Johnson v. Central Fidelity Bank

15 Va. Cir. 207, 1988 Va. Cir. LEXIS 269
CourtRichmond County Circuit Court
DecidedNovember 30, 1988
DocketCase No. LM-1096-4
StatusPublished

This text of 15 Va. Cir. 207 (Johnson v. Central Fidelity Bank) is published on Counsel Stack Legal Research, covering Richmond County Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Central Fidelity Bank, 15 Va. Cir. 207, 1988 Va. Cir. LEXIS 269 (Va. Super. Ct. 1988).

Opinion

By JUDGE RANDALL G. JOHNSON

This case is before the court on defendant Central Fidelity Bank’s plea of the Workers’ Compensation Act, Va. Code § 65.1-1 et seq. Plaintiff, an employee of Commercial Courier Express, Inc., was injured on April 21, 1987, when she slipped and fell on the Bank’s premises, allegedly because of the bank’s negligence in allowing a hazardous condition or substance to be present on its floor. The Bank argues that plaintiff was its statutory employee at the time of her injury and, as such, is barred by the Act from maintaining an action at law against the Bank for negligence. Because the court agrees that plaintiff was a statutory employee of the Bank, the Bank’s plea will be sustained.1

[208]*208Va. Code § 65.1-29 provides, in pertinent part, as follows:

When any person (in this section . . . referred to 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 (in this section . . . referred to 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 workman employed in the work any compensation under this Act which he would have been liable to pay if the workman had been immediately employed by him.

In this case, the "owner," Central Fidelity Bank, undertook to perform courier work and contracted with Commercial Courier, the "subcontractor," for the performance of that work. Thus, if such courier work was a part of the Bank’s "trade, business or occupation," the plaintiff was the Bank’s statutory employee and is barred from maintaining this action against the Bank. In this regard, the following facts are undisputed.

Central Fidelity Bank was formed in 1975 by the merger of two predecessor banks. From the time of its creation until April 1, 1986, approximately 75% of the Bank’s 140 branches were served by couriers on the Bank’s own payroll. These couriers transported bank documents to and from the various branches and the operations center, the Federal Reserve Bank, the post office, and other places where bank documents were picked up and delivered. The remaining 25% of the branches, in the western and southwestern part of Virginia, were served by an independent contract courier. In addition, for at least eight years prior to [209]*209the merger, at least one of the predecessor banks also employed its own courier personnel.

On April 1, 1986, the Bank entered into a contract with Commercial Courier under which Commercial Courier agreed to perform all courier services for the Bank. As part of the contract, Commercial Courier offered employment to all of the Bank’s courier employees, as well as to the employees of the existing contract courier who were servicing the Bank, and about 85% of the Bank’s employees went with Commercial Courier. Although they were now employed by a different entity, the couriers’ duties remained the same.2 It is also undisputed that plaintiff was acting within the scope of her employment with Commercial Courier at the time of her injury. It is against this background that the decision of whether plaintiff was the Bank’s statutory employee must be made.

In Shell Oil Co. v. Leftwich, 212 Va. 715, 187 S.E.2d 162 (1972), the Supreme Court of Virginia said the following with regard to whether particular work is a part of an employer’s trade, business or occupation:

[T]he test is not one of whether the subcontract- or’s activity is useful, necessary, or even absolutely indispensable to the statutory employer’s business, since, after all, this could be said of practically any repair, construction or transportation service. The test (except in cases where the work is obviously a subcontracted fraction of a main contract) is whether this indispensable activity is, in that business, normally carried on through employees rather than independent contractors. 212 Va. at 722 (quoting Larson, The Law of Workmen’s Compensation, Vol. 1A, § 49.12, at 872-73 (emphasis in original).

More recently, in Carmody v. F. W. Woolworth Co., 234 Va. 198, 361 S.E.2d 128 (1987), the Court expanded the above test to hold that an owner may be a statutory employer even though the work being performed by the [210]*210employee, in that case portrait photography, had never been performed by the owner:

The appropriate inquiry is not whether Woolworth as owner was engaged in the portrait photography business or had ever been, but whether [plaintiff’s] sale of portrait photographs was a part of Woolworth’s business of operating a department store. Indeed, it may be inferred that Woolworth had no desire to engage directly in the business of taking and selling portrait photographs in any of its stores. But, as a discount department store selling a variety of goods and services, Woolworth saw a consumer demand for portrait photographs and, as a matter of commercial self-interest, elected to make it a part of its retail merchandising business, albeit a part conducted through an independent contractor. 234 Va. at 205 (emphasis added).

Thus, it is now clear that a statutory employer-employee relationship may exist not only where the work being performed is normally performed by the owner’s employees, but also where such work is a part of the owner’s overall business activity.

In the case at bar, the evidence is clear that courier service is an essential and integral part of Central Fidelity Bank’s business. Such service is not merely useful or desirable; it is something without which the Bank simply could not operate. While such service after April 1, 1986, was no longer normally performed by Bank employees, it was nonetheless a part of the Bank’s banking business. Under the holding of Carmody, then, plaintiff was the Bank’s statutory employee.

In an attempt to void being classified as the Bank’s statutory employee, plaintiff cites the case of Bassett Furniture v. McReynolds, 216 Va. 897, 224 S.E.2d 323 (1976). In Bassett, a furniture company contracted with an outside contractor to install a conveyor system at Bassett’s manufacturing plant. The plaintiff worked for the outside contractor. The Court noted that while Bassett had performed construction work in the past, for the past few years, almost all of such work had been contracted out. Moreover, [211]*211since Bassett always contracted out large jobs and had never performed a job of the magnitude as that involved with the conveyor system, the Court held that the employee was not engaged in Bassett’s trade, business, or occupation. This court believes that the facts of Bassett are distinguishable from the facts of the case at bar.

In Bassett, the employer was engaged in the manufacture of furniture. While a conveyor system is useful to that business, it is not a part of it; that is to say, furniture may be manufactured even in the absence of a conveyor system, albeit not as efficiently.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Conlin v. Turner's Express, Inc.
331 S.E.2d 453 (Supreme Court of Virginia, 1985)
Hipp v. Sadler Materials Corp.
180 S.E.2d 501 (Supreme Court of Virginia, 1971)
Bassett Furniture Industries, Inc. v. McReynolds
224 S.E.2d 323 (Supreme Court of Virginia, 1976)
Carmody v. F. W. Woolworth Co.
361 S.E.2d 128 (Supreme Court of Virginia, 1987)
Burroughs v. Walmont, Inc.
168 S.E.2d 107 (Supreme Court of Virginia, 1969)
Shell Oil Co. v. Leftwich
187 S.E.2d 162 (Supreme Court of Virginia, 1972)
Stevens v. Ford Motor Co.
309 S.E.2d 319 (Supreme Court of Virginia, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
15 Va. Cir. 207, 1988 Va. Cir. LEXIS 269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-central-fidelity-bank-vaccrichmondcty-1988.