UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RONNIE E. RICHARDSON,
Plaintiff-Appellant,

v.
                                                                   No. 95-2020
L'EGGS BRANDS INCORPORATED, a
Division of Sara Lee Corporation,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, District Judge.
(CA-94-508-R)

Argued: April 4, 1996

Decided: June 20, 1996

Before RUSSELL, WIDENER, and HALL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Carr Lanier Kinder, Jr., CARR L. KINDER, JR., P.C.,
Roanoke, Virginia, for Appellant. Jonnie Luane Speight, JOHNSON,
AYERS & MATTHEWS, Roanoke, Virginia, for Appellee. ON
BRIEF: Joseph A. Matthews, Jr., JOHNSON, AYERS & MAT-
THEWS, Roanoke, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Ronnie R. Richardson ("Richardson") appeals the district court's
grant of summary judgment favoring L'eggs Brands, Inc. ("L'eggs")
in Richardson's diversity tort action alleging personal injuries result-
ing from the negligence of L'eggs and its agents and employees. After
reviewing de novo the district court's grant of summary judgment,
and finding no genuine issues of material fact to exist, Anderson v.
Liberty Lobby, Inc., 477 U.S. 242 (1986), we affirm the district
court's decision.

I.

The evidence of record reveals that the following salient facts
existed when Richardson suffered his injuries. Richardson was
employed as a truck driver and delivery person for Ryder Distribution
Resources, Inc. ("RDR"), a public motor carrier. L'eggs was engaged
in the business of manufacturing, distributing, and selling women's
hosiery products. Pursuant to its contract with L'eggs, RDR dedicated
a certain number of its vehicles and drivers to exclusively deliver
L'eggs products from the L'eggs Distribution Center in Salem, Vir-
ginia, to various storage warehouses leased by L'eggs or L'eggs sales
merchandisers. Delivery duties include the loading and unloading of
products at their destination.

At the time of his accident, Richardson was one of RDR's drivers
dedicated to the L'eggs account. Richardson exclusively drove one of
RDR's vehicles bearing the L'eggs logo on its side. When not in use,
these tractor-trailers were housed on the premises of the L'eggs Dis-
tribution Center in Salem.

On June 30, 1992, while unloading L'eggs products at a warehouse
leased by L'eggs in Charlotte, North Carolina, Richardson slipped

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and fell on a piece of waste cardboard lying on the ground. As a result
of his fall, Richardson fractured his spine. Thereafter, Richardson
applied for and received worker's compensation benefits from RDR,
under Virginia's Workers' Compensation Act. In June 1994, Richard-
son filed a diversity tort action against L'eggs alleging that L'eggs
negligently failed to dispose of the waste cardboard in a safe manner.
The district court granted L'eggs motion for summary judgment find-
ing that L'eggs was not a suable "other party" under Virginia Law.
Richardson filed no counter-affidavits opposing L'eggs motion for
summary judgment.

Summary judgment is appropriate where the record taken as a
whole could not lead a rational trier of fact to find for the non-moving
party, Anderson, 477 U.S. at 248-49, such as where the non-moving
party has failed to make a sufficient showing on an essential element
of the case that the non-moving party has the burden to prove, Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). While the court must
draw any permissible inferences from the underlying facts in the light
most favorable to the party opposing the motion, Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986),
"[o]nly disputes over facts that might affect the outcome of the suit"
will preclude summary judgment. Anderson, 477 U.S. at 248.

II.

Richardson contends that the district court erred in granting sum-
mary judgment because issues of material fact exist as to whether
L'eggs was a suable other party and as to the identity of Richardson's
employer.1 Richardson also contends the district court erred in apply-
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1 Richardson now asserts that a genuine issue of material fact exists as
to his employer's identity. Yet, the evidence of record reveals that Rich-
ardson never filed any affidavits or counter-affidavits disputing his
employer's identity. Furthermore, Richardson never contested his direct
supervisor's affidavit, which affirmatively stated 1) that Richardson was
an RDR driver and 2) that at the time of the accident Richardson was
awarded benefits under Virginia's Workers' Compensation Act from his
employer RDR. We regard his failure to submit any opposing affidavits
as a conscious waiver. See Morrissey v. William Morrow & Co., 739
F.2d 962, 966 (4th Cir. 1984), cert. denied, 469 U.S. 1216 (1985). A liti-

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ing Virginia law. Regardless of the issues Richardson attempts to
raise on appeal this case manifests a worker's compensation action
and we shall review it accordingly.

A.

