Prescott v. United States, Civil LV 80-143 RDF.

Decision Date09 September 1981
Docket NumberNo. Civil LV 80-143 RDF.,Civil LV 80-143 RDF.
Citation523 F. Supp. 918
PartiesKeith L. PRESCOTT, Plaintiff, v. UNITED STATES of America and Reynolds Electrical and Engineering Company, Inc., a Nevada Corporation, Defendants.
CourtU.S. District Court — District of Nevada

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Johns & Johns, Alan R. Johns and Larry Johns, Las Vegas, Nev., Stewart L. Udall, Phoenix, Ariz., Haralson, Kinerk & Morey by D. Dale Haralson, Tucson, Ariz., for plaintiff.

B. Mahlon Brown, U. S. Atty., Brian L. Sullivan, Asst. U. S. Atty., Las Vegas, Nev., Bruce E. Titus, Asst. Director, Torts Branch Civil Division, Mark S. Landman, Trial Atty., Torts Branch Civil Division, U. S. Dept. of Justice, Washington, D. C., for defendant United States.

John L. Thorndal of Thorndal, Backus, Lyles & Maupin, Ltd., Las Vegas, Nev., for defendant Reynolds Electrical, etc.

DECISION ON MOTIONS

ROGER D. FOLEY, District Judge.

Plaintiff Keith L. Prescott alleges that he is a resident of Utah and is suffering from multiple myeloma, a permanently disabling disease causing rapid and advanced aging. He claims that he contracted the disease as a result of exposure to radiation while he was employed at the Nevada Test Site between 1961 and 1968. He claims that the disease was not medically diagnosed until 1969, that he was permanently disabled by then, and that it was not until early 1979 that he began to suspect a causal connection between exposure at the Test Site and his multiple myeloma.

The complaint, filed May 14, 1980, is brought against the United States under the Federal Tort Claims Act (FTCA), Title 28 U.S.C. § 1346(b), and against Reynolds Electrical and Engineering Company, Inc. (REECo) on the grounds of diversity of citizenship under Title 28 U.S.C. § 1332.

REECo filed a motion to dismiss under Rules 12(b)(1) and 12(b)(6), Federal Rules of Civil Procedure, and a motion for summary judgment under Rule 56(b). REECo argues that this Court lacks subject matter jurisdiction over this action because there is no diversity of citizenship; that this action is barred in that plaintiff's exclusive remedy is either under the Nevada Industrial Insurance Act (NIIA), Nevada Revised Statutes Chapter 616, or the Nevada Occupational Disease Act (NODA), Nevada Revised Statutes Chapter 617; that plaintiff's claim is time-barred pursuant to NRS 11.190(4)(e).

The United States has also filed a motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6), FRCP, or, in the alternative, for summary judgment pursuant to Rule 56(b), FRCP. The Government asserts the "statutory employee-employer" defense, contending that plaintiff's exclusive remedy under Nevada's compensation law bars this action against the United States. The Government makes three arguments as to why it is immune to suit. First, it claims that it is shielded from third-party tort liability as the "statutory employer" of plaintiff. Second, the Government asserts that it voluntarily elected to participate in the Nevada workman's compensation scheme. And third, the Government claims that it is a self-insurer as authorized by particular sections of the compensation statutes.

Oral argument was heard on these motions and on similar motions in the companion cases on May 18, 1981.

STATEMENT OF FACTS

Since the early 1950's the United States, acting through several of its departments and agencies,1 has been actively participating in virtually all phases of nuclear testing at the Nevada Test Site. The testing of nuclear devices and weapons has been conducted both above and below ground. Although much of the work at the Test Site was and is delegated to independent contractors, such as REECo and EG&G Inc., all such testing was and is strictly supervised and controlled by federal officials and employees.2 REECo was, and still is, a principal contractor at the Test Site.

For the period January 1, 1960, through December 31, 1968, during which plaintiff was employed by REECo as an operating engineer at the Test Site, there was in effect a contract between the United States, acting through the AEC and REECo, designated AT (29-2)-162. A new contract between the same parties became effective January 1, 1969, for the period January 1, 1969, through December 31, 1973, inclusive, designated as Contract AT (26-1)-410.

In conformity with 41 CFR §§ 1-10.502-1 and 9-50.1212, both contracts mentioned above required that REECo purchase and maintain in full force and effect workman's compensation insurance for its employees as required by the Nevada Industrial Insurance Act and the Nevada Occupational Disease Act. Those regulations also required that the costs of the insurance be passed on to the Government.

