07/19/2019 by Summer Associate Junior Ndlovu*, with the assistance of Attorney Brian L. Sykes
The Virginia Workers Compensation Act prohibits employees from suing their employers for injuries incurred in the ordinary scope of employment. The Act provides an exclusive avenue of recourse for injured employees to recover against their employers. Section 65.2-307 of the Act provides that:
The rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title respectively to pay and accept compensation on account of injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death.
Va. Code § 65.2-307 (1950) (emphasis added).
With the ubiquitous subcontracting arrangements in the workplace, liability for injured employees may become complicated. Often employees of a general contractor will file personal injury lawsuits against subcontractors for injuries resulting from the ordinarily course of business. Such lawsuits may be barred by the Act’s exclusivity provision. Specifically, the Act provides that when a general contractor subcontracts all or part of the work undertaken by the general contractor in “his trade, business or occupation” then the general contractor is deemed a “statutory employer” of the subcontractor and his employees. Va. Code § 65.2-302 (1950). As a statutory employer, the general contractor is liable under the Act for the injuries caused by the employees of the subcontractor but is immune from cause of action falling outside the Act’s remedies—such as those under the state common law. The following three cases exemplify this rule.
- Demetres v. East West Construction., 776 F.3d 271 (4th Cir. 2015): In this case, the plaintiff was an employee of Ashland Construction Company. Ashland hired East West as a subcontractor for the construction of a CVS Pharmacy in Virginia Beach. At the jobsite, an employee of East West backed over Demetres, resulting in significant injuries that nearly killed him. Demetres brought a personal injury lawsuit against East West claiming $100,000.00 in damages. The Court found that East West was a construction subcontractor preparing a worksite for Ashland and thus engaged in the same “trade, business or occupation” as Ashland. Thus, East West was a “statutory employee” of Ashland and as such, Demetres was barred from suing East West for his injuries.
- David White Crane Service v. Howell, 282 Va. 323 (2011): In this case, James S. Green Contractor, Inc. was a general contractor engaged in the construction of an industrial facility. Green contracted with David White Crane Service to hoist construction steel beams into position at the jobsite. The Supreme Court of Virginia found this to be part of Green’s “trade, business or occupation.” Thus, when David Howell, an employee of Green sued David White Crane Service for an injury allegedly caused by one of its employees, the Court barred Mr. Howell’s claim.
- Anderson v. Dillow, 262 Va. 797 (2001): In this case, the injured worker was working for the general contractor. The general contractor had a contract to operate and maintain a coastal terminal. The general contractor was employed to ensure that shipping debris and other generated waste was removed from the terminal. The subcontractor assisted the general contractor by removing debris and other waste the general contractor put into containers the subcontractor provided at sites around the terminal designated by the general contractor. The subcontractor’s employee was emptying containers when he backed the vehicle he was driving into the injured employee’s vehicle. The injured general contractor’s employee sued the subcontractor, but the Court held that the subcontractor was immune to the suit.
If you have questions about the Virginia Workers Compensation Act and personal injury lawsuits as a contractor, subcontractor or owner of a project, consider seeking legal counsel. Our litigation and workers’ compensation teams at Vandeventer Black LLP are familiar with the Virginia Workers’ Compensation Act and previously litigated cases involving the Act’s exclusivity provision and statutory employer doctrine.
*Junior Ndlovu is a summer associate with Vandeventer Black. He is a third-year law student at the Washington & Lee School of Law.