Jefferson Nat’l Bank, 244 Va. 482, 422 S.E.2d 778.Painters were injured on scaffold while painting exterior of bank. Bank had maintenance staff that was able to perform painting jobs, but bank frequently engaged independent contractors because it did not have adequate staff to do various projects on timely basis. In addition bank’s employees had never painted at height and under conditions that these plaintiffs were working under. Court concluded that although bank’s staff had capacity to do this work, such work was not normally performed by bank, and as such these plaintiffs were not statutory employees of bank because this task was not within trade, business, or occupation of bank.

1992 Salih v. Lane, 244 Va. 436, 423 S.E.2d 192.Nurse anesthetist sues psychiatrist with whom she is working in performance of medical treatment. Nurse was employed by Fairfax Anesthesiology Associates, Inc., that had subcontract with hospital for performance of all anesthesiology services at hospital. Psychiatrist defendant was self-employed health care provider, who was authorized to perform psychiatric services at hospital. Issue was whether or not work being performed is part of defendant’s trade, business, or occupation. Court held that even though services being performed by nurse anesthetist were useful, necessary, and perhaps absolutely indispensable to defendant’s work, that does not mean that they are part of trade, business, or occupation of defendant. In this case, work performed by nurse was found not to be not within trade, business, or occupation of defendant. Likewise, record did not establish that anesthesiology services were subcontracted portion of defendant’s main contract with patient. In this case, defendant’s work and plaintiff’s work were done independently of each other, and as such defendant was not plaintiff’s statutory employer.

1992 Mizenko v. Electric Motor & Contr’g Co., 244 Va. 152, 419 S.E.2d 637.Workers’ Compensation Act not applicable to bar worker injured while performing ship repairs from bringing action in federal maritime tort against primary contractor and subcontractor who was his employer.

1992 Metro Mach. Corp. v. Mizenko, 244 Va. 78, 419 S.E.2d 632.Under borrowed servant principle, servant becomes employee of second employer with all legal consequences of new relation. Factors to consider: (1) control, (2) whether work is that of borrowing employer, (3) was there agreement between original employer and borrowing employer, (4) did employee acquiesce, (5) did original employer terminate relation with employee, (6) who is responsible for furnishing work place, tools and conditions, (7) length of employment and whether it implies acquiescence by employee, (8) right of discharge, (9) who pays employee.

1991 Snead v. Harbaugh, 241 Va. 524, 404 S.E.2d 53.Defamation action brought by one employee against another. Injury to reputation and defamation damages do not fall within interpretation of injury under Workers’ Compensation Act and as such one employee may sue another for this type of claim.

1991 Nichols v. VVKR, Inc., 241 Va. 516, 403 S.E.2d 698.Greater Roanoke Transit Company (G.R.T.C.) was owner of project. It contracted with architectural firm to provide service and also with general contractor to construct project. Employee of general contractor is injured on job and sues architect. Clear purpose of G.R.T.C. was that of providing mass transportation services and as such its trade, business, or occupation was not construction or rehabilitation of transportation facilities. As such architect and plaintiff are not statutory fellow employees and Workers’ Compensation Act does not bar claim.

1990 Barr v. Town & Country Props., 240 Va. 292, 396 S.E.2d 672.Real estate agent’s claim against broker is barred under Va. Code § 65.1-4.3 because contract with broker did not contain language called for under this Code section.

1990 Briley v. Farm Fresh, Inc., 240 Va. 194, 396 S.E.2d 835.Plaintiff employed by supermarket. She slipped and fell in supermarket while engaging in personal shopping as she was leaving employer’s place of business. Plaintiff injured at place where she was reasonably expected to be while engaged in activity reasonably incidental to employment, therefore workers’ compensation bar applies.

1990 Haddon v. Metropolitan Life Ins. Co., 239 Va. 397, 389 S.E.2d 712.Workers’ compensation is exclusive remedy for employee injured as result of intentional tort by fellow employee.

1990 Counts v. Stone Container Corp., 239 Va. 152, 387 S.E.2d 481.Partner in general partnership who has elected to be covered by Workers’ Compensation Act is limited to this exclusive remedy, and suit against owner of project is barred.

1990 McBride v. Metric Constrs., 239 Va. 138, 387 S.E.2d 780.Worker injured in Virginia covered by Federal Longshoremen’s & Harbor Workers’ Compensation Act and also Virginia Act but compensated under Federal Act, cannot maintain negligence actions against party who is immune from suit under State Act but not Federal Act.

