PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Kinser, and
Lemons, JJ., and Compton, S.J.

GERALD ANDERSON                             OPINION BY
                                SENIOR JUSTICE A. CHRISTIAN COMPTON
v.   Record No. 003017                   November 2, 2001

GEORGE A. DILLOW, JR., ET AL.


            FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                       Charles E. Poston, Judge

      In this tort action seeking recovery for personal injuries

sustained in a work environment, the sole question is whether

the action is barred by the exclusivity provision of Code

§ 65.2-307 of the Virginia Workers' Compensation Act, §§ 65.2-

100 through -1310 (the Act).

      In April 1997, plaintiff Gerald Anderson, an employee of a

general contractor, Virginia International Terminals (VIT), was

injured by the alleged negligence of defendant George A. Dillow,

Jr., an employee of defendant subcontractor Waste Management

(sued as Waste Management of Hampton Roads and Waste Management

of Virginia, Inc.).   The accident occurred on the premises of

the Norfolk International Terminal (NIT).   Subsequently, the

plaintiff received workers' compensation benefits from his

employer.

      Later, the plaintiff filed this action against Dillow and

Waste Management seeking recovery for personal injuries

sustained in the accident.   In a motion to dismiss pursuant to a
special plea, defendants asserted that the Act barred

plaintiff's common law action because Waste Management was not

an "other party" within the meaning of the Act.

     During a hearing on the motion to dismiss, the trial court

considered a deposition of defendant Dillow; affidavits; answers

to interrogatories; a "Service Agreement" between the owner,

Virginia Port Authority, and VIT; a "Solid Waste Removal and

Disposal" contract between VIT and Waste Management; memoranda

of law; and argument of counsel.

     In a September 2000 letter opinion, the court granted the

motion and sustained the special plea, ruling that the

plaintiff's exclusive remedy was his claim under the Act.   From

a final order entering judgment for the defendants, we awarded

the plaintiff this appeal.

     The law upon the issue presented here is settled and has

been established in the numerous cases arising under the

relevant portions of the Act.   Code § 65.2-307 (formerly § 65.1-

40) provides that the rights and remedies granted by the Act to

an employee, on account of personal injury or death by accident,

exclude all other rights and remedies of such employee, or the

employee's personal representative, at common law or otherwise.

But an exception to the foregoing exclusivity provision is found

in Code § 65.2-309(A) (formerly § 65.1-41).   The statute

provides that such employee, or the personal representative, is


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authorized to maintain an action at law against the tortfeasor

if the wrongdoer is an "other party" within the meaning of

§ 65.2-309.

     Whether a person is subject to the exclusivity provision

presents a mixed question of law and fact that must be resolved

on appeal in light of the facts and circumstances of each case.

Fowler v. Int'l Cleaning Serv., 260 Va. 421, 425, 537 S.E.2d

312, 314 (2000).   When, as here, the facts relevant to this

jurisdictional issue are not in dispute, we must determine

whether the trial court correctly applied the law to those

facts.   Id.

     VIT, the general contractor, is a nonprofit, nonstock

corporation that entered into the Service Agreement with the

Virginia Port Authority to manage, operate, and conduct the

business of NIT, the terminal, for the Commonwealth of Virginia.

NIT is a commercial port whose operations include loading and

unloading commercial freight, storing commercial freight in

warehouses, breaking down freight from shipping containers,

removing shipping material from freight, and general maintenance

of port facilities.

     The general contractor is required to operate and maintain

the terminal so that commercial traffic can be accommodated in a

clean, safe, and orderly manner, and thus ensure that shipping

debris and other generated waste is removed from the terminal.


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According to an affiant, removal of shipping debris and waste

from the port "was an essential part of VIT's business of

operating the port and maintaining NIT in a clean, safe and

orderly manner under the Service Agreement with the Commonwealth

of Virginia."

     In 1986, VIT contracted with Service Disposal Corporation,

an entity acquired by Waste Management in 1988, "to assist in

the maintenance of the port by, among other things, removing

shipping debris and waste" from the terminal.   Upon Waste

Management's acquisition of Service Disposal, Waste Management

assumed those contractual responsibilities.

