Farmer v. Cook
Filing
17
MEMORANDUM OPINION. Signed by Judge Thomas T. Cullen on 1/27/2021. (ham)
Case 4:20-cv-00042-TTC-RSB Document 17 Filed 01/27/21 Page 1 of 11 Pageid#: 97
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
DANVILLE DIVISION
ALLEN L. FARMER,
Plaintiff,
v.
RICKY WAYNE COOK,
Defendant.
)
)
)
)
)
)
)
)
)
JAN 27 2021
Civil Action No. 4:20cv00042
MEMORANDUM OPINION
By:
Hon. Thomas T. Cullen
United States District Judge
Allen Farmer, an employee of EBI, LLC (“EBI”), was injured when he—and the
forklift that he was driving—fell off the back of a tractor trailer operated by Ricky Wayne
Cook, an employee of Williams Transportation. Farmer sued Cook for negligence but Cook
argues that the Virginia Workers’ Compensation Act bars any action against him. Because the
services Cook was performing for EBI at the time of Farmer’s injuries were indispensable to
EBI’s day-to-day business and would normally be conducted by EBI employees themselves,
the Act considers Cook a statutory employee of EBI and thus bars Farmer from bringing this
suit against him. Therefore, the court will grant Cook’s motion for summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On September 24, 2018, Plaintiff Allen Farmer was working for EBI, a furniture
manufacturing company, using a forklift to load EBI’s products and materials onto the back
of a tractor trailer. Defendant Ricky Cook was operating a tractor trailer at the EBI plant in
Danville for his employer, Williams Transportation, which was “independently contracted
with by . . . EBI, . . . to transport products from their plant in Danville, Virginia . . . .” (Compl.
¶ 3 [ECF No. 1-1].) According to Mr. Cook, his sole responsibility was to move products
Case 4:20-cv-00042-TTC-RSB Document 17 Filed 01/27/21 Page 2 of 11 Pageid#: 98
between EBI’s manufacturing facility and its warehouse. (Dep. of Ricky Cook 12:2–7, Nov. 6,
2020 [ECF No. 11-2].) Mr. Cook had worked at the EBI warehouse every workday for at least
the preceding six months. (Id. at 9:18–22.) Mr. Farmer alleges that, while he was loading the
tractor trailer, Mr. Cook “pulled his vehicle away from the loading dock, causing [Mr. Farmer]
and the forklift to fall out of the back of the trailer.” (Compl. ¶ 7.) As a result, Mr. Farmer
sustained serious injuries to his head, back, neck, shoulder, and hands.
Mr. Farmer originally filed suit in Danville Circuit Court alleging a single count of
negligence and requesting judgment in the amount of $500,000. On July 20, 2020, Mr. Cook
removed the action to this court, and the court entered a pretrial order on that date. (ECF No.
4.) Mr. Cook filed an Answer on August 10 and, when this case was transferred to the
undersigned on November 2, the court entered its standard scheduling order. (ECF No. 8.)
On December 4, Mr. Cook filed the instant motion for summary judgment. (ECF No. 10.)
On December 18, Mr. Farmer filed a purported Motion for Extension of Time to Complete
Discovery & Opposition to Defendant’s Summary Judgment. (ECF No. 13.) And on January
4, 2021, the court entered an order construing Mr. Farmer’s motion for extension of time as
a notice under Fed. R. Civ. P. 56(d) that he cannot properly respond to the motion for
summary judgment without further discovery because certain facts are unavailable to him. See
Fed. R. Civ. P. 56(d)(2) (“If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition, the court may . . . allow time
to obtain affidavits or declarations or to take discovery . . . .”).
The court ordered that the hearing set for January 19, 2021, would proceed as
scheduled and the parties should be prepared to argue both the Rule 56(d) issue and the merits
-2-
Case 4:20-cv-00042-TTC-RSB Document 17 Filed 01/27/21 Page 3 of 11 Pageid#: 99
of the motion for summary judgment on the present record. Having heard those arguments,
read the parties’ briefs, reviewed the relevant evidence in the record, and considered applicable
law, the motion is ripe for decision.