We begin our inquiry by analyzing the basic nature of the case
before us. Richardson contends that the district court should have
applied North Carolina law instead of Virginia law. But, because
Richardson failed to substantiate his contention with supporting case
law or indicate which of North Carolina laws should have been
applied, our inquiry follows the basic tenets of federal civil procedure.
Richardson lodged a diversity tort action against L'eggs in the United
States District Court for the Western District of Virginia. The Rules
of Decision Act, 28 U.S.C. § 1652, requires federal courts sitting in
diversity to apply the forum state's substantive law and federal proce-
dural law. In addition, federal courts are to apply the choice of law
rules of the state in which the federal court sits. Klaxon Co. v. Stentor
Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Consequently, the district
court was required to apply Virginia's substantive law, unless Virgin-
ia's choice of law rules mandated that the court apply the laws of
another state.

In Virginia, when an employee attempts to sue a third-party for
injuries, and the injuries occurred in a state other than the state in
which the employee's employment contract was made, the state in
which the employee resides and the state in which the employee
applies for workers' compensation benefits, Virginia's conflicts of
laws turns to the workers' compensation law of the state in which the
plaintiff received workers' compensation benefits. Solomon v. Call,
166 S.E. 467, 468-69 (1932). In the instant case, Richardson was
employed under a Virginia employment contract with a Virginia
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gant may not rest on mere allegations or denial but must present affirma-
tive evidence by his own affidavits, or by depositions, answers to
interrogatories, and admissions on file that designate specific facts show-
ing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 473
U.S. 317, 324 (1986). If he fails to respond accordingly, summary judg-
ment against him is appropriate. Fed.R.Civ.P. 56.

                    4
employer--RDR. His employment was covered by the Virginia's
Workers' Compensation Act (the "Act") and Richardson received
compensation from RDR under the Act. Pursuant to Solomon, the dis-
trict court was required to look to the law of Virginia to resolve
whether Richardson could bring an independent third-party tort action
against L'eggs. We hold, therefore, that the district court did not err
in applying Virginia law.

B.

For a worker to receive compensation under the Act for injuries
sustained during the course of employment, the employee looks to his
employer for recovery. When a primary business, the"owner," con-
tracts with a "subcontractor," for the subcontractor to perform in
whole or in part any work which is part of the trade, business or occu-
pation of the owner, the owner is recognized as a statutory employer
of any employee of the subcontractor; and is liable to the injured
employee as if that employee had been immediately employed by the
owner. Va. Code Ann. § 65.2-302(A).2 This section places employees
of subcontractors under the protective ambit of the owner's workers'
compensation coverage. See Farish v. Courion Indus., Inc., 722 F.2d
74, 79 (4th Cir. 1983), aff'd on reh'g en banc , 754 F.2d 1111 (4th Cir.
1985); Vess v. Davis Elec. Constructors, Inc. , 613 F. Supp. 1047,
1049 (W.D. Va. 1985), cert. denied, 818 F.2d 30 (4th Cir. 1987).
When such a hierarchy exists, the injured worker may seek workers'
compensation from either the owner or his direct employer, the sub-
contractor, but not from both. Thus, the dispositive inquiry of whether
the owner qualifies as a statutory employer is whether the injured
employee was engaged in the owner's trade, business or occupation
at the time of injury. See Slusher v. Paramount Warrior, Inc., 336 F.
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2 Virginia Code § 65.2-302 (A) provides:

          When any person (referred to in this section as"owner")
          undertakes to perform or execute any work which is part of his
          trade, business or occupation and contracts with any other person
          (referred to in this section as "subcontractor") for the execution
          or performance by or under such owner, the owner shall be liable
          to pay to any worker employed in the work any compensation
          under this title which he would have been liable to pay if the
          worker had been immediately employed by him.

                    5
Supp. 1381, 1384 (W.D. Va. 1971). And once an employee receives
compensation, Virginia Code § 65.2-307 provides that the rights and
remedies granted under the Act "shall exclude all other rights and
remedies" of an employee to recover on an injury sustained during the
course of his employment. But, if the owner is not a statutory
employer, the injured worker may maintain an independent tort action
against the owner for any injuries sustained. Slusher, 336 F. Supp. at
1384.

In the case at bar, L'eggs as the "owner" contracted with RDR, the
"subcontractor," to perform the tasks of transportation and shipping,
which are essential distribution functions of L'eggs' business of man-
ufacturing, distributing, and selling women's hosiery products. Rich-
ardson, therefore, as an RDR employee hired to drive RDR's
dedicated L'eggs trucks, was affirmatively engaged in L'eggs' trade,
business, and occupation. Therefore, when recovering for injuries sus-
tained as a result of his accident Richardson could have sought work-
ers' compensation from either RDR or L'eggs; he chose RDR.

