-DEM McGowan v. ABM Janitorial Services, Northeast, Inc., et al, No. 2:2010cv00388 - Document 35 (E.D. Va. 2011)
Court Description: OPINION AND ORDER granting 28 MOTION to Dismiss; if necessary to construe the instant motion as a motion for summary judgment, the court grants summary judgment in favor of defendants. Signed by District Judge Mark S. Davis and filed on 6/29/2011. (rsim)
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OP VIRGINIA JUN 2 9 2011 Norfolk Division CMX*.. U.S. DISTRICT COURT JENNIFER M. McGOWAN, Plaintiff, Civil Action No. v. 2:10cv388 ABM JANITORIAL SERVICES, NORTHEAST, INC., and URSULA BASKETT, Defendants. OPINION AND ORDER This matter is currently before the Court on a 12 (b) (1) to dismiss filed by defendants ABM Janitorial Services, Inc. and Ursula Northeast, Inc. that court this Baskett, an employee (collectively lacks of "ABM"). jurisdiction over Northeast, ABM Janitorial Defendants' the motion Services, motion alleges complaint filed by plaintiff Jennifer McGowan because the claims set forth therein are preempted by Virginia's Workers' Compensation laws. been fully briefed and is ripe for decision. the briefs and the record, on the instant arguments are motion is adequately After examination of the Court has determined that a hearing unnecessary, presented, and as the the the Court GRANTS defendants' facts and decisional would not be aided significantly by oral argument. stated herein, The motion has legal process For the reasons motion. I. Facts and Procedural History A. Facts For the purposes of resolving the jurisdictional issue before the court, the facts are undisputed. Plaintiff Jennifer McGowan began her employment with Bank of America in 1997, At the time of McGowan was Place in a and she remains a Bank of America employee today. the "Level Norfolk, conducting accident 3 that prompted Sales Associate" Virginia. educational Her programs employees in customer marketing. America's office Commercial areas and instant working at 2 suit, Commercial responsibilities on-the-job Ms. training included for new Such training occurred in Bank of Place. On September 18, at approximately of America's 6:00 first on job the 2008, or the Ms. first and floors of 2 McGowan finished teaching a class 6:30 p.m. After class, floor work area to pull she went reports for the sales associates undergoing training. this fourth to Bank and statistics Ms. McGowan finished task and was in the process of leaving the first floor office area when her accident occurred. Bank of America's first floor work area at 2 Commercial Place is accessed through a set of double doors. Just outside the double doors is a lobby area that has a security desk and four elevators, two on each side. cans At the time of the accident there were two trash in such lobby area, one between each set of elevators. At approximately 7:00 or 7:30 p.m. McGowan exited the work area elevator bank to her right, the parking woman on the employee) As opposite told Ms. McGowan, knew garage. double doors Ms. approached and 2008, the intending to take the elevator down to Ms. McGowan side of the approached hallway the elevators, (purportedly McGowan to have a good night. an a ABM According to Ms. after she pressed the elevator button the next thing she she was on the floor. other bank of elevators McGowan on September 18, hit her head Because Ms. in response to against the facing the the woman's pleasantry, Ms. wall McGowan behind was her as she fell. Security guards and the ABM employee immediately came over to help Ms. McGowan. While still on the floor, greasy on the floor next and the injuries Ms. to the trash can. she suffered, Ms. As a result of her fall McGowan compensation claim and received workers' Bank of America lease requires "good order, excepted." part of Bank leases of repair McGowan felt something 2 and Place, to maintain condition, a workers' compensation benefits. Commercial America filed 2 and the Commercial ordinary wear written Place and in tear A Bank of America corporate representative deposed as this case testified that Bank of America considers it important to keep its facilities "clean," "safe," and "attractive," for associates and/or customers, in entered order into to a achieve contract such that depending on the location. goals, requires Bank ABM of America to provide and ABM janitorial services at 2 Commercial Place. Two Commercial Place is a nine- story commercial building that is occupied almost entirely by Bank of America. On the first floor of the building there is commercial office space occupied by Bank of America, public, a beauty shop, contain commercial and office meeting/conference rooms, work cubicles. including building. Commercial ABM floor, some upper individual floors offices, supply rooms, reception