SUMMARY JUDGMENT STANDARD
Under Rule 56(a), the court must “grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Glynn v.
EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013). When making this determination, the court
should consider “the pleadings, depositions, answers to interrogatories, and admissions on
file, together with . . . [any] affidavits” filed by the parties. Celotex, 477 U.S. at 322. Whether a
fact is material depends on the relevant substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). “Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted.” Id. (citation omitted). The moving party bears
the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477
U.S. at 323. If that burden has been met, the nonmoving party must then come forward and
establish the specific material facts in dispute to survive summary judgment. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986).
In determining whether a genuine issue of material fact exists, the court views the facts
and draws all reasonable inferences in the light most favorable to the nonmoving party. Glynn,
710 F.3d at 213 (citing Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011)). Indeed, “[i]t is an
‘axiom that in ruling on a motion for summary judgment, the evidence of the nonmovant is
-3-
Case 4:20-cv-00042-TTC-RSB Document 17 Filed 01/27/21 Page 4 of 11 Pageid#: 100
to be believed, and all justifiable inferences are to be drawn in his favor.’” McAirlaids, Inc. v.
Kimberly-Clark Corp., 756 F.3d 307, 310 (4th Cir. 2014) (internal alteration omitted) (quoting
Tolan v. Cotton, 572 U.S. 650, 651 (2014) (per curiam)). Moreover, “[c]redibility determinations,
the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge.” Anderson, 477 U.S. at 255. The nonmoving party must,
however, “set forth specific facts that go beyond the ‘mere existence of a scintilla of
evidence.’” Glynn, 710 F.3d at 213 (quoting Anderson, 477 U.S. at 252). The nonmoving party
must show that “there is sufficient evidence favoring the nonmoving party for a jury to return
a verdict for that party.” Anderson, 477 U.S. at 249. “In other words, to grant summary
judgment the [c]ourt must determine that no reasonable jury could find for the nonmoving
party on the evidence before it.” Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 124 (4th Cir.
1990) (citing Anderson, 477 U.S. at 248). Even when facts are not in dispute, the court cannot
grant summary judgment unless there is “no genuine issue as to the inferences to be drawn
from” those facts. World-Wide Rights Ltd. P’ship v. Combe, Inc., 955 F.2d 242, 244 (4th Cir. 1992).
Under Rule 56, “[i]f a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition” to a motion for summary
judgment, the court may allow additional “time to obtain affidavits or declarations or to take
discovery . . . .” Fed. R. Civ. P. 56(d)(2).
THE VIRGINIA WORKERS’ COMPENSATION ACT
Virginia law controls this diversity action. See Erie R.R. v. Tompkins, 304 U.S. 64, 78–79
(1938). The Virginia Workers’ Compensation Act, Va. Code Ann. § 65.2-100, et seq. (“the
Act”), precludes an employee from bringing suit for negligence against his employer or his co-4-
Case 4:20-cv-00042-TTC-RSB Document 17 Filed 01/27/21 Page 5 of 11 Pageid#: 101
employee for an injury he or she sustains in the course of his or her employment. See Va. Code
Ann. § 65.2-307 (2020). “The Act contains an exception that allows an injured employee to
bring a claim against an ‘other party.’” Harris v. Freight Handlers, Inc., Case No. 1:19cv00003,
2019 U.S. Dist. LEXIS 194522, at *15 (W.D. Va. Nov. 8, 2019) (quoting Va. Code Ann. § 65.2309(A)). “[T]o be an ‘other party,’ a defendant must have been a stranger to the trade,
occupation, or business in which the employee was engaged when he was injured.” Peck v.
