Builders and Contractors Exchange
Weekly Bulletin: 19 Oct 2007
Statutory Employees
Virginia follows the general rule that fellow employees cannot bring liability suits against each other when the injury arose as a result of negligence during employment activities. This rule has clear application when an employer has hired employees to complete tasks associated with the employer’s ordinary course of business. The rule, however, has a more expansive application than this simple scenario.
In those instances where an employer/general contractor must hire independent contractors to complete projects done in the employer’s ordinary course of business, the employees of the independent contractors also face a bar to filing any liability suits for negligence occurring in the work place against the general contractor and/or his employees. The independent contractor’s employee has become a statutory employee of the general contractor. A potential pitfall arises for projects not related to the general contractor/employer’s ordinary course of business. For instance, the Virginia Supreme Court has found that persons hired to do nothing more than deliver products to a construction site are not in the business of construction. So, while the delivery of the products is essential to the completion of the final product, the essential nature of a task to a project does not determine the applicability of the bar to bringing a lawsuit. In that scenario, the driver, who suffered an injury from a negligent construction employee at the jobsite, could bring an action against the construction employee and his employer.
Despite this potential pitfall, the statutory employee bar has enough reach to bar lawsuits by employees of one independent contractor against another independent contractor and his employee working on the same project for an employer/general contractor that is in the business of completing such projects. For example, a general contractor for a home will often have to hire an electrical subcontractor and a plumbing subcontractor. Although the plumbing employee and the electrical employee are not in the same business they are still fellow statutory employees because of their contributions to completing the final product – a home that the general contractor is in the business of building. These employees cannot bring a lawsuit against the general contractor or his employee. They must rely upon the administrative remedies provided by the Virginia Worker’s Compensation Act.
Questions?
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This article is meant to bring awareness to this topic and is not intended to be used as legal advice.