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PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims, JJ.,
and Russell and Koontz, S.JJ.
DAVID WHITE CRANE SERVICE, ET AL.
                                                                      OPINION BY
v.    Record No.  100981                                              SENIOR JUSTICE CHARLES S. RUSSELL
                                                                      September  16,  2011
DAVID L. HOWELL
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
Rodham T. Delk, Jr., Judge
This appeal involves the exclusivity provisions of the
Virginia Workers' Compensation Act  (the Act), Code  §  65.2-100 et
seq.    An employee of the general contractor on a construction
site was allegedly injured by the negligent act of the employee
of a subcontractor who carried no workers' compensation
insurance.    The injured party brought a common-law action
against the uninsured subcontractor and its employee, the
alleged tortfeasor.    This appeal presents the question whether
the circuit court correctly ruled that the common-law action
could proceed, denying the subcontractor’s plea in bar based on
the exclusivity provisions of the Act.
Facts and Proceedings
On May  7,  2007, James S. Green Contractor, Inc.  (Green) was
the general contractor engaged in the construction of an
industrial facility known as the  “Peanut Patch” in Southampton
County.    Green contracted with David White Crane Service, a
partnership consisting of David W. White, Sr. and David W.
White, Jr.  (collectively, White Crane) to hoist structural steel




beams into position at the construction site, a part of Green's
trade, business or occupation.
On the date in question, David L. Howell  (the plaintiff),
an employee of Green, acting within the scope of his employment,
was engaged in the placement of the steel beams as they were
lifted into place by White Crane.    White Crane employed Kenneth
Burgess  (Burgess) as a crane operator to lift the beams.    The
plaintiff alleges that Burgess negligently operated the crane
while hoisting a beam, causing the crane to tip over, losing
control of the beam and allowing it to swing into a man-lift
upon which the plaintiff was standing, striking and injuring the
plaintiff.
The plaintiff brought this action in the circuit court
against White Crane and Burgess  (the defendants).    Green is not
a party.    The defendants filed a plea in bar, asserting that the
Act provided the plaintiff’s sole remedy.    For the purpose of
the plea in bar, the parties entered into a stipulation of facts
relevant to the plea as well as certain conclusions of law to
which they agreed.    The stipulation stated that the defendants
were uninsured for workers' compensation liability as required
by the Act;* the plaintiff had claimed and received workers'
compensation benefits from his employer, Green; the defendants
* The defendant Burgess, as an employee of White Crane, was
not, of course, required by the Act to carry such insurance.




would ordinarily have been deemed to be the plaintiff’s
statutory co-employees; and, if the defendants had carried
workers' compensation insurance, this action would have been
barred by the Act.    The parties agreed in their stipulation that
the dispositive question on the plea in bar was whether the
defendants’ lack of workers' compensation insurance deprived
them of the protection of the exclusivity provisions of the Act.
The court considered the briefs of counsel, the pleadings
and the stipulations of the parties.    In a letter opinion, the
court held that the defendants' failure to carry workers'
compensation insurance deprived them of the protections afforded
by the Act because they were not participants in the statutory
workers' compensation system.    The court denied the plea in bar,
permitting this action to go forward but, with the agreement of
the parties, certified this case for an interlocutory appeal
pursuant to Code  §  8.01-670.1.    We awarded the defendants an
interlocutory appeal.
Analysis
Because no evidence was taken on the plea in bar, we will
review the circuit court's ruling upon the pleadings,
supplemented by the facts as stipulated by the parties.    Gray v.
Virginia Sec'y of Transp.,  276 Va.  93,  97,  662 S.E.2d  66,  68
(2008); Ola v. YMCA of S. Hampton Roads, Inc.,  270 Va.  550,  555,
557-59,  621 S.E.2d  70,  72-74  (2005).    There are no disputed




facts relevant to the plea in bar and it presents a pure
question of law, to which we apply a de novo standard of review.
Hilton v. Martin,  275 Va.  176,  179-80,  654 S.E.2d  572,  574
(2008).    We are, therefore, not bound by or limited to the
conclusions of law to which the parties agreed in the circuit
court.
Code  §  65.2-307 provides that the rights and remedies
granted by the Act to an employee, when he and his employer have
accepted its provisions, shall exclude all other rights and
remedies the employee may have on account of injury or death by
accident.    The injured employee may have a common-law action
against a third-party tortfeasor for accidental injuries
sustained while working for his employer, but only if the third-
party tortfeasor is a "stranger to the work."    Whalen v. Dean
Steel Erection Constr. Co.,  229 Va.  164,  167-68,  327 S.E.2d  102,
104-05  (1985); Slusher v. Paramount Warrior, Inc.,  336 F.Supp.
1381,  1383  (W.D. Va.  1971).
The defendants were not "strangers to the work."    Both the
plaintiff and the defendants were engaged in the same
construction project at the time of the accident and both were
engaged in the trade, business and occupation of Green, the
general contractor.    The defendants were subcontractors under
Green and the plaintiff was Green's direct employee.    The
parties to this action were therefore statutory co-employees.




