Barker v. Luna, Civ. No. R-75-91 BRT.

• Decision Date: 08 November 1977
• Docket Number: Civ. No. R-75-91 BRT.
• Citation: Barker v. Luna, 439 F.Supp. 810 (D. Nev. 1977)
• Parties: Derrold E. BARKER, Plaintiff, v. Adolph J. LUNA, doing business as Luna Construction Company, the United States of America, Roger L. Paine, McConaughy, Paine, Krieger, Inc., also known as McConaughy, Paine and Associates, Inc., a California Corporation, Hartford Accident and Indemnity Company, a Connecticut Corporation, Jay Gibbs, doing business as Gibbs Painting Co., J. Douglas Carter, Raycron, Inc., a California Corporation, doing business as Spider Staging Distributing Co., Spider Staging Sales Company, a Washington Corporation, ABC Corporation, John Doe, and Mary Roe, Defendants. Adolph J. LUNA, Third-Party Plaintiff, v. Jay GIBBS, doing business as Gibbs Painting Co., and J. Douglas Carter, Third-Party Defendants.
• Court: U.S. District Court — District of Nevada

439 F. Supp. 810

Derrold E. BARKER, Plaintiff, v.Adolph J. LUNA, doing business as Luna Construction Company, the United States of America, Roger L. Paine, McConaughy, Paine, Krieger, Inc., also known as McConaughy, Paine and Associates, Inc., a California Corporation, Hartford Accident and Indemnity Company, a Connecticut Corporation, Jay Gibbs, doing business as Gibbs Painting Co., J. Douglas Carter, Raycron, Inc., a California Corporation, doing business as Spider Staging Distributing Co., Spider Staging Sales Company, a Washington Corporation, ABC Corporation, John Doe, and Mary Roe, Defendants.

Adolph J. LUNA, Third-Party Plaintiff, v.Jay GIBBS, doing business as Gibbs Painting Co., and J. Douglas Carter, Third-Party Defendants.

Civ. No. R-75-91 BRT.

United States District Court, D. Nevada.

November 8, 1977.

Derrold E. Barker(plaintiff), Thornton, Stephens, Atkins & Kellison, Reno, Nev., for plaintiff.

Law Offices of Leslie B. Gray, Reno, Nev., for Luna.

Lawrence J. Semenza, U. S. Atty., Reno, Nev., for United States.

Laxalt, Berry & Allison, Carson City, Nev., for Paine.

Wait, Shamberger, Georgeson & McQuaid, Reno, Nev., for Hartford.

Hibbs & Newton, Reno, Nev., for Gibbs.

Fahrenkopf, Mortimer, Sourwine, Mousel & Pinkerton, Reno, Nev., for Spider.

ORDER DENYING SUMMARY JUDGMENT

BRUCE R. THOMPSON, District Judge.

This is an action by Derrold E. Barker against Adolph J. Luna, d. b. a. Luna Construction Company(Luna), the United States of America and others to recover damages for personal injuries suffered by Barker when he fell from a scaffolding while painting the exterior of the Veterans Administration Hospital in Reno, Nevada.Barker was an employee of Luna.The United States was sued pursuant to the provisions of the Federal Tort Claims Act(28 U.S.C. § 2671, et seq.).The United States has made a motion for summary judgment.

On or about May 8, 1973, the U.S. Small Business Administration (SBA) as prime contractor entered into a construction contract with the Veterans Administration Hospital at Reno, Nevada, whereby the SBA undertook to sandblast and paint the exterior wall surfaces of the hospital.This contract was negotiated pursuant to the policies and authority enunciated in 15 U.S.C. § 637(a)(1) and (2), and15 U.S.C. § 637(d)(1) which authorized and directed the SBA to develop a small business subcontracting program in aid to small business.Thereafter a sub-contract was consummated between SBA and Luna Construction Company for performance of the work.

Luna neglected to obtain coverage for his employees under the Nevada Industrial Insurance Act.(NRS 616.010, et seq.).Consequently, Barker received no industrial insurance compensation for his injuries but is entitled to the benefits accruing to an employee of a non-covered employer.Under the Nevada law these include a presumption that the negligence of the employer was a proximate cause of the injury and the abrogation of the common law defenses of assumption of risk, contributory negligence, and negligence of co-employee.N.R.S. 616.375.

In support of the motion for summary judgment the government contends that Luna was an independent contractor and that the limited waiver of sovereign immunity accomplished by the Federal Tort Claims Act expressly excludes contractors with the United States as "federal agencies" and thus negates the contention that plaintiff was injured by the negligent or wrongful act or omission of an employee of the government (28 U.S.C. § 1346(b)).The definition of "federal agency" in 28 U.S.C. § 2671 states specifically "but does not include any contractor with the United States."The Supreme Court in United States v. Orleans,425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390(1976), expressly relied on the independent contractor exception to hold the United States not amenable to suit under the Tort Claims Act.

The plaintiff counters this argument with the contention that the United States (that is, the SBA) was the statutory employer of the plaintiff liable to plaintiff under the provisions of the Nevada Industrial Insurance Act(NRS 616.085), which states: "Subcontractors and their employees shall be deemed to be employees of the principal contractor."In the instant case the SBA is the principal contractor and Luna the subcontractor and for the purposes of the Nevada Industrial Insurance Actplaintiff Barker is deemed to be an employee of the SBA.

In Simon Service v. Mitchell,73 Nev. 9(1957), 307 P.2d 110, the Nevada Supreme Court said:

"The very purpose of NRS 616.085 is, at least in part, to protect the employees of subcontractors against the possible irresponsibility of their immediate employers by making the principal contractor or principal employer having general control of the construction liable as if he had directly employed every workman on the job.Bello v. Notkins,101 Conn. 34, 124 A. 831."

The issue presented is a novel and difficult one.The Ninth Circuit decision in Kirk v. United States,232 F.2d 763(9 Cir.1956), dealt with the problem of whether the United States, which had contracted for the construction of a dam, was an employer within the meaning of the Idaho Workmen's Compensation law and thus immune from liability for third party negligence.The court concluded that the United States was not an employer and was suable under the Federal Tort Claims Act.The case is helpful because of the approach adopted by the court in its analysis of the problem.It emphasized that under the Tort Claims Act the government could be liable only "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred", Title 28 sec. 1346(b), and only "in the same manner and to the same extent as a private individual under like circumstances"Title 28 sec. 2674.The court then proceeded to a very detailed analysis of the Idaho statute and found that the United States could not be considered to be an employer within the meaning of the Idaho law because: (1) there was no provision in the statute defining it as such, and (2) if a private person, the activities of the government would be exempt under certain provisions of the statute.

Using a like approach to a solution, in the present case the opposite conclusion should result.Under the facts the Nevada law (NRS 616.085, supra) expressly defines the principal contractor as an employer and there are no exceptions in the law which would exempt the United States if it were a private individual.If the United States (the SBA) were a private individual, under Nevada law it is subject to suit.N.R.S. 616.375(1): "If any employer within the provisions of N.R.S. 616.285 fails to provide and secure compensation under this chapter, any injured employee or his dependents may bring an action at law against such employer for damages as if...