areas and other administrative and computer rooms. Each and there is a one story parking garage inside There 2 a is small not office Commercial a Bank of America bank branch in 2 space, Place. a storage The office, area, and janitor located on the first is used for supplies and for administrative support for the on-site supervisor. and including The Place. has closets at space market. There are also support areas including kitchens and floor has restrooms, the small and large open office areas divided into break rooms on each floor, areas, a a cafeteria open to the mix closets chemical on responsible each cleaning floor for Commercial Place, America. A storage room in the garage is used to store the but that cost supplies. are used of the it charges seat covers, for has locked janitors' storing vacuums. cleaning supplies it ABM is uses at 2 consumable items back to Bank of Consumable items include: trash bags, ABM towels, sanitary napkins, At the time of Ms. McGowan's accident, toilet paper, tissues, and hand soap. ABM's cleaning routine was divided operations into were day operations provided and from 8 night a.m. operations were provided from 6 p.m. to ABM to two provided a supervisor was to any work responsible break responsible for rooms, orders supervisor orders and came restocking the in. night vacuuming, day the entrance door glass, called-in, and functions. dusting, a night collecting trash, and complete shift ABM "utility elevator tracks, employee" and mopped removed the employees scrubbed Once a year, and all the vacuuming the ABM provided the necessary functions the trash kitchen from included Additionally, floors, each floor Once a week, restroom floors. recoated in cleaning the kitchens on each been collected by other ABM employees. buffed floors and scrubbed all were helping with any floor, detailing restrooms, and restocking supplies. an day sweeping day, mopping to The trash In the evenings, employees The twice and night porters removing cleaning were day floors and responding elevators that and porters. two restrooms, The During the day, the supervisor janitorial day The cafeteria entryway and dining room. a p.m., 10 p.m. for checking all that 5 vacuuming stairs weekly, work day operations. kitchen and cleaned that had ABM employees One a month, break-room ABM floors. ABM employees stripped and waxed floors and shampooed carpets. Notwithstanding perform all the the cleaning detailed in the cleaning building. routine, At the ABM time did not of the accident, and companies exterior other than ABM handled cleaning the interior windows and building. Additionally, building, someone took construction areas. public cafeteria, areas of services else the live responsible in the performed was plants in the for cleaning Although ABM cleaned the common areas at responsible America's 2 the ABM also did not provide any janitorial direct Commercial employees Place. for keeping his involve placing things themselves of floor of 2 Place. of bin. the it did not clean behind the food line or the work to the market or the beauty shop on the first Bank trash of construction was the cafeteria. Commercial services if care Each performed employee no was, janitorial of or her own work area clean, course, which may in a trash can or in a special confidential Additionally, employees would often clean up after in the common break-rooms. B. The instant suit was Procedural History initially filed in the Circuit Court for the City of Norfolk, Virginia. It was removed to the United States District Court for the Eastern District of Virginia and assigned to the undersigned judge. Defendants dismiss for lack of jurisdiction. opposition and defendants matter is ripe for review. thereafter Plaintiff filed a motion to filed a memorandum in filed a reply brief. Accordingly, this II. "The district limited subject Vuwuru v. district Jadhav, Constitution subject courts matter courts 555 of matter the United States jurisdiction." F.3d 337, only possess and dismissed." Standard of Review federal Cir. jurisdiction statute, jurisdiction {4th "when over an a courts States United 347 the are ex 2009). action, rel. Because authorized by district the of court action the lacks must be Id. When the existence of subject matter jurisdiction "in fact" is challenged by a defendant, jurisdictional facts the plaintiff. Id.; 1982). In are not facts Adams v. a and Bain. a facts of 697 12(b)(l) the intertwined, allegations of burden a preponderance resolving jurisdictional case by the Vuwuru. consider evidence summary 647 (4th R.R. Co. 12 (b) (1) facts judgment." Cir. v. the evidence motion, central district 1219 court long the merits may "go 1999) 555 F.3d "without Evans (quoting United States. 