Safeway Steel Prods., Inc., 262 Va. 522, 525 (2001). “Whether a third party is engaged in the trade,
occupation, or business of the employer ‘depends upon the facts and circumstances in each
case, and for that reason the question does not readily yield to categorical or absolute
standards.’” Conlin v. Turner’s Express, Inc., 229 Va. 557, 559 (1985) (quoting Bassett Furniture v.
McReynolds, 216 Va. 897, 902 (1976)); see also Hayden v. Kroger Co., 17 F.3d 74, 77 (4th Cir. 1994)
(“It is clear that the determination of whether a subcontractor is an owner’s statutory employee
is a fact[-]specific inquiry.”).
As a general matter, when “an independent contractor is performing work that is part
of the trade, business, or occupation of the employer, the contractor is not an ‘other party’
against whom an action will lie.” Conlin, 229 Va. at 559 (citing Floyd v. Mitchell, 203 Va. 269,
274 (1962)). To determine whether the work being performed is part of the employer’s
business:
The test is not one of whether the subcontractor’s activity is
useful, necessary, or even absolutely indispensable to the
statutory employer’s business, since, after all, this could be said
of practically any repair, construction[,] or transportation service.
The test (except in cases where the work is obviously a
subcontracted fraction of a main contract) is whether this
indispensable activity is, in that business, [n]ormally carried on
through employees rather than independent contractors.
-5-
Case 4:20-cv-00042-TTC-RSB Document 17 Filed 01/27/21 Page 6 of 11 Pageid#: 102
Shell Oil Co. v. Leftwich, 212 Va. 715, 722 (1972) (cleaned up); Hayden, 17 F.3d at 76.
In this case, the undisputed evidence in the record establishes that moving goods and
materials necessary to EBI’s furniture production between its warehouse and its production
facility was an indispensable activity that would normally be carried out through employees
rather than independent contractors. Indeed, EBI would not be able to conduct its business
without having its goods and materials in the proper locations, and thus, but for hiring
Williams Transportation (or another transportation company) to do the moving for them, EBI
would have had its own employees perform the task.
The facts of the Virginia Supreme Court’s decision in Conlin are virtually identical to
the those in this case, and the Supreme Court’s analysis is determinative. In Conlin, Vencenza
Conlin, a Ford Motor Co. employee, was injured when, while driving a forklift to load Ford
machinery and parts onto a Turner’s Express tractor trailer, the floor of the tractor trailer
collapsed, causing Conlin and the forklift to fall. Conlin, 229 Va. at 558. The Virginia Supreme
Court held that “transporting machinery and parts from one plant to another was an essential
element of Ford’s business. Therefore, because Turner’s Express was engaged in Ford’s trade,
business, or occupation, Turner’s Express was not an ‘other party’ whom Conlin could sue.”
Id. at 559; see also Floyd, 203 Va. at 274 (holding that moving trailers and loading product was
part of the trade, business, or occupation of an iron foundry).
Like Conlin, Mr. Cook (through Williams Transportation) was hired to shuttle EBI’s
goods and materials between EBI’s facilities, an essential element of EBI’s business. For that
reason, Mr. Cook was a statutory employee of EBI, and Virginia law does not permit Mr.
-6-
Case 4:20-cv-00042-TTC-RSB Document 17 Filed 01/27/21 Page 7 of 11 Pageid#: 103
Farmer to sue him for negligence. Mr. Farmer’s only recourse is a workers’ compensation
action.
Mr. Farmer cites to another decision of the Virginia Supreme Court, Cinnamon v.