     Under the contract between VIT (the general contractor) and

Waste Management (the subcontractor), VIT collected shipping

debris and waste at various areas of the terminal and deposited

this shipping debris and waste, which was generated by the

operations and maintenance functions, into containers provided

by Waste Management.   VIT accomplished this activity by using

VIT employees and VIT forklifts to move Waste Management

containers to VIT-designated sites for pick-up by Waste

Management.

     On Monday through Friday of each week, a Waste Management

truck emptied each of the containers located at the VIT-

designated sites throughout the terminal and removed shipping

debris and waste from the terminal premises.    Under the contract


                                 4
between VIT and Waste Management, VIT was responsible for fees

incurred as a result of Waste Management's disposal of VIT's

shipping debris and waste at landfills.

       On the day of the accident in question, the defendant

Dillow was an employee of Waste Management, acting within the

scope of his employment by carrying out Waste Management's

obligations under the VIT-Waste Management contract.    He was

operating a front-loading collection vehicle, and his route

required him to collect shipping debris and waste located in

several Waste Management containers at locations designated by

VIT.   When the accident occurred, Dillow was in the process of

emptying a series of those containers filled with shipping

debris and waste located on 6th Street near Warehouse 6K.      The

number of containers at that location varied from day to day as

VIT routinely would move those containers in and around the port

facilities to accommodate port operations and maintenance.

       At the time of the accident, the plaintiff was operating a

VIT "yard hustler" vehicle on 6th Street and acting within the

scope of his employment as a freight handler for VIT.   The

plaintiff alleges Dillow negligently backed the Waste Management

vehicle into the left side of the hustler, causing the injuries.

       Even though the broad question here is whether the

defendants were "other parties," the precise issue is whether,

at the time of the accident, the defendants were strangers to


                                  5
the trade, business, or occupation in which the plaintiff was

involved.    Whalen v. Dean Steel Erection Co., 229 Va. 164, 167,

327 S.E.2d 102, 104 (1985).    Accord Fowler, 260 Va. at 428, 537

S.E.2d at 315.    See Peck v. Safway Steel Products, Inc., 262 Va.

522, 525, 551 S.E.2d 328, 329 (2001).

     Therefore, applying this "stranger to the work" test, if

defendants were engaged in the trade, business, or occupation of

plaintiff's employer, the trial court was correct and the

plaintiff's common law action is barred.   If, however,

defendants were not so engaged, the trial court erred.    We hold

that the trial court was correct.

     As the trial court determined, in order for VIT, the

plaintiff's employer, to reasonably operate the terminal in a

clean, safe, and orderly manner, the premises had to be kept

free of large quantities of shipping debris and waste generated

daily.   This required collecting the debris and removing it from

the terminal to a landfill.

     At the time of this accident, VIT was responsible for

collecting the debris and waste generated by the operations and

maintenance functions throughout the terminal and depositing the

materials into containers.    VIT could have elected to complete

the effort of removing and disposing of the debris and waste

using its own employees and purchasing and operating its own

equipment.   Instead, VIT chose to subcontract to Waste


                                  6
Management the final part of VIT's own responsibility to

maintain the premises free of debris and waste.

     Therefore, Waste Management's actions in removing the

debris and waste from the terminal and transporting it to

landfills amounted to a continuation and extension of VIT's

effort to operate the port in the clean, safe, and orderly

manner required by the Service Agreement with the Port

Authority.   As the trial court observed, VIT's obligation for

fees Waste Management incurred as the result of disposing the

material at landfills emphasizes VIT's "overarching

responsibility" for maintaining and operating NIT.

     Consequently, removal of debris and waste under these

circumstances cannot be deemed merely incidental to the

operation and maintenance of this terminal facility; to the

contrary, it is an essential and indispensable part of that

business, as the trial court determined.   Thus, Dillow and Waste

Management cannot be considered strangers to VIT's trade,

business, or occupation, and, as such, they are not "other

parties" within the meaning of the Act.    The plaintiff's

exclusive remedy for his accidental injury lies within the

benefits afforded by the Act.

     Accordingly, the judgment of the trial court will be

                                                             Affirmed.




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