Despite the controlling law, Richardson maintains he has a viable
cause of action to recover from L'eggs because he believes L'eggs to
be a suable "other party." Richardson insists he can bring suit against
L'eggs because the district court stated the converse of the law by
stating that Richardson could not sue L'eggs because"L'eggs was
engaged in RDR's business." We believe, however, because the dis-
trict court reached the correct result, that Richardson was precluded
from seeking recovery from L'eggs, the district court's misstatement
does not in and of itself create a disputed issue of material fact war-
ranting a reversal of summary judgment. Nonetheless, because the
misstatement was made, we are compelled to examine what consti-
tutes a suable "other party" under Virginia law.

Virginia Code § 65.2-309 permits an injured employee to maintain
a tort action against the person causing his injury if the alleged tort-
feasor is an "other party" within the meaning of the Act. The determi-
native test of whether a defendant is a suable "other party" questions
whether the employee's injury was caused by the negligent act of a
party who is a stranger to the trade, business, or occupation of his
employer. Fetig v. Chalkley, 38 S.E.2d 73, 75-76 (1946); Whalen v.
Dean Steel Erection Co., 327 S.E. 2d 102, 104, appeal dismissed, 44

                    6
U.S. 802 (1985). Whether a third party is engaged in the trade, occu-
pation, or business of the employer depends upon the facts and cir-
cumstances in each case. Bassett Furniture v. McReynolds, 224
S.E.2d 323, 326 (1976). Therefore, when confronted with cases
involving injuries sustained by subcontracted delivery-persons, the
relevant inquiry is whether the driver was engaged in the work of the
opposing party's employer when the accident occurred. Stout v.
Onorati, 267 S.E.2d 154 (1980) (driver was plaintiff; determinative
question was whether driver engaged in defendant storage company's
business when driver killed); and Burroughs v. Walmont, 168 S.E.2d
107 (1969) (driver was plaintiff; principle issue was whether he was
engaged in defendant general contractor's work when he was injured).
In the instant case Richardson was engaged in delivering and unload-
ing L'eggs products at the time of his injury.

Virginia law also recognizes that statutory employers are not
suable "other parties" because statutory employers are not strangers
to the employment and work engaged in by the injured employee.
Statutory employers hire subcontractors to perform essential and
divisible functions of their business enterprise. Cf. Evans v. Hook, 387
S.E.2d 777 (1990).

Given the above law, we answer the following critical questions to
determine whether L'eggs is a suable other party:

          (1) Was the nature of L'eggs' business at the time of Rich-
          ardson's injury, the business of manufacturing, distrib-
          uting, and selling women's hosiery products?

          (2) Were shipping, transporting, and unloading women's
          hosiery products essential distribution functions of
          L'eggs' business of manufacturing, distributing, and
          selling those products? and

          (3) Was Richardson engaged in the distribution functions
          of shipping, transporting and unloading of L'eggs
          women's hosiery products when he was injured?

After reviewing the evidence of record, we have found the following
answers to each of our inquiries. One, L'eggs was engaged in the

                    7
business of manufacturing, distributing, and selling women's hosiery
products at the time of Richardson's injury. Two, the shipping, trans-
porting, and unloading of those products were essential distribution
functions of L'eggs business of manufacturing, distributing, and sell-
ing women's hosiery products. And three, Richardson was performing
these essential distribution functions when he was injured. We find,
therefore, that L'eggs is not a suable "other party" under Virginia law
and Richardson's remedy is limited to compensation under the Act,
which he has already received.

Thus, despite the district court's misstating that"L'eggs was
engaged in RDR's business," the district court reached the right result
--that the Act bars Richardson from maintaining a tort action against
L'eggs. In accordance with our previous holdings to not reverse dis-
trict courts' decisions when the correct results are reached, despite
that some of the reasoning assigned was in error, see Stern v. Merrill
Lynch, Pierce, Fenner, & Smith, Inc., 603 F.2d 1073, 1093 (4th Cir.
1979); Eltra Corp. v. Ringer, 579 F.2d 294, 298 (4th Cir. 1978); we
affirm as modified the district court's grant of summary judgment
favoring L'eggs.

III.

For the foregoing reasons, the decision of the district court is

AFFIRMED AS MODIFIED.

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