Present: All the Justices 

DANIEL F. P. STONE 

 OPINION BY 

v. Record No. 000175 CHIEF JUSTICE HARRY L. CARRICO 

 November 3, 2000 

DOOR-MAN MANUFACTURING CO., ET AL. 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Junius P. Fulton, III, Judge 

 The question for decision in this appeal is whether a 

worker in the employ of the owner of a manufacturing 

business was a statutory fellow employee of the architect 

and contractors involved in a construction project at the 

owner’s plant. The question arose in a personal injury 

action brought by the plaintiff, Daniel F. P. Stone 

(Stone), an employee of the Ford Motor Company (Ford) at 

its motor vehicle assembly plant in Norfolk, against the 

defendants, Gala & Associates, Inc. (Gala), the 

architectural firm involved in the project, and 

Rudolph/Libbe, Inc. (Rudolph/Libbe), Door-Man Manufacturing 

Co. (Door-Man), Lake Erie Electric, Inc. (Lake Erie), and 

E. G. Middleton, Inc. (Middleton), the contractors and 

subcontractors involved in the project. 

 The defendants filed motions to dismiss for lack of 

subject matter jurisdiction, alleging that Stone’s sole 

remedy was provided by the Workers’ Compensation Act (the 
Act).1 Finding that the defendants were engaged in the 

trade, business, or occupation of Ford and, consequently, 

were deemed to be statutory fellow employees of Stone, the 

trial court held that Stone's personal injury action was 

barred by the exclusivity provision of the Act and 

sustained the defendants’ motions to dismiss. We awarded 

Stone this appeal. 

 At the time he was injured on April 11, 1996, Stone 

was employed as a utility upgrader at Ford's assembly 

plant. While operating a "tow-motor vehicle" or "tug" in 

the course of his employment, Stone attempted to drive 

through the doorway of the body shop where he worked. 

However, the overhead door "unexpectedly closed and struck 

[him] in the head and chest," paralyzing him from the midchest down. 

 The door in question was opened and closed 

automatically by a device activated by electrical 

"inductive loops." One loop was installed in the concrete 

floor immediately inside the shop door and another in the 

concrete ramp immediately outside the door. Stone claimed 

the loops were incorrectly positioned with the result that 

 1

 Rudolph/Libbe states in a memorandum found in the 

appendix that “[i]t is uncontested [Stone] in this matter 

has been paid benefits pursuant to the Virginia Workers’ 

2
when he attempted to exit the shop through the open doorway 

at an angle, rather than head-on, the inside loop failed to 

detect the presence of his tug and to activate the device 

that would have kept the door from descending. 

 The door and the body shop were located in a former 

warehouse that had been remodeled and enlarged during a 

renovation of the assembly plant undertaken by Ford in 1994 

to implement the manufacture of its redesigned F-150 pickup 

truck. Completed several months before Stone’s accident, 

the new body shop was one phase of a five-phase project.2

Designated the "PN96 Body Shop Project," the proposal for 

development of the shop had been the subject of an 

eighteen-month effort by Ford personnel to prepare a 

layout, together with "global specifications," showing 

"exactly how this building should be shaped; how all the 

toolings are going to fit inside; how the material is going 

to be brought in; how the material is going to be arranged 

together; and how it's going to be shipped from point A to 

point B." 

 Ford then entered into a contract with Gala for 

"Engineering Services for [the] Body Shop Building 

 

Compensation Act.” This fact is not otherwise disclosed in 

the record. 

2

 Rudolph/Libbe states on brief that the body shop was 

a $25 million phase “of the total $125 million project.” 

3
Addition." Gala’s services were to consist, inter alia, of 

the review of "new proposed layout" and "construction shop 

drawings" as well as the preparation of "complete design 

and bid documents for bid purpose," "complete 

specifications," and "as-built drawings." Stone claimed in 

his motion for judgment that Gala negligently designed the 

body shop and the overhead door system, negligently 

supervised and inspected the installation of the system, 

and negligently approved or failed to disapprove the design 

of the system, proximately causing Stone’s injuries. 

