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Negligence – Slip & Fall – Statutory Employee

An employee of a trucking company who fell off a ladder as he attempted to use a tarpaulin to cover a load of transformers to be delivered for defendant manufacturer was a “statutory employee” of the manufacturer barred by Virginia’s workers’ comp statute from suing the manufacturer for negligence, a Roanoke U.S. District Court holds.

The parties agree that if plaintiff is considered a “statutory employee” under the Virginia Workers’ Compensation Act, he would be subject to the Act’s exclusivity provisions and could not sue defendant manufacturer. Virginia courts have constructed three tests to help clarify whether a plaintiff should be considered a statutory employee: 1) the “normal work” test; 2) the “subcontracted fraction” test; and 3) the “stranger to work test.”

The parties agree the “normal work” test is most appropriate when claims are brought by a driver, employed by a “subcontractor” who is injured by the alleged negligence of an “owner.” The “normal work” test flows from the decision in Shell Oil Co. v. Leftwich, 212 Va. 715 (1972).

As a threshold matter, the court finds the general activity the trucking company, and by extension, the driver, contracted to perform for the manufacturer – namely delivery of its goods to its customers – was part of the manufacturer’s trade, business or occupation. Typically, Virginia courts finds that manufacturers are the statutory employers of contract carrier employees who transport goods from the manufacturer to its customers. Transporting transformers to its customers is an essential part of the manufacturer’s business. Likewise, the precise activity the driver had begun at the time of injury – tarping the load of transformers – is too an essential element of the manufacturer’s business.

Finally, application of the “normal work” test also results in the driver being the manufacturer’s statutory employee at the time of his injury. The court finds that tarping a load at the Bland, Va. plant was normally a shared activity by both ABB and ATS employees. The driver does not dispute that ABB and ATS employees share responsibility for loading, tarping and securing the power transformers to the trailer, as required under ABB’s sales contracts. Such shared responsibility is sufficient to make the driver the manufacturer’s statutory employee, barring this lawsuit.

Plaintiff driver argues that the contract between ABB and ATS, as well as ABB’s third-party complaint against ATS, clearly placed the ultimate responsibility for tarping and securing the transformers on ATS and its employees. The contract makes ATS liable for loss, damage, injury or delay of any shipment while in the custody of the carrier, possession or control of the carrier. ABB’s third-party complaint alleges it was necessary for plaintiff driver to cover and or secure the load to the ATS trailer prior to shipment. The court finds that neither the contract nor the third-party complaint create a genuine issue of material fact with respect to whether plaintiff was ABB’s statutory employee. The court agrees with ABB that the contractual allocation of risk between ABB and ATS is immaterial to the statutory employment issue. Similarly, the language the driver points to in the third-party complaint does not state that the driver alone was responsible for tarping the transformers prior to shipment.

Plaintiff also attempts to distinguish the act of tarping a load from “determining the appropriate tarping procedures.” The law simply does not provide for the artificial distinction that plaintiff seeks.

The court grants the summary judgment motions of defendant manufacturer ABB and third-party defendant trucking company ATS Specialized Inc.

Armendarez v. ABB Inc. (Turk, J.) No. 7:07cv00557, Oct. 15, 2008; USDC at Roanoke, Va. VLW 008-3-458, 11 pp.

VLW 008-3-458

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