Coulter v. U.S

• Decision Date: 10 April 2003
• Docket Number: No. CIV.A. 02-1645-A.,CIV.A. 02-1645-A.
• Citation: 256 F.Supp.2d 484
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Evelyn COULTER, Plaintiff, v. UNITED STATES of America, Defendant.

256 F.Supp.2d 484

Evelyn COULTER, Plaintiff, v. UNITED STATES of America, Defendant.

No. CIV.A. 02-1645-A.

United States District Court, E.D. Virginia, Alexandria Division.

April 10, 2003.

COPYRIGHT MATERIAL OMITTED

Martin Ray Mann, Law Offices Martin R. Mann, Falls Church, Va, for Plaintiff.

Anita C. Snyder, United States Attorney's Office, Alexandria, VA, for Defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

In this Federal Tort Claims Act ("FTCA")¹ suit, plaintiff, an employee private food services contractor for the Marine Corps, sues the United States for injuries she suffered in the course of performing her food preparation duties in the kitchen at the Quantico Marine Corps Base in Quantico, Virginia. The threshold, dispositive question presented is whether workers' compensation benefits pursuant to the Virginia Workers' Compensation Act ("VWCA")² are plaintiffs sole and exclusive remedy for her injuries, thereby barring her FTCA claim. Put differently, the question is whether the government is plaintiffs statutory employer under the VWCA where, as here, the Marine Corps is required by statute to provide meals for its enlisted members, and the plaintiff worked for a food services subcontractor engaged by the Marine Corps for that purpose.

I.

The material, dispositive facts are either uncontested or incontestable.³ They are as follows:

1. On December 7, 2000, plaintiff Evelyn Coulter, a Virginia resident, was injured while working as a cook at the Quantico Marine Corps Base ("Quantico") in Quantico, Virginia. Plaintiff was severely burned when scalding water was expelled from a food steamer as it was being opened by plaintiff.

2. At the time, plaintiff was working for American Service Contractors, a subcontractor of ServiceSource, which had a contract to supply cooking services for Quantico.

3. Plaintiff was paid lost wages and medical benefits by Kemper Insurance Companies pursuant to American Service Contractors' workers' compensation insurance contract with Kemper. Although plaintiff has received and retained such payments, it appears that plaintiff has not filed a claim with the Virginia Workers' Compensation Commission.

4. Except for a brief period in 1990, the Marine Corps has, since at least 1985, engaged various contractors to provide cooking services at Quantico. During that brief period in 1990, the Marine Corps itself hired civilian employees to perform cooking services while it searched for a new food services contractor.

5. Since 1985 plaintiff has performed cooking services at Quantico as an employee of the Marine Corps' food service contractors and subcontractors and, briefly, the Marine Corps itself.

6. The United States Department of the Navy is required by statute and regulations to provide meals to its enlisted members. See 10 U.S.C. § 6081(a) (providing that "[e]ach enlisted member of the naval service is entitled to a Navy ration for each day that he is on active duty, including each day he is on leave").⁴ Department of Defense and Marine Corps regulations and orders govern the provision of meals and the operation of Marine Corps mess halls. See Marine Corps Order 10110.34E (1992) (Def. Reply Br. att. B). The government has chosen to meet its duty to provide its enlisted members with meals by contracting out the cooking services rather than hiring Marine Corps civilian employees to cook.

The above facts are either not disputed by the parties, or, in the case of the statutes and regulations, incontestable In addition, the government has provided specific information about the Quantico food service operation in the form of affidavits from Major Kathy L. Velez, the Head of the Food Services Branch at Quantico. According to the affidavit attached to the government's supplemental brief, 1,038,898 meals were served at Quantico in the year 2001, of which 910,068 were provided as mandated by statute. The affidavit also states that the provision of rations is typically "subsistence in kind," i.e. actual meals provided in Marine Corps dining facilities, rather than monetary payment; this provision of meals is necessary to ensure that Marines have access to "adequate wholesome dining" while carrying out their statutory duties. In a further affidavit, attached to the government's reply to plaintiffs supplemental brief, Major Velez details the level of oversight, direction, control and inspection exercised by the Marine Corps Food Services Branch over the contractors hired to provide the cooking services.

