COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Fitzpatrick and Annunziata 

Argued at Richmond, Virginia 

RICHFOOD, INC. 

 OPINION BY 

v. Record No. 0512-97-2 JUDGE ROSEMARIE ANNUNZIATA 

 NOVEMBER 10, 1997 

ROBERT RAGSDALE 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 R. Ferrell Newman (Thompson, Smithers, 

Newman & Wade, on brief), for appellant. 

 Martha L. Bond (Earl J. Gee; McEachin & 

Gee, P.C., on brief), for appellee. 

 Richfood, Inc. (Richfood) appeals the decision of the 

commission, finding Robert Ragsdale (claimant) to be a statutory 

employee of Richfood and, thus, qualified for benefits under the 

Act. For the reasons that follow, we affirm. 

 Claimant operates his own trucking business as a sole 

proprietor and is uninsured for workers' compensation purposes. 

On March 2, 1993, claimant operated his truck under contract with 

Perdue, Inc. to deliver turkeys from Perdue's plant to Richfood's 

facility in Mechanicsville, Virginia. While unloading the Perdue 

turkeys at Richfood's warehouse, claimant was struck and injured 

by a pallet jack operated by a Richfood employee. 

 Claimant filed suit against Richfood in the Circuit Court of 

the City of Richmond, alleging common law negligence against 

Richfood under a theory of respondeat superior. In response, 

Richfood filed a "Plea of Worker's [sic] Compensation," alleging 
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that claimant "was a statutory employee of Richfood at the time 

of the accident, [thus barring] his action against Richfood . . . 

[under] the applicable provisions of the Worker's [sic] 

Compensation Act." The trial court sustained Richfood's plea, 

finding that the Act barred claimant's action at law and that 

Richfood "will cover any injuries sustained by [claimant]." 

Claimant did not appeal this ruling. 

 Claimant then pursued a claim before the Virginia Workers' 

Compensation Commission, which Richfood defended on the ground 

that claimant was not its statutory employee at the time of the 

accident. Richfood's defenses were sustained by the deputy 

commissioner but reversed by the full commission. The commission 

found that claimant was a statutory employee of Richfood at the 

time of the accident and, furthermore, that Richfood was estopped 

from asserting otherwise. 

 The issues on appeal are (1) whether, by virtue of the final 

order of the Circuit Court of the City of Richmond barring 

claimant's action at law on the ground that he was the statutory 

employee of Richfood, an order which was granted upon Richfood's 

motion, Richfood is estopped from now asserting otherwise; and 

(2) if not, whether claimant qualifies as a statutory employee.1

 1There is no dispute that claimant suffered an "injury by 

accident" within the meaning of the Act and that, at the time the 

injury was sustained, claimant was engaged in a function normally 

performed by Richfood employees in the course of Richfood's 

business. 
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 I. 

 It is well settled that in successive actions between two 

parties, "a party will not be permitted to maintain inconsistent 

positions or to take a position in regard to a matter which is 

directly contrary to, or inconsistent with, one previously 

assumed by him." 28 Am. Jur. 2d Estoppel and Waiver § 68 (1966); 

see also Brown v. Lawson Transp. Corp., 7 Va. App. 679, 681, 377 

S.E.2d 136, 137 (1989). Whether Richfood is judicially estopped 

from asserting claimant is not its employee for purposes of 

entitlement under the Workers' Compensation Act (Act) is a mixed 

question of law and fact, fully reviewable by this Court. 

Sinclair v. Shelter Constr. Co., 23 Va. App. 154, 156-57, 474 

S.E.2d 856, 857-58 (1996) (citing City of Waynesboro v. Harter, 1 

Va. App. 265, 269, 337 S.E.2d 901, 903 (1985)). 

 It is clear that Richfood defended against claimant's civil 

action for negligence by advancing a pleading denominated "Plea 

of Worker's [sic] Compensation". Seeking to have claimant's suit 

dismissed, Richfood contended claimant's "sole remedy," as 

Richfood's "statutory employee," was under the "applicable 

provisions" of the Act. Before the commission, Richfood argued 

claimant was not its statutory employee, a position which, on its 

face, appears precluded under the doctrine of judicial estoppel. 

