                               UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                               No. 06-2051



WILLIAM G. MEREDITH,

                                                Plaintiff - Appellant,

             and


OAKLEY TANK LINES, INCORPORATED, as Subrogee
of William G. Meredith,

                                                            Petitioner,


             versus



HONEYWELL INTERNATIONAL, INCORPORATED,

                                                 Defendant - Appellee.


Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:06-cv-00148-HEH)


Submitted:    August 6, 2007                 Decided:   August 23, 2007


Before MOTZ and SHEDD, Circuit Judges, and WILKINS, Senior Circuit
Judge.


Affirmed by unpublished per curiam opinion.
David L. Epperly, Jr., EPPERLY & FOLLIS, P.C., Richmond, Virginia,
for Appellant. John D. Epps, Alexandra B. Cunningham, HUNTON &
WILLIAMS LLP, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                              - 2 -
PER CURIAM:

            William   G.     Meredith    appeals    the    district   court’s

dismissal pursuant to Fed. R. Civ. P. 12(b)(1), of his personal

injury     tort   action     against    Honeywell    International,      Inc.

(“Honeywell”), on the ground that the action was barred by the

exclusivity provision of the Virginia Workers’ Compensation Act,

Code § 65.2-100 et seq. (the “Act”).1           The district court ruled

that at the time of his injury, Meredith was a statutory employee

of Honeywell and, therefore, his sole right and remedy was under

the Act.    For the reasons set forth below, we affirm.

            The   material    facts     of   this   case    are   undisputed.

Honeywell is in the business of manufacturing various products,




     1
      Section 65.2-302(A) of the Act 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 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 [thus rendering
            the worker a “statutory employee” of the
            owner].

The Act excludes all other rights and remedies of such employees,
at common law or otherwise, on account of such injury. See Va.
Code Ann. § 65.2-307.

                                   - 3 -
chemicals,     and    materials,     including     caprolactam2     which     is

transported from Honeywell’s Hopewell, Virginia plant to its Irmo,

South Carolina plant.           Honeywell contracted with Oakley Tank

Services (“Oakley”), other independent companies, and had its own

drivers     hauling    caprolactam       between   plants.      Specifically,

Honeywell contracted with Oakley to transport caprolactam from its

Hopewell plant to its Irmo plant, and then to return to the

Hopewell plant, occasionally carrying a load of “wash water” from

which    Hopewell     would    recover    additional    caprolactam.        Both

Honeywell    drivers     and    contracted    drivers    followed   the     same

procedures when loading caprolactam from the Honeywell plant.                  A

driver parked his truck at a loading station, placed his keys in a

lock box, and provided paperwork to a Honeywell control operator

located in a control room.           The driver could then wait in the

control room while the control operator loaded the truck with

caprolactam.    Upon loading the truck and providing the driver with

completed documentation, the control operator would unlock the lock

box, allowing the driver to retrieve his keys and drive the truck

out of the plant.       Meredith was a truck driver employed by Oakley

and, at the time of his accident, was working the run to transport

caprolactam from the Honeywell Hopewell plant to its Irmo plant.

Meredith     followed    the     above-outlined     procedure     and,    after



     2
      Caprolactam is a chemical intermediate used by Honeywell in
the manufacture of nylon.

                                     - 4 -
presenting his paperwork to the control operator, sat in a chair in

the Hopewell plant control room which collapsed beneath him,

resulting in his alleged injuries.

            The sole issue on appeal is whether the district court

erred in dismissing Meredith’s case pursuant to Fed. R. Civ. P.

12(b)(1), based on its holding that Honeywell was Meredith’s

statutory employer.      In support of his position, Meredith asserts

that: (1) he was not engaged in Honeywell’s trade, business, or

occupation; (2) he was an independent contractor; and (3) Honeywell

was not his statutory employer under the normal work test.

            We find that the district court correctly held that

Meredith’s action was barred by the Act.       It is undisputed that the

transportation of the caprolactam between Honeywell’s Hopewell and

Irmo plants was an essential part of the work that Honeywell

performed   in   the    manufacture   and   processing   of   caprolactam.

Meredith’s job was to effect that transportation. At the time of

his injury, his truck was being unloaded and prepared for the

return trip, he had just presented required documentation to the

control operator, and then attempted to sit in the chair located in

the control room.      The district court found that neither the act of

sitting,3 nor the fact that Meredith was not responsible for the


     3
      We note that it was an     essential part of the entire process
of hauling the material that     the driver complete his paperwork and
wait while his tanker truck      was filled with caprolactam. While
Meredith contends that he        ceased being Honeywell’s statutory
                                                        (continued...)

                                   - 5 -
actual unloading of the product,4 removed Meredith’s activity from

the trade, business, or occupation of Honeywell, and we agree.

