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Sub Employee Covered by Comp Bar

An employee of a security subcontractor who was injured while working on a winery project is a statutory employee of the general contractor and statutory co-employee of two defendant subcontractors, and the Loudoun County Circuit Court says his negligence action is barred by the Virginia Workers’ Compensation Act.

The parties have stipulated to certain facts. Defendant Colonial Remodeling LLC was the general contractor for the Winery at Bull Run Project in Centreville, and not the owner. Colonial subcontracted with Del Cid Construction Inc., Hughes Consulting and Safenet Security Inc., who employed plaintiff. Safenet performed work that was required by law and by contract between the owner and Colonial. Plaintiff was an employee of Safenet and was performing work for Safenet that was part of the contract between Colonial and Safenet. The Workers’ Compensation Commission had jurisdiction over plaintiff and Safenet in approving a settlement between plaintiff and Safenet’s insurance carrier, resulting in a payment based on the settlement. The action brought by plaintiff in this court is a premises liability case against the general contractor, Colonial, and subs, Del Cid and Hughes.

Applying Va. Code § 65.2-302(B), Colonial is the statutory employer of the plaintiff and Del Cid and Hughes are statutory co-employees of the plaintiff. The application of the statute, referred to as the subcontracted fraction test, is supported by case law. The test concerns how to determine whether the work of an independent contractor is part of the owner’s trade or business.

The owner of the Project entered into a contract with Colonial for work that included the work that Colonial subcontracted to Safenet. Plaintiff was performing the work that Safenet had subcontracted for at the time of his injury. Under Code § 65.2-302(B), Colonial is therefore the statutory employer of the plaintiff. Likewise, the plaintiff is the statutory co-employee of Del Cid and Hughes.

Plaintiff would like the court to find that he was an “other party” under Code § 65.2-309(A). 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. In this case, plaintiff appears to be arguing that he was a stranger to the business of defendants; however, plaintiff was performing work for his employer, Safenet, that was part of the work Colonial was to perform for the owner of the Project. Del Cid and Hughes were likewise performing work that was part of the work Colonial was to perform for the owner of the Project. This is clearly not a case where a party was a mere delivery person to the jobsite, as each of the parties was performing work that was within the scope of the work required of Colonial by the owner of the Project. The court therefore finds plaintiff was not an “other party” under Code § 65.2-309(A).

The court finds Colonial was the statutory employers of the plaintiff and that Del Cid and Hughes were statutory co-employees of the plaintiff and this case is barred by the comp bar. Each of defendants’ pleas in bar are sustained.

Aguilar v. Diaz (McCahill) No. CL 77242, Feb. 10, 2014; Loudoun County Cir.Ct.; Douglas K.W. Landau for plaintiff; Meliha P. Halpern, Steven W. Bancroft, Charles E. Gallagher Jr., Andrew J. Terrell for defendants. VLW 014-8-024, 5 pp.

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