United States District Court, E.D. Virginia, Norfolk Division
November 21, 2016
KIM HAWKINS, Plaintiff,
TERRY ROBINSON And SUDDATH RELOCATION SYSTEMS OF HOUSTON, INC., Defendants.
MAGISTRATE JUDGE'S REPORT AND
DOUGLAS E. MILLER, UNITED STATES MAGISTRATE JUDGE.
negligence case is before the court on Defendants' Motion
to Dismiss for Lack of Jurisdiction (ECF No. 15). Plaintiff,
Kim Hawkins ("Hawkins")/ brought this suit after he
was injured while unloading a moving truck for Defendants,
Terry Robinson ("Robinson") and Suddath Relocation
Systems of Houston, Inc. ("Suddath") (collectively
"Defendants"). Defendants argue that Hawkins'
claims are barred by the Virginia Workers' Compensation
Act because he was Defendants' employee and engaged in
work-related activities when he was injured. See
Defs.' Mem. Supp. Mot. Dismiss at 4 (ECF No. 16). Hawkins
argues that his claims are not barred because he was not
Defendants' employee, but was an employee of Kenyell
Plummer ("Plummer"), the individual who had
contracted with Suddath to move his belongings. The district
court referred this Motion and Defendants' Motion for
Summary Judgment (ECF No. 17) pursuant to 28 U.S.C. §
636(b)(1)(B) and Federal Rule of Civil Procedure 72(b).
Having considered the parties' pleadings and for the
reasons stated below, the undersigned recommends that
Defendants' Motion to Dismiss for Lack of Jurisdiction
(ECF No. 15) be GRANTED, the Motion for Summary Judgment (ECF
No. 17) be terminated as MOOT, and the case DISMISSED.
about June 12, 2015, Robinson approached Hawkins and Darrel
Spaulding ("Spaulding") at Big Charlie's Truck
Plaza in Virginia Beach to assist him and his son in
unloading a moving truck he was driving. Hawkins Dep.
46:14-22 (ECF No. 16-2). Robinson is a subcontractor for
Suddath, and had been contracted in this instance to
transport furniture and other belongings from California to
Virginia for Suddath's client, Plummer. See
Robinson Dep. 6:14-22 (ECF No. 16-1). Robinson offered
Hawkins and Spaulding twenty-five dollars per hour for their
help. Hawkins Dep. 46:18-21 (ECF No. 16-2). Plummer was not
involved in and did not know the details of how Hawkins and
Spaulding came under Robinson's employ. See
Plummer Dep. 15:7-10, 18:10- 20 (ECF No. 16-5). Hawkins,
Spaulding, and Robinson's son were all being paid
directly by Robinson. See Robinson Dep. 57:6-7 (ECF
No. 16-1); Plummer Dep. 17:21-22, 18:1 (ECF No. 16-5). Both
Robinson and Plummer testified that Robinson was the only
person responsible for directing the three movers during the
unloading process. See Robinson Dep. 57:8-10 (ECF
No. 16-1); Plummer Dep. 18:2-9 (ECF No. 16-5).
Robinson and the three movers arrived at the storage
facility, they met with Plummer to identify where the
contents of the truck needed to be stored. Plummer Dep.
11:22, 12:1-22 (ECF No. 16-5). After backing the truck into
the facility, Hawkins, Spaulding, and Robsinson's son
began unloading the truck. Hawkins Dep. 47:11-18 (ECF No.
16-2). At some point during the unloading process, Hawkins
was descending the loading ramp with a dolly when the ramp
fell, causing him to fall to the pavement. Plummer Dep.
19:9-20, 21:20-22, 22:1-14 (ECF No. 16-5) . Robinson provided
the ramp, and someone on Robinson's crew had been
responsible for setting it up. See id. at 19:9-17.
result of the injuries he sustained from the fall, Hawkins
filed a negligence suit against several parties, including
Defendants, in Norfolk Circuit Court. See Defs.'
Notice of Removal, Ex. A (ECF No. 1) . Defendants timely
removed to this court and filed the instant Motion, as well
as a Motion for Summary Judgment. Id. Hawkins was
granted leave to file his response to this Motion after
failing to do so before the original filing deadline, and
Defendants' filed a timely reply.