945 v. at 348. as converting B.F. the beyond the district F.2d 765, facts such as court may the proceeding to one Perkins Richmond. the of the pleadings, A on (4th Cir. as to the falls the complaint and resolve the jurisdictional affidavits." for establishing F.2d 1213, in dispute by considering evidence outside such of Co., 166 Fredericksbura 768 (4th Cir. F.3d & 642, Potomac 1991)). A motion to dismiss should be granted if the jurisdictional reveal that "the moving party is entitled to prevail as a matter of law." Id. (quoting Richmond. R.R. Co., 945 F.2d at 768) .x III. The Virginia Workers' Fredericksbura & Potomac Discussion Compensation Act provides exclusive rights and remedies to employees that have been injured during the course of their employment. Va. Code Ann. § 65.2-307 (A). "The fundamental purpose of the Virginia Workers' Compensation Act is to give compensation for accidental injuries arising out of and in the course of employment without regard to fault." Stone v. Allstate 1 The parties agree that the issue before the court is jurisdictional, and is therefore properly considered pursuant to Rule 12(b)(l) of the Federal Rules of Civil Procedure. Because the Fourth Circuit has affirmed a 12(b)(1) dismissal for lack of subject matter jurisdiction in a similar Virginia Workers Compensation Act case, this court conducts a Rule 12(b)(l) analysis. See Evans, 166 F.3d at 647-50. However, this court acknowledges that, subsequent to Evans, some district courts have raised questions regarding the propriety of classifying the instant dispute as "jurisdictional." See Harvard v. Perdue Farms, Inc., 403 F. Supp. 2d. 462, 464-65 (D. Md. 2005) (indicating that although the Virginia courts treat this issue as jurisdictional, federal jurisdictional rules do not "import such Virginia procedural law into its jurisprudence"); Graves v. Cook, No. 7:01cv533, 2002 U.S. Dist. LEXIS 6794, at *1 n.l {W.D. Va. Apr. 17, 2002) (unpublished) (converting a 12{b)(l) motion to dismiss into a motion for summary judgment because the district court had diversity jurisdiction over the case, and "[i]f the court were to consider the Virginia Workers' Compensation Bar as a jurisdictional question, then the Virginia General Assembly would effectively determine the limits of federal jurisdiction"). This court need not reach the question of whether conversion into summary judgment is required because the material facts before the court are undisputed, and all parties have had ample opportunity to conduct discovery and submit any materials pertinent to the issue before the court. Were this court to treat the pending motion as a Rule 56 motion for summary judgment, the result would be same - judgment for defendants and termination of this action. 8 Ins. May Co., 3, No. 1700-10-3, 2011) Workers' 2011 Va. (unpublished) Compensation: App. {citing LEXIS Lawrence Law and Practice 1-3 150, J. at *9 {Va. Pascal, (3d ed. App. Virginia 2000)). While an employee injured in the course of her employment surrenders the right to bring a common law damage suit against her employer, in exchange she receives all the benefits of the Workers' Compensation Act without the burden of See Feitia v. Chalklev. establishing her employer's negligence. 185 Va. 96, 98, 38 S.E.2d 73, 73-74 (1946) (describing the Virginia Workers' Compensation Act as follows: employee accept surrenders an his arbitrary compensation security. for The employer and the right amount the injuries issue of trial by negligence essence, by jury statute sustained. fellow servants In a fixed delayed litigation is avoided. guaranteed."). to is or in He and agrees lieu gains non-negligence eliminated. Long, "The of a to full wider of the costly and A smaller but speedier recovery is under the Workers' Compensation Act, the employer has agreed to unconditional liability in exchange for limiting the amount of liability. The limitations of remedies imposed on an injured employee by the Virginia Workers' suits fact against that tortfeasor a Compensation Act are not applicable only to the employee's plaintiff does not is immediate employer. not directly automatically mean maintain a tort suit against such party. employed that such Therefore, by an the alleged plaintiff can In addition to the bar to recovery against Workers' tort a plaintiff's Compensation action against Act a "statutory employer." actual prohibits party who an is employer, employee deemed to the Virginia from bringing be the a employee's As explained by the Virginia Supreme Court: Under certain circumstances, Code § 65.2-302 extends . . . immunity from tort liability arising from workplace accidents to qualifying employers, even though no direct common law contract of employment exists between such employers and employees. An employer qualifies for this immunity if the employer, acting