On August 31, 2001, plaintiff filed a claim with the Claims Department, Naval Service Office, which was denied by letter dated July 22, 2002. Thereafter, on November 6, 2002, plaintiff filed this action pursuant to the FTCA, 28 U.S.C. § 2671 et seq., claiming the United States was negligent in maintaining or monitoring the food steamer equipment which caused plaintiffs injuries. On January 8, 2003, the government moved to dismiss plaintiffs action, for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6), Fed.R.Civ.P., contending that, as plaintiffs statutory employer, the United States is immune from liability on this negligence action pursuant to the VWCA. As subsequently noted in the government's supplemental brief, this motion is properly treated as a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), Fed.R.Civ.P. After oral argument on February 7, 2003, counsel were directed to file supplemental memoranda. In addition to the supplemental memoranda, the government sought leave to file an additional pleading in response to plaintiffs supplemental memorandum, which plaintiff opposed. By a subsequent joint motion, the parties agreed that all of the pleadings were proper and should be considered by the Court. Thus, all of the briefs are in the record for the purposes of resolving the motion at bar and the question of the government's status as plaintiffs statutory employer is ripe for disposition.

II.

The FTCA provides a limited waiver of the federal government's sovereign immunity, placing the government on the same footing as a private person with regard to certain types of claims. See 28 U.S.C. § 1346(b) (granting district courts jurisdiction over claims "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred"). The parties agree that Virginia law applies here, as the alleged tortious conduct and the injury occurred in Virginia. See Home Indem. Co. of N.Y. v. Poladian, 270 F.2d 156, 160 (4th Cir.1959) (holding that, in determining whether an action is barred by a state workers' compensation act, the law of the state where the injury occurred governs). Accordingly, the threshold question here is whether, under Virginia law, the VWCA operates to bar plaintiffs action in negligence against the government for her work-related injuries.

Under the VWCA, if the government qualifies as plaintiffs statutory employer, plaintiffs remedies under the VWCA are exclusive, and plaintiff is barred from pursuing her negligence claim against the government. See Va.Code § 65.2-302 (defining "statutory employer"), § 65.2-307 (providing that "[t]he rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title ... shall exclude all other rights and remedies of such employee ...").

A statutory employer is defined by the VWCA, in relevant part, as follows:

When any person (referred to in this section as `owner') undertakes to perform or execute any work which is a part of his trade, business or occupation and contracts with any other person (referred to in this section as `subcontractor') for the execution or performance by or under such subcontractor of the whole or any part of the work undertaken by such owner, the owner shall be liable to pay to any worker employed in the work any compensation under this title which he would have been liable to pay if the worker had been immediately employed by him.

Va.Code § 65.2-302 (emphasis added). Thus, under the VWCA, the employees of an independent subcontractor are not necessarily statutory employees of the owner who hires the independent subcontractor. See Henderson v. Central Telephone Co. of Va., 233 Va. 377, 381, 355 S.E.2d 596 (1987). Instead, the critical test under the statute is whether the work contracted constitutes "work which is part of [the owner's] trade, business or occupation." Id. Thus, the question presented here is whether the work performed by plaintiff, namely the cooking of meals to be served at Quantico, constitutes a part of the Marine Corps' "trade, business, or occupation."

The general test for determining whether an employee of a subcontractor was performing work that is part of the owner's "trade, business, or occupation" is found in the Supreme Court of Virginia's decision in Shell Oil Co. v. Leftwich, 212 Va. 715, 187 S.E.2d 162 (1972). The test set forth in Shell is whether the work performed by a subcontractor "is, in the business, normally carried on through employees rather than independent subcontractors," except where "the work is obviously a subcontracted fraction of a main contract." Id. at 722, 187 S.E.2d 162.

Importantly, however, the Supreme Court of Virginia does not apply the Shell test in every instance; instead, that court has made clear that a modified test is applicable where the potential statutory employer is governed by statutes or regulations that define the scope of the entity's business, in which case those statutes and regulations are determinative of the entity's "trade or business." See Henderson, 233 Va. at 382-83, 355 S.E.2d 596 (citing the Shell t...