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Perry v. Delisle7/12/2005
its projects.
The evidence does not establish that in the first half of 2001 R & T Construction had fewer projects due to an economic downturn or other business circumstances. The record establishes instead that the number of employees fluctuated because of circumstances of a transitory and temporary nature. Indeed, the record undisputedly proved that the number of employees at R & T Construction dipped to two because of the fortuitous occurrence of Vincent Mariner quitting his employment. He was not terminated for economic reasons but, rather, quit because he moved from the area. Thus, Delisle cannot rely upon an economic or business reason for the decrease in the number of employees.
The record also proved this was the time when Delisle's personal residence was occupying some of his attention and resources. Delisle began constructing his personal residence in 2000 and continued to do so into 2001. Although Delisle testified that his personal residence was not a R & T Construction project, he also testified that all three of R & T Construction's employees worked at his residence in 2000. The record does not disclose the reason Delisle's personal residence was not a R & T Construction project; however, the evidence shows that R & T Construction paid three of its employees for construction work at Delisle's personal residence. These objective facts are significant when "the focus shifts to the character of the business and away from the character of the employment." Id. at 259, 356 S.E.2d at 448.
The transitory nature of these circumstances was further established by proof that when Mariner quit, Delisle, who operated R & T Construction as a sole proprietor, was using paid employees of R & T Construction to build his personal residence while, at the same time, he was paying other laborers from his "personal" funds to work on his personal residence. One of the persons Delisle personally hired to perform work constructing his residence was Mickey Parks, whose jobs included trim work and installation of sub-flooring. Later in 2001, two months after Perry's injury, Delisle hired Parks as an employee of R & T Construction. Delisle then obtained workers' compensation insurance. In 2001, Delisle also hired Roy Shrieves to work for R & T Construction, employing at that time a total of four persons. These hirings, which occurred after Delisle's residence had been substantially constructed, are consistent with R & T Construction's pattern in 1998, 1999, and 2000 of regularly employing three or more persons.
Simply put, the evidence proved the number of employees working for R & T Construction dropped to two precisely due to temporary circumstances and "transient factors," which we held in Cotman would not support an exemption from the Act. 4 Va. App. at 259, 356 S.E.2d at 449. These temporary, transient circumstances that existed at the time of Perry's injury should not have exempted Delisle from the obligation to insure his employees under the Act. The pattern of hirings over the period from 1998 to 2001 are consistent with R & T Construction's "established mode of performing the work of the business." For these reasons, I dissent.
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