 Rudolph/Libbe won the bid and was awarded the contract 

for construction of the body shop. In what was termed a 

"Full Service Contract," Rudolph/Libbe as "Contractor" 

agreed to "furnish all materials, tools, equipment, 

facilities, labor, means, supervision and management to 

perform all work required to investigate, study, design, 

detail, fabricate, deliver, construct, install, launch and 

document this new PN96 Body Shop project . . . in strict 

accordance with the Owner's Instructions to Bidders, 

Project Specifications, Project Timing and Standard 

Specifications." 

 Specifically, Section 08200 of the Full Service 

Contract, termed "Vertical Lift Doors,” provided for the 

furnishing of "all materials, equipment and labor necessary 

4
to provide and install new vertical lift doors at docks and 

ramps" and the submission of "complete shop drawings 

showing details of construction, fabrication and 

installation of all components for all work." Section 

08200 also specified the use of a vertical lift door "as 

manufactured by" Door-Man and one other supplier. Stone 

claimed Rudolph/Libbe negligently installed the door 

system, negligently supervised the design, manufacture, and 

installation of the system by others, failed to inspect 

and/or negligently inspected the system, and failed to test 

and/or negligently tested the system, proximately causing 

Stone’s injuries. 

 Rudolph/Libbie entered into a subcontract with DoorMan, requiring the latter to furnish and install the door 

that was later involved in Stone's injury. Door-Man 

manufactured the door, but subcontracted with another firm, 

not a party to this proceeding, to perform the actual 

installation. Stone claimed that Door-Man negligently 

breached its duties to design, manufacture, distribute, 

sell, install, inspect, and test the overhead door system, 

breached its express and implied warranties that the system 

was of good merchantable quality fit for its ordinary 

purposes and knew or had reason to know the particular 

purpose for which the door was being purchased, yet 

5
breached its implied warranty that the door was fit for its 

particular purpose, proximately causing Stone’s injuries. 

 Rudolph/Libbie also entered into a subcontract with 

Lake Erie to perform the electrical work in connection with 

the installation of the door involved in Stone’s injury. 

Lake Erie then subcontracted with Middleton for the actual 

performance of the electrical work. Stone claimed that 

Lake Erie and Middleton negligently installed the door 

system and its wiring and, after installation, failed to 

test and/or negligently tested the system, proximately 

causing Stone’s injuries. 

 Stone also claimed that all the defendants: (1) failed 

to instruct the users of the door system how to operate it 

safely, (2) failed to warn the users of the dangers 

inherent in the design and manufacturing of the system, and 

(3) failed to warn the users of the risk of injury when 

using the system in a reasonably foreseeable manner and for 

its intended purpose, proximately causing Stone’s injuries. 

Stone moved for entry of judgment jointly and severally 

against all defendants in the sum of $30 million 

compensatory damages and $350,000 against each defendant in 

punitive damages. 

 As noted supra, the trial court found that because the 

defendants were engaged in the trade, business, or 

6
occupation of Ford and, consequently, were fellow statutory 

employees of Stone, his personal injury action was barred 

by the Act’s exclusivity provision. All the defendants 

contend this finding was correct and should be affirmed. 

 The exclusivity provision is found in Code § 65.2-307, 

which reads as follows:3

The rights and remedies herein granted to an employee 

when his employer and he have accepted the provisions 

of this title respectively to pay and accept 

compensation on account of injury or death by accident 

shall exclude all other rights and remedies of such 

employee, his personal representatives, parents, 

dependents or next of kin, at common law or otherwise, 

on account of such injury, loss of service or death. 

The exclusivity provision does not apply, however, to a 

common law action for an employee’s injury or death against 

an “other party.” Code § 65.2-309; Stewart v. Bass Constr. 

Co., 223 Va. 363, 365, 288 S.E.2d 489, 490 (1982). 

 “The issue whether a person is a statutory employee 

presents a mixed question of law and fact which must be 

resolved in light of the facts and circumstances of each 

case.” Cooke v. Skyline Swannanoa, Inc., 226 Va. 154, 156, 

307 S.E.2d 246, 247 (1983). Where, as here, the facts 

relevant to resolution of the jurisdictional issue are not 

in dispute, “we must determine whether the trial court 

correctly applied the law to those facts.” Cinnamon v. 

