                    COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Fitzpatrick and Annunziata
Argued at Richmond, Virginia


RICHFOOD, INC.
                                                 OPINION BY
v.     Record No. 0512-97-2             JUDGE ROSEMARIE ANNUNZIATA
                                              NOVEMBER 10, 1997
ROBERT RAGSDALE


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            R. Ferrell Newman (Thompson, Smithers,
            Newman & Wade, on brief), for appellant.
            Martha L. Bond (Earl J. Gee; McEachin &
            Gee, P.C., on brief), for appellee.



       Richfood, Inc. (Richfood) appeals the decision of the

commission, finding Robert Ragsdale (claimant) to be a statutory

employee of Richfood and, thus, qualified for benefits under the

Act.   For the reasons that follow, we affirm.

       Claimant operates his own trucking business as a sole

proprietor and is uninsured for workers' compensation purposes.

On March 2, 1993, claimant operated his truck under contract with

Perdue, Inc. to deliver turkeys from Perdue's plant to Richfood's

facility in Mechanicsville, Virginia.   While unloading the Perdue

turkeys at Richfood's warehouse, claimant was struck and injured

by a pallet jack operated by a Richfood employee.

       Claimant filed suit against Richfood in the Circuit Court of

the City of Richmond, alleging common law negligence against

Richfood under a theory of respondeat superior.    In response,

Richfood filed a "Plea of Worker's [sic] Compensation," alleging
that claimant "was a statutory employee of Richfood at the time

of the accident, [thus barring] his action against Richfood . . .

[under] the applicable provisions of the Worker's [sic]

Compensation Act."    The trial court sustained Richfood's plea,

finding that the Act barred claimant's action at law and that

Richfood "will cover any injuries sustained by [claimant]."

Claimant did not appeal this ruling.

        Claimant then pursued a claim before the Virginia Workers'

Compensation Commission, which Richfood defended on the ground

that claimant was not its statutory employee at the time of the

accident.    Richfood's defenses were sustained by the deputy

commissioner but reversed by the full commission.    The commission

found that claimant was a statutory employee of Richfood at the

time of the accident and, furthermore, that Richfood was estopped

from asserting otherwise.
        The issues on appeal are (1) whether, by virtue of the final

order of the Circuit Court of the City of Richmond barring

claimant's action at law on the ground that he was the statutory

employee of Richfood, an order which was granted upon Richfood's

motion, Richfood is estopped from now asserting otherwise; and

(2) if not, whether claimant qualifies as a statutory employee. 1


    1
     There is no dispute that claimant suffered an "injury by
accident" within the meaning of the Act and that, at the time the
injury was sustained, claimant was engaged in a function normally
performed by Richfood employees in the course of Richfood's
business.



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                                I.

     It is well settled that in successive actions between two

parties, "a party will not be permitted to maintain inconsistent

positions or to take a position in regard to a matter which is

directly contrary to, or inconsistent with, one previously

assumed by him."   28 Am. Jur. 2d Estoppel and Waiver § 68 (1966);

see also Brown v. Lawson Transp. Corp., 7 Va. App. 679, 681, 377

S.E.2d 136, 137 (1989).   Whether Richfood is judicially estopped

from asserting claimant is not its employee for purposes of

entitlement under the Workers' Compensation Act (Act) is a mixed

question of law and fact, fully reviewable by this Court.
Sinclair v. Shelter Constr. Co., 23 Va. App. 154, 156-57, 474

S.E.2d 856, 857-58 (1996) (citing City of Waynesboro v. Harter, 1

Va. App. 265, 269, 337 S.E.2d 901, 903 (1985)).

     It is clear that Richfood defended against claimant's civil

action for negligence by advancing a pleading denominated "Plea

of Worker's [sic] Compensation".       Seeking to have claimant's suit

dismissed, Richfood contended claimant's "sole remedy," as

Richfood's "statutory employee," was under the "applicable

provisions" of the Act.   Before the commission, Richfood argued

claimant was not its statutory employee, a position which, on its

face, appears precluded under the doctrine of judicial estoppel.