as a general contractor, contracts with another to perform all or part of the employer's trade, business or occupation. Under these circumstances, the employer is deemed the statutory employer of the employees of such other subcontractor and the remedies under the Act are the statutory employees' exclusive remedy against the statutory employer. See id.; Evans v. Hook. 239 Va. 127, 131, 387 S.E.2d 777, 779 (1990); Smith v. Horn. 232 Va. 302, 306, 351 S.E.2d 14, 16 (1986). Similarly, employees of different subcontractors who are working on the same project and are also engaged in the general contractor's trade, business, or occupation are considered statutory fellow employees and are entitled to protection from an independent tort action for injuries allegedly caused by either of them. Hudson v. An Jarrett. exception Workers' to Va. the 24, 29-30, 606 S.E.2d 827, exclusivity provisions of 829 the (2005). Virginia Compensation Act permits a plaintiff to recover against a non-employer injuries. Virginia "other Va. has patterns, party," 269 to Code adopted party" Ann. § three determine thereby that if subjecting for plaintiff's injuries. is responsible 65.2-309(A). tests, a applicable defendant such The 10 plaintiff's Supreme in Court different qualifies defendant See Stone v. for as to potential Door-Man Ufa. an of fact "other liability Co.. 260 Va. 406, 415-18, tests: 537 S.E.2d 305, the "normal work" and the "stranger "stranger to employee of to the 309-311 test; test). test a business brings is "stranger to of the Virginia Code, is "a stranger to a personal the work" Co. . the 229 these test three tests, when, as here, the an injury action against a the business. is test; Id. at 418-19. derived from the language and asks whether the subcontractor defendant trade, plaintiff was involved." Erection Of applicable subcontractor hired by the owner of The (discussing the three the "subcontracted fraction" the work" work" (2000) Va. occupation, Id. 164, at 418 167, 327 or business in which the (quoting Whalen v. S.E.2d 102, 104 Dean Steel (1985)). As explained in more detail by the Virginia Supreme Court: The test is not whether the owner, by engaging an independent contractor to perform some part of his business, thereby engages in the business of the independent contractor. It is whether the independent contractor is performing work that is part of the trade, business or occupation of the owner. If he is, and in doing the work injures an employee of the owner, then the independent contractor, in the same fashion as any other employee of the owner, is not a third party against whom the injured employee's right of action is preserved; but the employee so injured is limited to the compensation provided by the Workmen's Compensation law .... Fowler v. S.E.2d 312, 274, 123 Int'l 315 Cleaning (2000) S.E.2d 369, Here, plaintiff 372 Service. (quoting Inc.. 260 Va. 421, Flovd v. Mitchell, acknowledges that 203 427, Va. 537 269, (1962)). is clearly barred from recovering from Bank of America, her employer, based on the Workers' exclusivity McGowan provision of the 11 Virginia she Compensation Act. The recover question from America. ABM, before a court janitorial provide engaged in 'depends upon trade, the whether guidance, and McGowan hired test. Mw]hether occupation, facts Ms. by can Bank of the court is guided by Virginia "stranger to the work" compelling the is subcontractor To answer this question, case law applying the cases the or a business circumstances in Although such third of each party the is employer case, and for that reason the question does not readily yield to categorical or absolute 557, standards.'" 559, 331 S.E.2d 453, McRevnolds, 216 Va. Whalen. Va. work' Conlin v. 229 test, at 897, 168, 455 (1985) 902, 327 Turner's 224 Express. Inc., 229 Va. (quoting Bassett Furniture v. S.E.2d 323, S.E.2d at applied to varying facts, 105 326 ("The (1976)); see 'stranger to the necessarily produces varying results."). The parties agree that the most factually analogous Virginia Supreme Court case to the instant facts is Fowler v. Service. The plaintiff in Fowler furniture store who slipped on a was "wet-mopped" Fowler, At the time of the accident, to provide store for store was cleaning and 260 Va. janitorial three open. 424, at employee of a Sears in the store after it International Cleaning Service at 423-24, 537 S.E.2d at 313. International had been under contract approximately Id. an tile-floor by an employee of ("International"). was Int'l Cleaning services years, 537 12 the at entire S.E.2d at 313. Sears' period furniture that the International's services were defined by Sears' guidelines, and International "regularly cleaned the store on Mondays and Fridays of each week, spending two to hours Sears' janitor's and although carry closets. towels, Sears' they did trash to Unsurprisingly, but hand soap clean the up work area safe." accomplish such goal, In Id^, Supreme Court 537 it the above for Sears store, or mop sweep the warehouse, 537 S.E.2d at 313. "a key 425, "part making 537 of a facts store S.E.2d good at "clean, 313. employee's appearance to To job the to the applicable test, the International was not a of selling furniture." The Court noted that in making such consideration essential the every *particular business' janitorial of 313. 