Bell Helicopter Textron, Inc. v. US

• Decision Date: 27 December 1990
• Docket Number: No. A85-685 Civ.,A85-685 Civ.
• Citation: Bell Helicopter Textron, Inc. v. US, 755 F. Supp. 269 (D. Alaska 1990)
• Parties: BELL HELICOPTER TEXTRON, INC., A DIVISION OF TEXTRON, INC.; Sea Airmotive, Inc.; Gay Airways, Inc.; A.E. Gay, Inc.; and A.E. Gay, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Alaska

755 F. Supp. 269

BELL HELICOPTER TEXTRON, INC., A DIVISION OF TEXTRON, INC.; Sea Airmotive, Inc.; Gay Airways, Inc.; A.E. Gay, Inc.; and A.E. Gay, Plaintiffs, v.UNITED STATES of America, Defendant.

No. A85-685 Civ.

United States District Court, D. Alaska.

December 27, 1990.

COPYRIGHT MATERIAL OMITTED

Susan M. West, Robert M. Baker, Robertson, Monagle & Estaugh, Anchorage, Alaska, for Bell Helicopter Textron, Inc.

Jonathan M. Hoffman, Martin, Bischoff, Templeton, Ericsson & Langslet, Portland, Or., for Sea Airmotive, Inc., Gay Airways, Inc., A.E. Gay, Inc. and A.E. Gay.

Thomas B. Almy, Senior Aviation Counsel, U.S. Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendant.

ORDER GRANTING THE UNITED STATES SUMMARY JUDGMENT ON ALL INDEMNITY CLAIMS

SINGLETON, District Judge.

On September 28, 1990, this court entered an oral decision on the record granting the United States summary judgment against the plaintiffs.In this written decision, the court will summarize its reasons.

The following facts are not in dispute and are from the Ninth Circuit decision in Bell Helicopter v. United States,833 F.2d 1375, 1376-77(9th Cir.1987).On June 13, 1979, a helicopter piloted by Lieutenant William Harrigan, an officer of the National Oceanographic and Atmospheric Administration ("NOAA"), crashed near Port Hardy, British Columbia.The crash occurred during Harrigan's attempt to land after running out of gas.A passenger, Gary Mitchell, a civilian employee of NOAA, and Harrigan were both seriously injured.

Mitchell and Harrigan sued Bell Helicopter Textron, Inc.("Bell"), the manufacturer of the aircraft, as well as Sea Airmotive, Inc.("Sea Air"), and Gay Airways, Inc.("Gay"), the seller and lessor of the aircraft, respectively, in a consolidated action in Alaska Superior Court.They alleged that Bell, Sea Air and Gay were liable in tort for manufacturing and furnishing the helicopter to the United States ("the government") in an uncrashworthy condition.On February 20, 1985, the case settled for approximately 2.4 million dollars.After the crash, Mitchell also received benefits available to him under the Federal Employees' Compensation Act ("FECA"), 5 U.S.C. § 8101 et seq.(1980).Most of these FECA benefits were later repaid to the government by Mitchell as required by statute.

Following the settlement of Mitchell's claims against them, Bell, Sea Air and Gay (collectively "plaintiffs") sued the government for indemnity or contribution pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346,2671 et seq.(1976& Supp.1990).Plaintiffs argue that the crash occurred because Harrigan was negligent in failing to properly undertake preflight planning procedures in Alaska, by permitting the aircraft to run out of gas, and in refusing plaintiffs' offer to remedy an alleged defect prior to the crash — to provide shoulder harnesses.

District Court Judge James A. Fitzgerald dismissed the action on the grounds that the government, when treated as a private employer, enjoys immunity from claims of contribution and indemnity afforded it under the Alaska Workers' Compensation Act("AWCA")(Alaska Stat. §§ 23.30.005-23.30.145).Alaska Stat. § 23.30.055(1984).¹On appeal, the Ninth Circuit agreed with Judge Fitzgerald that plaintiffs' claims for indemnity and contribution were barred by the exclusive-remedy provision of AWCA.Bell,833 F.2d at 1378-79.In reaching its conclusions, the court relied heavily on its earlier decision in LaBarge v. County of Mariposa,798 F.2d 364(9th Cir.1986), cert. denied sub nom.County of Mariposa v. United States,481 U.S. 1014, 107 S.Ct. 1889, 95 L.Ed.2d 497(1987).

Following LaBarge,the court affirmed Judge Fitzgerald's conclusion that the federal courts must look to Alaska law to determine questions of contribution and indemnity.The FTCA only extends liability to the government under circumstances where a private person would be liable according to the law of the place where the act or omission occurred.28 U.S.C. § 1346(b).The court concluded that for purposes of indemnity, the government should be treated as a private employer who would be immune from indemnity by virtue of the exclusivity provision of AWCA.

