Carter v. City of Cheyenne, 79-2211

• Decision Date: 29 May 1981
• Docket Number: No. 79-2211,79-2211
• Citation: 649 F.2d 827
• Parties: Tracey CARTER, as Personal Representative of the Estate of Charles M. Carter, Deceased, Plaintiff, v. The CITY OF CHEYENNE, The Cheyenne Municipal Airport and Northrup Corporation, Defendants, v. The CITY OF CHEYENNE, Third-Party Plaintiff and Appellant, v. The UNITED STATES of America, Third-Party Defendant and Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 827

649 F.2d 827

Tracey CARTER, as Personal Representative of the Estate of Charles M. Carter, Deceased, Plaintiff, v. The CITY OF CHEYENNE, The Cheyenne Municipal Airport and Northrup Corporation, Defendants, v. The CITY OF CHEYENNE, Third-Party Plaintiff and Appellant, v. The UNITED STATES of America, Third-Party Defendant and Appellee.

No. 79-2211.

United States Court of Appeals, Tenth Circuit.

Argued May 11, 1981.

Decided May 29, 1981.

John B. Rogers, Cheyenne, Wyo., for third-party plaintiff and appellant.

Paul M. Honigberg, Dept. of Justice, Washington, D. C. (Alice Daniel, Asst. Atty. Gen., Washington, D. C., Charles E. Graves, U. S. Atty., J. Charles Theisen, Atty., Civil Division, Torts Branch, Dept. of Justice, Washington, D. C., on the brief), for third-party defendant and appellee.

Before BARRETT, DOYLE and McKAY, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

This action arose out of the crash of an aircraft, a United States Air Force T-38, which crash occurred on July 25, 1977, while a landing was being attempted on the airfield runway of the municipal airport at Cheyenne, Wyoming. Captain Charles M. Carter, the deceased in this case, was the pilot of the aircraft. He was part of the Air Force Thunderbird Demonstration Team. Unfortunately, Captain Carter was killed in the crash.

The action of the plaintiff Tracey Carter, personal representative of the Estate of Charles M. Carter, named the City of Cheyenne and other defendants, and alleged that there was negligent design, construction, maintenance, control and supervision of the airfield and runway. The City of Cheyenne, in turn, has fashioned a third party claim against the United States of America. Relief here is sought under the Federal Tort Claims Act. The City alleges negligence on the part of representatives of the Federal Aviation Administration in providing Captain Carter incorrect data pertaining to landing field conditions just prior to his landing.

The airfield at Cheyenne is a non-military one which is used occasionally by the United States Air Force in connection with functions at F. E. Warren Air Force Base, and is used by the Wyoming National Guard pursuant to a joint use agreement with the City of Cheyenne.

The main issue is whether the federal court lacked subject matter jurisdiction over the third party complaint in this case under the principles contained in the decision of the Supreme Court in Stencel Aero Engineering Corporation v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977), rehearing denied 434 U.S. 882, 98 S.Ct. 250, 54 L.Ed.2d 168. The trial court relied on Stencel in its holding that the United States could not properly be impleaded as a third party defendant in the case because the Federal Tort Claims Act does not authorize recovery, directly or indirectly, for injuries or death to a serviceman or servicewoman incident to Armed Forces activity.

The City of Cheyenne concedes that the plaintiff would be unable to sue the United States government in view of the fact that this was a duty connected injury leading to the death, but it maintains that the City of Cheyenne, a defendant in the case, as a third party plaintiff, may, pursuant to Rule 14 of the Federal Rules of Civil Procedure, implead a party, here the United States, even though the plaintiff could not have sued the United States directly. The City of Cheyenne seeks to distinguish the decisions of the United States Supreme Court in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), and in Stencel v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977).

The United States District Court, after conducting a hearing, entered its order granting the motion of the third party defendant United States of America to dismiss for lack of subject matter jurisdiction. This order was entered August 13th. In it was the statement required by 28 U.S.C. § 1292 authorizing an immediate request for an appeal of an interlocutory order. The City of Cheyenne thereupon filed its petition for interlocutory appeal to this court. The petition seeking interlocutory appeal was granted.

The issue boils down to whether, considering the fact that the plaintiff would be unable to sue the United States under the circumstances, given the fact that the accident occurred while Carter was in the line of duty, the defendant, Cheyenne, may interpose a third party complaint against the United States seeking indemnity for any damages which flow from the principal action. The claim is that the United States in a third party indemnity does not have the same defenses and immunities which are applicable in an action by a serviceman injured or killed in the line of duty.

The City of Cheyenne relies on the decision of the Supreme Court in United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523 (1951). There it was held that the Federal Tort Claims Act was to be read broadly to permit an original defendant in the case to implead the United States as a third party defendant in an indemnity or contribution action, where the defendant-third party plaintiff claims that the United States was wholly or partly responsible for the plaintiff's injury.

But Yellow Cab Co. does not stand alone. A fully reasoned decision of the Supreme Court, in Feres v. United States, supra, which was decided contemporaneously with Yellow Cab Co., supra, held that the United States was not liable in such circumstances under the Federal Tort Claims Act for injuries to a serviceman arising out of or in the course of activity incident to service in the military. The Feres case laid down the single test that the injury to the serviceman be a service connected injury. The Court reviewed all possible aspects and held that these facts did not give rise to an action under the Federal Tort Claims Act.

Stencel Aero Engineering Corporation v. United States, supra, addressed itself to the question of whether, after a member of the Armed Forces had brought a tort action against a private defendant, that defendant could seek indemnity from the United States as a third party defendant under the Federal Tort Claims Act, on the ground that government officials were responsible for the plaintiff's injuries. The Supreme Court took the position that the right of a third party to recover in an indemnity action against the United States, which right was recognized in Yellow Cab, had to be limited by the rationale of Feres wherein the injured party was a serviceman. 431 U.S. at 674, 97 S.Ct. at 2059.

It will be helpful to set forth here the facts of the Stencel case. A National Guard captain was, in that case, injured when the ejection system of his aircraft, which had been manufactured by Stencel, malfunctioned during a mid-air emergency. The captain filed suit against the United States and Stencel. Stencel, in turn, cross-claimed against the United States, seeking indemnity grounded on the fact that the ejection system malfunctioned because of faulty specifications, requirements and components provided by the United States. But under those facts the Court refused to allow the proposed third party action. In reaching that conclusion a three-fold test was laid down: First, the Court noted the relationship...