Blockston v. United States

• Citation: 278 F. Supp. 576
• Decision Date: 04 January 1968
• Docket Number: Civ. No. 13855.
• Parties: Celeste E. BLOCKSTON et al., Plaintiffs, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. JOHN C. GRIMBERG CO., Inc., and American Hydrotherm Corporation, Third-Party Defendants. STATE OF MARYLAND to the Use of Celeste E. BLOCKSTON et al., v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. JOHN C. GRIMBERG CO., Inc., and American Hydrotherm Corporation, Third-Party Defendants.
• Court: U.S. District Court — District of Maryland

278 F. Supp. 576

Celeste E. BLOCKSTON et al., Plaintiffs, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. JOHN C. GRIMBERG CO., Inc., and American Hydrotherm Corporation, Third-Party Defendants.

STATE OF MARYLAND to the Use of Celeste E. BLOCKSTON et al., v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. JOHN C. GRIMBERG CO., Inc., and American Hydrotherm Corporation, Third-Party Defendants.

Civ. No. 13855.

United States District Court D. Maryland.

January 4, 1968.

Thomas J. Kenney, U. S. Atty., Baltimore, Md., and William A. Gershuny, Atty., Dept. of Justice, Washington, D. C., for the United States.

Michael P. Crocker, Baltimore, Md., for American Hydrotherm Corp.

THOMSEN, Chief Judge.

The original complaint in this action was filed against the government to recover damages for the injury to and death of James W. Blockston, who had sustained the injuries which caused his death while participating in a hydrostatic test of a high-temperature water system at the Patuxent Naval Air Station in the course of his employment by John C. Grimberg Co., Inc. (Grimberg).

The government filed a third-party complaint against Grimberg for indemnity, and a third-party complaint against American Hydrotherm Corporation (Hydrotherm), claiming indemnity and contribution.

Plaintiffs' claim against the government and the government's claim against Grimberg have been settled, and the settlement has been approved by Judge Winter, pursuant to 28 U.S.C.A. § 2677. The government has formally abandoned its third-party claim against Hydrotherm for contribution. The third-party claim of the government against Hydrotherm for indemnity is now before the court.

The government alleges two bases for that claim:

(A) In tort, based upon the alleged negligence of Hydrotherm in its performance of an engineering contract between Hydrotherm and the government, under which Hydrotherm undertook to do certain engineering work and to prepare the specifications and other provisions of the construction contract which Grimberg was performing at the time Blockston was injured. The government contends that Hydrotherm's negligence was active and primary, and that the government's negligence was secondary and passive; and

(B) In contract, based upon an alleged implied agreement by Hydrotherm to indemnify the government.

The government has presented its evidence to the court without a jury. Hydrotherm has filed: (1) a motion to dismiss under Rule 41(b) and (c), F.R.Civ. P., on the ground that upon the facts and the law the government, as third-party plaintiff, has shown no right to relief against Hydrotherm, and (2) a motion for summary judgment under Rule 56 (b), referring to certain admissions by the government, answers to interrogatories, and additional portions of depositions, as well as to the evidence offered by the government. Those motions must be disposed of before Hydrotherm may be required to present any evidence.

The government contends that a motion for summary judgment is not proper at this stage of the case. In reply, Hydrotherm cites a number of authorities giving effect to the provision in Rule 56 that a motion for summary judgment may be filed "at any time". See Rotberg v. Dodwell, 152 F.2d 100 (2 Cir., Clark, J., 1945); Burnham Chemical Co. v. Borax Consolidated, 170 F.2d 569 (9 Cir., 1948). Although unusual, a summary judgment at this time is not improper. The dispute is not important in this case, because, for the reasons stated in this opinion, the court has concluded that Hydrotherm's motion under Rule 41(b) and (c) should be granted, and that it is not necessary to consider the additional material filed with the motion for summary judgment.

The Facts as They Appear from the Government's Evidence.