The court specifically rejected the contention that third-party claims for indemnity were expressly permitted by FECA, thereby distinguishing Lockheed Aircraft Corp. v. United States,460 U.S. 190, 103 S.Ct. 1033, 74 L.Ed.2d 911(1983).The court interpreted Lockheed to hold that FECA itself did not preclude third-party claims for indemnity.However, the courts must still look to the underlying substantive law, which in this case is FTCA.The court determined that FTCA requires an interpretation of the law of the state in which the tort occurs, to answer the question of whether state law would permit indemnity and contribution claims by a third party against the employer for damages paid to an injured employee.

While the Ninth Circuit largely agreed with Judge Fitzgerald's handling of the case, the court concluded that the district court had failed to address certain issues that must be addressed in order to completely resolve the case.Bell,833 F.2d at 1379.Specifically, questions of express contractual indemnity, implied contractual indemnity, and implied noncontractual indemnity were left open by Judge Fitzgerald's decision.Therefore, the Ninth Circuit remanded the case to address these issues.In so doing, it directed the attention of this district court to two prior decisions, Northwest Airlines, Inc., v. Alaska Airlines, Inc.,343 F.Supp. 826(D.Alaska1972)andIndustrial Risk Insurers v. Creole Prod. Servs., Inc.,568 F.Supp. 1323, 1328(D.Alaska1983), aff'd,746 F.2d 526(9th Cir.1984), which the court thought might be helpful on remand.

On remand, the government asked Judge Fitzgerald to enter judgment in its favor arguing that the Ninth Circuit had misconstrued Alaska law.Judge Fitzgerald declined to do so, reasoning that the Ninth Circuit had asked him to consider the requirements set out in Industrial Risk Insurers which Judge Fitzgerald concluded would govern further proceedings in this case.The government then filed a motion to dismiss which plaintiffs opposed.In the meantime, the case was reassigned to District Court Judge Andrew H. Kleinfeld.Judge Kleinfeld concluded that the case should be decided on motions for summary judgment rather than on a motion to dismiss, to ensure that all relevant facts would be marshalled and a complete picture of the case disclosed.Thereafter, both parties moved for summary judgment.The case was later reassigned to me, and as a housekeeping measure, I entered an order denying the motion to dismiss without prejudice, to allow consideration of the issues raised in connection with the pending motions for summary judgment.

At the outset, we are faced with the doctrine of the "law of the case."This court should not reexamine an issue previously decided by it or a higher court in the same case in the absence of good cause.SeeRichardson v. United States,841 F.2d 993, 996(9th Cir.1988)amended,860 F.2d 357(9th Cir.1988).Good cause exists to reexamine, only where the prior decision overlooked or failed to consider controlling law, where there has been an intervening change in the law, or where the evidence on remand is substantially different on significant issues from the record that existed at the time of the earlier decision.See, e.g., Planned Parenthood of Cent. & N. Arizona v. Arizona,718 F.2d 938, 949(9th Cir.1983), aff'd mem. sub nom.Babbitt v. Planned Parenthood of Cent. & N. Arizona,479 U.S. 925, 107 S.Ct. 391, 93 L.Ed.2d 346(1986).The Ninth Circuit and Judge Fitzgerald have previously decided that plaintiffs' right to indemnity and contribution is governed solely by the law of the State of Alaska and that in determining whether there is a right to indemnity or contribution, we must consider the government as a private employer who has paid compensation under the Act and is subject to AWCA.Bell,833 F.2d at 1378;LaBarge,798 F.2d at 366-68.²

The Ninth Circuit did not determine whether Alaska law would or would not allow indemnity or contribution under the applicable facts.It simply directed this district court to consider those issues and decide them.We are thus faced with three issues.First, would the law of Alaska recognize an action by a third party for indemnity from the employer of an employee injured in part by the actions of the third party based upon an express contract to indemnify, despite the exclusive remedy provision of AWCA?The answer is yes.SeeNorthwest Airlines,343 F.Supp. at 828-29;Manson-Osberg Co. v. State,552 P.2d 654, 658-59(Alaska1976).

On appeal, the Ninth Circuit declined to consider the issue of an express right to indemnity because plaintiffs had failed to plead it or present it to the trial court.On remand, the parties seem to believe that the Ninth Circuit has instructed this district court not to consider that issue, but that does not seem to be the thrust of the Ninth Circuit's opinion.Rather, while declining to consider the matter for the first time on appeal, the court did not preclude this district court from considering questions of express indemnity on remand if they were properly presented, either by a motion to amend relevant pleadings, or by presentation in an appropriate motion such as a motion for summary judgment.It is not necessary to address that issue, however, because the parties have not requested that the court do so.³

Second, would Alaska law recognize a third party's right to implied contractual indemnity against the employer of the injured employee despite AWCA?Here, the answer seems to be no.SeeLake v. Construction Mach., Inc.,787 P.2d 1027, 1031(Alaska1990);see alsoProvidence Washington Ins. Co. v. DeHavilland Aircraft Co.,699 P.2d 355, 357-58(Alaska1985);Manson-Osberg Co.,552 P.2d at...