PRESENT: All the Justices

VIRGIL L. MOORE,
ADMINISTRATOR OF THE ESTATE OF
HUGH BRITT, JR., DECEASED
                                            OPINION BY
v.   Record No. 101408                JUSTICE CLEO E. POWELL
                                         January 13, 2012
VIRGINIA INTERNATIONAL TERMINALS,
INC., ET AL.

         FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                    James A. Cales, Jr., Judge

      Virgil L. Moore (“Moore”) appeals the judgment of the

Circuit Court of the City of Portsmouth sustaining the plea in

bar filed by defendants Virginia International Terminals, Inc.

(“VIT”) and Orion L. Parker (“Parker”).   Determining that the

circuit court erred in its ruling that the parties were

statutory employees of the Virginia Port Authority (“VPA”) and

therefore subject to the exclusivity provisions of the Virginia

Workers’ Compensation Act, we will reverse.

                            BACKGROUND

      The Norfolk International Terminals (“NIT”) are owned by

the VPA, a political subdivision of the Commonwealth.   In order

to effectively operate and manage the marine terminal, the VPA

created VIT as a nonprofit, nonstock corporation.   As part of

the contractual relationship between VPA and VIT, VIT was

required to prepare a schedule of rates (“SOR”) applicable to

all users of VPA’s terminals.    The SOR sets forth the terms and
conditions for use of the terminals.    VIT also offers its

services as a stevedore at the marine terminals it operates.

     Hugh Britt, Jr. (“Britt”), was employed by CP&O, L.L.C.

(“CP&O”), a private stevedore company, to load and unload cargo

at NIT.   On May 28, 2008, Britt was operating a yard tractor,

also known as a hustler, to assist with the loading and

unloading of the M/V President Adams.    Parker, a stevedore

employed by VIT, was operating a straddle carrier to assist with

the loading and unloading of another ship, the M/V Manhattan

Bridge.   Both Britt and Parker were working in the South Berth

area of NIT.   At the same time Britt was hauling a container to

be loaded onto the M/V President Adams, Parker was carrying a

container that had been unloaded off the M/V Manhattan Bridge.

The straddle carrier Parker was operating ran into the side of

the container being pulled by the hustler operated by Britt,

fatally injuring Britt.

     On April 13, 2009, Moore, as administrator of Britt’s

estate, filed a wrongful death action against Parker and VIT,

asserting negligence and premises liability claims.    VIT and

Parker filed a plea in bar seeking the dismissal of the action

on the basis that the VPA serves as the statutory employer of

the CP&O and VIT employees loading and unloading vessels at NIT,

and, therefore, Moore’s claims are barred by the exclusivity

provisions of the Virginia Workers’ Compensation Act.


                                 2
     The circuit court determined that the parties were

statutory employees of the VPA and sustained the plea in bar

from which Moore appeals.   According to the circuit court:

           Britt, Parker, and VIT’s duties on May 28,
     2008 fall squarely within VPA’s legislatively
     mandated responsibilities and are therefore,
     within VPA’s scope of employment. VPA is the
     statutory employer of all parties. In addition
     to finding that the parties are fellow statutory
     employees, the Court finds that there is a
     contractual basis for the employment relationship
     between VPA and VIT as well as between VPA and
     CP&O.

                               ANALYSIS

     The sole issue before this Court is whether the circuit

court erred in determining that Britt and CP&O were statutory

employees of the VPA.   “The rights and remedies provided in the

Virginia Workers’ Compensation Act (the Act) are exclusive of

all other rights and remedies for employees who fall within the

scope of the Act.”   Burch v. Hechinger Co., 264 Va. 165, 168,

563 S.E.2d 745, 747 (2002).    Thus, “[t]he issue whether a

particular person or entity is the statutory employer of an

injured employee is a jurisdictional matter presenting a mixed

question of law and fact that must be determined under the facts

of each case.”   Bosley v. Shepherd, 262 Va. 641, 648, 554 S.E.2d

77, 81 (2001).

     The definition of a statutory employer is found in Code

§ 65.2-302(A), which states:



                                  3
     When any person (referred to in this section as
     "owner") undertakes to perform or execute any
     work which is a 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
     subcontractor of the whole or any part of the
     work undertaken by 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.

     Recognizing that not every statutory employer/employee

relationship fits neatly within the parameters of the Code, this

Court has developed a number of tests as guides to aid with the

proper application of Code § 65.2-302(A).   See, e.g., Cinnamon

v. IBM Corp., 238 Va. 471, 478, 384 S.E.2d 618, 621 (1989)

(recognizing that the normal work test “is only a corollary

guide, sometimes useful but not indispensable, in applying the

literal language of the statutes to the facts in a particular

case”).   Two of these tests, the normal work test 1 and the



     1
       The normal work test was recognized by this Court in Shell
Oil Co. v. Leftwich, 212 Va. 715, 187 S.E.2d 162 (1972).

