Present: Carrico, C.J., Lacy, Keenan, Koontz, Kinser, and 

Lemons, JJ., and Whiting, S.J. 

BRUCE RAY PFEIFER OPINION BY 

SENIOR JUSTICE HENRY H. WHITING 

v. Record No. 001615 June 8, 2001 

KRAUSS CONSTRUCTION COMPANY 

OF VIRGINIA, INC. 

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

A. Bonwill Shockley, Judge 

 This appeal of a personal injury claim involves Code 

§ 65.2-307, the exclusive remedy provision of the Virginia 

Workers' Compensation Act, Code §§ 65.2-100 through –1310 (the 

Act), and its applicability to a common-law claim of Bruce Ray 

Pfeifer, an employee of one subcontractor on a construction job 

who sued another subcontractor for personal injuries received on 

the job.1

 The parties stipulated the facts. Linkhorn Bay Associates, 

L.L.C. (Linkhorn Bay) was the owner of a project known as 

Linkhorn Bay Condominiums in the City of Virginia Beach. 

Linkhorn Bay had no employees, and subcontracted all the work to 

various subcontractors. One such contract was an oral contract 

 

1

 Code § 65.2-307 provides in pertinent part: 

A. The rights and remedies herein granted to an employee 

[against his employer]. . . shall exclude all other rights 

and remedies of such employee . . . at common law or 

otherwise, on account of such injury, loss of service or 

death. 
with Virginia Natural Gas (the gas company), in which the gas 

company agreed to dig, install, and test natural gas lines, and 

to connect them to the condominium buildings on the site at no 

charge to Linkhorn Bay, in return for Linkhorn Bay's agreement 

to install appliances using natural gas in the planned 

condominium units. Linkhorn Bay executed another contact with 

Pfeifer's common-law employer, Tidewater Applicators, Inc. 

(Tidewater), in which Tidewater was to "complete 'Exterior 

Finish System for construction' of the Project." 

 The gas company subcontracted its contractual obligation to 

Krauss Construction Company of Virginia, Inc. (Krauss). While 

Krauss' employees were testing the gas line, a plastic gas cap 

blew off the line, striking and injuring Pfeifer, who was 

working on the job. 

 Pfeifer filed a personal injury action against Krauss.2 

Krauss filed a plea in bar in which it maintained that the court 

had no jurisdiction to adjudicate Pfeifer's common-law claim 

because Krauss was Pfeifer's co-employee under the terms of the 

Act, and therefore his exclusive remedy was under Code § 65.2-

300. Pfeifer denied that Krauss was his statutory co-employee 

 2

 Pfeifer's action was filed in the Circuit Court of the 

City of Norfolk and, on motion by the defendant, it was later 

transferred to the Circuit Court of the City of Virginia Beach 

under the provisions of Code § 8.01-264. 

2
and asserted that the exclusive remedy provision of the Act was 

inapplicable. 

 After hearing argument, the trial court sustained Krauss' 

plea. We granted this appeal to Pfeifer. 

 Because Pfeifer was not Krauss' common-law employee, the 

controlling statute is Code § 65.2-302. With the names of the 

parties hereto added in brackets, it provides in relevant part 

as follows: 

§ 65.2-302. Statutory employer. 

A. When any person (referred to in this section as 

"owner") [Linkhorn Bay] undertakes to perform or execute 

any work which is a part of his trade, business or 

occupation and contracts with any other person (referred to 

in this section as "subcontractor") [the gas company] for 

the execution or performance by or under such subcontractor 

of the whole or any part of the work undertaken by such 

owner, the owner shall be liable to pay to any worker 

employed in the work any compensation under this title 

which he would have been liable to pay if the worker had 

been immediately employed by him. 

. . . . 

C. When the subcontractor [the gas company] in turn 

contracts with still another person (also referred to as 

"subcontractor") [Krauss] for the performance or execution 

by or under such last subcontractor of the whole or any 

part of the work undertaken by the first subcontractor, 

then the liability of the owner or contractor shall be the 

same as the liability imposed by subsections A and B of 

this section. [Emphasis added.] 

