PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and Agee,
JJ., and Stephenson, S.J.

PATRICIA CROCKER
                                           OPINION BY
v.   Record No. 060469  SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
                                        January 12, 2007
RIVERSIDE BRICK & SUPPLY COMPANY, INC.


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                     Theodore J. Markow, Judge

      The sole issue in this appeal is whether the trial court

erred in ruling that the plaintiff's personal injury action was

barred pursuant to the Virginia Workers' Compensation Act, Code

§ 65.2-100, et seq. (the Act).

                                  I

      Patricia M. Crocker filed in the Circuit Court of the City

of Richmond a motion for judgment against Riverside Brick &

Supply Company, Inc. (Riverside), alleging that she had

sustained severe injuries that had been proximately caused by

the negligence of Riverside's employees.   Riverside filed a plea

in bar, asserting that the trial court lacked subject matter

jurisdiction because Crocker's claim was barred by Section 65.2-

302 of the Act.    The trial court ruled that Crocker, at the time

of her injury, was the statutory employee of Riverside and,

therefore, her sole right and remedy was under the Act.

Accordingly, the trial court sustained Riverside's plea and
dismissed the motion for judgment.    We awarded Crocker this

appeal.

                                II

     Riverside is in the business of selling masonry materials.

Riverside purchased from Van Sant Equipment (Van Sant) stone

that was to be delivered on pallets.   Van Sant hired Jevic, a

shipping company, to deliver the stone to Riverside.   Crocker

was employed by Jevic as a tractor-trailer driver.

     On November 19, 2002, Crocker drove a tractor-trailer with

a load of stone to Riverside's facility.   When she arrived at

Riverside's delivery yard, she was met by Charlie W. Weeks, a

Riverside employee, and he told her where to park.

     Riverside did not have a loading dock, and it was very rare

for materials to be delivered to Riverside by tractor-trailer.

On the rare occasion that a delivery was made by tractor-

trailer, the truck driver ordinarily moved the freight to the

trailer's tailgate using a device called a "pallet jack."   It

was unusual for a tractor-trailer to arrive without a pallet

jack, but Crocker did not have one.

     Weeks told Crocker that Riverside's employees would remove

the pallets after they were dragged by a forklift to the

trailer's tailgate.   From the tailgate, the pallets would be




                                 2
lifted off the trailer by another forklift located on the
          ∗
ground.

     In order to drag the pallets to the tailgate, each pallet

needed to be hooked by a strap attached to a forklift.   Weeks

testified that he told Crocker that she would have to attach the

strap hook to each pallet because Riverside employees were not

allowed to go inside the trailer and that Crocker agreed to

attach the strap.   Weeks, however, also testified that it was

his responsibility to get the trucks unloaded and that, most of

the time, he did it himself.   Crocker testified that "the

company that we deliver to is supposed to unload the freight,

because [Jevic] said all we're supposed to do is . . . back up

to the dock, and [Riverside is] supposed to, with a forklift,

take the pallets off."

     Nevertheless, Crocker attached the strap hook to each of

the pallets in the Jevic trailer.    She would then stand aside as

Weeks, operating a forklift, dragged each pallet to the tailgate

so that it could then be lifted off the trailer by another

forklift, also operated by a Riverside employee. When the next-

to-the-last pallet was to be unloaded, Crocker informed Weeks

that there was a height change in the trailer's floor that would

prevent the pallet from readily sliding across the floor, and


     ∗
       If Riverside had had a loading dock, the pallets of stone
could have been unloaded by a forklift.

                                 3
she told Weeks to wait for her to exit the trailer before

dragging the pallet.

     Crocker attached the strap hook to the pallet and

immediately moved away from it and toward the trailer's

tailgate.   Weeks, however, did not wait, and, before Crocker

could exit the trailer, a board broke from the pallet, flew

through the air, and hit her.

     Notwithstanding its judgment, the trial court found that

"the parties agree that it was the responsibility of Riverside

employees to remove pallets from the delivery truck. . . .

Delivering to Riverside[] . . . was the only responsibility of

Ms. Crocker as an employee of Jevic."   The trial court made no

finding that any contractual obligation existed for Jevic,

through its employee Crocker, to assist in unloading the

trailer.

                                III

     The Act, in Code § 65.2-307, prohibits an employee from

maintaining a tort action against his employer for an injury

sustained during the course of his employment.   An injured

employee also is precluded from bringing a personal injury

action against a party, who is not his employer, if that party

is deemed to be his "statutory employer."

     Code § 65.2-302(A) sets forth the test for determining

whether a party qualifies as a statutory employee as follows:


                                 4
          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.

