Estate of Hill v. Smith

74 Va. Cir. 341, 2007 Va. Cir. LEXIS 237

• Court: Spotsylvania County Circuit Court
• Decided: November 6, 2007
• Docket: Case No. CL06-576
• Status: Published

Opinion

By Judge David H. Beck

This matter is before the court upon the defendants’ plea in bar under the exclusivity provisions of the Virginia Workers’ Compensation Act, Virginia Code § 65.2-307.

The parties agree that Margaret Hill was working in her capacity as an employee of CH Construction, L.L.C., when she was struck by a dump truck owned by S. W. Rodgers Co., Inc., and being operated by Welford A. Smith, an employee of S. W. Rodgers. As a consequence of the accident, Margaret Hill died.

The defendants’ original memorandum supporting their plea in bar asserted exclusivity of the Workers’ Compensation Act remedy on the theory in so called “descending cases”, wherein an employee of an owner or general contractor attempts to sue a sub-contractor or party below the injured employee’s actual employer. See Whalen v. Dean Steel Erection Co., 229 Va. 164, 327 S.E.2d 102 (1985), and Fowler v. International Cleaning Service, Inc., 260 Va. 421, 537 S.E.2d 312 (2000). This argument was based on the admitted fact that Margaret Hill was an employee of CH Construction, L.L.C., acting in the scope of her employment at the time of the accident and upon a “Roster of Sub-Contractors” filed by CH Construction, L.L.C., as “general contractor” for the project known as Regency Park Villas. This document was filed with the Spotsylvania County building officials. It lists S. W. Rodgers Co., Inc., as a sub-contractor for “site work.”

In response to this argument, the plaintiff asserted that Margaret Hill and Welford A. Smith cannot be considered as statutory employees, because S. W. Rodgers Co., Inc., was working under a contract with Cornerstone Homes, L.L.C. (this document was submitted as Plaintiffs Exhibit # 1 at the hearing on the plea in bar), while Margaret Hill was an employee of CH Construction, L.L.C. The plaintiffs argument relies on the case of Hudson v. Jarrett, 269 Va. 24, 606 S.E.2d 827 (2005), asserting that there is a lack of contractual relationship between Margaret Hill and Welford A. Smith.

Following the submissions of the aforesaid memoranda and prior to the hearing on the defendants’ plea in bar, the parties took the deposition of Roger Glover. The deposition was taken in an effort to understand the apparent conflict between the “Roster of Sub-Contractors” submitted to the County of Spotsylvania by CH Construction, L.L.C., and the contract that S. W. Rodgers Co., Inc., entered into with Cornerstone Homes, L.L.C. Mr. Glover is in the business of real estate development, ownership, management, marketing, and construction. He serves as a member manager of the entities Regency Park Villas, L.L.C., CH Construction, L.L.C., and Cornerstone Homes, L.L.C. Mr. Glover testified that the development upon which the accident occurred was a project owned by one of his entities, Regency Park Villas, L.L.C., that Cornerstone Homes, L.L.C., performed preliminary acquisition work and had entered into the contract with S. W. Rodgers Co., Inc., in order that site work necessary for the development of Regency Park Villas could be commenced immediately upon acquisition of the property. Mr. Glover made it clear that Cornerstone’s contract with S. W. Rodgers Co., Inc., was for the benefit of Regency Park Villas, L.L.C., and should have been assigned to Regency Park Villas, L.L.C. See Mr. Glover’s deposition at pp. 27, 28, and 29. CH Construction, L.L.C., was responsible under its contract with Regency Park Villas, L.L.C., to manage the project from construction to marketing to completion. See Mr. Glover’s deposition at pp. 29 and 30 and 43 through 46.

Based on the relationship of the entities, as described by Mr. Glover, the Court is of the opinion that Welford A. Smith was engaged in the same business or project of the owner, Regency Park Villas, L.L.C., as was Margaret Hill, and consequently, Welford A. Smith is not “an other party” amenable to suit. S. W. Rodgers Co., Inc., Mr. Smith’s employer, was engaged in the same business or project of the owner, Regency Park Villas, L.L.C., as was CH Construction, L.L.C., the employer of Margaret Hill. See Clean Sweep Professional Parking Lot Maintenance, Inc. v. Talley, 267 Va. 210, 591 S.E.2d 79 (2004), and Evans v. Hook, 239 Va. 127, 387 S.E.2d 777 (1990).

Accordingly the plea in bar is sustained.