STANDARD OF REVIEW
considering a motion to dismiss for lack of subject matter
jurisdiction, plaintiff has the burden of showing by a
preponderance of the evidence that the court has such
jurisdiction. See Evans v. B. F. Perkins Co., 166
F.3d 642, 647 (4th Cir. 1999)/ see also Richmond,
Fredericksburg & Potomac R.R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991) (quoting Adams v.
Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). When subject
matter jurisdiction is challenged in a Rule 12(b)(1) motion,
"the district court is to regard the pleadings'
allegations as mere evidence on the issue, and may consider
evidence outside the pleadings without converting the
proceeding to one for summary judgment."
Richmond, 945 F.2d at 768 (citations omitted). The
motion to dismiss should only be granted "if the
material jurisdictional facts are not in dispute and the
moving party is entitled to prevail as a matter of law."
Virginia Workers' Compensation Act ("Act")
provides that, except in express circumstances, every
employer and employee "shall be conclusively presumed to
have accepted" the provisions of the Act that establish
a respective duty to "pay and accept compensation for
personal injury or death by accident arising out of and in
the course of the employment." Va. Code Ann. §
65.2-300 (West 2016). The Act also states
thattt[t] he rights and remedies [of the Act]
granted to an employee . shall exclude all other rights and
remedies of such employee." Id. at §
65.2-307. This is referred to as the "exclusivity
provision, " and it bars any suit seeking damages for
injury brought by a person who is otherwise covered by the
Act. See Butler v. Southern States Coop., Inc., 620
S.E.2d 768, 772 (Va. 2005). Faced with a 12(b) (1) motion to
dismiss for lack of jurisdiction, "the plaintiff bears
the burden of proving that the [Act's] exclusivity
provision does not preclude this court's subject matter
jurisdiction." Demetres v. East West Const.,
Inc., 995 F.Supp.2d 539, 543 (E.D. Va. 2014).
is no apparent dispute in this case that, if Hawkins was an
employee of Robinson and/or Suddath, compensation for his
injuries would be governed by the Virginia Workers'
Compensation Act, and the exclusivity provision would bar him
from bringing the instant suit against Defendants. Thus, the
dispositive jurisdictional issue is whether Hawkins was an
employee of Robinson and/or Suddath, and therefore subject to
the exclusivity provision of the Act. The undisputed facts
demonstrate that he was.
Hawkins was not Plummer's Employee
argument against application of the exclusivity-provision is
that he worked for Plummer, the furniture owner, not the
Defendants. The Act's definition of "employer"
is broad and "includes (i) any person . . . using the
service of another for pay . . . ." Va. Code Ann. §
65.2-101 (defining "employer"). Hawkins argues that
because Plummer hired United Van Lines, who does business
through Suddath, who in turn subcontracted with Robinson, who
hired Hawkins to assist with unloading his belongings,
Plummer is Hawkins' employer. But this argument ignores
the Act's plain meaning and definition of "employee,
" which provides:
1. a. Every person, including aliens and minors, in the
service of another under any contract of hire or
apprenticeship, written or implied, whether lawfully or
unlawfully employed, except (i) one whose employment is
not in the usual course of the trade, business, occupation or
profession of the employer or (ii) as otherwise provided
in subdivision 2 of this definition.
Id. (defining "employee") (emphasis
definition, Hawkins could not be Plummer's employee.
There is no evidence to suggest, and Hawkins does not argue,
that his employment was in Plummer's "usual
course of the trade, business, occupation or
profession." Moreover, the fact that Plummer is not in
the trade, business, occupation, or profession of
transporting property is evidenced by the fact that he sought
out the service of United Van Lines - and its agents, Suddath
and Robinson - to move his belongings from California to
Virginia for him. Simply put, Plummer was a client, not an
the court were to ignore this clear statutory language, the
undisputed jurisdictional facts establish that Robinson, not
Plummer, was Hawkins' employer. "xThe
elements of an employment relationship are: (1) selection and
engagement of the employee, (2) payment of wages, (3) power
of dismissal, and (4) power of control of the employee's
action.'" Uninsured Employer's Fund v.
Clark, 494 S.E.2d 474, 476-77 (Va. Ct. App. 1998)
(quoting Behrensen v. Whitaker, 392 S.E.2d 508, 509
(1990)). The most important of those elements is control.