1990 Evans v. Hook, 239 Va. 127, 387 S.E.2d 777.Employee of general contractor allegedly injured due to negligence of architect. Defendants are immune if they are either statutory employer or statutory fellow employee. Architect was not stranger to work of owner and, therefore, architect is entitled to immunity.

1989 Ford v. City of Richmond, 239 Va. 664, 391 S.E.2d 270.City hired contractor to replace roof on one of its buildings. Construction of new roof was within trade, business or occupation of city under terms of legislative mandate. Therefore, city is statutory employer of contractor’s employee and claim against city is barred.

1989 Painter v. Simmons, 238 Va. 196, 380 S.E.2d 663.Both parties had same employer. After plaintiff checked in for work, he was crossing street to get to his building when struck by fellow employee in auto. Accident occurs in course of employment when it takes place within period of employment, at place where employee may reasonably be expected to be and while he is reasonably fulfilling duties of employment or is doing something reasonably incident thereto. This accident was in course of employment; therefore, workers’ compensation is exclusive remedy.

1989 Rasnick v. The Pittston Co., 237 Va. 658, 379 S.E.2d 353.Coal miner killed in mine accident. Suit against parent and sister companies of Clinchfield Coal Co. These companies were not strangers to business of Clinchfield; therefore, exclusive remedy is under Workers’ Compensation Act.

1989 Reamer v. National Serv. Indus., 237 Va. 466, 377 S.E.2d 627.Assailant sexually assaulted female employee in furniture rental store. Attack was personal as to employee and only after attack did assailant take money from store. Nothing in nature of business increased risk of sexual assault. Therefore, there is no injury by accident arising out of employment and, therefore, civil suit not barred.

1988 Plummer v. Landmark Commun., 235 Va. 78, 366 S.E.2d 73.Plaintiff was route carrier for newspaper published by Landmark. In course of such duties, plaintiff shot by unknown assailant. Industrial Commission ruled that accident did not arise out of employment. In law action, plaintiff presented proof which showed clearly that accident arose out of her employment. The court therefore was not bound by determination of Industrial Commission since different facts were presented in two forums. If facts presented to Industrial Commission were same as facts presented here, and Industrial Commission had determined that it lacked jurisdiction, then that determination would be binding.

1988 Intermodal Servs. v. Smith, 234 Va. 596, 364 S.E.2d 221.Plaintiff was self-employed truck driver waiting at yard of defendant for paperwork to be done on out-of-state trip. Plaintiff was asked if he would move trailers between yards for flat rate. Plaintiff injured in course of doing so. Plaintiff filed damage suit. Trial court correctly ruled plaintiff was independent contractor; therefore not covered by Workmen’s Compensation Act. Generally, person is employee if he works for wages or salary and person hiring reserves right to fire and control means and method of work. Dissent addresses issue whether plaintiff engaged in trade, business or occupation of defendant.

1987 Carmody v. F.W. Woolworth Co., 234 Va. 198, 361 S.E.2d 128.Plaintiff worked for company that had license agreement with Woolworth to provide photographic services in Woolworth stores. Plaintiff is injured in store. Workers’ Compensation Act must be liberally construed so as to afford compensation to injured employees. Inquiry here is whether sale of portrait photos was part of Woolworth’s business of operating department store. Plaintiff was held to be statutory employee of Woolworth.

1987 Henderson v. Central Tel. Co., 233 Va. 377, 355 S.E.2d 596.Workers’ Compensation Act is highly remedial and should be construed liberally to advance its purpose. Fundamental purpose of Act is to provide compensation for accidental injuries resulting from hazard of employment. When dealing with public utilities and governmental entities, it is necessary to look at what they are required to do by law in order to determine their trade, business or occupation. In this case, defendant did not normally do type of work that plaintiff was doing at time of accident but that work was still part, of his trade, business or occupation because it was part of what defendant was required by law to provide. As such the claim is barred.

1987 Barnes v. Stokes, 233 Va. 249, 355 S.E.2d 330.Plaintiff and defendant were employed by same firm. Defendant struck plaintiff with vehicle in employee parking lot as both were leaving at end of work day. Injury was held to arise out of and in course of employment and therefore this claim barred. Accident in this case occurred at place furnished as incident to employment and at time when employees can be reasonably expected to use designated parking area.