Plaintiffs' Complaint. On June 1, 1962, plaintiffs filed their complaint against the United States under the Federal Tort Claims Act to recover damages for the injury to and death of James Wesley Blockston. It was alleged in the complaint that Blockston was injured on September 20, 1961, at Patuxent Naval Air Station in Maryland, while working as a steamfitter for John C. Grimberg Company; that Grimberg had entered into a contract with the Department of the Navy (NBY 25061), under which Grimberg was constructing and altering a high-temperature water system at the Air Station; that by Paragraph 15.21 of the Contract Specifications (see note 6, below), Grimberg was directed to remove and relocate an existing 12-inch strainer in the high-temperature water system, and thereafter pursuant to Paragraph 15.28.1 (see note 6) to subject the strainer and the other parts of the system to a hydrostatic pressure test of 600 psi; that during said test, while the system was subjected to a pressure between 500 and 600 psi, and while Blockston acting carefully and prudently was engaged with others in checking for leaks in the system and strainer, the strainer and its cover plate ruptured, causing Blockston to be struck by escaping water and to be thrown violently to the ground from a scaffolding, resulting in injuries from which he died two days later.

Paragraph 7 of the complaint sets forth the allegations with respect to the government's negligence. In substance, plaintiffs allege that the government knew or should have known that the 12-inch strainer was constructed of cast grey iron, and was designed to be subjected to a maximum hydrostatic pressure of 300 psi;¹ and that with knowledge of such facts the government was negligent in its duty to Blockston: in the preparation of the construction contract (NBY 25061) and specifications which required the relocation and re-use of the 12-inch strainer and a hydrostatic test at pressures in excess of those for which it was manufactured, designed and intended to be used; in failing to warn Blockston of the danger inherent in working around the strainer while under such excessive test pressures; in failing to exercise due care and caution to determine that the strainer would not fail or rupture while subjected to those pressures required under the construction contract with Grimberg; and by such negligence on the part of the government, its agents, servants and employees, the government caused or created an unreasonable risk of harm to Blockston, of which he in the exercise of reasonable care and caution was not aware, and failed to provide Blockston with a reasonably safe place to work.

Other Pleadings. The government answered plaintiffs' complaint and filed a third-party complaint against Hydrotherm for indemnity and contribution and against Grimberg for indemnity only (since a claim for contribution would have been barred by the Workmen's Compensation Act). Plaintiffs did not amend their complaint to claim against Hydrotherm.

The Pretrial Order. Plaintiffs' contentions were elaborated at a pretrial conference held on April 27, 1965.² In its Pretrial Order of April 27, 1965, the court severed the trial of the government's third-party claim against Hydrotherm and concluded:

"* * * that the findings of fact in the original suit will be binding upon the jury in the action against American Hydrotherm to the extent, but only to the extent that such facts are required to be found to adjudicate fully the issues between the plaintiffs and the United States."

The Pretrial Order also provided:

"Counsel for American Hydrotherm states that not having filed an answer to the plaintiffs' complaint, he does not claim, nor does he wish to exercise, any right to participate in the action between the plaintiffs and the United States in the examination of witnesses, making argument or presenting affirmative evidence of his own, notwithstanding that the Court would afford him such right."

The Settlement. On May 17, 1965, when the case was called for trial, a settlement of plaintiffs' claim against the government and the government's claim against Grimberg was reached. It was agreed that plaintiffs should receive $72,900, of which $22,500 was to be paid by Grimberg and $50,400 by the United States. Following a hearing, the court approved the proposed settlement,³ which was later embodied in an order reciting specifically the terms of the settlement.

Counsel for American Hydrotherm was present in the courtroom during this hearing, heard the proceedings, responded to a single question put to him by the court, but took no part in the settlement proceedings then before the court.

The "Order Approving Compromise Settlement", which was the only written document embodying the terms of the settlement, was signed by Judge Winter after approval by the attorneys for the plaintiffs and the attorneys for the government.⁴ The settlement was consummated in accordance with the order, but did not include a release of any claim plaintiffs might have against Hydrotherm.⁵

The Engineering Contract between the Government and Hydrotherm. By Contract No. NBY 25031, dated June 30, 1959, Hydrotherm had contracted with the United States to perform architectural and engineering services in connection with certain contemplated modifications to the existing heating system at the Naval Air Station, Patuxent River, Maryland, in two phases. The "First Phase" included "an engineering investigation of the existing High Temperature Water system design, its functional adequacy with respect to existing and proposed heating loads and economy of operation incorporated in a report detailing recommended system modifications if any, number, type and capacity of components required and construction cost estimate". It was agreed, inter alia: "The use of existing stacks and other equipment shall be investigated giving due consideration to age and condition of existing equipment, its expected future life and maintenance, operating and replacement cost, and such other factors as may be pertinent". The "Second Phase" consisted of "the preparation of contract drawings and specifications".

The contract required that...