Belluomini v. U.S.

• Decision Date: 26 September 1995
• Docket Number: No. 94-3864,94-3864
• Citation: 64 F.3d 299
• Parties: Mildred A. BELLUOMINI, Individually and as Independent Executrix of the Estate of Harry Belluomini, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 299

64 F.3d 299

Mildred A. BELLUOMINI, Individually and as Independent Executrix of the Estate of Harry Belluomini Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 94-3864.

United States Court of Appeals Seventh Circuit.

Argued April 18, 1995.

Decided Aug. 28, 1995.

Order Denying Rehearing, Rehearing En Banc and Petition to

Certify Questions Sept. 26, 1995.

Thomas A. Demetrio, Michael K. Demetrio, David C. Wise (argued), Corboy & Demetrio, Chicago, IL, David A. Novoselsky, Novoselsky & Associates, Chicago, IL, for plaintiff-appellant.

Phyllis J. Pyles, Dept. of Justice, Torts Branch, Civ. Div., Steven B. Snyder (argued), U.S. Dept. of Justice, Civ. Div., Washington, DC, for defendant-appellee.

Before BAUER and RIPPLE, Circuit Judges, and REYNOLDS, District Judge. ^*

BAUER, Circuit Judge.

Presented for our review in this case is the question of whether the Illinois Workers' Compensation Act ("Act"), 820 ILCS 305/5(a), is a valid defense to a claim brought against the United States Marshals Service under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 1346(b), 2671 et seq. The suit was filed by the widow of a Court Security Officer who was killed in the line of duty. The district court concluded that the Act does in fact preclude such a claim, and we affirm.

On July 20, 1992, Court Security Officer Harry Belluomini was transporting a prisoner named Jeffrey Erickson from the Dirksen Federal Building in Chicago back to his cell at the nearby jail. While in the garage, Erickson managed to free himself from his handcuffs and steal the firearm from one of the accompanying officers. Erickson shot and killed Roy Frakes, a Deputy United States Marshal. He then shot Belluomini who was guarding the entrance to the garage. Before Erickson could flee out of the parking garage, however, a wounded Belluomini fired a shot at Erickson which struck him in the back. As he lay dying from the wound, Erickson shot and killed himself.

Belluomini died shortly thereafter. His widow filed this action under the FTCA alleging negligence on the part of the United States Marshals Service. The government moved for summary judgment, claiming that the Illinois Workers' Compensation Act provided Belluomini with an exclusive remedy thereby precluding a separate tort action. The district court granted the motion, and Belluomini appeals.

Summary judgment shall be rendered if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). We review a district court's grant of summary judgment using the same standard after viewing the evidence and drawing all inferences in a light most favorable to the nonmoving party. CSX Transp., Inc. v. Chicago & North Western Transp. Co., Inc., 62 F.3d 185, 188 (7th Cir.1995).

Before we delve into an analysis of the interplay between the FTCA and the Act, we pause to describe the exact nature of Harry Belluomini's employment agreement. He was actually employed by a company named General Security Services Corporation ("GSSC"). The Marshals Service hired GSSC to supply Court Security Officers (CSOs) to assist in the protection of the federal judiciary. Its agreement with the Marshals Service obligated GSSC to pay CSOs their wages and insure them under workers' compensation.

Most private employers operating in Illinois contribute to the state's workers' compensation fund. Workers' compensation entitles an employee who has been injured in the course of employment to an award of benefits without regard to fault. In exchange, the employee forfeits the right to recover tort damages for the same injury; the award constitutes that employee's exclusive remedy.

The scope of the Act extends to the scenario in which one employer loans an employee to another employer. 820 ILCS 305/1(a)(4). If the employee is injured while in the employ of the borrowing employer, the loaning employer and the borrowing employer are jointly and severally liable for any benefits which the employee is due. Id. Conversely, both employers share the immunity from tort liability conferred by the Act. O'Loughlin v. ServiceMaster Co. Ltd. Partnership, 216 Ill.App.3d 27, 159 Ill.Dec. 527, 532, 576 N.E.2d 196, 201 (1991). Illinois law provides two means of determining whether a particular relationship constitutes borrowed employment. Chicago's Finest Workers Co. v. Industrial Comm'n, 61 Ill.2d 340, 335 N.E.2d 434, 436 (1975).

The first test comes from the Act itself. It provides:

An employer whose business or enterprise or a substantial part thereof consists of hiring, procuring, or furnishing employees to or for other employers operating under and subject to the provisions of this Act for the performance of the work of such other employers and who pays such employees their salary or wages notwithstanding that they are doing the work of such other employers shall be deemed a loaning employer within the meaning and provisions of this Section.

820 ILCS 305/1(a)(4). If one does not qualify as a loaning employer under this provision, there is an alternative test. It focuses on the extent of control which the alleged borrowing employer has over the employee and inquires as to whether a contract existed between the employee and the borrowing employer. Russell v. PPG Indus., Inc., 953 F.2d 326, 329 (7th Cir.1992). Because we believe that GSSC qualifies as a statutory loaning employer, we need not address the second test.

To establish a borrowed employment relationship under the statute: (1) a substantial portion of the alleged loaning employer's business must consist of furnishing employees to do the work of other employers; (2) the loaning employer must pay the employee's wages even though that employee is working for another employer; and (3) the borrowing employer must be operating under the Act. That GSSC meets the first two of these three requirements is beyond dispute and can be handled succinctly.

In his deposition, GSSC's Vice-President, Andrew Pierucki, acknowledged that "a substantial portion of [GSSC]'s business involves supplying security personnel to the government." He estimated that between eighty and eighty-five percent of his business consists of supplying CSOs to the government. GSSC's remaining employees handle administrative matters at its Minneapolis headquarters.

This evidence stands unrebutted and establishes that a substantial portion of GSSC's business consists of furnishing employees to other employers. The district court was therefore correct in finding the first requirement of the statutory test fulfilled. Also undisputed is that GSSC paid the wages of the CSOs, and therefore, the second prong of the test is also satisfied.

Left for our consideration is the question of whether the Marshals Service (and thereby the United States) can be considered to be operating under the Act. It would seem, at first blush, that since the Marshals Service does not contribute to workers' compensation on behalf of the CSOs, the United States is in no position to benefit from a workers' compensation defense. Framing our inquiry, however, is the FTCA, and that complicates the matter.

The FTCA grants the district courts jurisdiction over a specific breed of tort claims for which the United States has waived its sovereign immunity. This waiver, however, is limited; it extends only to those cases in which a private defendant standing in the shoes of the United States would also face liability. 28 U.S.C. Sec. 1346(b). Hence, the success of an FTCA claim hinges on the liability of a private entity operating under "like circumstances." Carter v. United States, 982 F.2d 1141, 1144 (7th Cir.1992). Not to be confused with "identical circumstances," the "like circumstances," standard is not overly stringent, and should be applied broadly so as to achieve the statute's intended purpose of putting the federal government on equal footing with private entities. Owen v. United States, 935 F.2d 734, 737 (5th Cir.1991), cert. denied, 502 U.S. 1031, 112 S.Ct. 870, 116 L.Ed.2d 775 (1992). The appropriate question here, therefore, is not whether the United States itself is operating under the Act, but whether a private analog would be operating under the Act. Carter, 982 F.2d at 1144.

An employer's obligations under the Act depend in large part on the nature of the employer's business. Certain occupations require the employer to make contributions on behalf of his employees. On the other hand, with other occupations, an employer may elect to participate. Section 3 of the Act sets forth a list of occupations which trigger automatic coverage. 820 ILCS 305/3. The Act deems these pursuits "extra hazardous." I...