Cockrell v. U.S., 97 CV 0281-B AJB.

• Decision Date: 19 April 1999
• Docket Number: No. 97 CV 0281-B AJB.,No. 97 CV 0350-B AJB.,97 CV 0281-B AJB.,97 CV 0350-B AJB.
• Citation: 101 F.Supp.2d 1291
• Court: U.S. District Court — Southern District of California
• Parties: Peggy COCKRELL and the Estate of Gary Cockrell, Plaintiffs, v. UNITED STATES of America, Defendant. Newell Netsch, Elizabeth Netsch, and the Estate of Lisa Netsch, Plaintiffs, v. United States of America, Defendant.

101 F.Supp.2d 1291

Peggy COCKRELL and the Estate of Gary Cockrell, Plaintiffs, v. UNITED STATES of America, Defendant.

Newell Netsch, Elizabeth Netsch, and the Estate of Lisa Netsch, Plaintiffs, v. United States of America, Defendant.

No. 97 CV 0281-B AJB.

No. 97 CV 0350-B AJB.

United States District Court, S.D. California.

April 19, 1999.

Don Alan Ernst (Cockrells), San Luis Obispo, CA, Edward E. Hawkins, San Luis Obispo, CA, James P. Tessier (Netsche), Menlo Park, CA, Michael S. Danko, Menlo Park, CA, for plaintiff.

Fernando Campoamor, Washington DC, for defendant.

MEMORANDUM AND DECISION

BREWSTER, Senior District Judge.

I. INTRODUCTION

The separate affirmative defense of special employer immunity of the United States Government ("Government") was bifurcated for separate trial. After a bench trial, and upon review of the trial testimony and exhibits, and of both Plaintiffs' and Defendant's post-trial briefs, the Court decides that the Government was not, at all times material, the special employer of Plaintiffs' Decedents, Gary Cockrell and Lisa Netsch.

II. STATEMENT OF THE CASE

This wrongful death action was brought by Plaintiffs Peggy Cockrell, the Estate of Gary Cockrell, Newell Netsch, Elizabeth Netsch, and the Estate of Lisa Netsch, against the Government under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). The case arises from the June 21, 1995 mid-air collision between a DC-4 aircraft ("Tanker 19") and a Government Forest Service ("USFS") Beech 58P aircraft ("Lead 26") on approach to the Ramona, California airport. Both planes were returning from aerial fire suppression activities in connection with a local fire on federal land referred to as the Butterfield fire. Gary Cockrell and Lisa Netsch ("Decedents"), the pilot and co-pilot, respectively, of Tanker 19, died as a result of the accident, as did Michael Smith, the pilot of Lead 56 and a USFS employee. Cockrell and Netsch were general employees of Aero Union Corporation ("Aero Union") working under a contract between Aero Union and the Government.

Two separate lawsuits arising out of the same aircraft collision were first filed against the Government in the District Court for the Central District of California. The lawsuits were subsequently consolidated and transferred to this Court by stipulation. The Government concedes liability for the accident, but it has alleged by separate affirmative defense that the Government was the "special employer" of the Decedents, and as such are immune from third party respondeat superior liability under California workers' compensation law at the time of the accident. See generally, Kowalski v. Shell Oil Co., 23 Cal.3d 168, 174-75, 151 Cal.Rptr. 671, 588 P.2d 811 (1979); Industrial Indem. Exch. v. Industrial Accident Comm'n, 26 Cal.2d 130, 134-35, 156 P.2d 926 (1945). Workers in California may not recover against their employers in tort for work-related injuries, but are limited to workers' compensation benefits. See Cal.Lab.Code § 3602(a). Upon request of the Government and by order of this Court, the trial was bifurcated in order to litigate first the Government's separate affirmative defense of special employment. Thus, the issue of damages now remains to be tried.

III. DISCUSSION

On or about November 11, 1994, Aero Union and the Government entered into an approximately 150 page "Forest Service Contract" ("Contract") by the terms of which Aero Union agreed to furnish numerous tanker aircraft, all required qualified maintenance personnel, and qualified air crews to maintain and fly these aircraft on firefighting missions throughout the country, including Alaska, for the Government. The term of the Contract was for one year, with a mandatory service availability period from June 15, 1995 through November 17, 1995. The accident occurred on June 21, 1995.

One of the primary guides to judicial construction of contracts between party-litigants is to support if possible what appears objectively to have been the intentions of the parties when they entered into the contract relationship. See Cal.Civ. Code § 1636; see, e.g. Hernandez v. Badger Constr. Equip. Co., 28 Cal.App.4th 1791, 34 Cal.Rptr.2d 732 (1994); Pacific Portland Cement Co. v. Food Mach. & Chem. Corp., 178 F.2d 541 (9th Cir.1949).

