Glenwood Edward Johnson v. M S Carriers, Inc., etal ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia
GLENWOOD EDWARD JOHNSON
MEMORANDUM OPINION * BY
v. Record No. 0907-98-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
JANUARY 12, 1999
M S CARRIERS, INC. and
UNINSURED EMPLOYERS' FUND
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
George L. Townsend (Chandler, Franklin &
O'Bryan, on briefs), for appellant.
Thomas G. Bell, Jr. (Timberlake, Smith,
Thomas & Moses, on brief), for appellee M S
Carriers, Inc.
No brief or argument for appellee Uninsured
Employers' Fund.
In this workers' compensation case, Glenwood E. Johnson
(claimant) appeals the commission's decision declining
jurisdiction because employer did not have three or more
employees regularly in service within Virginia. Claimant also
appeals the commission's finding that employer's "all-state"
endorsement provision in its out-of-state workers' compensation
policy did not subject it to the jurisdiction of the commission.
Finding no error, we affirm the commission's decision.
I.
"Under familiar principles, we view the evidence in the
light most favorable to the party prevailing below. The
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
commission's findings of fact will be upheld on appeal if they
are supported by credible evidence." Uninsured Employer's Fund
v. Clark, 26 Va. App. 277, 280, 494 S.E.2d 474, 475 (1998).
So viewed, the evidence established that claimant, a
resident of Virginia, was employed as an over-the-road (OTR)
truck driver for employer beginning on July 19, 1994. While
employer's headquarters is located in Memphis, Tennessee,
claimant drove routes nationwide, including occasional deliveries
in Virginia. Claimant estimated that approximately twice per
month he would unload or pick-up a load in Virginia, although he
was dispatched out of Tennessee.
Employer presented evidence that it is subject to the
workers' compensation laws of Tennessee and that its insurance
policy contains an "all-state" endorsement provision, covering
claims made in states other than Tennessee. Employer concedes
that it has two employees regularly in service in Virginia.
These include Gary Santolla (Santolla), a driver recruiter in
Dublin, Virginia, and an unidentified local driver in Richmond,
Virginia. While the company has several other OTR drivers who
reside in Virginia, these employees are all dispatched from
Tennessee and travel nationwide.
Employer owns terminals in Texas, Tennessee, Georgia, Ohio
and West Virginia. The company does not own any facilities in
Virginia. However, it leases an office building in Dublin, where
Santolla works, and maintains "drop yards" in both Dublin and
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Chester, where no employees work but loads are frequently picked
up and dropped off. More than three OTR drivers use the drop
yards in Virginia.
Based upon this evidence, the commission held that it lacked
jurisdiction over the claim. The commission wrote:
Upon consideration of the cases and from
this record, we find the Deputy Commissioner
correctly determined the Commission does not
have jurisdiction over this claim because the
employer had "regularly in service less than
three employees in the same business within
the Commonwealth" pursuant to Code
§ 65.2-101(2)(h). We agree that "regularly
in service" implies more than occasional
pick-ups and drop-offs or merely driving
through Virginia. We further agree that in
view of this finding, the "all-states"
endorsement carried by the employer on its
workers' compensation policy does not subject
the employer to jurisdiction.
II.
On appeal, claimant contends that the commission erred in
holding that employer had less than three employees regularly in
service within the Commonwealth. He argues that credible
evidence does not support the commission's finding because on any
given day, employer dispatched an OTR driver to unload or pick-up
a load in Virginia. Accordingly, claimant concludes, employer
collectively had three employees working within the Commonwealth.
We disagree.
"[O]nce an employee proves that his or her injury occurred
while employed in Virginia, an employer has the burden of
producing sufficient evidence upon which the commission can find
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that the employer employed less than three employees regularly in
service in Virginia." Craddock Moving & Storage Co. v. Settles,
16 Va. App. 1, 2, 427 S.E.2d 428, 429 (1993), aff'd per curium,
247 Va. 165, 440 S.E.2d 613 (1994).
"Whether a person is an ``employee' and whether an employer
has three or more employees ``regularly in service' are pivotal
determinations in deciding if an employer is subject to the Act."
Cotman v. Green, 4 Va. App. 256, 258, 356 S.E.2d 447, 448 (1987).
Both full-time and part-time employees who are regularly
employed to carry out the trade or business of the employer must
be counted in determining the number of employees "regularly in
service" to employer. See id. at 258-59, 356 S.E.2d at 448.
"[A]ny person hired by the employer to work in the usual course
of the employer's business is an ``employee' under the Act
regardless of how often or for low long he may be employed. Id.
at 258, 356 S.E.2d at 448 (citing Hoffer Bros. v. Smith, 148 Va.
220, 226, 138 S.E. 474, 476 (1927)).
In the present case, credible evidence supports the
commission's finding that employer did not fall within the
purview of the Act. It is undisputed that employer has two
employees, Santolla and an unidentified local driver, who work on
a regular basis within the Commonwealth. However, the other
various OTR drivers, delivering loads in Virginia and stopping at
the "drop yards" on any given day, do not constitute the third
necessary employee. We conclude that this evidence is not
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sufficient to establish the required basis of regularity of a
single employee under the Act. Like the commission, we agree
that "``regularly in service' implies more that occasional
pick-ups and drop-offs or merely driving through Virginia."
Accordingly, we affirm the commission's decision. 1
Affirmed.
1
Claimant also argues that employer's insurance policy
containing an "all-state" endorsement provision subjects employer
to the jurisdiction of the commission. This argument is without
merit. The "all-state" endorsement does not create an obligation
in Virginia, and employer is not required to maintain coverage
since it did not have three employees regularly in service in
Virginia. See Thompson v. Graebel Van Lines, No. 0676-88-4 (Va.
Ct. App. Mar. 16, 1989).
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