537 S.E.2d at 315. an 313. the Id., concluded that Id. 'performing closets. at in to Sears' and at it kept in the bathrooms clean themselves, was "'stranger' cleaning that toilet paper and other parts S.E.2d at of Virginia determination, S.E.2d S.E.2d at 313. and occasionally borrowed a vacuum Id^. participate applying at 428, 537 Sears considered it important to keep not only its its to and after janitor's and public." Id.. 537 did not dumpsters, attractive, description Id. , employees from International's showroom, store during the same furnished its own cleaning supplies provided paper floors, the employees were on the job." International unlocked three hours per day at [was] services to part' Sears' of 13 whether, Sears, in providing International furniture was business." Id.. 537 S.E.2d at 315 at 105). that (quoting Whalen. 229 Va. at 169, 327 S.E.2d The Court found that the facts sufficiently demonstrated n[t]he designed combined to efforts accomplish of Sears' International goal of making and its Sears store were clean, attractive and safe - a goal necessary to the successful operation of Sears' furniture business." Here, ABM highlights Id. , the 537 S.E.2d at 316. factual similarities to Fowler, including: (1) the floors is allegedly at fault for the plaintiff employee's fall in the a janitorial subcontractor responsible for cleaning workplace; (2) a business owner dictating to the subcontractor the location and extent of the required cleaning; the owner paying and hand soap; keep the for consumable and (4) premises items including towels, (3) tissues, the business owner considers it important to clean, safe, and attractive. Further similarities include the fact that the public utilized portions of the premises cleaned by the subcontractor and that the subcontractor was provided space on the premises to store its tools and supplies. America was Additionally, required further demonstrates by ABM argues that the fact that Bank of its that lease to keep the janitorial Bank of America's business at 2 the building function is Commercial clean essential to Place. In contrast to the above, plaintiff McGowan highlights several differences including: between (1) the the facts retail of Fowler furniture 14 store and in the instant Fowler facts, operated to generate sales to the public, whereas Bank of America's operations at 2 Commercial Place do not include a bank branch, and are instead primarily private company offices; (2) actively participated the performs the janitorial America employees; closets and warning signs, (3) directly in cleaning Sears' employees in Fowler store, whereas here, ABM functions without assistance from Bank of in Fowler, Sears had access to the janitors' provided whereas here, consumable ABM keeps items its and janitorial janitorial closets locked and ABM provides the consumable items that are later billed back to Bank responsible public," of to America; and participate whereas here, (4) in in Fowler, "making a every good employee appearance Bank of America employees was to the do not have such responsibility as the general public does not come to 2 Commercial Place to transact business with Bank of America. McGowan argues that Bank of America's Additionally, Ms. contractual requirement to keep 2 Commercial Place clean does not make ABM "necessary" to Bank of heating America's and air, business, if it did, plumbing, electricity, and other similar services would always be deemed part of a company's trade, business, are generally viewed as After considering or occupation, "essential" the above because these services to a business's arguments, the operation. court finds that the case-specific facts before the court establish that ABM is not a "stranger" First, to Bank of although in America's business contrast with 15 the facts at of 2 Commercial Fowler, this place. court puts minimal weight on the fact that the premises at issue is not kept clean by "joint subcontractors. efforts" Although the heavily on the "joint efforts" construe reliance such efforts." Rather, of as Bank of Fowler America opinion in that case, creating a employees appears this to and rely court does not prerequisite of "joint this court construes the Fowler court's focus on "joint efforts" as