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Ramey v. Bobbitt11/3/1995
OPINION BY JUSTICE BARBARA MILANO KEENAN
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 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 "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 p
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