City of Virginia Beach Police Department v. Compton-Waldrop

Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and
Keenan, JJ., and Poff, Senior Justice
CITY OF VIRGINIA BEACH POLICE DEPARTMENT
OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR.
v. Record No. 952224
November 1, 1996
JOYE ANNETTE COMPTON-WALDROP, DECEASED
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we decide whether a person, at the time she
was killed, was an employee of the City of Virginia Beach within
the definition of the Virginia Workers' Compensation Act, Code
§ 65.2-100 et seq. (the Act), and thus entitled to benefits.
I
Joye Annette Compton-Waldrop was killed while rendering
assistance at the scene of an automobile accident. Her estate
filed a workers' compensation claim for death benefits against
the City of Virginia Beach Police Department (the Department).
The Workers' Compensation Commission (the Commission) denied the
claim, concluding that Compton-Waldrop was not an employee of the
Department when she was killed. The Court of Appeals, however,
reversed the Commission's decision and remanded the claim to the
Commission. Compton-Waldrop v. Virginia Beach Police, 21 Va.
App. 255, 463 S.E.2d 675 (1995). In doing so, the Court of
Appeals held 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 [a City] auxiliary police officer in [a]
rescue, she became an ad hoc member of the [City's] auxiliary
police force and thereby became an ``employee' under the Act." 21
Va. App. at 258, 463 S.E.2d at 676.
Having determined that the decision involves a matter of
significant precedential value, Code § 17-116.07(B), we awarded
the Department an appeal.
II
The facts are undisputed. In the early morning of August
31, 1991, Compton-Waldrop and a co-worker, Martin John Egert,
III, left their employment at a restaurant. While travelling
eastbound along Route 44 in the City of Virginia Beach, they
witnessed a serious, two-car collision. Egert, the driver,
stopped his vehicle at the accident scene, and he and Compton-
Waldrop began to render assistance to the injured. While they
were doing so, George W. Starr, a City auxiliary police officer,
arrived and "took charge" of the accident scene. Although Starr
was not on duty, he was in uniform and displayed his badge.
At first, Starr ordered everyone to the side of the highway.
Shortly thereafter, however, he asked Egert to turn his vehicle
around to face oncoming traffic and to shine the vehicle's
headlights on the accident scene. Starr also asked Egert to take
a flashlight and a reflective vest in order to alert oncoming
drivers. Egert complied with Starr's requests.
Starr, saying, "Ma'am, come here, I need some help with this
man," then engaged Compton-Waldrop to assist him with an injured
man lying in the highway. As Compton-Waldrop responded by
entering the highway, a vehicle approached the accident scene at
- 2 -
high speed. The vehicle struck and killed both Compton-Waldrop
and Starr.
III
In reaching its decision, the Court of Appeals made two
holdings to which the Department has assigned error. First, the
Court held that, by virtue of Code § 18.2-463 1 and the doctrine
of posse comitatus, Compton-Waldrop "became an ad hoc member of
the [City's] auxiliary police force." 21 Va. App. at 260, 463
S.E.2d at 677-78. The Court also held that Compton-Waldrop, as
an auxiliary police officer, was an "employee" under the Act,
and, therefore, her estate is entitled to workers' compensation
benefits. Id. at 262-63, 463 S.E.2d at 678-79.
As the Court of Appeals aptly noted, in the context of the
present case, "[w]hether 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." 21 Va. App. at 261, 463 S.E.2d at 678. Therefore,
we need not express an opinion with respect to the Court's first
holding.
1
Code § 18.2-463 provides as follows:
If any person on being required by any sheriff or
other officer refuse or neglect to assist him: (1) in
the execution of his office in a criminal case, (2) in
the preservation of the peace, (3) in the apprehending
or securing of any person for a breach of the peace, or
(4) in any case of escape or rescue, he shall be guilty
of a Class 2 misdemeanor.
- 3 -
IV
In holding that Compton-Waldrop was an employee under the
Act, 2 the Court of Appeals relied upon subsection (1)(l) of the
definition of "employee" set forth in Code § 65.2-101. Id. at
261-62, 463 S.E.2d at 678. Subsection (1)(l) provides that the
Act shall apply to "volunteer firefighters . . . [and] auxiliary
or reserve police . . . if the governing body of [the] political
subdivision . . . has adopted a resolution acknowledging" that
coverage under the Act shall be extended to such persons. Thus,
subsection (1)(l) empowers local governing bodies to extend
workers' compensation benefits to persons who serve without
compensation, such as members of volunteer fire departments and
auxiliary police forces.
The City's council has adopted such a resolution. City Code
§ 2-4 states, in pertinent part, the following:
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:
. . .
2
The Court of Appeals also held that Compton-Waldrop was not
an "employee" under the Act based upon an implied contract for
hire because she neither received nor expected to receive payment
for her services. 21 Va. App. at 261, 463 S.E.2d at 678.
Compton-Waldrop has not assigned cross-error to this ruling.
- 4 -
Virginia Beach Auxiliary Police
(Emphasis added.)
The Court of Appeals concluded that, because the City had
extended workers' compensation benefits to members of the City's
auxiliary police force, Compton-Waldrop was an "employee" under
the Act and, thus, entitled to workers' compensation benefits.
Id. at 263, 463 S.E.2d at 679. We do not agree.
The City, in Code § 27-4, set forth how one becomes an
auxiliary police officer. Code § 27-4 provides that
[t]he chief of police is hereby authorized to appoint
auxiliary police officers as he deems necessary, not to
exceed one hundred (100) in number. The chief of
police, with the approval of the city manager, shall
make rules and regulations concerning the operation of
the auxiliary police officers, their uniforms, arms,
other equipment and training. Such rules and
regulations shall be subject to ratification by the
council.
We think that Compton-Waldrop, not having been appointed an
auxiliary police officer by the City's chief of police, was not a
member of the City's auxiliary police force within the City Code
and, thus, had not been extended workers' compensation benefits
under the City Code. Therefore, she did not meet the definition
of "employee" under the Act, and the Court of Appeals erred in
holding otherwise and in remanding Compton-Waldrop's claim to the
Commission for entry of an award under the Act.
V
Consequently, we will reverse the judgment of the Court of
Appeals and enter final judgment for the Department dismissing
- 5 -
the application for workers' compensation benefits.
Reversed and final judgment.
- 6 -