a means to demonstrate the importance of keeping Sears' premises clean, safe, and attractive. Stated differently, keeping the Sears store in such condition was so important to the business day, owner that employees and perform an outside additional cleaning took steps company cleaning. came Although demonstrate the importance of such tasks case, in other fact patterns, to clean the store each an in such to equally subcontracted entirely to a third-party.2 twice a "joint to efforts" the business important week in that task may be Accordingly, here, the lack of joint efforts does not reduce the importance of ABM's work. 2 The court can hypothesize scenarios where rather than minimizing the importance of a task, relying entirely on subcontractors to perform an essential business function actually underscores the importance of such function. Thus, just as "joint efforts" can demonstrate that an undertaking is essential to a business, leaving an essential function entirely to a subcontractor with expertise in such area can likewise demonstrate that such function is mission critical. By way of example, having on-site, around the clock armed security may be absolutely essential to a certain type of business, yet rather than relying on its own employees to "jointly" participate in such task, the business may subcontract such specialized function successful daily operation of entirely to a third-party with established experience in such field. On such facts, the lack of "joint efforts" in no way minimizes the necessity of the security function to the the business. 16 Second, the although keeping Sears' benefit importance of prospective than keeping 2 retail store "attractive" furniture buyers Commercial Place may be of and safe for its numerous employees, The undisputed facts the public, establish that almost all the large scale commercial operation at supports Bank of America's claim that it was facilities public, "clean," "safe," and attractive and the size location plainly important to keep its not only for the It is difficult to conceive how such a nine-story commercial building, public spaces, of of the nine floors such "attractive," but for its many associates. Bank and any invitees. at 2 Commercial Place are occupied by Bank of America, of greater attractive, America is nevertheless motivated to keep its premises for with both private and including a lobby and cafeteria, could effectively operate without someone providing daily janitorial functions. Third, Bank of America, required by contract as opposed to the building owner, to keep repair and condition." 2 Commercial As in Fowler, here, Place in is "good order, the business owner is responsible for covering the cost of the janitorial subcontractor. Additionally, both paid the business owners in Fowler and the instant matter for the cost tissues, and hand soap. Place, between numerous consumable items including towels, Even without a bank branch at 2 Commercial the public employees incentive, of working cafeteria on above, Bank contractual and otherwise, 17 the of first floor, America has and the a strong to keep the premises clean. Fourth, the court finds that the extent of the janitorial work performed by ABM, contract, which required by the Bank of America/ABM to be a compelling factor supporting the finding that ABM was not a "stranger" of was to Bank of America's business. America provided ABM with a detailed list both during and after regular business hours. cleaning required the presence of multiple of Notably, areas to Bank clean, This detailed daily ABM employees, split into a day-shift and night-shift, whereby ABM was actively cleaning the building for 13 hours each regular workday.3 ABM's responsibilities included cleaning and stocking bathrooms, the stairs and elevators clean, cleaning the kitchens/break-rooms, vacuuming and dusting the upper the entry floor, door glass, keeping floors collecting of and the building, removing trash cleaning from each and cleaning the area of the cafeteria open to the public. Notable to the court is not only the sheer cleaned, and the fact that some areas were open to the public, the fact that Bank of America determined that was necessary each and every day. business relationship in Fowler, size America was for a three year term. one or more 3 In contrast, typically on Sears' hours each day. ABM employees area but like the long-term ABM's contract with Bank of Far from being a "stranger" Bank of America's business at 2 Commercial Place, days, the extensive cleaning Furthermore, here, of were engaged to on most business in some form of the janitorial subcontractors in Fowler were premises only twice a week for two to three 18 cleaning most from full-time usual" p.m., America likely a Commercial Inc., of 56 Va. supports the Place. Cir. Virginia employees longer period 309, cases above were in than "business 2 of 10 building. review further Bank until the at Specialists. A a.m. ABM's ongoing daily work functions suggest Accordingly, as 8 Stoddart 311 Floor Care (Danville 2001). decided analysis. v. subsequent In Anderson v. to Fowler Pillow, the Supreme Court of Virginia affirmed the Circuit Court's finding that subcontractor Waste Management was not a "stranger" to the business of Virginia Internataional Terminals contractually responsible for managing, ("VIT"), operating, the business of Norfolk International Terminal v. Pillow. 