Moreover,   as   the   district   court    held,   the   operative   factual

distinctions regarding the relationship between premises owner and

contractor for purposes of the applicability of the Act are whether

the transportation was intra-company, or between two separate

companies, with the former properly being held to be part of the

owner’s trade, business or occupation,5 and whether the product

delivered was independently manufactured, with such products being



     3
      (...continued)
employee while his truck was being refilled from the time he
presented his paperwork until the time he fell, he has offered no
case law to support such a proposition. Indeed, the contention
that Meredith ceased to be a statutory employee of Honeywell while
he was awaiting the filling of his truck is as frivolous as would
be a contention that he ceased being a statutory employee had he
been injured while stopping to catch his breath on his way to
submitting his paperwork, or during the time he was exiting his
truck after pulling into the Hopewell facility. The law does not
provide for such piecemeal differentiation, and we decline to
impose it in this case.
     4
      Citing Conlin v. Turner’s Express, Inc., 331 S.E.2d 453, 455
(Va. 1985) (whether driver assisted in the loading operation not
relevant to the determination of whether the contractor was engaged
in the manufacturer’s trade, business, or occupation).
     5
      Conlin, 331 S.E.2d at 455 (transportation of machinery and
parts between two plants was an “essential element” of the business
and thus the contractor’s activities were part of the “trade,
business or occupation” of the premises owner); Bowling v. Wellmore
Coal Corp., 114 F.3d 458, 461 (4th Cir. 1997) (transportation of
product between owner’s premises and its processing facility held
to be “an essential and integral part of its business”); Smith v.
Horn, 351 S.E.2d 14, 17 (Va. 1986) (transportation of product
between owner’s premises and its processing facility was part of
the contractor’s “trade, business or occupation”).

                                   - 6 -
held       not   to   be   within    the    defendant’s          trade,   business      or

occupation.6          Here,    the   transportation             of   caprolactam       from

Honeywell’s Hopewell plant to its Irmo plant, where the chemical

was processed and used to manufacture nylon, was an integral part

of Honeywell’s “trade, business or occupation” under the plain

language of Va. Code § 65.2-302(A).                Plus, Meredith was not merely

delivering an independently manufactured product to a job site.

Rather, he was transporting material manufactured by Honeywell

between      Honeywell’s      manufacturing         plants,      which    was,    as   the

district court held, an essential part of Honeywell’s business.

                 Nor does the fact that Honeywell had a contract with

Oakley the terms of which provided that Oakley was an independent

contractor,        that    neither   Oakley        nor    its    employees   would      be

considered        Honeywell   employees,       and       that   Oakley    would    obtain

workers’ compensation insurance for its employees, alter the legal

obligations of the respective parties under the Act.                       As properly


       6
      The Virginia Supreme Court consistently has held that there
is no statutory employer/employee relationship where the injured
independent contractor was delivering a third-party’s or the
contractor’s own materials to the job site. See, e.g., Rice v. VVP
America, Inc., 137 F. Supp. 2d 658 (E.D. Va. 2001); Crocker v.
Riverside Brick & Supply Co., 639 S.E.2d 214 (Va. 2007); Stevens v.
Ford Motor Co., 309 S.E.2d 319 (Va. 1983); Burroughs v. Walmont,
Inc., 168 S.E.2d 107 (Va. 1969); Buffalo Shook Co. v. Barksdale,
141 S.E.2d 738 (Va. 1965). See also Clean Sweep Prof’l Parking Lot
Maint., Inc., 591 S.E.2d 79, 83 (Va. 2004) (truck driver employed
by trucking company to deliver asphalt between defendant’s asphalt
plant and its worksite, injured at worksite, was engaged in
essential part of defendant’s work, distinguishing the case from
those where trucking company was “merely delivering its own
independently manufactured parts.”).

                                           - 7 -
noted by the district court, the Act explicitly provides that “no

contract or agreement, written or implied, . . . shall in any

manner operate to relieve any employer in whole or in part of any

obligation created by this title.”         Va. Code Ann. § 65.2-300(A).

Thus, the contract does not protect Honeywell from its obligations

as a statutory employer under the Act, nor does it provide Meredith

with a loophole through which he can circumvent the exclusivity

provisions of the Act.

             Finally, Meredith’s assertion that Honeywell was not his

statutory employer under the “normal work test” espoused by the

Virginia Supreme Court in Shell Oil Co. v. Leftwich, 187 S.E.2d

162, 167 (Va. 1972), is likewise without merit.              While Honeywell

does   not    presently   use   its     direct   employees    to   transport

caprolactam     along   the   precise    interstate   route     followed   by

Meredith, their drivers transport the same chemical, in the same

manner, using the same procedures and equipment, for the same

purpose, between the Hopewell plant and other Honeywell fiber

plants in Virginia.       We find no error in the district court’s

conclusion that there is no legal distinction between the fact that

Meredith transported the caprolactam across state lines, and that

the Honeywell drivers transported the substance within Virginia.

             The facts of this case establish that Honeywell was

Meredith’s statutory employer, and accordingly, his sole remedy was

under the Act.    We therefore affirm the district court’s dismissal


                                   - 8 -
of Meredith’s tort action against Honeywell for lack of subject

matter jurisdiction.         We dispense with oral argument because the

facts   and   legal    contentions    are     adequately   presented    in   the

materials     before   the    court   and     argument   would   not   aid   the

decisional process.



                                                                       AFFIRMED




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