See id. And the first three elements are those
"more or less useful in determining" who has the
power of control. See Stover v. Ratliff, 272 S.E.2d
40, 42 (Va. 1980).
case, the first three elements strongly favor the conclusion
that Robinson, not Plummer, was Hawkins' employer. It was
Robinson, not Plummer, who selected and engaged Hawkins to
help unload the moving truck. See Hawkins Dep.
46:18-21 (ECF No. 16-2); Plummer Dep. 15:7-10, 18:10-20 (ECF
No. 16-5). It was also Robinson, not Plummer, who was
responsible for paying Hawkins for his work. See
Robinson Dep. 57:6-7 (ECF No. 16-1); Plummer Dep. 17:21-22,
18:1 (ECF No. 16-5). And there is no evidence that anyone
other than Robinson would be able to dismiss Hawkins.
See Robinson Dep. 57:8-10 (ECF No. 16-1); Plummer
Dep. 18:2-9 (ECF No. 16-5). These facts are not disputed by
elements, being probative of who was in control, all suggest
that Robinson was Hawkins' employer. And indeed, both
Robinson and Plummer testified that it was Robinson who was
in charge of directing his three employees' actions.
Id. In addition, the evidence cited by Hawkins that
Plummer was in charge is also unpersuasive. Specifically, the
fact that Plummer may have directed the movers as to where
his belongings were to be stored (i.e., showing them where
his storage unit was inside the multi-unit facility) and had
a clipboard with a list of his items to ensure that all his
property was accounted for does not indicate control over the
terms of Hawkins' employment. Rather, it is merely
evidence that Plummer was a client who hired a moving company
to transport his belongings. And as a matter of law, the
facts do not establish the level of control necessary to find
an employer/employee relationship between Plummer and
Hawkins was not a "Casual
also, in one sentence, refers to himself as a "casual
laborer." See PL's Mem. Opp. Defs.'
Mot. Dismiss at 1 (ECF No. 20) . "Casual employees"
are not considered "employees" under the Act.
See Va. Code Ann. § 65.2-101 ("
'Employee' shall not mean: . . . Casual
employees."). Thus, labeling himself this way could be
construed as an argument that he is, by definition, exempt
from the Act. However, Hawkins' has made no argument,
cited no law, and pointed to no evidence to support the claim
that he is a "casual employee, " and therefore
exempted from the Act. In a challenge to subject matter
jurisdiction, it was Hawkins' burden to do so. See
Evans, 166 F.3d at 647.
exclusion from the Act as a "casual employee"
occurs when someone is hired "occasional[ly]" or
"by chance" to perform work "not in the usual
course of the employer's trade or business." See
Mims v. McCoy, 248 S.E.2d 817, 818-19 (Va. 1978) (citing
Hoffer Bros, v. Smith, 138 S.E. 474, 476 (Va.
1927)). Even if hired for a single job, an employee is not
exempt from the Act's coverage so long as the work is in
the usual course of the employer's trade or business.
See Board of Supervisors v. Boaz, 10 S.E.2d 498, 499
(1940). In this case, although Hawkins was hired for a single
job, it was for work "in the usual course of
[Robinson's] trade or business" as a moving company
subcontractor. Thus, Hawkins does not fit the Act's
definition of "casual employee, " and is not exempt
from the Act as such. See Mims, 248 S.E.2d at
818-19; Boaz, 10 S.E.2d at 499.
Hawkins was Robinson & Suddath's Employee
plain language of the Act defines Robinson and Suddath as
employers, and Hawkins as their employee. Additionally, the
undisputed facts show that, as a matter of law, an
employer/employee relationship existed between Robinson and
Hawkins. Ultimately, it is Hawkins' burden to show by a
preponderance of the evidence that Robinson and Suddath were
not his employers, and he has failed to meet that burden.
See Craddock Moving & Storage Co. v. Settles,
427 S.E.2d 428, 430 (Va.App. Ct. 1993) ("A proponent of
an issue must produce sufficient evidence to support a
finding on that issue.")
respect to Robinson, he meets the Act's broad definition
of an employer in that he is a person "using the
services of another for pay." Va. Code Ann. §
65.2-101 (defining "employer"). Hawkins has made no
argument or offered any evidence to suggest that Robinson is
not an employer under the Act. Similarly, Hawkins meets the
Act's definition of "employee" in his
relationship with Robinson. Hawkins was under an oral
contract to perform work that was "in the usual course
of the trade, business, occupation or profession of
[Robinson] ." See id. Again, Hawkins does not
dispute that he was approached, hired, and to be paid by
Robinson for his help unloading the moving truck.