Since 1952 REECo has maintained workman's compensation insurance pursuant to the Nevada Industrial Insurance Act and the Nevada Occupational Disease Act. (See the Worker's Compensation Insurance Certificate attached to REECo's motion papers herein.) As REECo is paid by the Government on a cost-plus-fixed-fee basis, REECo passed the cost of its workman's compensation insurance on to the Government and those costs were in fact paid by the United States.

Between the years 1961 through 1968, plaintiff was an employee of REECo at the Nevada Test Site working in the capacity of an operating engineer. During the course of his employment, plaintiff was exposed to radiation when he was sent into test areas immediately after nuclear detonations. In 1969 plaintiff was diagnosed as having multiple myeloma, and by then he was permanently disabled. Plaintiff contends that it was not until early 1979 that he began to suspect a causal connection between his exposures to radiation while working at the Test Site and his multiple myeloma. At that time there was considerable public attention being given to the "Three Mile Island" incident, as well as the so-called "Baneberry Trial" in this court concerning other Test Site workers' exposure to radiation. Roberts and Nunamaker v. United States, et al., Civ. LV 1766 RDF and Civ. LV 76-259 RDF. Plaintiff contacted private counsel who, in turn, advised him to obtain his dosimetry history and medical records. After counsel reviewed those items, plaintiff was advised by his counsel, on April 16, 1979, that in counsel's opinion plaintiff's exposure history might be causally connected to his multiple myeloma.

Plaintiff filed a claim with the Department of Energy (DOE) under Title 28 U.S.C. § 2675. No action was taken on his claim. Plaintiff filed the complaint herein on May 14, 1980. Plaintiff claims that his dosimetry history reveals rather substantial gamma and tritium readings for the years 1961-63 and that those early exposures initiated his disease causing permanent disability which was not diagnosed until 1969.

I.
A. The Nevada Occupational Disease Act.

In determining whether or not plaintiff has an exclusive remedy under either the Nevada Industrial Insurance Act (NIIA) or the Nevada Occupational Disease Act (NODA), the Court must decide whether plaintiff's multiple myeloma as allegedly contracted in this case was an "accident" under NIIA, or an "occupational disease" under NODA.

In 1944, the Nevada Supreme Court held in Pershing Quicksilver Co. v. Thiers, 62 Nev. 382, 152 P.2d 432 (1944), that the then-existing NIIA did not provide coverage for any occupational diseases. That decision was based upon the difference between an "accident" and a "disease." The Court said, "The illness suffered by respondent cannot, from the evidence presented, be said to be assignable to a determinate or single act identified in space or time, but the substance was entering his body during the entire course of his employment." 62 Nev. at 394, 152 P.2d 438. Since NIIA covered only personal injuries sustained "by accident," the respondent's mercury poisoning did not fall within NIIA's scope, and he was able to sue his employer at common law even though the employer had NIIA coverage.

The term "accident" is defined in NRS § 616.020 as being "an unexpected or unforeseen event happening suddenly and violently, with or without human fault, and providing at the time objective symptoms of an injury." This definition was given by the Nevada Supreme Court in the Pershing Quicksilver opinion. In that case, the Court also said, "The term `accident' as it refers to a cause of injury must be traced to an unexpected event and to a definite time, place and cause." 62 Nev. at 393, 152 P.2d at 437.

In contrast, NRS § 617.450 provides in pertinent part that: "Radium poisoning or disability due to radioactive properties or substances, ..... or to exposure to ionizing radiation shall be considered an occupational disease and compensable as such when contracted by an employee and when arising out of and in the course of employment ....." NRS 617.440 then provides when such an occupational disease shall be deemed to arise out of and in the course of the employment.

Plaintiff alleges that he was ordered into highly contaminated areas immediately after nuclear detonations in order to retrieve test instruments. This activity, he claims, was regularly performed by him in the ordinary course of his employment. His claim is that the exposures he received from 1961-63 resulted in his developing multiple myeloma by 1969. Thus, plaintiff's multiple myeloma, as allegedly contracted under the circumstances of this case, must be an occupational disease under NODA, and not the result of an industrial accident under NIIA.

B. Legislative History of NODA.

The next issue that must be resolved is when did NODA become applicable to the facts of this case?

In 1947 Senate Bill No. 4, Chapter 44, 1947 Statutes of Nevada, the Nevada Legislature first enacted NODA. Section 26(b) of the original act, now NRS § 617.450, defined "occupational diseases" subject to NODA as follows:

"(b) Only the following diseases shall be considered occupational diseases and compensable as such, when contracted by an employee
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