     “[The] test is not one of whether the
     subcontractor’s activity is useful, necessary, or
     even absolutely indispensable to the statutory
     employer’s business, since, after all, this could
     be said of practically any repair, construction
     or transportation service. The test (except in
     cases where the work is obviously a subcontracted
     fraction of a main contract) is whether this
     indispensable activity is, in that business,
     normally carried on through employees rather than
     independent contractors.”


                                 4
governmental entity test 2 are discussed at great length by the

parties in this case.   Moore, however, contends that neither the

normal work test nor the governmental entity test is dispositive

as there was no contract between Britt or CP&O and the VPA.   We

agree.

     The plain language of Code § 65.2-302(A), establishes that

two discrete elements must be present for a statutory

employer/employee relationship to exist: (1) the work must be

part of the owner/contractor’s trade, business or occupation,

and (2) the owner/contractor must have contracted with another

to have work performed.

     As we explained in Henderson v. Central Telephone Company

of Virginia, 233 Va. 377, 383, 355 S.E.2d 596, 599 (1987) “[t]he

[normal work] test is merely an approach that is useful in


Id. at 722, 187 S.E.2d at 167 (quoting 1A Arthur Larson, The Law
of Workmen's Compensation § 49.12).
     2
       Recognizing the limitations of applying the normal work
test to governmental entities, this Court established the
governmental entity test in Henderson v. Central Telephone
Company of Virginia, 233 Va. 377, 355 S.E.2d 596 (1987).

     It is not simply what [governmental entities] do
     that defines their trade, business, or
     occupation. What they are supposed to do is also
     a determinant. Whereas a private business entity
     is essentially self-defining in terms of its
     trade, business, or occupation, a public utility
     has duties, obligations, and responsibilities
     imposed upon it by statute, regulation, or other
     means.

Id. at 383, 355 S.E.2d at 599-600.

                                 5
determining an entity's trade, business, or occupation.”    It is

axiomatic then that the governmental entity test, as a

counterpart to the normal work test, is a similarly useful

approach for determining a governmental entities’ trade,

business, or occupation.

     VIT notes that our “application of the governmental entity

test has never turned on contractual interpretation.”    While

technically correct, this assertion is misleading, as our

application of the governmental entity test presumes that the

owner/contractor has in fact contracted with another to have

work performed.   Indeed, in each of the cases cited by VIT in

support of its argument, the existence of a contract is either

expressly stated or inherently implied.   Jones v. Commonwealth,

267 Va. 218, 220, 591 S.E.2d 72, 73 (2004) ("[plaintiff] was

employed by . . . an independent contractor employed by the

University") (emphasis added); Roberts v. City of Alexandria,

246 Va. 17, 18, 431 S.E.2d 275, 275 (1993) ("the Sheriff of the

City of Alexandria executed a contract with [plaintiff's

employer]") (emphasis added); Henderson, 233 Va. at 378, 355

S.E.2d at 597 (“At the time he was injured, Henderson, was

acting pursuant to the contract”) (emphasis added); Williams v.

E. T. Gresham Co., 201 Va. 457, 458, 111 S.E.2d 498, 499 (1959)

("[defendant] was engaged in driving piles . . . for Chesapeake

Bay Ferry District") (emphasis added).    Thus, contrary to VIT’s


                                 6
assertions, nothing in our jurisprudence indicates that a

governmental entity is exempt from the contract requirement of

Code § 65.2-302(A) by virtue of its status as a governmental

entity.

     In the present case, it is undisputed that the stevedore

work performed by Britt, Parker, CP&O and VIT was part of the

trade, business or occupation of the VPA.    The only remaining

question is whether the VPA contracted with CP&O to perform

stevedore work at NIT. 3   The circuit court determined that a

contractual relationship existed between CP&O and the VPA based

on CP&O’s implicit agreement “to abide by conditions in the

[SOR].”   We disagree with the circuit court and the undisputed

facts of this case demonstrate that no such contractual

relationship exists.

     In Hudson v. Jarrett, 269 Va. 24, 609 S.E.2d 827 (2005), we

examined whether two privately owned stevedore companies

operating at the NIT were statutory co-employees by virtue of

the fact that both were operating under the SOR.    There, the

trial court determined that the stevedore companies were co-

employees because they were “engaged in the execution or

performance of the trade or business of VIT” (i.e. moving cargo

from ship to shore and shore to ship) and because the conduct of

     3
       It is undisputed that such a contractual relationship
exists between the VPA and VIT.



                                  7
the stevedore companies was governed by the SOR.   Id. at 30-31,

606 S.E.2d at 830.   We reversed, stating:

          The Schedule of Rates prescribes certain
     conditions that must be met by those doing
     business at any VIT facility. By using the
     facility, [the stevedore companies] agreed to
     those conditions. However, the Schedule of Rates
     is not a contract to perform the actual loading
     and unloading of any particular vessel. The
     contracts to perform those services are the
     contracts between the ship owners and the
     stevedore companies.

Id. at 31, 606 S.E.2d at 830 (emphasis added).