See Hawkins Dep. 46:18-21 (ECF No. 16-2). Hawkins
simply argues that this was all to the benefit of Plummer,
and so Plummer should be considered his employer. But apart
from the statutory language that definitively establishes
Hawkins was not Plummer's employee, the
undisputed facts show that Robinson, not Plummer, met the
common law elements of an employer. See Uninsured
Employer's Fund, 494 S.E.2d at 476-77.
Act's provision concerning "statutory
employers" also makes clear that Suddath was
Hawkins' employer. The Act establishes that when
"any person (referred to . . .as "owner")
undertakes to perform or execute any work which is a part of
his trade, business or occupation and contracts with any
other person (referred to ... as
"subcontractor")" to accomplish all or part of
that work, that "owner" is liable under the Act to
the same extent for injury sustained by a worker employed by
the subcontractor as if he had hired the injured worker
directly. See Va. Code Ann. § 65.2-302(A). In
other words, a person or business cannot escape liability
under the Act by simply subcontracting the work out to
another party - they still are considered statutory employers
of all the workers hired by the subcontractor - bound by the
compact of the Act to provide coverage, and protected by the
same compact from a separate tort claim. See id. at
§ 65.2-300, 307.
case, Suddath (the "owner") contracted with
Robinson (the "subcontractor") to perform the
service of transporting Plummer's property across the
country. This subcontracting with Robinson was "part of
[Suddath's] trade, business or occupation, " making
the company a "statutory-employer" under the Act.
See id. Hawkins has offered no evidence to rebut
Suddath's status as a statutory employer, and in failing
to do so, has not met his burden to prove this court has
subject matter jurisdiction. See Evans, 166 F.3d at
Hawkins has not shown by a preponderance of the evidence that
Robinson and Suddath were not his "employers" or
that he was not an "employee" under the Act.
Therefore, as a matter of law, there is a presumption that
his employment relationship is governed by the Act.
See Va. Code Ann. § 65.2-300. Because the
Act's exclusivity provision provides that compensation
under the Act is the sole remedy available to Hawkins, his
claims against Defendants are barred and this court lacks
subject matter jurisdiction to hear the case. See
id. at § 65.2-3 07. Accordingly, the undersigned
recommends Defendants' Motion to Dismiss for Lack of
Subject Matter Jurisdiction be GRANTED, the Defendants'
Motion for Summary Judgment be terminated as MOOT, and the
foregoing reasons, the court recommends that the Motion to
Dismiss (ECF No. 15) be GRANTED, the Motion for Summary
Judgment (ECF No. 17) be terminated as MOOT, and the case
of this Report and Recommendation, the parties are notified
that pursuant to 28 U.S.C. § 636(b)(1)(C):
party may serve upon the other party and file with the Clerk
written objections to the foregoing findings and
recommendations within fourteen (14) days from the date of
mailing of this Report to the objecting party, 28 U.S.C.
§ 636(b)(1)(C), computed pursuant to Rule 6(a) of the
Federal Rules of Civil Procedure. A party may respond to
another party's objections within fourteen (14) days
after being served with a copy thereof.
district judge shall make a de novo determination of
those portions of this report or specified findings or
recommendations to which objection is made.
parties are further notified that failure to file timely
objections to the findings and recommendations set forth
above will result in waiver of right to appeal from a
judgment of this court based on such findings and
recommendations. Thomas v. Arn, 474 U.S. 140 (1985)/
Carr v. Hutto, 737 F.2d 433 (4th Cir. 1984);
United States v. Schronce, 727 F.2d 91 (4th Cir.
 Robinson's deposition testimony
indicates that Suddath is a subsidiary of United Van Lines
("United"). Robinson Dep. 6:6-22 (ECF No. 16-1) .
To that end, it appears that Plummer may have originally
contracted with United rather than Suddath. Id. at
9:11-19. In any event, Plummer did not contract directly with
Robinson to transport or move his belongings.