     To avoid the reach of the doctrine, however, Richfood argues

that while claimant "was, in fact, its statutory employee as

regards the tort claim[,] . . . Richfood's obligation to pay



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benefits to the claimant depends on whether he qualifies under

the specific provisions of the Act."   In other words, a

"statutory employee" whose status as such deprives the circuit

court of jurisdiction to hear a civil negligence case is not

necessarily a "statutory employee" for the purposes of

determining benefits entitlement under the Act. 2

     Richfood's position before the commission requires treating

claimant's "employee" status as transformed to that of

"subcontractor."   Building from that unexplained premise,

Richfood argued that claimant's claim under the Act was governed

by the dictates of Code § 65.2-302(A) and, accordingly, should
                                         3
have been dismissed by the commission.       Implicit in the position
     2
      To establish an estoppel in judicial proceedings, one must
prove by "clear precise and unequivocal evidence that it should
be invoked." Brown, 7 Va. App. at 681, 377 S.E.2d at 137. Among
those elements which must be established are "1) the inconsistent
position first asserted must have been successfully maintained;
2) a judgment must have been rendered; 3) the positions must be
clearly inconsistent; 4) the parties and questions must be the
same; 5) the party claiming estoppel must have been misled and
have changed his position; and 6) it must appear unjust to one
party to permit the other to change." 28 Am. Jur. 2d Estoppel
and Waiver § 70 (1966). With the exception of the claim that
different questions were raised in each forum, neither the
failure to establish the factual predicates nor to meet the
burden of proof is before us on appeal.
     3
      Code § 65.2-302 provides:

          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



                                  4
advanced before the commission is Richfood's contention that

judicial estoppel has no applicability here because the

concession that claimant was its statutory employee in the tort

action does not control the definition of "employee" under Code

§ 65.2-302(A).

     We find no merit in Richfood's contention that the

commission erroneously found that Richfood was judicially

estopped from asserting that claimant was not an employee

entitled to coverage under the Act.   Richfood's reliance on Code

§ 65.2-302 is misplaced, as construction of the statutory

provision is not at issue here.   We focus instead on the estoppel

effect of Richfood's conduct in the court proceeding.
      In defending the tort action in the circuit court based on

claimant's status as "statutory employee," Richfood, a fortiori,

postured itself as claimant's "statutory employer."   As

claimant's statutory employer, Richfood effectively conceded it

is fully liable under the Act.    Code § 65.2-302; see, e.g., Sites
Constr. Co. v. Harbeson, 16 Va. App. 835, 837, 434 S.E.2d 1, 2

(1993).   Indeed, the effect of Richfood's position before the

circuit court on the issue of liability was to claim that no

distinction should be made between its liability to its direct

employees under the Act, and its liability to claimant, its


           pay 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
"statutory employee."   Such is the effect of the term of art,

"statutory employee," a term it freely employed in defeating

claimant's tort action.   See Baker v. Nussman & Cox, 152 Va. 293,

302, 147 S.E. 246, 249 (1929) (This section of the Code regarding

statutory employer "made [statutory employees] eligible to

compensation just as the employees of the owner or contractor are

eligible under the definition of employees as defined [elsewhere

in the Code].").   To sustain such a distinction in claimant's

status before the commission would be manifestly inconsistent

with Richfood's prior representations before the trial court.

Claimant, relying on the legal posture Richfood assumed before

the trial court, noted no appeal of the court's decision and

submitted his claim for benefits under the Workers' Compensation

Act, as Richfood had invited.
     Finally, the argument Richfood posits would be inimical to

the purpose of the Act: to provide the exclusive remedy for

injured employees.   The Act precludes double recovery, both in an

action at law and pursuant to claim under the Act; Richfood seeks

the converse of the axiom, a double avoidance of liability.

      The decision of the commission is accordingly affirmed.
                                                        Affirmed.




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