Mark Five Construction, Inc., to the use of American Economy Insurance Co. v. Castle Contractors, et al.

Mark Five Construction, Inc., t/u/o American Economy
Insurance Company, ("Mark Five") appeals the judgment of the
Circuit Court of Fairfax County which sustained a demurrer filed
by defendants Castle Contractors and James W. Finley, Jr. Mark
Five contends the circuit court erred because the amended motion
for judgment filed by Mark Five asserted a "good cause of
action" for indemnity under Code § 65.2-304 sufficient to
survive a demurrer. For the reasons set forth below, we will
affirm the judgment of the circuit court.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

Under well-established principles of appellate review, we
consider the facts as set forth in the amended motion for
judgment, "along with those reasonably and fairly implied from
them, in the light most favorable to the plaintiff." Doe v.
Zwelling, 270 Va. 594, 597, 620 S.E.2d 750, 751 (2005). In
addition, because Mark Five's amended motion for judgment "does
not incorporate or refer to any of the allegations that were set forth in [the] prior motion for judgment, we will consider only
the allegations contained in the amended pleading to which the
demurrer was sustained." Yuzefovsky v. St. John's Wood
Apartments, 261 Va. 97, 102, 540 S.E.2d 134, 136 (2001).

Mark Five, a construction firm incorporated in Maryland and
licensed to do business in Virginia, contracted to restore a
house in Virginia that had been damaged by fire. Some of the
work was subcontracted to Castle Contractors, whose principal
place of business is in Maryland.1 Daniel Gonzalez, an employee
of Castle Contractors, sustained injuries after falling from the
roof during the course of the restoration work. Gonzalez filed
workers' compensation claims against Mark Five and Castle
Contractors.

A deputy commissioner of the Virginia Workers' Compensation
Commission denied Gonzalez' claim, ruling that although Mark
Five was Gonzalez' statutory employer at the time of the injury,
neither Mark Five nor Castle Contractors was subject to the
Virginia Workers' Compensation Act ("the Act"), Code §§ 65.2-100
through –1310, because each lacked a sufficient number of
employees "regularly in service" in Virginia to come within the jurisdictional requirements of the Act.2 Gonzalez asked the full
Commission to review the deputy commissioner's ruling only as to
Mark Five. The Commission reversed the deputy commissioner's
ruling, and found that Mark Five had the requisite "number of
employees regularly in service in . . . Virginia" to be subject
to the jurisdiction of the Act. Consequently, it awarded
Gonzalez workers' compensation benefits.3 The Commission's
decision was subsequently affirmed by the Court of Appeals.4
Mark Five Constr. Co. v. Gonzalez, 42 Va. App. 59, 590 S.E.2d 81
(2003).

Mark Five filed an amended motion for judgment in the
circuit court5 claiming that, pursuant to Code § 65.2-304,6 it
was "entitled to indemnification from [Castle Contractors] for the benefits paid to Mr. Gonzales . . . in that [Castle
Contractors] was an intermediate contractor of Plaintiff Mark
Five and/or would have been liable to pay compensation to Mr.
Gonzales independently of Va. Code Ann. § 65.2-302."

Castle Contractors filed a demurrer, contending "the
[Amended] Motion for Judgment fails to allege[] sufficient
facts, which if proven, would support a claim for
indemnification pursuant" to Code § 65.2-304. In its memorandum
in support of the demurrer, Castle Contractors argued Mark Five
failed to allege "that [Castle Contractors is] subject to the
jurisdiction of [the Act]," which is "a condition precedent to
any claim for recovery under [Code § 65.2-304]."

After hearing the parties' arguments, the circuit court
sustained the demurrer by an order entered on March 31, 2006.7
We awarded Mark Five this appeal.

* * *

Affirmed.