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LMI Insurance Co. v. Foley

Court of Appeals of Virginia

July 29, 1997

LMI INSURANCE COMPANY
v.
JAMES FOLEY, TOWER ELECTRIC COMPANY, CANOVA ELECTRICAL CONTRACTING, INC. AND ROYAL INSURANCE COMPANY OF AMERICA LMI INSURANCE COMPANY
v.
CARLOS A. REAL, TOWER ELECTRIC COMPANY, CANOVA ELECTRICAL CONTRACTING, INC. AND ROYAL INSURANCE COMPANY OF AMERICA

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.

(Cathie W. Howard; Pierce & Howard, P.C., on briefs), for appellant. Appellant submitting on brief.

(Benjamin J. Trichilo; Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C., on briefs), for appellees Canova Electrical Contracting, Inc. and Royal Insurance Company of America. Appellees submitting on brief.

No brief for appellee James Foley.

No brief for appellee Tower Electric Company.

No brief for appellee Carlos A. Real.

Present: Judges Fitzpatrick, Overton and Senior Judge Duff.

MEMORANDUM OPINION [*]

CHARLES H. DUFF, J.

LMI Insurance Company (LMI) appeals decisions of the Workers' Compensation Commission holding it liable to James Foley and Carlos A. Real for workers' compensation benefits. LMI contends that the commission erred in finding that Real and Foley were not loaned employees of Canova Electrical Contracting, Inc. (Canova), but rather, were employees of Tower Electric Company (Tower) at the time of their industrial accidents. Because credible evidence supports the commission's decisions, we affirm. We decline to address the jurisdictional issue raised by the parties because our affirmance of the commission's decision on the " loaned employee" issue renders the jurisdictional issue moot.

On appeal, we view the evidence in the light most favorable to the prevailing party below. See R.G. Moore Bldg. Corp. v. Mullins, 10 Va.App. 211, 212, 390 S.E.2d 788, 788 (1990).

So viewed, the evidence established that on June 21, 1994 and July 10, 1994, respectively, Real and Foley, Tower's employees, sustained compensable industrial injuries while working as electricians at a Sears/Landmark renovation jobsite (the Landmark job) located in Northern Virginia. Tower filed two separate Employer's First Reports of Accident with the commission reporting both accidents.

All Interiors was the general contractor on the Landmark job. Canova, a company headquartered in Pennsylvania, was a subcontractor performing electrical work on the Landmark job renovation. In turn, Canova entered into a labor subcontract agreement with Tower, a Virginia company, for Tower to supply all of the labor necessary to perform the electrical work. The agreement required Canova to furnish all necessary supervision for the Landmark job. The intent of the labor subcontract was for Tower to provide Canova a pool of laborers for a limited period of time while Canova worked on the Landmark job, and for Tower to pay all fringe benefits for its workers, including workers' compensation insurance. [1]

Glen Johnson, Tower's vice-president, testified that at the end of the month, pursuant to the terms of Tower's subcontract with Canova, Tower billed Canova for the total direct cost of the labor Tower furnished for the Landmark job plus a sixty percent mark-up. Johnson sent Tower employees to the Landmark jobs upon request from Canova's supervisor, Melvin Worrall.

Real believed Worrall was his foreman on the Landmark job. Worrall routinely checked Real's work. Real heard Worrall give instructions to Brad Walport, Tower's foreman on the Landmark job. Real believed that Worrall could terminate his employment. Worrall recorded Real's hours worked and gave Real his ...


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