 To avoid the reach of the doctrine, however, Richfood argues 

that while claimant "was, in fact, its statutory employee as 

regards the tort claim[,] . . . Richfood's obligation to pay 
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benefits to the claimant depends on whether he qualifies under 

the specific provisions of the Act." In other words, a 

"statutory employee" whose status as such deprives the circuit 

court of jurisdiction to hear a civil negligence case is not 

necessarily a "statutory employee" for the purposes of 

determining benefits entitlement under the Act.2

 

 Richfood's position before the commission requires treating 

claimant's "employee" status as transformed to that of 

"subcontractor." Building from that unexplained premise, 

Richfood argued that claimant's claim under the Act was governed 

by the dictates of Code § 65.2-302(A) and, accordingly, should 

have been dismissed by the commission.3

 Implicit in the position 

 2To establish an estoppel in judicial proceedings, one must 

prove by "clear precise and unequivocal evidence that it should 

be invoked." Brown, 7 Va. App. at 681, 377 S.E.2d at 137. Among 

those elements which must be established are "1) the inconsistent 

position first asserted must have been successfully maintained; 

2) a judgment must have been rendered; 3) the positions must be 

clearly inconsistent; 4) the parties and questions must be the 

same; 5) the party claiming estoppel must have been misled and 

have changed his position; and 6) it must appear unjust to one 

party to permit the other to change." 28 Am. Jur. 2d Estoppel 

and Waiver § 70 (1966). With the exception of the claim that 

different questions were raised in each forum, neither the 

failure to establish the factual predicates nor to meet the 

burden of proof is before us on appeal. 

 3Code § 65.2-302 provides: 

 When any person (referred to in this section 

as "owner") 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") 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 
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advanced before the commission is Richfood's contention that 

judicial estoppel has no applicability here because the 

concession that claimant was its statutory employee in the tort 

action does not control the definition of "employee" under Code 

§ 65.2-302(A). 

 We find no merit in Richfood's contention that the 

commission erroneously found that Richfood was judicially 

estopped from asserting that claimant was not an employee 

entitled to coverage under the Act. Richfood's reliance on Code 

§ 65.2-302 is misplaced, as construction of the statutory 

provision is not at issue here. We focus instead on the estoppel 

effect of Richfood's conduct in the court proceeding. 

 In defending the tort action in the circuit court based on 

claimant's status as "statutory employee," Richfood, a fortiori, 

postured itself as claimant's "statutory employer." As 

claimant's statutory employer, Richfood effectively conceded it 

is fully liable under the Act. Code § 65.2-302; see, e.g., Sites 

Constr. Co. v. Harbeson, 16 Va. App. 835, 837, 434 S.E.2d 1, 2 

(1993). Indeed, the effect of Richfood's position before the 

circuit court on the issue of liability was to claim that no 

distinction should be made between its liability to its direct 

employees under the Act, and its liability to claimant, its 

 

pay 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. 
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"statutory employee." Such is the effect of the term of art, 

"statutory employee," a term it freely employed in defeating 

claimant's tort action. See Baker v. Nussman & Cox, 152 Va. 293, 

302, 147 S.E. 246, 249 (1929) (This section of the Code regarding 

statutory employer "made [statutory employees] eligible to 

compensation just as the employees of the owner or contractor are 

eligible under the definition of employees as defined [elsewhere 

in the Code]."). To sustain such a distinction in claimant's 

status before the commission would be manifestly inconsistent 

with Richfood's prior representations before the trial court. 

Claimant, relying on the legal posture Richfood assumed before 

the trial court, noted no appeal of the court's decision and 

submitted his claim for benefits under the Workers' Compensation 

Act, as Richfood had invited. 

 Finally, the argument Richfood posits would be inimical to 

the purpose of the Act: to provide the exclusive remedy for 

injured employees. The Act precludes double recovery, both in an 

action at law and pursuant to claim under the Act; Richfood seeks 

the converse of the axiom, a double avoidance of liability. 

 The decision of the commission is accordingly affirmed. 

 Affirmed.