1986 Moore v. Finney, 232 Va. 441, 350 S.E.2d 664.Finney was mechanic employed by Moore & Son. He was directed by Moore & Son to fix truck owned by Moore Trucking. Moore Trucking did not exercise requisite control over Finney for him to become special employee of Moore Trucking. Finney sued another employee of Moore & Son for injury. This claim was barred.

1986 Smith v. Horn, 232 Va. 302, 351 S.E.2d 14.Plaintiff was employed by independent contractor at coal mine. Plaintiff sued employee of independent contractor also working at mine. All independent contractors were engaged in trade, business or occupation of owner of mine. Defendant therefore is fellow servant of plaintiff and cannot be sued.

1985 Conlin v. Turner’s Express, Inc., 229 Va. 557, 331 S.E.2d 453.Plaintiff employed by Ford. Defendant had contract with Ford to transport autos from one Ford plant to another. Plaintiff injured while loading defendant’s truck. Transporting these vehicles was part of Ford’s trade, business, or occupation, and therefore defendant is not stranger and is immune.

1985 Whalen v. Dean Steel Erection Co., 229 Va. 164, 327 S.E.2d 102.Employee of general contractor sues subcontractor for acts of negligence on job site. Subcontractor is not stranger to trade, occupation, or business of plaintiff, and therefore is immune from suit. This principle is the obverse of one that applies in the statutory employer cases.

1982 Stewart v. Bass Constr. Co., 223 Va. 363, 288 S.E.2d 489.Employee can maintain action against negligent “other party” only if latter was stranger to trade, occupation or business in which plaintiff was involved. In this case, plaintiff was working with and giving signals to crane operator. Crane operator was not stranger to plaintiff’s employment.

1981 VEPCO v. Wilson, 221 Va. 979, 277 S.E.2d 149.Plaintiff sued VEPCO and Wilson. Wilson dismissed on grounds of workmen’s compensation immunity. Third-party claim by VEPCO against Wilson not allowable.

1980 Stout v. Onorati, 221 Va. 143, 267 S.E.2d 154.Plaintiff delivered equipment to defendant and was injured while unloading. Plaintiff performing work that was part of defendant’s trade. Defendant immune.

1979 Fouts v. Anderson, 219 Va. 666, 250 S.E.2d 746.Employee injured by fellow employee has his exclusive remedy under Workers’ Compensation Act. Mere fact that injury occurs on parking lot provided by employer for his employees does not necessarily make it arise out of, and in course of, employment. No relation between plaintiff’s work and injury. Workers’ Compensation Act not applicable.

1978 Mims v. McCoy, 219 Va. 616, 249 S.E.2d 817.Employment is casual when it is not permanent or periodically regular, but occasional or by chance, and not in usual course of employer’s trade or business.

1977 White v. Norfolk & W. Ry., 217 Va. 823, 232 S.E.2d 807.Federal Longshoremen’s and Harbor Workers’ Compensation Act not exclusive remedy where electrical supervisor did not work directly in loading of coal.

1976 Bassett Furn. v. McReynolds, 216 Va. 897, 224 S.E.2d 323.Bassett was owner and general contractor of job. Plaintiff was employee of independent contractor. Bassett was not statutory employer and was subject to suit by plaintiff. Owner simply by acting as its own general contractor, does not thereby become statutory employer unless work performed by independent contractor is part of owner’s trade, business, or occupation.

1973 Delp v. Berry, 213 Va. 786, 195 S.E.2d 877.Employee awarded workmen’s compensation but award unsatisfied. Employee may then resort to civil action.

1973 Butler v. Washington Refrig. Serv. Co., 213 Va. 461, 193 S.E.2d 781.Defendant had contracted with Grand Union to maintain and repair refrigeration equipment at its supermarket. Plaintiff was employee of Grand Union. Issue of whether defendant was “other party” under Va. Code § 65.1-41 [now § 61A-309] was not decided.

1972 Shell Oil Co. v. Leftwich, 212 Va. 715, 187 S.E.2d 162.Shell leases service station to operator. Shell is not statutory employer.

1971 Virginia Used Auto Parts v. Robertson, 212 Va. 100, 181 S.E.2d 612.Where employer is uninsured, then employee may pursue civil action and if unsuccessful, may still pursue workers’ compensation remedy.

