Present: All the Justices 

KIMBERLY DAWN RAMEY, 

ADMINISTRATOR, ETC. 

v. Record No. 950217 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 November 3, 1995 

DELMOS BOBBITT, ET AL. 

FROM THE CIRCUIT COURT OF WISE COUNTY 

J. Robert Stump, Judge 

 In this appeal from a judgment entered in a wrongful death 

action, the plaintiff's decedent was struck and killed by a motor 

vehicle on a public street adjacent to his employer's premises 

while on his way to work. The primary issue on appeal is whether 

the trial court correctly ruled that the Virginia Workers' 

Compensation Act (the Act), Code §§ 65.2-100 to -1310, provided 

the plaintiff's exclusive remedy against the employer and a 

fellow worker, who was driving the employer's truck at the time 

of the accident. 

 On August 20, 1990, Kimberly D. Ramey, Administrator of the 

Estate of Gene Scott Ramey (the Administrator), filed a motion 

for judgment against Pepsi-Cola Bottling Company, Inc., of 

Virginia (Pepsi), and Delmos Bobbitt. The motion for judgment 

alleged that Bobbitt, while acting within the scope of his 

employment with Pepsi, wrongfully caused Ramey's death by driving 

a truck in a negligent manner, thereby distracting the attention 

of Margie H. Lawson, who was driving the car that actually struck 

Ramey. At the time of his death, Ramey was employed by Pepsi. 

 Bobbitt and Pepsi filed pleas in bar, asserting that the 

Administrator's action was barred by the exclusivity provision of 

the Act, Code § 65.2-307. They also asserted that the action was 
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barred on the grounds of accord and satisfaction, as evidenced by 

a release dated July 12, 1989, which was executed in connection 

with a compromise settlement of the Administrator's wrongful 

death action against Lawson in Dickenson County. 

 The trial court received stipulated facts concerning the 

accident and the circumstances of Ramey's employment with Pepsi. 

 These facts show that Pepsi, which is in the business of 

bottling, selling, and distributing soft drinks, operates a 

manufacturing plant located on Park Avenue in the City of Norton. 

 At the time of the accident, Pepsi did not provide a parking lot 

for its employees. Employees generally parked on public streets 

near the plant, including Park Avenue, 12th Street, and Virginia 

Avenue. Although the primary entrance to the Pepsi plant is 

located off of Park Avenue, there are also other entrances. 

 Ramey was a route salesman for Pepsi and was paid on a 

commission basis. Ramey was required to check in at the Pepsi 

plant each morning before beginning his daily route to pick up 

his loaded delivery truck and a box of tickets. However, he was 

not required to report to work at a particular time. The 

accident occurred between 8:00 a.m. and 9:00 a.m., within the 

time period when Ramey normally reported to work. 

 After parking his vehicle on Virginia Avenue, Ramey walked 

down 12th Street and over to Park Avenue, which is adjacent to 

the Pepsi plant. While attempting to cross Park Avenue, Ramey 

was struck by Lawson's vehicle as Bobbitt was in the process of 
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"backing" a tractor-trailer truck into the Pepsi plant. Bobbitt 

was acting within the scope of his employment with Pepsi at the 

time of the accident. 

 When the accident occurred, Ramey was wearing a Pepsi-Cola 

uniform shirt, which Pepsi employees are required to wear while 

they are on the job. Pepsi's route sales personnel customarily 

dress in the uniform shirts at home and wear them when traveling 

to and from work, because Pepsi does not provide lockers or 

changing rooms for these employees. 

 At the time of the accident, Ramey had in his possession a 

check from a customer made payable to Pepsi-Cola Bottling 

Company. Route sales personnel generally deposit such checks at 

the plant before beginning their daily routes. 

 The trial court denied the defendants' plea of accord and 

satisfaction. However, the court sustained the defendants' plea 

that the action was barred by the exclusivity provision of the 

Act and entered an order dismissing the case. The Administrator 

appeals the trial court's dismissal of her case, and the 

defendants assign cross-error to the trial court's denial of 

their plea of accord and satisfaction. 

 On appeal, the Administrator argues that the trial court 

erred in ruling that her action was barred by the Act, because 

Ramey was not killed while performing an act arising out of or in 

the course of his employment. In support of her position, the 

Administrator cites the general rule that an employee going to or 
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from the place where his or her work is to be performed is not 

engaged in any service growing out of and incidental to the 

employment. Barnes v. Stokes, 233 Va. 249, 251, 355 S.E.2d 330, 

331 (1987). 

