Summary
The Supreme Court of Virginia considered whether the Virginia Workers’ Compensation Act barred a wrongful death action brought by a nondependent spouse and personal representative. The court held that the Act’s exclusivity provision barred the action against the decedent’s employer, general contractor, and drywall subcontractor because the death arose out of and in the course of employment. The court held that the provision did not bar the action against the drywall supplier, which was a stranger to the general contractor’s trade, business, or occupation, and remanded for further proceedings.
Topics
Practice areas
Questions Presented
- Whether the Virginia Workers’ Compensation Act’s exclusivity provision bars a wrongful death action brought by a nondependent personal representative when the employee’s death arose out of and occurred in the course of employment.
- Whether the exclusivity provision bars a wrongful death action against a supplier that merely delivered and placed construction materials, rather than performing a step in the construction process.
Holdings
- When an employee’s injury or death arises out of and occurs in the course of employment, the Virginia Workers’ Compensation Act applies and its exclusivity provision bars all other rights and remedies available to the employee’s personal representative, even if the representative is not a dependent and is not entitled to receive compensation benefits.
- A supplier that merely delivers and places materials at locations specified by the contractor or subcontractor, without performing a step in the construction process, is a stranger to the contractor’s trade, business, or occupation; the Workers’ Compensation Act’s exclusivity provision therefore does not bar a tort action against that supplier.
Key quotations
“Thus, contrary to Martha’s argument, the applicability of the Act does not turn on the compensability of the claim. Rather, the compensability of the claim turns, in part, on the Act’s applicability.” (at 4)
“The plain language of Code § 65.2-307(A) specifically precludes “all other rights and remedies” available to the personal representative of an employee who has accepted the provisions of the Act.” (at 8)
“the stacking of sheetrock in the several rooms constituted the final act of delivery, not an act of construction.” (at 12)
Factual background
Scott Giordano was employed by McBar Industries as an insulator on a construction project. While he was working on the first floor, Virginia Builder’s Supply delivered approximately two tons of drywall and related supplies to the second floor, causing the structure to collapse and killing Scott. Scott’s wife, Martha, was determined not to be his dependent for workers’ compensation purposes, but she brought a wrongful death action as his personal representative against the general contractor, subcontractors, and the drywall supplier.
Procedural history
Martha Giordano sought workers’ compensation benefits after Scott Giordano died in a construction-site collapse. The deputy commissioner determined that Scott’s estate was entitled to funeral expenses but that Martha was not Scott’s dependent and therefore was not entitled to workers’ compensation benefits. Martha then filed a wrongful death action against McBar, Couch, Bertozzi, and others, later adding Builder’s Supply. The circuit court sustained the defendants’ pleas in bar, concluding that the Workers’ Compensation Act applied and barred the tort action. The Supreme Court of Virginia affirmed as to McBar, Couch, and Bertozzi, reversed as to Builder’s Supply, and remanded.
Remand instructions
Remand for further proceedings consistent with the opinion, including allowing Martha’s wrongful death action to proceed against Virginia Builder’s Supply while maintaining the pleas in bar as to McBar, Couch, and Bertozzi.