Pfeifer v. Krauss Constr. Co. of Va., Inc.,  262 Va.  262,  266-67,
546 S.E.2d  717,  718-19  (2001).    Because the purpose of the Act
is to bring within its operation all persons who are engaged in
the trade, business or occupation of the contractor who engages
to perform the work, all such persons are entitled to the
protection afforded by Code  §  65.2-307.    Id. at  266,  546 S.E.2d
at  719.    Thus, the parties' agreement, in their stipulation,
that the plaintiff and the defendants would "ordinarily" be
deemed statutory co-employees and that the defendants would
therefore have been entitled to immunity from a common-law
action in tort if they had carried workers' compensation
insurance, is based upon correct principles of law.
The dispositive question remains:    Did the defendants
forfeit that protection by failing to carry insurance as
required by the Act?    That is a question of first impression,
but our prior decisions are instructive.
In Virginia Used Auto Parts, Inc. v. Robertson,  212 Va.
100,  103,  181 S.E.2d  612,  614  (1971), we held that "the
overriding legislative intent  [expressed by the Act is] that an
uninsured employer shall be liable to his employee injured in an
accident arising out of and during the course of his
employment."    In that case, the employee was unsuccessful in a
common-law action against the employer and thereafter sought an
award from the Industrial Commission.    We held that the employee




was not required to make an election of remedies, but could
proceed under the Act.    In Delp v. Berry,  213 Va.  786,  195
S.E.2d  877  (1973), we considered a variation on that theme.
There, an employee received from the Industrial Commission an
award of benefits under the Act but found it to be uncollectable
because his employer lacked insurance.    The employee then filed
a common-law action against the employer, but the circuit court
sustained the employer's plea of res judicata and held that the
Industrial Commission had exclusive jurisdiction.    Id. at  786-
87,  195 S.E.2d at  878.    We reversed, holding that the employer's
failure to carry workers' compensation insurance, as required by
the Act, forfeited the protection from a common-law action that
he would otherwise have had under the exclusivity provisions of
the Act.    Id. at  789,  195 S.E.2d at  879.
Virginia Used Auto Parts and Delp are both cases in which
an employee asserted a claim against an employer.    The present
case, like Pfeifer, is one in which an employee asserts a
common-law action against statutory co-employees.
An independent contractor and his employees, if engaged in
the same project in which the injured worker is employed and not
"strangers to the work," are deemed the injured worker's
statutory co-employees even though he is employed by another
contractor on the same project.    Although the statutory co-
employees are not the injured worker's statutory employers, and




are therefore not liable for the payment of workers'
compensation benefits to him, they come within the canopy of the
Act.    Because the legislative purpose is to bring within the Act
all those who are engaged in the work that is a part of the
owner's or general contractor's trade, business or occupation,
such statutory co-employees are entitled to the exclusivity
protections of the Act.    The injured worker's sole remedy for
job-related injuries caused by statutory co-employees is a claim
against his own statutory employer for an award of workers'
compensation benefits.    Evans v. Hook,  239 Va.  127,  130-31,  387
S.E.2d  777,  778-79  (1990).    He may not bring a common-law action
against his statutory co-employees.    The statutory co-employees'
lack of workers' compensation insurance is, in these
circumstances, immaterial because they would in no event be
liable to the injured worker for benefits under the Act.
There is a significant difference between the facts in Delp
and those in the present case.    Delp, having found his award of
benefits from the Industrial Commission to be uncollectable,
would not be doubly compensated by pursuing a common-law action
against his employer.    Addressing that factor in Delp, we said:
"Appellees argue that Delp is entitled to only one full recovery
and with this we agree.    He can collect only one time.    The
problem here is that Delp has effected no recovery."                    213 Va. at
789,  195 S.E.2d at  879.    In the present case, by contrast, the




plaintiff has made a full recovery of workers' compensation
benefits under the Act.    Permitting him to proceed in a common-
law tort action against co-employees not only contravenes the
exclusivity provisions of the Act but also would, if successful,
result in a double recovery for a single injury.
Conclusion
For the reasons stated, the defendants were entitled to the
exclusivity protection provided by the Act notwithstanding their
lack of workers' compensation insurance, and the circuit court
erred in denying the defendants' plea in bar.    Accordingly, we
will reverse the judgment appealed from and enter final judgment
here, dismissing the case.
Reversed and final judgment.

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