 Under this statute, even though a third party subcontractor 

like Krauss may not have a common-law employer-employee 

3
relationship with injured workers like Pfeifer, their respective 

rights and obligations may be affected. 

The purpose of [Code § 65.2-302]3 is to bring within the 

operation of the Act all persons engaged in work that is a 

part of the trade, business, or occupation of the party who 

undertakes as owner or who contracts as contractor to 

perform the work, and to make liable to every employee 

engaged in the work every such owner contractor, or 

subcontractor above such employee. 

Smith v. Horn, 232 Va. 302, 305, 351 S.E.2d 14, 16 (1986). If 

the injured worker has a remedy against his statutory employer, 

that remedy is exclusive under Code § 65.2-307, and the worker 

has no right to bring a common-law action against any such 

statutory employer. See Smith, 232 Va. at 306-07, 351 S.E.2d at 

16; Anderson v. Thorington Construction Company, Inc., 201 Va. 

266, 272, 110 S.E.2d 396, 400-01 (1959), appeal dismissed, 363 

U.S. 719 (1960). 

 If a particular subcontractor and an injured employee's 

common law or statutory employer are both working on the same 

project and are also engaged in the owner's or general 

contractor's work, that particular subcontractor, as a statutory 

co-employee of the injured worker, is also entitled to the 

common law immunity provided by the exclusivity provision. 

Evans v. Hook, 239 Va. 127, 131, 387 S.E.2d 777, 779 (1990). 

Because Krauss contends that it and Tidewater were both 

 

3

 The reference was to Code § 65.1-29 "and related provisions" of 

the Act, which are now embodied in Code § 65.2-302. 

4
subcontractors under Linkhorn Bay, Krauss asserts the immunity 

of a statutory co-employee here. 

 On the other hand, if a subcontractor like Krauss had been 

engaged in work that was not a part of the trade, business, or 

occupation of the injured party's common law or statutory 

employer, as Pfeifer asserts, that subcontractor would be 

"another party" or a "stranger to the employment," and not a 

statutory co-employee under the provisions of Code § 65.2-302.4 

Therefore, Krauss would be subject to a common-law action by the 

injured worker. Evans v. Hook, 239 Va. at 130-31, 387 S.E.2d at 

778. Hence, the dispositive issue framed by the parties in this 

case is whether Krauss' installation of the gas line was a part 

of the trade, business, or occupation of Linkhorn Bay, making 

Krauss Pfeifer's statutory co-employee. 

 First, Pfeifer argues that the gas company was a mere 

supplier of materials to the job and was not engaged in the 

trade, business, or occupation of Linkhorn Bay. In support of 

this position, Pfeifer cites the case of Burroughs v. Walmont, 

Inc., 210 Va. 98, 168 S.E.2d 107 (1969). In Burroughs, a worker 

for a sheetrock supplier was injured on a construction job and 

 4

 "Another party" or "stranger to the employment" is the 

person or entity not entitled to the benefit of the exclusivity 

provision of the Act against whom the injured employee (or his 

employer who has a subrogation claim for benefits paid under the 

Act) has a common law claim arising out of the industrial 

5
was permitted to maintain a tort claim against the general 

contractor. The contract between the supplier and the general 

contractor required the worker to deliver and stack in each room 

sufficient quantities of sheetrock to construct the walls in 

that room. Noting prior cases in which we held that "persons 

who function solely as suppliers and deliverers of goods" were 

not within the scope of the Act, we concluded that this was the 

final act of delivery and not an act of construction. Id. at 

100, 168 S.E.2d at 108. Because the injured employee's employer 

was not engaged in the construction process, the injured 

employee was permitted to maintain a common-law action against 

the general contractor. Id. 