7
International Bus. Mach. Corp., 238 Va. 471, 474, 384 

S.E.2d 618, 619 (1989). 

 "As a general rule, the several trades involved in 

construction work are not part of the business of 

manufacturing products for sale." Id. at 478, 384 S.E.2d 

at 621. "Every manufacturer must have a plant, but this 

fact alone does not make the work of constructing a plant a 

part of the trade or business of every manufacturer who 

engages a contractor to construct a plant." Raines v. 

Gould, Inc., 343 S.E.2d 655, 659 (S.C. Ct. App. 1986). 

 To support their contention that they were engaged in 

the trade, business, or occupation of Ford, the defendants 

emphasize the evidence concerning Ford's eighteen months of 

intensive planning for the construction project as well as 

the detailed layout and "global specifications" that were 

developed as a result. The defendants also cite evidence 

showing that, at its assembly plant, Ford employs personnel 

trained to design buildings as well as approximately 250 

skilled tradesmen, including carpenters, electricians, 

pipefitters, millwrights, welders, plumbers, and others. 

 Each defendant says the evidence showed that Ford, 

with its own employees, normally performs work at its plant 

 3

 Code § 65.2-307 was amended in 1999 to add a new 

paragraph, inapplicable here. 1999 Va. Acts ch. 842. 

8
similar in all respects to the construction work required 

of the particular defendant in the contractual arrangements 

for the project in question. In addition, some of the 

defendants cite Ford’s involvement in the day-to-day 

construction of the project as evidence they were involved 

in Ford’s usual business. 

 For example, Gala, the architect, asserts that Ford 

"has made and continues to make the design of its 

production facilities an integral part of its 'normal' 

trade, occupation or business and that it did so with 

respect to the design work on the new body shop in 

Norfolk." On "the very door in question," Ford "produced 

and required adherence to a detailed, six page 

specification with respect to door design and operation." 

 Rudolph/Libbe, the construction contractor, maintains 

that "Ford employs personnel who are capable of and 

regularly perform the type of tasks contracted to 

Rudolph/Libbie in this matter, and in fact Ford's personnel 

provided supervisory instruction on a daily basis to the 

contractors on this job, including Rudolph/Libbe." Ford 

even "specified that the external actuating loop [for the 

door in question] be moved further from the door," and, 

after Stone's accident, "Ford's own construction forces at 

9
the Norfolk Plant added a second inductive loop on the 

inside of the door in question." 

 Door-Man, the manufacture and installation 

subcontractor, submits that Ford "manufactures its own 

vertical lift doors at various Ford facilities" and "has 

installed automatic opening doors at the Ford Plant." "Ford 

was actively involved in all phases of the PN-96 project, 

including the design, construction and installation of the 

body shop and its components and particularly the overhead 

door involved in this case. Ford dictated the size of the 

door, where it was to be placed, the location of the 

inductive loop used to operate the door as well as the 

location of the guard post adjacent to the door." 

 Lake Erie, the electrical subcontractor, states that 

"Ford electricians regularly perform the same work which 

Lake Erie Electric was contracted to perform as part of the 

[body shop] expansion. They have removed and replaced door 

loops, relocated electric panels, and worked on the timing 

and sequencing of doors.” 

 Middleton, the electrical sub-subcontractor, claims 

that it "installed the electrical components to [the] 

overhead door for use in Ford's plant" and that it is 

unrefuted that Ford "routinely engaged in such work on its 

own" with the "80-85 full time electricians" it employed at 

10
the plant. "In short, all of Middleton's work, with 

respect to this particular door, is also performed by the 

Ford electricians in house." 

 Furthermore, in the arguments of the defendants, there 

is an attempt by each to minimize its role in the 

construction project, to isolate itself from the parts 

played by other defendants, and to have us focus our 

attention upon its own individual undertaking. To the 

extent that these arguments are intended to shift blame for 

Stone's accident, they deal with the question of liability 

and hence are irrelevant to the issue whether Stone is the 

defendants’ statutory fellow employee. To the extent that 

the arguments are intended to individualize our resolution 

of the statutory employee issue by reference to each 

contract separately, we reject them. In determining 

whether the defendants were engaged in the trade, business, 

or occupation of Ford, rendering Stone a statutory 

employee, we think the contractual obligations of the 

parties should be considered as a whole and the 

construction of the body shop as a single project. 