 In response, the defendants contend that Ramey was "at work" 

when the accident occurred, because employment includes not only 

the actual performance of the work but also "a reasonable margin 

of time and space necessary to be used in passing to and from the 

place where the work is to be done." Brown v. Reed, 209 Va. 562, 

565, 165 S.E.2d 394, 397 (1969) (quoting Bountiful Brick Co. v. 

Giles, 276 U.S. 154, 158 (1928)). Therefore, the defendants 

argue, Park Avenue was in practical effect part of the employer's 

premises for purposes of coverage under the Act, because it was a 

hazard that Pepsi employees had to encounter in order to enter 

the Pepsi plant. We disagree with the defendants. 

 The central question for our determination is whether 

Ramey's death by accident, in the language of the Act, was one 

"arising out of and in the course of the employment." Code 

§ 65.2-300. If Ramey's accident falls within this definition, 

the Administrator's exclusive remedy is under the Act. Code 

§ 65.2-307. 

 Generally, an employee going to or from his or her place of 

employment is not performing a service arising out of and 

incidental to the employment. Barnes v. Stokes, 233 Va. at 251, 

355 S.E.2d at 331; GATX Tank Erection Co. v. Gnewuch, 221 Va. 
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600, 603-04, 272 S.E.2d 200, 203 (1980); Kent v. VirginiaCarolina Chem. Co., 143 Va. 62, 66, 129 S.E. 330, 331-32 (1925). 

 This general rule is commonly referred to as the "going to and 

from work" rule. The Administrator and the defendants agree that 

none of the three exceptions to this general rule is applicable 

here.1

 We hold that the present case falls within the general rule 

stated above. Unlike the employees in Barnes and Painter v. 

Simmons, 238 Va. 196, 380 S.E.2d 663 (1989), cases cited by the 

defendants, Ramey was not killed in an area which was, in 

practical effect, a part of the employer's premises. 

 In Barnes, the employee was injured on a privately owned 

parking lot located next to his place of employment. The 

employer did not own or maintain the lot, but was provided 

 

 1The three exceptions to the "going to and from work" rule are: 

 (1) when the means of transportation is provided by the employer 

or the time consumed is paid for or included in the employee's 

wages; (2) when the way used is the sole and exclusive way of 

ingress and egress with no other way, or where the way of ingress 

and egress is constructed by the employer; and (3) when the 

employee on his or her way to or from work is still charged with 

some duty or task in connection with the employment. Kent v. 

Virginia-Carolina Chem. Co., 143 Va. 62, 66, 129 S.E. 330, 332 

(1925). 
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certain parking spaces in the lot as part of its lease of a 

portion of the adjacent building in which it conducted its 

business. The employer was "specifically requested" to require 

its employees to park their vehicles in the designated area. The 

accident occurred in the area of the parking lot allocated to the 

employer. Based on these facts, we held that the situs of the 

injury "was on premises of another that were in such proximity 

and relation to the space leased by the employer as to be in 

practical effect the employer's premises." 233 Va. at 252, 355 

S.E.2d at 332. 

 In Painter, the employee was injured on a private road which 

provided access to his place of employment, as well as to other 

businesses. At the time of the accident, he had checked in for 

work and was walking on the road from the location where he had 

checked in to another of his employer's facilities located on 

that same road. We held that the accident fell within the 

provisions of the Act because it occurred at a place and time 

where the employer expected the employee to be for employment 

purposes. 238 Va. at 199, 380 S.E.2d at 665. 

 The fact that Ramey was killed on a public street places the 

present case beyond the scope of Barnes and Painter. The public 

street was not in such relation to Pepsi's plant that it was in 

practical effect part of Pepsi's premises. Nor was it a place 

where Pepsi expected Ramey to be for employment purposes. 

 We disagree with the defendants' argument that the "going to 
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and from work" rule does not apply to Ramey because he did not 

have fixed hours of work or a fixed place of employment. Ramey 

was required to report to the Pepsi plant each morning to start 

his work day. As stated above, the evidence showed that he 

customarily reported to work at the Pepsi plant between 8:00 a.m. 

and 9:00 a.m., and that the accident occurred within this time 

period. These facts are sufficient to place his actions at the 

time of the accident within the "going to and from work" rule. 

 We further disagree that our decision in Grand Union v. 

Bynum, 226 Va. 140, 307 S.E.2d 456 (1983), requires a different 

result. There, we held only that the employee did not die in the 

course of his employment because he was killed after leaving 

work, visiting one friend, and returning to his car to drive to 

the house of another friend. The fact that the employee had 

fixed hours of employment was relevant only in determining when 

he had completed his work for the day. 