The evidence without contradiction supports the finding of fact that neither Aero Union nor the Government intended to create an employment relationship between Aero Union employees and the Government. The Contract itself does not contain any language that could be construed as creating a dual, temporary, or special employment relationship. Richard Denker, the USFS contracting officer who signed the Contract on behalf of the Government, testified that it was not his intention when signing the Contract that Aero Union employees would be Government employees. (Reporter's Transcript ("RT"), I-175:22 to 177:2.) Victor Alvistur, current president and former general manager of Aero Union who signed the Contract on its behalf, testified that neither was it his intention to create a special employment relationship nor any other type of employment relationship between the Aero Union employees and the Government. (RT, III-181:15 to 182:1.) This testimony confirms the intent apparent from the language of the Contract, that creating an employment relationship between Aero Union employees and the Government was simply not contemplated or intended. The first line of the Contract states that "[i]t is the intent of this contract to provide the Government with Air-tanker services as described herein." (Ex. A, p. C-2 § 1.1.1.) The intent to create a service contract, and not an employment contract, is therefore evident from both the Contract itself, as well as the testimony of the Parties' contracting representatives.

It is also not insignificant that Government briefing representatives repeatedly lectured the Aero Union employees on the fact that they were not Government employees. (R.T., IV-191:16 to 192:3.) The Government has always advised Aero Union personnel that they were not employees of the Government, were not permitted to wear Government uniforms, operate Government vehicles, or in any way to hold themselves out as employees of the Government. (R.T., III-84:19 to 85:24). The Court concludes from the undisputed evidence received in this trial that the Government intended to create an independent contract relationship with Aero Union, and at all times up to the time of the accident did not intend or claim that it was a "special employer" of employees of the contractor, Aero Union.

In addition to finding no contractual evidence under California principles of contract law to support a finding of the intention to create any special employment, an examination of the specific factors set forth by California courts to determine whether a special employment relationship nevertheless exists also leads this Court to its conclusion that the Government was not the special employer of the Decedents.¹ The existence or nonexistence of the special employment relationship in any given case has been held to be a question of fact. See Kowalski, 23 Cal.3d at 175, 151 Cal. Rptr. 671, 588 P.2d 811.

One of the principal factors frequently pointed out in California cases considering the judicially created status of "special employer" is whether at all material times the alleged "special employer" controlled or had the right to control the details of the work of the alleged special employee. See Kowalski, 23 Cal.3d at 175, 151 Cal.Rptr. 671, 588 P.2d 811; see also Wedeck v. Unocal Corp., 59 Cal.App.4th 848, 857, 69 Cal.Rptr.2d 501 (Cal.Ct.App.1997); McLandrich v. Southern California Edison Co., 917 F.Supp. 723, 730-31 (S.D.Cal. 1996). The instant contract elaborates upon and identifies specifically what maintenance crews, air crews, and equipment Aero Union would supply to the Government, as well as describes the operational missions during which the Government would deploy and control the use of the crews and equipment. See Contract Part I.C.

At the time of this accident, without any dispute in the evidence, Decedents were not being controlled by the Government as to the details of their work. They had previously been released from a firefighting mission and were on final approach to a landing at their base, Ramona Airport, when they were "rear-ended" by a USFS lead plane, causing both aircraft to crash. One of the stated principal considerations clearly was not present at the moment of the crash in the instant case. The tanker crashed many miles away from the fire scene on its final landing at its base of operations.

Furthermore, the Government did not purport to control the details of how the aircraft was flown, even on a fire, let alone once it was released from the operational deployment by the Government over the fire being suppressed. Contrary to the Government's assertions, the fact that the Contract, at section 1.1.1, gave the "exclusive" right to control the activities of Decedents employed by Aero Union while they are dispatched on firefighting missions does not legally transform them into employees of the Government. So to hold would do violence to the previously analyzed factor considered relevant to the special employment analysis — the clear intent of the parties, which in this case was to create a vehicle for the Government to achieve its firefighting ends without the onus on the Government of employing a multitude of additional specially trained persons and of owning many additional aircraft. See, e.g., Brassinga v. City of Mountain View, 66 Cal.App.4th 195, 217, 77 Cal.Rptr.2d 660 (1998); Kowalski, 23 Cal.3d at 178, 151 Cal.Rptr. 671, 588 P.2d 811.

Rather, the Contract simply gave the Government the ability to control the operational deployment of Aero Union pilots. Thus, the Government had the contractual right to dispatch the Aero Union pilots to particular fires, instructed them as to where to drop fire retardant,...