Casey v. United States

• Decision Date: 09 May 1986
• Docket Number: Civ. A. 82-1909-T.
• Parties: Patrick and Ida CASEY, Plaintiffs, v. UNITED STATES of America, Defendant, v. WEXLER CONSTRUCTION COMPANY, INC., Third-party Defendant.
• Court: U.S. District Court — District of Massachusetts

635 F. Supp. 221

Patrick and Ida CASEY, Plaintiffs, v. UNITED STATES of America, Defendant, v. WEXLER CONSTRUCTION COMPANY, INC., Third-party Defendant.

Civ. A. 82-1909-T.

United States District Court, D. Massachusetts.

May 9, 1986.

COPYRIGHT MATERIAL OMITTED

Frank J. Ciano, Carol Petsko, Gargano & Piper, Cambridge, Mass., for plaintiffs.

Marianne B. Bowler, Asst. U.S. Atty., for defendant.

Francis Bousquet, Herlihy & O'Brien, Boston, Mass., for third party defendant.

MEMORANDUM

TAURO, District Judge.

The United States hired Wexler Construction Company ("Wexler") as an independent contractor to perform renovations on a building owned by the United States. The work was supervised by the Army Corps of Engineers. Plaintiff Patrick Casey, an employee of Wexler, worked in the basement of the building for a period of months. During that time, he was exposed to thick dust, asbestos particles, and fumes. Plaintiff alleges that his pre-existing diabetes and obstructive pulmonary disease were gradually aggravated by these working conditions, causing him to become disabled for work since November, 1979.

Patrick Casey sued the United States under the Federal Tort Claims Act¹ ("FTCA"), alleging that its failure to provide safe working conditions on its property, and its inadequate supervision, resulted in his injuries. His wife, Ida, filed a claim against the United States for loss of consortium. The United States impleaded Wexler as a third-party defendant under Fed.R.Civ.P. 14(a)², alleging theories of contribution and contract indemnity.

Ida Casey has moved to add a direct claim against third-party defendant Wexler for loss of consortium. Wexler has moved to dismiss the United States' third-party claims, as well as plaintiff Ida Casey's direct claim. Wexler argues that 1) there can be no contribution, because the United States may be liable only for its own negligence under the FTCA, 2) there is no right of indemnity under the circumstances of this case, 3) Ida Casey's claim against the United States should be dismissed for failure to file an administrative claim, and 4) Ida Casey's claim against Wexler should be dismissed for lack of subject matter jurisdiction.

I. Third-party Complaint Against Wexler

In its third-party complaint, the United States contends that Wexler is liable to the United States under two theories: 1) contribution under common law tort law, and 2) contractual indemnity.

A. Contribution

It is clear that, under the Commonwealth's Workmen's Compensation Act, there can be no contribution with respect to Patrick Casey's claim. See Liberty Mutual Insurance Co. v. Westerlind, 374 Mass. 524, 373 N.E.2d 957, 959 (1978). But, the issue of contribution as to Ida Casey's claim remains.

In arguing against the possibility of contribution with respect to Ida Casey's claim, Wexler points out that, under the Federal Tort Claims Act, the United States can only be held liable for its own acts of negligence, and not for those of an independent contractor.³ That argument, however, ignores the potential liability of the government as a joint tortfeasor. The United States could be held liable as a joint tortfeasor under one of two possible theories: 1) its failure to properly supervise the work performed by the contractor, Petznick v. United States, 575 F.Supp. 698, 704 (D.Neb.1983), and 2) its failure, as a landowner, to provide a safe place to work, Stanley v. United States, 347 F.Supp. 1088, 1091 (D.Me.1972).

In Stanley, the United States was liable as a landowner for leaving a hole in scaffolding on a tower. Judge Coffin, sitting by designation as a district judge, found the independent contractor to be negligent in not providing safety ropes for workers to use. He held that the United States was liable to the plaintiff for the full extent of his injuries, and the independent contractor was obligated to reimburse the full amount to the United States under a theory of contribution.

In this case, the United States could be found liable for not providing a properly ventilated work area or for not supervising the safety measures of Wexler. At the same time, Wexler could have been negligent in not taking proper safety measures, such as ventilating the basement or providing masks for the workers to wear. The United States could ultimately be found liable as a joint tortfeasor for the full extent of Ida Casey's injuries, subject only to a right of contribution against Wexler. The United States, therefore, has a basis for its third-party contribution claim against Wexler.