262 Va. "commercial commercial port 797, 799, whose freight, 553 S.E.2d 526, operations storing include commercial a and conducting ("NIT"). Anderson (2001). NIT is a 527 loading freight breaking down freight from shipping containers, corporation and in unloading warehouses, removing shipping material from freight, and general maintenance of port facilities." IcL_ at case, 800, 553 removal essential of part S.E.2d at S.E.2d at The According shipping debris and waste of VIT's maintaining NIT in a clean, 553 527. business of to an affiant from the port operating the safe and orderly manner . . in the "was an port . ." and id. , 527. plaintiff in Anderson, a VIT employee, was injured by subcontractor Waste Management while such subcontractor was in the 19 process of emptying "Monday through large Friday trash of containers each emptied such trash containers, week" Id. safe, at the port. Management test, truck shipping debris at 800-01, Applying the "stranger to the work" determined that in order to clean, Waste thereby "remov[ing] and waste from the terminal premises." at 528. a located 553 S.E.2d the trial court "reasonably operate the terminal in a and orderly manner, the premises had to be kept free of large quantities of shipping debris and waste generated daily." Id. at 801, 553 S.E.2d at 528. The Virginia Supreme Court agreed with such conclusion, noting that VIT could have elected to buy its own equipment to remove waste from the port, but it instead elected to subcontract such function to Waste Management. S.E.2d at Waste 528. The fact Management's that VIT was Fees for maintaining S.E.2d at The Court 529. Waste Management merely Management's role and therefore be 553 S.E.2d at "commercial" 529. concluded deemed operation and maintenance of th[e] Notably, NIT." that, that VIT merely that held open to to pay Id. . even . . 553 though filled, incidental the port 553 'overarching terminal facility . the fact and apparently not VIT's operating emptied dumpsters "cannot at 802, the party required "emphasize[d] responsibility' Id. Waste to ." the id. . facility was the public did not prevent the Court from concluding that keeping such facility clean, safe, and orderly was Similarly, here, essential to the business. Bank of America was contractually obligated 20 to maintain 2 Commercial Like Anderson, here, Place the in a essential clean nature and of orderly the fashion. subcontractor's function is demonstrated by the fact that the subcontractor's work was required to be performed each and every regular business dav. Furthermore, responsible the fact for paying cleaning/trash pickup, premises owner, responsibility" performed as Bank the trash America, subcontractors opposed to such emphasizes such to a the above like VTT, was associated fees with being paid by parties' more similarities, involved, function than VIT's subcontractor. the of the "overarching for properly maintaining the premises. In addition ABM that dumpsters after VIT time the court notes consuming, and that complete Waste Management merely emptied "collect[ed] the debris and waste generated by the operations and maintenance function throughout the terminal." Id^., 553 S.E.2d at 528. Waste Management's function was therefore only "the final part of VIT's own responsibility to maintain the premises free of debris and waste." at 528 trash (emphasis from each added). waste commercial building. otherwise kept the In contrast, basket on Furthermore, entire each Id.. 553 S.E.2d ABM collected and removed floor of the nine story ABM cleaned and vacuumed and premises free of debris. ABM's completion of such tasks appear to have taken far more time than Waste Management's ABM's work was function, essential to a factor Bank 21 of that further America's daily reveals that operations. Additionally, open to open the to unlike public, the at least public, served/protected Another supports the port, which does not appear to have been portion ABM's and a job the safety of of was Cir. similar post-Fowler court's conclusion involves 3 09. injured restroom medical case services transcriptionist likewise services the plaintiff, she slipped on