     Here, as in Hudson, the circuit court determined that a

contractual relationship existed between CP&O and the VPA,

stating:

     When stevedoring companies, such as CP&O, elect
     to do business at a VIT facility like NIT, the
     action of loading and unloading vessels at such a
     facility creates a contractual bind. By virtue
     of their actions, CP&O’s stevedores implicitly
     agreed to abide by conditions in the Schedule of
     Rates.

     As we stated in Hudson, however, the SOR is not a contract

that creates a statutory employer relationship under Code

§ 65.2-302(A), and therefore, the necessary contractual

relationship between CP&O and the VPA did not exist in the

present case.   Accordingly, the circuit court erred in




                                 8
determining that the VPA was the statutory employer of CP&O at

the time of the accident. 4

                              CONCLUSION

     For the foregoing reasons, we will reverse the decision of

the circuit court and remand the matter for further proceedings

in accordance with this opinion.

                                           Reversed and remanded.

JUSTICE McCLANAHAN, concurring.




     4
       Having determined that the SOR does not create the
necessary contractual relationship required under Code § 65.2-
302(A), we need not consider Moore’s remaining arguments
regarding whether the VPA was a valid party to the SOR or the
applicability of the Shipping Act of 1984, 46 U.S.C. § 40101 et
seq. to the present case.



                                   9
        I agree with the majority’s holding that the circuit court

erred in finding that the VPA was the statutory employer of

CP&O.    I write separately, though, to underscore the broader

point that the VPA did not hire CP&O to perform any services,

specifically including the stevedore services being performed by

Britt at the time of the accident.    CP&O entered into a contract

with the operator of the M/V President Adams to provide the

stevedore services in which Britt was engaged at the time of the

accident.    Therefore, CP&O was performing work for the operator

of the ship, not the VPA.

        Moore asserts in his first assignment of error that “[t]he

[circuit] court erred in finding [the] Virginia Port Authority

(VPA) was the statutory employer of [Britt’s] employer CP&O,

because there was no evidence in the record that the VPA

employed CP&O by contract to perform work which . . . Britt was

performing when he was injured, as required by Virginia Code

§ 65.2-302.”    The Court need go no further than the language of

Code § 65.2-302 to hold that the trial court erred in finding

that the VPA was the statutory employer of CP&O for the very

reason asserted by Moore in his assignment of error.

        Pursuant to Code § 65.2-302(A), a statutory employer is

        any person (referred to in this section as
        “owner”) [who] undertakes to perform or execute
        any work which is a 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
        subcontractor of the whole or any part of the
        work undertaken by such owner.

(Emphasis added.)      Because the VPA did not contract with CP&O

for the execution or performance of any work that was undertaken

by the VPA, there was no owner/subcontractor relationship

between the VPA and CP&O.      Therefore, VPA was not the statutory

employer of CP&O.

        The majority is correct in concluding that the SOR did not

create a statutory employment relationship between the VPA and

CP&O.       See Hudson v. Jarrett, 269 Va. 24, 31, 606 S.E.2d 827,

830 (2005) (the SOR “is not a contract to perform the actual

loading and unloading of any particular vessel").      But, I would

make that finding in the broader context of a holding, in the

first instance, that there was no owner/subcontractor

relationship between the VPA and CP&O.      Because, under the plain

language of the statute, there was no such relationship, no

discussion of the normal work and governmental entity tests “to

aid with the proper application of Code § 65.2-302(A)” was

necessary. *


        *
       Although the majority states that neither the normal work
test nor the governmental entity test is dispositive, the
majority, nevertheless, applies the governmental entity test to
determine that the work CP&O and Britt were performing was part
of the trade, business or occupation of the VPA. However, the
governmental entity test, like the normal work test, is applied
to determine whether the owner is performing part of its trade,

                                    11
business or occupation through the use of its subcontractor.
See Henderson v. Central Tel. Co., 233 Va. 377, 383-85, 355
S.E.2d 596, 600-01 (1987). Because the VPA did not contract
with CP&O for the performance of any stevedore work, it
necessarily follows that the VPA was not performing part of its
stevedore work through the use of CP&O.
      In determining, initially, whether CP&O and Britt were
performing part of the VPA’s trade, business or occupation, the
majority has allowed the circuit court’s flawed approach to
frame its analysis. Instead of determining whether the VPA
hired CP&O to perform the stevedore services so as to invoke the
provisions of the Act, the circuit court first concluded that
Britt, Parker, and VIT were all performing duties that fell
within VPA’s legislatively mandated responsibilities and were,
thus, VPA’s statutory employees. Having made this finding, the
circuit court then concluded that because CP&O “implicitly
agreed to abide by [the] conditions in the Schedule of Rates,” a
contractual relationship existed between the VPA and CP&O.
Adopting this faulty framework, the majority likewise concludes,
at the outset, that the stevedore work performed by Britt,
Parker, CP&O and VIT was part of the trade, business or
occupation of the VPA. However, this determination cannot, and
should not, be made outside the context of an
owner/subcontractor relationship since the owner cannot be found
to have performed part of its work through the use of another
person with whom it has not contracted for execution of that
work.



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