B. Indemnity

The contract between the United States and Wexler provides: "The contractor shall ... be similarly responsible for all damages to persons or property that occur as a result of his fault or negligence." Wexler argues that United States v. English, 521 F.2d 63 (9th Cir.1975) ruled that this exact clause does not require indemnification by an independent contractor to the United States. What the court actually held, however, was that this clause does not express an intention "that the contractor shall bear the burden of the Government's negligence." Id. at 68 (emphasis in original). Wexler does not cite a case standing for the proposition that this clause does not require a contractor to indemnify the government for the contractor's own negligence. Furthermore, although contribution from an employer is barred by Workmen's Compensation Act, contractual indemnity from an employer apparently is not barred. See Roy v. Star Chopper Co., 442 F.Supp. 1010, 1015-18 (D.R.I.1977) (applying Massachusetts workmen's compensation law), aff'd, 584 F.2d 1124 (1st Cir.1978), cert. denied, 440 U.S. 916, 99 S.Ct. 1234, 59 L.Ed.2d 466 (1979).

Thus, if both the United States and Wexler are found to have been negligent, and the United States is liable to Patrick Casey for the full extent of his injuries, the United States may seek indemnification under the contract from Wexler for the share of the liability caused by Wexler's negligence. See Petznick v. United States, 575 F.Supp. 698 (D.Neb.1983) (where the Air Force failed to adequately inspect the work premises or to supervise work, and an independent contractor was negligent in not providing plaintiff with properly insulated equipment, the United States was liable to plaintiff for the full share of damages, and was entitled to partial indemnity from the contractor for its negligence).

Wexler, therefore, is a proper third-party defendant under theories of both contribution and indemnity. Its motion to dismiss the third-party claims must be denied.

II. Ida Casey's Claim Against the United States

Wexler, exercising its rights under Fed. R.Civ.P. 14(a), asserts a defense of the United States against Ida Casey.⁴ Filing an administrative claim is a prerequisite to filing a civil action against the United States under the Federal Tort Claims Act.⁵ Wexler claims that Ida Casey did not properly file such a claim.

This issue has been previously litigated and decided against the United States, not once, but twice, in this case. See Order dated August 14, 1984; Order dated December 4, 1984. Third-party defendant Wexler cannot now attempt to resurrect and relitigate a defense of the United States that the United States has already litigated and lost. Wexler is bound by the prior determination. See 6 C. Wright & A. Miller, Federal Practice and Procedure § 1457 at 305-09 (1971).

In any event, this court does not find Wexler's substantive arguments on behalf of the government to be persuasive. Patrick Casey asserts that he listed his wife on his claim form, and that this was sufficient to comply with the required administrative prerequisite. In support of this position, plaintiffs cite Graves v. U.S. Coast Guard, 692 F.2d 71 (9th Cir.1982) and Campbell v. United States, 534 F.Supp. 762 (D.Hawaii 1982) (husband filing and signing claim on wife's behalf allowed).

Wexler relies on four district court cases to argue that a spouse must file a separate administrative claim. Heaton v. United States, 383 F.Supp. 589 (S.D.N.Y.1974); Mudlo v. United States, 423 F.Supp. 1373 (W.D.Pa.1976); Collazo v. United States, 372 F.Supp. 61 (D.P.R.1973); Knouff v. United States, 74 F.R.D. 555 (W.D.Pa. 1977). In each of these cases, an injured party filed an administrative claim, but the spouse did not file a claim, nor was the spouse listed on the claim filed. When the injured party filed a complaint against the United States in district court, the spouse joined a claim for loss of consortium. In each case, the district court dismissed the spouse's loss of consortium claim.

The instant case is distinguishable from those relied upon by Wexler. Ida Casey was listed by her husband on the administrative claim form. Plaintiff's Memorandum at 6-7. The United States therefore, cannot complain of any unfair suprise. Furthermore, the purpose of the requirement that an administrative claim be filed — to promote fair settlement⁶ — was not hindered by Patrick Casey's including Ida Casey's claim on the same claim form. Wexler's motion to dismiss Ida Casey's claim for failure to file an administrative claim is denied.

III. Ida Casey's Claim Against Wexler

Plaintiff Ida Casey has moved to add a direct claim against third-party defendant Wexler for loss of consortium. Wexler has moved to dismiss this claim. The loss of consortium claim arises under state law, and the parties are both Massachusetts residents. There is no independent basis of jurisdiction for this claim. To stand, therefore, Ida's claim must be based on pendent party jurisdiction.

Although the issue of pendent party jurisdiction was not pressed by the parties, it is one the court must decide because it relates to subject matter jurisdiction.

Neither the Supreme Court nor the First Circuit have ruled as to whether pendent party jurisdiction would be proper in situations such as this. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), ...