Clinic's to patients, that worked frequented by patients, directly that {"Clinic"). The floor. is janitorial a In Stoddart, when Place the public. factually this at Commercial responsibilities company hired to clean a urology clinic Va. 2 a wet primary and in mission area 56 a Clinic employee, substance although an Stoddart. the on was a to Clinic provide plaintiff away from was the a areas a Clinic representative testified that it was important that the medical facility be kept clean, id. at 311. The Clinic subcontracted essentially janitorial responsible for subcontractor's equipment, company all hired cleaning by the services, including vacuums and mops, in janitorial storage areas on the Clinic's premises. The janitorial daily basis. The services Id. at plaintiff were provided by Clinic goods, and in Stoddart provided professional the fact the was stored Id. at 310. the subcontractor on a 311. argued differentiated the case from Fowler, the and was that 22 several facts including both the fact that services, Clinic that as employees opposed did not to retail "jointly" participate in cleaning. However, held employees were not reaching such conclusion, that Clinic's the janitorial business. In the circuit court nevertheless "strangers" to the the court explained: Although Clinic provides specialized professional services, [the Clinic representative] testified that if an independent contractor did not provide janitorial services, Clinic would have to hire staff to perform such services. It comes as no surprise that individuals seeking medical attention would expect clean and orderlyexamination and treatment facilities, fSubcontractor! Floor Care provides janitorial services each regular business dav and more extensive services on a periodic basis. Floor Care is certainly not a stranger to Clinic. To the contrary, daily janitorial service is the norm and constitutes business as usual for Clinic. Clinic actually purchases supplies used by access to Floor Care's equipment. Floor Care and has Clinic's employees were expected to clean up certain spills and messes under certain conditions. The fact that most of Clinic's basic janitorial needs are provided by independent contractors does not in and of itself mean that services provided by Floor Care are unnecessary or that there is insufficient "joint" activity to avoid application of the Act's exclusivity bar. . . . . If janitorial services were unnecessary to the ongoing operation of a medical practice, it seems unlikely that Clinic would pay the considerable fees and costs required by its contract with Floor Care. . . . Id. at 311-12 {emphasis Similarly, here, added). Bank of entire cleaning function to ABM, America essentially delegated its janitorial subcontractor. the ABM kept cleaning supplies and tools on Bank of America's premises and even had a small office there. Although Bank of America did not have a bank branch on the premises, the premises clean and safe for 23 it was still important to keep associates and the public. Furthermore, in both Stoddart and the instant matter the essential nature of the subcontractor's function is demonstrated by: subcontractor's of presumably performance constituted substantial "considerable functions fees,"; (1) for (2) and what the subcontractor's daily presence on the employer's premises. cases, the regular subcontractor business basis." Id. day "provide[d] and more Accordingly, [Bank of America]. To extensive "[ABM] the janitorial at on a each periodic is certainly not a stranger to contrary, daily janitorial the norm and constitutes business as usual Id. In both services services the for service is [Bank of America] ." 311. Based on the "stranger" to Bank finding, the forgoing, of Virginia the America's court finds business. Worker's As Compensation prevents plaintiff from recovering from ABM. motion to dismiss is the reasons a ABM is result Act not of such statutory Defendants' a bar 12(b)(1) therefore granted. IV. For that set Conclusion forth in detail above, the court finds that the Virginia Workers' Compensation Act statutory bar precludes plaintiff from recovering motion to dismiss from defendant ABM. Accordingly, the is GRANTED.4 4 Alternatively, because the facts are undisputed and the parties have had ample opportunity to submit relevant materials (they agreed to the submission of evidence without the need for an evidentiary hearing), if necessary to construe the instant motion as a motion for summary judgment, the court grants summary 24 The Clerk is REQUESTED to send a copy of this Opinion and Order to all IT IS counsel of record. SO ORDERED. ^s Mark S. Davis UNITED STATES DISTRICT JUDGE Norfolk, Virginia June aft , 2011 judgment in favor of defendants. 25
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