 We next consider the defendants' assignment of cross-error 

that the trial court erred in denying their plea of accord and 

satisfaction. The defendants argue that, under the terms of the 

release executed on July 12, 1989, the Administrator and Ramey's 

other statutory beneficiaries released them, as well as Margie 

Lawson and Nationwide Mutual Insurance Company. Specifically, 

the defendants point to the language of the release in which the 

Administrator and the other statutory beneficiaries agreed to 

 release and discharge Nationwide Mutual Insurance 

Company and Margie Lawson[,] his or their successors 

and assigns, and all persons, firms or corporations who 
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are or might be liable, from all claims of any kind or 

character which we have or might have against him or 

them, and especially because of all damages, losses or 

injuries to persons or property, or both, whether 

developed or undeveloped or known or unknown, resulting 

or to result from [this] accident. 

 On July 12, 1989, pursuant to Code § 8.01-55, the Circuit 

Court of Dickenson County approved a compromise settlement of the 

Administrator's action against Lawson. The court's order 

provided that 

 said compromise settlement be, and the same hereby is 

approved, and it is further ORDERED and ADJUDGED that 

Margie Lawson be, and she hereby is, released and 

discharged of and from any and all liability and claims 

which might be asserted against her by Kimberly D. 

Ramey, [Administrator] of the Estate of Gene Scott 

Ramey, deceased, . . . on account of the fatal injury 

to Gene Scott Ramey resulting from the accident set out 

in this proceeding. 

This order also stated that "this case is continued." 

 On April 8, 1991, on motion of the Administrator, the 

Dickenson County Circuit Court entered an order amending its July 

12, 1989 order "to provide that Margie Lawson and her insurer, 

Nationwide Mutual Insurance, and only those persons, are released 

by the settlement approved by [this] Court in that foregoing 

Order." 

 The defendants contend that the terms of the July 12, 1989, 

release preclude the Administrator's action here. They assert 

that, once the Dickenson County Circuit Court entered the July 

12, 1989 order, the release became a binding contract. The 

defendants further contend that the July 12, 1989 order was a 

final order and that, therefore, the April 8, 1991 order was void 
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under Rule 1:1. 

 In response, the Administrator argues that the July 12, 1989 

order was not final because the Dickenson County Circuit Court 

continued the case generally and did not limit the matters over 

which it was retaining jurisdiction. Thus, the Administrator 

contends that both orders are valid, and that their terms plainly 

rebut the defendants' plea of accord and satisfaction. 

 In resolving this issue of first impression, we initially 

observe that Code § 8.01-55 requires, before any compromise of a 

wrongful death claim or action will be allowed, that the 

compromise must have "the approval of the court wherein any such 

action has been brought, or if none has been brought, with the 

consent of any circuit court." In addition, Code § 8.01-35.1(C) 

makes releases and covenants not to sue in respect to tort 

liability "subject to the provisions of Code § 8.01-55." 

Therefore, when a circuit court approves a compromise settlement 

under Code § 8.01-55, the terms of the release on which it is 

based likewise are subject to the court's approval. 

 Those portions of a release that are not made part of a 

wrongful death compromise settlement approved by a circuit court 

are not binding on the parties to the release. A contrary 

interpretation of Code §§ 8.01-35.1(C) and -55 would allow 

parties to a release effectively to circumvent the requirement of 

court approval by excluding any release provision from the 

compromise settlement. 
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 In the present case, the July 12, 1989 order approved only 

the release of Margie Lawson from liability for the accident. It 

did not order the release of any other person or entity from 

liability for the fatal injury to Ramey. Moreover, since the 

Dickenson County Circuit Court continued the case in that order, 

we look to the terms of its final order of April 8, 1991, which 

specify that only Lawson and Nationwide were released by the 

settlement approved by the court on July 12, 1989. Thus, we hold 

that the trial court did not err in denying the defendants' plea 

of accord and satisfaction.2

 For these reasons, we will affirm in part, and reverse in 

part, the trial court's judgment and remand this case for further 

proceedings consistent with the principles expressed in this 

opinion. 

Affirmed in part,

reversed in part,

 and remanded.

 

 2We also note that Cauthorn v. British Leyland, U.K., Ltd., 233 

Va. 202, 355 S.E.2d 306 (1987), cited by defendant Pepsi, is 

inapplicable to this analysis because the release at issue in that 

case was executed in 1978, prior to the enactment of Code § 8.01-

35.1.