Peck v. Safway Steel Products, Inc.

551 S.E.2d 328, 262 Va. 522, 2001 Va. LEXIS 88
CourtSupreme Court of Virginia
DecidedSeptember 14, 2001
DocketRecord 002255
StatusPublished
Cited by12 cases

This text of 551 S.E.2d 328 (Peck v. Safway Steel Products, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Peck v. Safway Steel Products, Inc., 551 S.E.2d 328, 262 Va. 522, 2001 Va. LEXIS 88 (Va. 2001).

Opinions

[524]*524SENIOR JUSTICE STEPHENSON

delivered the opinion of the Court.

In this appeal, we determine whether the trial court erred in ruling that the plaintiff’s action is barred by Code § 65.2-307, the exclusivity provision of the Virginia Workers’ Compensation Act, Code § 65.2-100 et seq. (the Act).

I

Lisa C. Peck, Administratrix of the Estate of William R. Peck, Jr., deceased (Plaintiff), filed a wrongful death action against Safway Steel Products, Inc. (Safway), alleging that her decedent’s death was proximately caused by Safway’s negligence and breach of warranties. Safway filed a plea in bar, alleging that the Plaintiff’s action is precluded by the exclusive remedy under the Act. The trial court sustained Safway’s plea and dismissed the Plaintiff’s action. We awarded the Plaintiff this appeal.

II

The facts are undisputed. On November 25, 1997, William R. Peck, Jr., while in the employ of White Construction Company (White), was killed when he fell from scaffolding on which he was working. The Plaintiff and her two daughters applied for and received workers’ compensation benefits from White and its insurer.

At the time of the accident, White was the general contractor on a project to repair and replace brick masonry on the exterior of Sanger Hall on the campus of the Medical College of Virginia. Sanger Hall is a 12-story building owned by Virginia Commonwealth University (VCU).

Pursuant to its contract with VCU, White agreed to “provide and pay for all material, labor, tools, equipment. . . and other services or facilities of every nature whatsoever necessary to execute completely and deliver the Work within the specified time.” White had discretion regarding the means and method of completing the contracted work.

White engaged Safway to supply and install scaffolding for the project. The subcontract between White and Safway provided the following:

THE WORK: Subcontractor shall furnish all supervision, labor, materials, tools, equipment and services, permits, fees, [525]*525and taxes required by the Contract Documents in the following division(s)/section(s) together with all work reasonably infer-able therefrom: - Furnish, engineer and erect all scaffolding per contract document requirements including stair tower to roof and equipment hoist. Erect first two decks for two months. Erect remaining scaffolding to roof for an additional two months. There shall be two working deck levels available at all times and an additional non loaded deck for logistics purposes. There are to be twelve additional deck moves as requested by contractor. Rental time starts when scaffolding is complete and ready for use.

The size and height of the scaffolding system required Safway to tie the scaffolding to the building. This was accomplished by drilling into the brick walls and installing anchors. The scaffolding system, however, could support only two working deck levels at one time. Therefore, as work progressed, White called on Safway to remove the walk boards, brackets, and other equipment comprising the working decks and to reassemble them at different locations within the system. All deck moves were performed at White’s direction, and Safway provided all labor for the moves. Although the subcontract originally called for Safway to provide on-site labor for twelve deck moves, problems discovered at the site required change orders to cover additional deck moves. Including the extra work required by the change orders, Safway performed over 5,000 man-hours of labor in erecting, modifying, and dismantling the scaffolding system.

III.

Code § 65.2-307 provides that the rights and remedies granted under the Act “shall exclude all other rights and remedies” of an employee or his estate at common law or otherwise. The only exception to this exclusivity provision is set forth in Code § 65.2-309(A), which states, in pertinent part, that an employee or his personal representative can maintain an action at law against the person who caused the injury, provided such person is an “other party.” We have said that, to be an “other party,” a defendant must have been a stranger to the trade, occupation, or business in which the employee was engaged when he was injured. See, e.g., Pfeifer v. Krauss Construction Co., 262 Va. 262, 267, 546 S.E.2d 717, 719 (2001); Fowler v. International Cleaning Service, 260 Va. 421, 428, 537 S.E.2d 312, 315 (2000). Thus, in the present case, we must determine whether [526]*526the trial court correctly ruled that Safway was engaged in White’s trade, occupation, or business, thereby barring the Plaintiff’s action.

The Plaintiff contends that Safway was a stranger to White’s work and, therefore, an “other party” subject to suit. The Plaintiff asserts that, in leasing, delivering, and installing scaffolding, Safway’s conduct was merely “an act of delivery by [a] subcontractor and is not tantamount to being engaged in the trade, business or occupation of the general contractor.” The Plaintiff relies on a number of cases in which we have held that a subcontractor that merely delivers materials or equipment to a job site is not engaged in the general contractor’s work. See, e.g., Yancey v. JTE Constructors, Inc., 252 Va. 42, 471 S.E.2d 473 (1996); Hipp v. Sadler Materials Corp., 211 Va. 710, 180 S.E.2d 501 (1971); Burroughs v. Walmont, 210 Va. 98, 168 S.E.2d 107 (1969).

In Burroughs, the plaintiff, an employee of a trucking company that delivered plasterboard to a construction site, was injured while carrying the materials into one of the houses being constructed by the general contractor. 210 Va. at 99, 168 S.E.2d at 108. The trucking company had agreed to deliver and stack specified quantities of the plasterboard in the rooms in the various houses under construction. Id. at 98, 168 S.E.2d at 108. The plaintiff sued the general contractor to recover for his injuries. We held that “the stacking of [plasterboard] in the several rooms constituted the final act of delivery, not an act of construction.” Id. at 100, 168 S.E.2d at 108. Consequently, the plaintiff was not engaged in the general contractor’s trade, business, or occupation, and, therefore, the general contractor was an “other party” and subject to being sued. Id., 168 S.E.2d at 109.

In Hipp, the plaintiff was injured by an employee of Sadler Materials Corporation (Sadler), a subcontractor engaged to furnish and pour concrete at a job site. The plaintiff was an employee of another subcontractor and was injured when struck by a concrete truck. 211 Va. at 710, 180 S.E.2d at 501. We held that the plaintiff could maintain an action against Sadler. In so holding, we explained that “Sadler was required only to deliver concrete where directed, not to spread or finish the concrete,” and that, in performing Sadler’s obligation, its employee was performing “the final act of delivery, not an act of construction constituting the trade, business or occupation of the general contractor.” Id.

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Peck v. Safway Steel Products, Inc.
551 S.E.2d 328 (Supreme Court of Virginia, 2001)

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Bluebook (online)
551 S.E.2d 328, 262 Va. 522, 2001 Va. LEXIS 88, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peck-v-safway-steel-products-inc-va-2001.