Virginia: Real Estate Developer Is Subject to Wrongful Death Action for Contractor’s Employee

In a split decision, the Supreme Court of Virginia held that the trial court erred when it sustained a plea in bar and dismissed a wrongful death action filed against a property owner by the estate of a general contractor’s employee who was killed in a construction accident.  The majority held that in order to be immune from the suit, the deceased employee must have been engaged in the “trade, business or occupation” of the owner under Va. Code Ann. § 65.2-302(A).  The majority indicated the decedent’s construction work was not part of the owner’s trade or business, which was to develop real estate.  The owner was not, therefore the decedent’s statutory employer and the owner was subject to civil suit.  Two justices joined in a dissent, arguing that the majority had (a) terminated the ability of injured workers to seek workers' compensation from developers like that in the instant case in a manner contrary to the remedial purposes of the Virginia Workers' Compensation Act and (b) exposed such developers to common law tort liability that was completely at odds with applicable statutory and case law.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.

See Rodriquez v. Leesburg Business Park, 2014 Va. LEXIS 25 (Feb. 27, 2014) [2014 Va. LEXIS 25 (Feb. 27, 2014)]

See generally Larson’s Workers’ Compensation Law, § 111.04 [111.04]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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