 There is also an attempt on the part of some 

defendants to characterize Ford as its own general 

contractor and Rudolph/Libbe as a mere subcontractor. 

However, the obligations imposed upon Rudolph/Libbe by the 

11
language quoted above from the “Full Service Contract” 

clearly make Rudolph/Libbe the general contractor on the 

PN96 Body Shop Project. 

 With respect to the law applicable to the case, there 

is a lack of agreement among the parties concerning the 

appropriate test to be applied in resolving the issue 

whether Stone was a statutory employee. Three separate 

tests are discussed in the briefs, the "normal work" test, 

the "subcontracted fraction" test, and the “stranger to the 

work" test. 

 The first, the "normal work" test, was recognized in 

Shell Oil Co. v. Leftwich, 212 Va. 715, 187 S.E.2d 162 

(1972). That case involved two workers employed by a 

lessee of a service station owned by Shell Oil Co. We held 

the workers were not the statutory employees of Shell Oil, 

stating as follows: 

 "[T]he 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, normally carried on through employees rather 

than independent contractors." 

Id. at 722, 187 S.E.2d at 167 (quoting 1A Arthur Larson, 

The Law of Workmen's Compensation § 49.12 (1973)). 

12
 The "normal work" test of Shell Oil has been discussed 

numerous times in our subsequent decisions, but none 

involved the situation presented here, where the question 

is whether a worker employed by an owner is a statutory 

fellow employee of contractors and subcontractors engaged 

to do construction work.4 Closely analogous, however, is 

Whalen v. Dean Steel Erection Co., 229 Va. 164, 327 S.E.2d 

102 (1985), where the issue was whether a worker employed 

by a general contractor may bring a tort action against a 

subcontractor for personal injuries caused by the 

subcontractor's negligence on the job. The worker argued 

for application of the "normal work" test as enunciated in 

Shell Oil and applied in Bassett Furniture Indus., Inc. v. 

McReynolds, 216 Va. 897, 224 s.E.2d 323 (1976) as well as 

Southeastern Tidewater Area Manpower Auth. v. Coley, 221 

Va. 859, 275 S.E.2d 589 (1981). 

 We said that the worker "misapplies these 

authorities." Whalen, 229 Va. at 170, 327 S.E.2d at 105. 

These cases, we continued, involved the question "whether a 

subcontractor's employee, injured by a general contractor's 

 4

 Two cases decided since Shell Oil, Williams v. E. T. 

Gresham Co., 201 Va. 457, 111 S.E.2d 498 (1959), and 

Stewart v. Bass, 223 Va. 363, 288 S.E.2d 489 (1982), 

involved claims by an employee of an owner but the "normal 

work" test is not mentioned in either opinion. Both were 

13
(or owner's) negligence on the job, may sue such general 

contractor or owner at common law or whether such general 

contractor or owner has become the statutory employer of 

the plaintiff." Id., 327 S.E.2d at 106. "These statutory 

employer cases," we stated, "present a question which is 

the obverse of the one presented here, and their rule is 

inapplicable where a general contractor's employee seeks to 

sue a subcontractor." Id. (Emphasis added.) 

 The second test discussed in the briefs is the 

"subcontracted fraction" test, derived from the 

parenthetical language in the quotation from Professor 

Larson's work. This language excepts from the "normal 

work" test those "cases where the work is obviously a 

subcontracted fraction of a main contract." However, in 

Cinnamon v. International Bus. Mach., supra, we said of the 

"subcontracted fraction" test: 

In the context of the construction business, it 

relates to a general contractor, the party obligated 

by the main contract with the owner to complete the 

whole project. If the work out of which the accident 

arose was, in the language of Shell Oil, "obviously a 

subcontracted fraction of [that] contract" and, in the 

language of the statute, "not a part of the trade, 

business or occupation of" the owner, the general 

contractor who engaged the subcontractor to perform 

that fraction is the statutory employer of the injured 

worker, whether directly employed by the primary 

subcontractor or by a secondary subcontractor. 

