Compton-Waldrop v. City of Virginia Beach Police Department ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Bray
Argued at Norfolk, Virginia
JOYE ANNETTE COMPTON-WALDROP, DECEASED
OPINION BY
v. Record No. 2385-94-1 JUDGE SAM W. COLEMAN III
NOVEMBER 14, 1995
CITY OF VIRGINIA BEACH POLICE DEPARTMENT
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Michael A. Kernbach for appellant.
Charles B. Miller, Assistant City Attorney
(Office of the City Attorney, on brief),
for appellee.
In this workers' compensation appeal, the commission denied
death benefits under Code § 65.2-512 to the statutory beneficiary
of Joye Annette Compton-Waldrop, deceased. The commission held
that the decedent was not an employee of the City of Virginia
Beach Police Department as defined by Code § 65.2-101
("Employee") of the Workers' Compensation Act (Act). The
claimant contends that Compton-Waldrop was an employee of the
City under the "emergency employee" doctrine because she had been
"deputized" to assist an auxiliary police officer with an
emergency rescue. We hold that because the City of Virginia
Beach had passed a resolution extending its workers' compensation
coverage to members of its auxiliary police force, when Compton-
Waldrop was required to assist the auxiliary police officer in
the rescue, she became an ad hoc member of the auxiliary police
force and thereby became an "employee" under the Act by virtue of
Code § 65.2-101 ("Employee") Subsection (1)(l). Accordingly, we
reverse the commission and remand the claim for entry of an award
in accordance with this holding.
Joye Annette Compton-Waldrop worked as a restaurant manager.
After an evening shift, she and a co-worker, Martin Egert, drove
several employees home. Thereafter, Compton-Waldrop and Egert
witnessed a serious two-car collision. They stopped and began
rendering assistance to the injured occupants of the wrecked
vehicles. While doing so, a City of Virginia Beach Auxiliary
Police officer, George W. Starr, arrived and took control of the
accident scene. 1
Initially, Officer Starr ordered everyone to the side of the
roadway. Moments later, however, he directed Egert, Compton-
Waldrop, and another gentleman to assist him. He told Egert to
direct the headlights of his car to illuminate the accident scene
and then to take a flashlight and reflective vest to alert
oncoming drivers of the accident. Officer Starr told Compton-
Waldrop to assist him with an injured person lying in the roadway
who appeared confused. Officer Starr said to Compton-Waldrop,
"Ma'am come here, I need some help with this man." Compton-
1
Code §§ 15.1-159.2(A) and 15.1-159.5 define the authority
of auxiliary police officers. Code § 15.1-159.2(A) provides that
an auxiliary police officer, "when called into service . . .
shall have all the powers and authority and all the immunities of
constables at common law." Although the record does not
specifically address whether Officer Starr had been "called into
service" by the City of Virginia Beach at the time, he was in
uniform, and it appears from the record that the parties do not
dispute that Starr was in service as an auxiliary officer.
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Waldrop responded and went onto the traveled portion of the
highway to assist the officer. As Egert was walking up the
roadway, a car sped past him and struck Compton-Waldrop and
Officer Starr, killing both.
Whether a person is an employee under the Workers'
Compensation Act is a question of law, reviewable on appeal.
Humphries v. Thomas, 244 Va. 571, 574, 422 S.E.2d 755, 756
(1992). Because the right to recover under the Act is purely
statutory, the legislature has exercised its authority to define
who is and who is not an employee. Code § 65.2-101 ("Employee");
see Barksdale v. H.O. Engen, Inc., 218 Va. 496, 498-99, 237
S.E.2d 794, 796 (1977). Code § 65.2-101 defines the term,
"Employee" in subsection (1)(1) as "[e]very person, including a
minor, in the service of another under any contract of hire or
apprenticeship, written or implied, . . . in the usual course of
the trade, business, occupation or profession of the employer."
In addition to the foregoing general definition, Code § 65.2-101
also identifies specific groups or classes of persons who are
"employees" under the Act. Thus, an individual is covered by the
Act only if he or she qualifies as an "employee" under
subsections 1(b) through (q) or is in the service of another
under a written or implied contract of hire or apprenticeship in
the usual course of the employer's trade, business, occupation or
profession.
The claimant contends that Compton-Waldrop became an
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employee of Virginia Beach when Officer Starr required that she
assist him in an emergency rescue of an injured motorist. In
invoking the "emergency employee" doctrine, a principle
recognized in a number of jurisdictions, see, e.g., State ex rel.
Nienaber v. District Court of Ramsey County, 165 N.W. 268, 268
(Minn. 1917), she argues that Officer Starr made Compton-Waldrop
a deputy subject to his command and control. See also 1B Arthur
Larson, The Law of Workmen's Compensation § 47.42(c) (1995);
Annotation, Implied Authority of Servant to Employ Another in
Emergency So As to Create Relation of Master and Servant, 76
A.L.R. 963, 971(c) (1932). Consequently, because the power to
control a person's actions is the most significant factor in
defining a master-servant or employment relationship, Intermodal
Servs., Inc. v. Smith, 234 Va. 596, 601, 364 S.E.2d 221, 224
(1988), Compton-Waldrop became a deputy, and thus, an employee
under Code § 18.2-463 and the doctrine of posse comitatus.