International Business Machines Corp., 238 Va. 471 (Va. 1989), arguing that this decision, which
came after Conlin, calls into question the court’s analysis and holding in the earlier case. But
the facts of Cinnamon are materially different from those in Conlin (and this case), and this
reliance is unavailing. In Cinnamon, IBM hired Pike and Son, Inc., and Paschen Contractors,
Inc., to build it a new “Semiconductor Manufacturing Building.” Id. at 473. Pike subcontracted
the painting to O.B. Cannon and Son, Inc., and one of its employees, Michael Cinnamon, was
grievously injured when he fell from a trestle where he was working. Id. at 473–74. The Virginia
Supreme Court held that, “[a]s a general rule, the several trades involved in construction work
are not part of the business of manufacturing products for sale.” Id. at 478 (citing Bassett
Furniture, 216 Va. at 899–904). “‘Every manufacturer must have a plant, but this fact alone
does not make the work of constructing a plant part of the trade or business of every
manufacturer who engages a contractor to construct a plant.’” Id. (quoting Raines v. Gould, Inc.,
343 S.E.2d 655, 659 (S.C. Ct. App. 1986)). On the facts alone, Cinnamon is inapplicable to the
case at bar.
Admittedly, some language in Cinnamon highlights the somewhat amorphous approach
Virginia has taken to the “statutory employer” analysis. In Cinnamon, the court expressly said
it was not going to apply either of the tests it had previously set out in Shell Oil Co., even though
its language made no indications of an intent to overrule those tests. See id. (“[W]e find it
unnecessary to apply either prong of the Shell Oil test. Indeed, that test is only a corollary guide,
-7-
Case 4:20-cv-00042-TTC-RSB Document 17 Filed 01/27/21 Page 8 of 11 Pageid#: 104
sometimes useful but not indispensable, in applying the literal language of the statutes to the
facts in a particular case.”). But even granting that the tests used by Virginia courts are
“corollary guides,” the clear applicability of Conlin, which is still good law in Virginia, should,
and the court believes does, control the outcome of this case. See, e.g., Vaughn v. Sears Logistics
Servs., Inc., No. 6:12-cv-00059, 2013 WL 3245151, at *9 (W.D. Va. June 26, 2013) (noting
approvingly the holding in Conlin and reaching consistent conclusion by applying the
“subcontracted fraction of a main” test from Shell Oil); Pennell v. Hudson’s Serv. Ctr., Inc., 95 Va.
Cir. 202 (2017) (applying Conlin and holding that a tow truck operator was engaged in the
trade, business, or occupation of a vehicle mechanic when moving vehicles from one lot to
another). Because EBI engaged an independent contractor—Williams Transportation, and
accordingly Mr. Cook—to “perform . . . work which [was] part of [EBI’s] trade, business[,] or
occupation,” Va. Code Ann. § 65.2-302, Mr. Farmer’s action is not permissible under Virginia
law, and Mr. Cook is entitled to summary judgment.
TIMING OF SUMMARY JUDGMENT
Finally, Mr. Cook argues that, under Rule 56(d), the court should refrain from ruling
on the merits of Mr. Farmer’s motion until more discovery has been conducted.1 Mr. Cook
argues that corporate-designee depositions from EBI and Williams Transportation, see Fed. R.
Civ. P. 30(b)(6), or the depositions of other employees on the loading dock that day, would be
beneficial, without offering a convincing explanation as to how that additional evidence might
The court notes that Rule 56(d) requires a showing “by affidavit or declaration” that a party “cannot present
facts to justify its opposition” to a motion for summary judgment. Fed. R. Civ. P. 56(d). No such affidavit or
declaration was filed, although the court construed Mr. Farmer’s filing as a notice under Rule 56(d). (See Order,
Jan. 4, 2021 [ECF No. 15].)
1
-8-
Case 4:20-cv-00042-TTC-RSB Document 17 Filed 01/27/21 Page 9 of 11 Pageid#: 105
alter the determinative facts that the parties have already established through discovery to
date.2 The court is not persuaded that any of those individuals would be in a position to offer
evidence that would alter the legal analysis that controls this case. Under Virginia law, the court
is only concerned with the activities of the parties “at the precise time of the accident.” Rice v.