 

decided under the “stranger to the work" test, discussed 

infra. 

14
238 Va. at 476, 384 S.E.2d at 620 (emphasis added).5 Hence, 

the "subcontracted fraction" test does not relate to the 

situation involved here, where the employee of an owner, 

not a subcontractor, is the injured worker.6

 The third test is the "stranger to the work" test. 

This test is derived from the language of Code § 65.2-

309(A), noted above, which recognizes the right of an 

injured worker to maintain a common law action for personal 

 5

 The reference in the quotation to "the statute" is to 

Code § 65.2-302(B), which specifies when a general 

contractor becomes a statutory employer, making him liable 

for compensation under the Workers' Compensation Act for a 

worker's injury or death. 

6

 Rudolph/Libbe cites Evans v. Hook, 239 Va. 127, 387 

S.E.2d 777 (1990), as "instructive on [the] issue" whether 

"Ford subcontracted out a fraction of the PN-96 Project to 

Rudolph/Libbe and the other defendants herein." 

Rudolph/Libbe says that "[i]n Evans, this Court found that 

a contractor building a building to be used as a used car 

dealership was in the same business trade or occupation as 

the used car dealer." Rudolph/Libbe misreads the case. 

The owners in that case were not in a used car dealership 

but a partnership formed for the purpose of acquiring, 

owning, and developing a tract of land on which it planned 

to construct a building "to rent to a car dealer." Id. at 

129, 387 S.E.2d at 777. An employee of a contractor 

engaged to construct the building was injured during the 

course of construction and sued the masonry subcontractor 

and the architect who designed the building and supervised 

the construction. The trial court sustained pleas to the 

jurisdiction. The employee appealed only the judgment in 

favor of the architect. We affirmed. Contrary to the way 

Rudolph/Libbe reads the case, we did not find that the 

architect was "in the same business trade or occupation as 

the used car dealer" but that he was engaged in the same 

"business or project" as the owners of the property, i.e., 

land development. Id. at 131, 387 S.E.2d at 779. 

15
injury against an “other party." This is the test we 

applied in Whalen, supra, after we ruled that the "normal 

work" test is inapplicable when an employee of a general 

contractor makes a personal injury claim against a 

subcontractor. 

 The worker in Whalen, a carpenter employed by the 

general contractor on a construction project, was engaged 

with a crew in fabricating wooden forms into which concrete 

would be poured. The crew was also responsible for 

installing reinforcing steel and pouring concrete into the 

forms, then setting anchor bolts in the concrete, to which 

vertical steel columns would later be attached. At the 

time the worker was injured, his crew was working at the 

construction site simultaneously with the crew of a 

subcontractor engaged to do the steel erection work. The 

subcontractor had stored a steel girder at the site, which 

fell over and injured the worker. He brought a tort action 

against the subcontractor. 

 In Whalen, applying the "stranger to the work” test, 

we held that the worker’s action was barred. 229 Va. at 

169, 327 S.E.2d at 105. We stated that the steel 

subcontractor "was no stranger to the work in which [the 

worker's] employer was engaged, but was, on the contrary, 

16
performing an essential part of it." Id. (Emphasis 

added.) 

 As noted in Whalen: 

 "The test to be applied in the present case was 

first stated in Feitig v. Chalkley, 185 Va. 96, 38 

S.E.2d 73 (1946). There we said that in order to 

maintain a common law action the defendant had to be a 

stranger to the trade, occupation, or business in 

which the plaintiff was involved. This test has been 

restated and applied numerous times. See, e.g., Stout 

v. Onorati, 221 Va. 143, 267 S.E.2d 154 (1980); Bosher 

v. Jamerson, 207 Va. 539, 151 S.E.2d 375 (1966); ` 

Administratrix v. Ford, 198 Va. 712, 96 S.E.2d 92 

(1957); Sykes v. Stone & Webster Eng. Corp., 186 Va. 

116, 41 S.E.2d 469 (1947).” 

229 Va. at 167, 327 S.E.2d at 104 (quoting Stewart v. Bass, 

supra, 223 Va. at 365, 288 S.E.2d at 490) (employee of pulp 

manufacturer, injured by a crane while removing for repair 

an aerator used in manufacturing process, barred under the 

"stranger to the work" test from maintaining personal 

injury action against owner of crane who regularly assisted 

manufacturer in removal of aerators). See also Williams v. 