Pursuant to Code § 65.2-307, the rights and remedies under the

Act "shall exclude all other rights and remedies."      The only

exception to this exclusivity provision is contained in Code

§ 65.2-309(A), which permits an injured employee to maintain an

action against an "other party."       An "other party" is "a

stranger to the trade, occupation, or business in which the

employee was engaged when he was injured."      Peck v. Safway Steel

Products, Inc., 262 Va. 522, 525, 551 S.E.2d 328, 329 (2001).

     Riverside contends that Crocker, at the time of her injury,

was engaged in an essential part of its trade, business, or

occupation.   The trial court agreed, stating that "[r]emoving

the product was the responsibility of Riverside, and Ms.

Crocker's assistance in the removal qualified her as Riverside's

statutory employee."

     We have decided many cases regarding the delivery of

various materials, and two of these cases have facts that are

strikingly similar to the facts in the present case.      The more

recent case is Stevens v. Ford Motor Co., 226 Va. 415, 309


                                   5
S.E.2d 319 (1983), and the other is Buffalo Shook Co. v.

Barksdale, 206 Va. 45, 141 S.E.2d 738 (1965).

       In Stevens, the plaintiff was a truck driver employed by a

freight line company.   The plaintiff was injured while

delivering automobile parts to a plant operated by Ford Motor

Company (Ford).   When the plaintiff arrived at the Ford plant,

he found that Ford's loading dock was not in alignment with the

truck's bed.   He, therefore, asked a Ford forklift operator to

raise the dock leveler (a ramp connecting the truck bed to the

facility's loading dock) by using his forklift so the trailer

could be unloaded.   Instead of using his forklift, the Ford

employee directed an unknown man to assist the plaintiff.    While

the plaintiff and the unknown man were trying to raise the

leveler by hand, the leveler fell on the plaintiff's foot.     The

plaintiff received workers' compensation benefits from his

employer for his injuries.   226 Va. at 417-19, 309 S.E.2d at

320-22.

       The plaintiff then filed a tort action against Ford, which

Ford contended was barred by the Act.   Id. at 417, 309 S.E.2d at

320.   We held that the plaintiff was not Ford's statutory

employee, even though the plaintiff endeavored to assist in the

unloading, because unloading the freight was the sole

responsibility of Ford.   The plaintiff was not engaged in Ford's

trade, business, or occupation and, thus, could maintain the


                                  6
action against Ford, who was an "other party."      Id. at 420, 309

S.E.2d at 322.

     In Buffalo Shook Co., the plaintiff was a truck driver

employed by Glen H. Bolt to deliver a load of lumber to Buffalo

Shook Company (Buffalo Shook).   Bolt was a sawmill operator, and

Buffalo Shook was engaged in manufacturing tobacco hogsheads and

pallets from lumber purchased from Bolt and others.      The

plaintiff's only duties were to drive the delivery truck and

loosen chains so the lumber could be unloaded by Buffalo Shook.

At the request of a Buffalo Shook employee, however, the

plaintiff assisted with the operation of a forklift used to take

the lumber from the truck and was injured.      206 Va. at 46-47,

141 S.E.2d at 740.

     The plaintiff received workers' compensation benefits for

his injuries.    Id. at 47, 141 S.E.2d at 740.     He also filed a

personal injury action against Buffalo Shook and one of its

employees (the Defendants).   The Defendants contended that the

plaintiff was precluded from maintaining the action because

neither defendant was an "other party" as defined by the Act.

Id. at 46-47, 141 S.E.2d at 740.       In holding that the plaintiff

could maintain the action, we said the following:

     Here [the plaintiff] was engaged in the business of
     Bolt, which was the sawmill business. Bolt sold
     lumber from his sawmill to Buffalo Shook and delivered
     it on the latter's premises on a truck driven by [the
     plaintiff]. It was not a part of the trade, business


                                   7
     or occupation of Bolt to unload the truck. When [the
     plaintiff] undertook to help he was not engaging in
     the trade, business or occupation of Bolt and
     defendants did not thereby become engaged in the
     business of Bolt, but were clearly "other parties,"
     strangers to the business of Bolt.

Id. at 48, 141 S.E.2d at 741.

     We conclude that Stevens and Buffalo Shook Company are

virtually indistinguishable from the present case and hold,

therefore, that Riverside is an "other party" within the meaning

of the Act.    In the present case, Crocker was not Riverside's

statutory employee because, even though she endeavored to assist

in unloading the pallets of stone, the unloading of the freight

was the sole responsibility of Riverside.   Crocker was engaged

only in the business of Jevic, which was under no duty or

obligation to Riverside to unload the trailer, and therefore was

not engaged in the trade or business of Riverside.   Accordingly,

Crocker is not precluded by the Act from maintaining her tort

action against Riverside.

                                 IV

     For the foregoing reasons, the trial court's judgment will

be reversed, and the case will be remanded for further

proceedings.

                                             Reversed and remanded.




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