Code § 18.2-463 provides that if a person, on being required
to assist a law enforcement officer, refuses or neglects to
assist in any case of rescue, the person shall be guilty of a
Class 2 misdemeanor. The statute is founded in the common law
doctrine of posse comitatus.
[A]s in the days of Edward I, the citizenry
may be called upon to enforce the justice of
the state, not faintly and with lagging
steps, but honestly and bravely and with
whatever implements and facilities are
convenient and at hand.
Babington v. Yellow Taxi Corp., 164 N.E. 726, 727 (N.Y. 1928).
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This power of the sheriff, or his deputy,
to summon aid in a proper case, in enforcing
the criminal laws, is not open to question.
It is of ancient origin and in the early days
of our country's growth often was exercised.
More recently, with the organization in
almost every state of state-wide police
agencies and the development in each county
of the various states of a larger and better
integrated sheriff's force, the occasion for
resorting to the posse comitatus has
diminished greatly. Nevertheless, the power
is there. The sheriff may make the call and
the citizen will ignore it at his peril.
Eaton v. Bernadillo County, 128 P.2d 738, 742 (N.M. 1942).
The commission made no factual finding about whether Starr
ordered Compton-Waldrop to assist him in the emergency rescue.
However, the evidence proves, at a minimum, that Officer Starr
required the three bystanders to assist him in securing the
accident scene and in attempting to rescue the injured motorist.
Thus, we find that Compton-Waldrop was required to assist
Officer Starr subject to penalty under Code § 18.2-463 and,
therefore, became an ad hoc member of the auxiliary police force.
Although Compton-Waldrop was legally obligated under
Code § 18.2-463 to assist the rescue effort and was an ad hoc
member of the auxiliary police force, the fact that Officer Starr
could control her actions does not alone render her an employee
of Virginia Beach for purposes of the Workers' Compensation Act.
The purpose of the Workers' Compensation Act is to compensate an
"employee" who is injured during and as a result of the
employment, in an amount based upon a portion of the injured
employee's average weekly wage. "Generally, 'a person is an
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employee if he works for wages or a salary and the person who
hires him reserves the power to fire him and the power to
exercise control over the work to be performed.'" Intermodal,
234 Va. at 601, 364 S.E.2d at 224 (quoting Richmond Newspapers v.
Gill, 224 Va. 92, 98, 294 S.E.2d 840, 843 (1982)). Whether a
person is an "employee" depends upon whether the person meets the
definition under the Act, not whether the person satisfies a
common-law definition of master-servant as a result of
Code § 18.2-463 or the doctrine of posse comitatus.
Charlottesville Music Ctr., Inc. v. McCray, 215 Va. 31, 34, 205
S.E.2d 674, 677 (1974). A person may be an employee under the
Act based upon an "implied" contract of hire, Code § 65.2-101
("Employee") (1)(a); however, if no contract to pay wages for
"hire" can be implied from the facts, a person is not an
"employee" under Subsection (1)(a).
Compton-Waldrop had no expectation that she would be
compensated for her services. "[E]xcluded from the definition of
'employees' [are] workers who neither receive nor expect to
receive remuneration of any kind for their services."
Charlottesville Music 215 Va. at 35, 205 S.E.2d at 678. Thus,
Compton-Waldrop was not an "employee" based upon an implied
contract for hire under Subsection (1)(a) of Code § 65.2-101. If
Compton-Waldrop was an "employee" under another provision of the
Act, only Subsection (1)(l) is potentially applicable.
Code § 65.2-101 ("Employee") (1)(l) provides that for
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purposes of the Act, "volunteer lifesaving or rescue squad
members, . . . auxiliary or reserve police . . . shall be deemed
employees . . . if the [local] governing body of such political
subdivision . . . has adopted a resolution acknowledging" that
coverage under the Act shall be extended to them. Id. (emphasis
added). Virginia Beach has adopted such a resolution, which
states in part:
Sec. 2-4. Recognition of police, fire
companies and rescue squads as part
of public safety program.
In gratitude to and in recognition of the
valuable and necessary services performed by
police, fire companies and rescue squads and
the individual members thereof, both
professional and volunteer, which service the
city, the following police agencies and
chartered fire companies and rescue squads
are recognized and acknowledged to be an
integral part of the official public safety
program of the city, and the volunteer
members of these police, and chartered and
nonchartered fire companies and rescue
squads, shall be deemed employees for the
purposes of the Virginia Worker's
Compensation Act:
* * * * * * *
Virginia Beach Auxiliary Police
* * * * * * *
Virginia Beach Rescue Squad, Incorporated
Subsection (1)(l) of Code § 65.1-101 ("Employee") enables
local governing bodies to adopt a resolution extending workers'
compensation benefits to members of volunteer rescue squads or
auxiliary police forces, who serve the public without
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compensation. These persons become "employees" at the locality's
option. Virginia Beach adopted such a resolution extending
coverage to members of the auxiliary police force, even though
these "employees" receive no weekly wage or have no expectation
of remuneration.
We hold that when Officer Starr required Compton-Waldrop to
assist him with the emergency rescue, thereby placing her in
harm's way, she became an ad hoc member of the Virginia Beach
Auxiliary Police Department, and, therefore, because Virginia
Beach had passed a resolution extending workers' compensation
benefits to members of the Virginia Beach Auxiliary Police,
Compton-Waldrop was an "employee" under the Act. Accordingly, we
remand the claim to the commission for entry of an award in
accordance with the Act.
Reversed and remanded.
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