VVP Am., Inc., 137 F. Supp. 2d 658, 669 (E.D. Va. 2001) (“At oral argument, Binswanger
argued that the Court should determine whether Rice was its statutory employee by focusing
on all of Rice’s actions during her visit to Binswanger on the day of the accident. Based on the
relevant case law, however, the Court is of the opinion that the proper focus is on Rice’s
activity at the precise time of the accident.”) (collecting cases). There is no dispute among the
parties that, at the time Mr. Farmer was injured, Mr. Cook was exclusively engaged in
“intrafacility deliveries” for EBI, and that he had been for at least six months prior to the
accident. See Harris, 2019 U.S. Dist. LEXIS 194522, at *16. Any other facts about the nature
of the contract between EBI and Williams Transportation would not alter that controlling fact.
Neither would evidence from other employees that, at other times, Williams Transportation
employees—or Mr. Cook specifically—engaged in activities that were not part of EBI’s “trade,
occupation, or business.” Even if the employees so testified, that would not alter the legal
conclusion to be drawn from the facts. Cf. Rice, 137 F. Supp. 2d at 669–70 (holding that, at the
precise time of her injury, the plaintiff was acting as a stranger to the defendant’s business and thus
2 Although the parties did not fully disclose the extent of the discovery conducted to date, this case was filed in
state court on June 22, 2020, and removed to this court on July 20. (See ECF No. 1.) The Hon. Jackson L. Kiser
entered a scheduling order that same day. (ECF No. 4.) Depositions of at least three witnesses—Mr. Farmer,
Mr. Cook, and Russell Deel, a team leader at EBI—were conducted on November 16, 2020 (ECF Nos. 11-2,
11-3, 11-4, and 14-1). Mr. Farmer also made his Rule 26(a)(1)(A) disclosures on December 2 (see ECF No. 9)
before filing the present motion for summary judgment on December 4 (ECF No. 10). Tellingly, Mr. Farmer
does not contend he was unable to depose additional witnesses in the five months this case has been pending.
-9-
Case 4:20-cv-00042-TTC-RSB Document 17 Filed 01/27/21 Page 10 of 11 Pageid#: 106
the Act did not bar her action, even though she often performed work that, had she been
injured while performing those actions, the Act would have barred her recovery).
Accordingly, the court finds that further discovery would not alter the legal conclusion
that Mr. Cook was a “statutory employee” of EBI at the time of his injury, and thus this action
is barred by the Act. Further discovery is neither necessary nor prudent. See Fed. R. Civ. P.
56(b) (“[A] party may file a motion for summary judgment at any time until 30 days after the
close of all discovery.” (emphasis added)); Zipit Wireless Inc. v. Blackberry Ltd., No. 6:13-cv02959-JMC, 2016 WL 5933975, at *8 n.9 (D.S.C. Oct. 12, 2016) (same); Rasnick v. Dickenson
Cnty. Sch. Bd., No. 2:03CV00038, 2003 WL 21432562, at *3 (W.D. Va. June 12, 2003); Banks
v. Mannoia, 890 F. Supp. 95, 98 (N.D.N.Y. 1995) (“Although Rule 56 allows courts to consider
depositions, answers to interrogatories, and admissions on file in ruling on summary judgment
motions, it does not require that discovery take place before a motion for summary judgment
may be considered.”); see also Fed. R. Civ. P. 1 (noting that the Federal Rules “should be
construed, administered, and employed by the court and the parties to secure the just, speedy,
and inexpensive determination of every action and proceeding”). Mr. Cook is entitled to
summary judgment.
CONCLUSION
Because Mr. Cook was a “statutory employee” of EBI at the time of his accident,
Virginia law bars a negligence action against him for Mr. Farmer’s injuries. The court will enter
summary judgment for Mr. Cook.
- 10 -
Case 4:20-cv-00042-TTC-RSB Document 17 Filed 01/27/21 Page 11 of 11 Pageid#: 107
The clerk is directed to forward a copy of this Memorandum Opinion and
accompanying Order to all counsel of record.
ENTERED this 27th day of January, 2021.
__/s/ Thomas T. Cullen______________
HON. THOMAS T. CULLEN
UNITED STATES DISTRICT JUDGE
- 11 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?