1971 Hipp v. Sadler Materials Corp., 211 Va. 710, 180 S.E.2d 501.Sadler’s employee injured Hipp, while making delivery of concrete to construction site where Hipp was working. Court has distinguished between act of construction and act of delivery. Act of delivery is not engagement in trade, business or occupation with general contractor action against Sadler not barred by workers’ compensation.

1969 Brown v. Reed, 209 Va. 562, 165 S.E.2d 394.Plaintiff struck and injured on company parking lot while reporting to work by defendant’s automobile while defendant was leaving work. Accident arose out of and in course of plaintiff’s employment and was allegedly caused by negligence of fellow employee acting within course of his employment. Since injury covered by Workers’ Compensation Act, common-law actions against fellow employee defendant are barred.

1963 Lucas v. Biller, 204 Va. 309, 130 S.E.2d 582.Plaintiff injured as passenger in defendant’s auto. Defendant was fellow employee and was paid by employer to transport plaintiff. Normally, injuries incurred while going to and from work are not covered, but this case is exception. It is immaterial whether defendant was independent contractor or fellow employee, since he was engaged in business of plaintiff’s employer and plaintiff’s exclusive remedy is under Act.

1962 Ferrell v. Beddow, 203 Va. 472, 125 S.E.2d 196.Plaintiff injured by fellow employee in course of employment. Workers’ compensation is exclusive remedy.

1962 Floyd v. Mitchell, 203 Va. 269, 123 S.E.2d 369.Plaintiff employed by pipe company. Defendant operated truck of contract carrier at yard exclusively, pulling pipe to highway. Defendant not stranger to work of employer.

1959 Williams v. Gresham Co., 201 Va. 457, 111 S.E.2d 498.Plaintiff was employee of owner and was injured by negligence of employee of independent contractor working on job. Independent contractor was engaged in work of owner. Plaintiff’s sole remedy was Workers’ Compensation Act.

1959 Anderson v. Thorington Constr. Co., 201 Va. 266, 110 S.E.2d 396.Construction job injury. If employee of independent contractor engaged in work which is part of business of owner, then exclusive remedy is under Compensation Act. Plaintiff was employee of firm of engineers hired to supervise work and was injured by employee of a subcontractor. Plaintiff was statutory fellow servant of employees of defendant.

1957 Kramer v. Kramer, 199 Va. 409, 100 S.E.2d 37.Plaintiff’s decedent was employee of hoisting company, hired by defendant to do work on construction job. Plaintiff’s decedent held not to be loaned employee of defendant. Plaintiff’s decedent’s work was not part of trade or business of general contractor; therefore, suit was proper.

1952 Phillips v. Brinkley, 194 Va. 62, 72 S.E.2d 339.Defendant deemed to be employee rather than independent contractor and, therefore, compensation is exclusive remedy.

1951 Coker v. Gunter, 191 Va. 747, 63 S.E.2d 15.Plaintiff injured by fellow servant. Suit against fellow employee barred by workers’ compensation statute.

1950 LeSueur v. Ayres, 191 Va. 119, 60 S.E.2d 26.All serving common master, working under same control, are fellow servants and take risk of each other’s negligence.

1947 Sykes v. Stone & Webster Eng’g Corp., 186 Va. 116, 41 S.E.2d 469.Industrial commission determined that relationship between defendant and other company was that of general contractor and subcontractor. This was res judicata.

1946 Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73.Workers’ Compensation Act is exclusive remedy as to accidents caused by those who are not strangers to employer’s business.

1945 Nolde Bros. v. Chalkley, 184 Va. 553, 35 S.E.2d 827.Infants, even though unlawfully employed, are covered under Workers’ Compensation Act.

1943 Raven Red Ash Coal Co. v. Griffith, 181 Va. 911, 27 S.E.2d 360.Where commission has denied that claim was compensable, then employee may sue employer in tort.

1942 Noblin v. Randolph Corp., 180 Va. 345, 23 S.E.2d 209.Employee pursued third-party claim; judgment unsatisfied. Since employer assisted in obtaining judgment, such cannot now be used as bar to workers’ compensation.

For more information on Workers Compensation see the pages on Wikipedia.

Contact Us For A Free Consultation

Workers Compensation-Exclusiveness of Remedy

Contact Us For A Free Consultation

    Contact Us For A Free Consultation