E. T. Gresham Co., 201 Va. 457, 111 S.E.2d 498 (1959) 

(employee of ferry district injured while repairing dock 

facilities barred from maintaining personal injury action 

against owner of pile driving equipment regularly engaged 

to assist in such work). 

 We said in Feitig v. Chalkley: 

The remedies afforded the employee under the act are 

exclusive of all his former remedies within the field 

17
of the particular business, but the act does not 

extend to accidents caused by strangers to the 

business. If the employee is performing the duties of 

his employer and is injured by a stranger to the 

business, the compensation prescribed by the act is 

available to him, but that does not relieve the 

stranger of his full liability for the loss . . . . 

185 Va. at 102, 38 S.E.2d at 75-76 (emphasis added). 

 We think the "stranger to the work" test applied in 

Whalen is the appropriate test for application to the 

present case. Although the injured worker in Whalen was 

the employee of a general contractor while the employee of 

an owner is the injured claimant in this instance, the 

latter stands on at least an equal legal footing with the 

former. 

 Here, combining the language in Whalen and Feitig and 

applying the holdings to this case, we find that "the work 

in which [Stone's] employer was engaged" was Ford's 

"particular business" of manufacturing and selling motor 

vehicles. The defendants were strangers to that business. 

Therefore, the Act does not bar Stone's common law action 

for personal injuries against the defendants. 

 However, we would reach the same result even if we 

applied the "normal work" test. Although Ford engaged in a 

protracted period of intensive planning for the 

construction project and exercised a degree of supervision 

in the course of construction, this is not atypical conduct 

18
for an owner, especially one engaged in an undertaking of 

the scope and size of the PN96 Body Shop Project. And it 

is not unusual for an owner to make changes as a project 

progresses, as Ford did here when it "recommended" a 

relocation of the outside inductive loop. 

 Nor do we think it is of significance that Ford itself 

corrected the location of the interior inductive loop after 

Stone was injured. This action may have been prompted by 

Ford's concern for the safety of its employees and its 

unwillingness to trust the correction to others. 

 With respect to design work, it is true that Ford 

previously used its own personnel to do the design work for 

construction projects and still does on “smaller . . . or 

mid-sized projects.” However, "on a major project like 

[the PN96 Body Shop]," Ford "use[s] the outside help such 

as [Gala]," which works "with Ford Motor Company 

exclusively."7

 Furthermore, while Ford employs a sizeable number of 

skilled tradesmen on a permanent basis, the evidence shows 

that these tradesmen “are mainly concerned with 

 7

 Although Gala may work “with Ford Motor Company 

exclusively,” Gala is not Ford’s exclusive designer on 

major projects. Gala states on brief that “[o]nly for 

‘larger’ projects like the PN-96 Project does Ford 

‘outsource’ some of the design work to Gala.” (Emphasis 

19
maintenance.” Although, in certain instances, they “build 

things as well,” including vertical lift doors similar to 

the one that caused Stone's injury, we consider it 

significant that "plant forces" performed "no construction 

phase" of the PN96 Body Shop Project. 

 The “magnitude of the job” determines whether Ford 

does the work with its own employees or engages outside 

contractors. If the magnitude of the job is greater than 

Ford’s employees can accomplish or if the cost of a job 

exceeds one million dollars, outside contractors are 

engaged to do the work. The renovation project in question 

was the type of "major work" that Ford “historically 

contracted out.” In other words, Ford's normal work 

indisputably did not include in-house performance of 

projects of the scope and size of the PN96 Body Shop 

Project. While the magnitude of the project is not 

conclusive, it is entitled to consideration in determining 

whether the construction of the project was the normal work 

of Ford and in reaching the conclusion that it was not. 

 For the foregoing reasons, we will reverse the 

judgment of the trial court, reinstate Stone's motion for 

judgment, and remand the case for further proceedings. 

 

added.) Even then, Gala apparently has to bid on the 

design work, like anyone else. 

20
Reversed and remanded. 

21