 However, the facts in this case indicate more than a mere 

sale and final act of delivery. Before the gas company could 

deliver the natural gas, its oral contract with Linkhorn Bay 

required it to dig the ditches, install the gas lines, connect 

them to the condominium buildings, and test them. Those 

contractual obligations were subcontracted to Krauss and, as it 

dug the ditches, installed the gas lines, connected them to the 

condominium buildings and tested them, Krauss was engaged in a 

part of the construction process. Thus, the circumstances in 

 

accident. Code § 65.2-309; Sykes v. Stone & Webster Eng'r 

Corp,. 186 Va. 116, 120-21, 41 S.E.2d 469, 471 (1947). 

6
this case are more like those in the case of Bosher v. Jamerson, 

207 Va. 539, 151 S.E.2d 375 (1966), relied upon by Krauss. 

 In Bosher, an employee of a material supplier was spreading 

sand as contractually required and as directed on the job by the 

general contractor when his truck struck and injured an employee 

of the general contractor. The injured employee sued the 

material supplier at common law claiming that it was a mere 

supplier of materials and not his statutory employer. Because 

spreading the sand was a part of the construction process, we 

held that the truck driver was engaged in the construction 

process and applied the exclusive remedy provision of the Act, 

dismissing the tort claim. 

 We conclude that digging the necessary trenches, installing 

the gas lines, connecting them to the buildings, and testing 

them was more than a simple supply and delivery of materials. 

Hence, Pfeifer's contention that Krauss was simply a supplier 

and deliverer is without merit. 

 Next, Pfeifer argues that Krauss was a stranger to Linkhorn 

Bay's business of building the condominium units since digging 

ditches outside those units "was not aiding in the construction 

of those units." In support of this argument, he notes that we 

last applied the "stranger to the work test" in Stone v. DoorMan Manufacturing Co., 260 Va. 406, 417-19, 537 S.E.2d 305, 310-

12 (2000). In Stone, an employee of a manufacturer was injured 

7
because of the negligent design and construction of an overhead 

door by independent construction contractors who were held 

strangers to the manufacturer's business. Id. In a common-law 

action by the injured employee, we held that these contractors 

were not entitled to the protection of the exclusive remedy 

provisions of the Act because they were strangers to the 

manufacturing work. 

 Krauss responds that it was not a stranger to the work of 

Linkhorn Bay, but was performing an essential part of that work. 

We agree with Krauss because Linkhorn Bay had been formed solely 

to build and develop these condominiums. Unlike the 

manufacturer in Stone, Linkhorn Bay had no other function, and 

the installation of the gas lines was part of Linkhorn Bay's 

construction project covered by the terms of Linkhorn Bay's oral 

contract with the gas company. Thus, we conclude that Krauss 

was not a stranger to Linkhorn Bay's business and reject this 

contention. 

 Finally, Pfeifer contends that the digging, placing, 

connecting, and testing of the gas lines could never "have been 

a part of Linkhorn Bay's business, or the business of any other 

owner or general contractor on a construction project," because 

the gas company and Krauss as its agent are "both subject to 

Title 56 of the Virginia Code relating to public service 

companies." Although the gas company is a public service 

8
company and subject to regulation as such, Pfeifer cites, and we 

find, no statutory provision that regulates a subcontractor's 

construction of facilities like these gas lines. 

 Pfeifer quotes from provisions in a gas company tariff, 

allegedly filed in the records of the State Corporation 

Commission, which he says support his contention. We do not 

consider these provisions, because neither they nor the tariff 

was brought to the attention of the trial court.5 Rule 5:25; 

Commonwealth v. Woodward, 249 Va. 21, 23, 452 S.E.2d 656, 656 

(1995). 

 We conclude that Krauss was doing work that was a part of 

Linkhorn Bay's construction of the condominium project and, 

therefore, a part of Linkhorn Bay's trade, business, or 

occupation. Hence, Krauss was Pfeifer's statutory co-employee 

and the trial court correctly held he had no common-law remedy 

against Krauss. 

 Accordingly, the judgment will be 

Affirmed. 

 

5

 For the same reason, we do not consider Pfeifer's arguments 

relating to on which side of the proposed meter or meters the 

injury occurred. 

9