Hamman v. United States

• Citation: 267 F. Supp. 420
• Decision Date: 22 March 1967
• Docket Number: 522,493.,Civ. No. 476,477
• Parties: Elsie HAMMAN, Plaintiff, v. UNITED STATES of America, Washington Iron Works, a Washington corporation, Morrison-Knudsen Company, Inc., a Delaware corporation, Perini Corporation, a Massachusetts corporation, Walsh Construction Company, Inc., an Iowa corporation, and Kaiser Company, a Nevada corporation, jointly and severally, Defendants. Arlene Hartung REED, Administratrix of the Estate of her deceased husband, Adam Hartung, Plaintiff, v. UNITED STATES of America et al., Defendants. Anna LOYNING, Adminstratrix of the Estate of her deceased husband, Sidney A. Loyning, Plaintiff, v. UNITED STATES of America et al., Defendants. Alice R. BLANCO, Individually and as Guardian ad Litem for Tony Jerome Blanco, David Martin Blanco, Sylvia Irene Blanco, Angela Fern Blanco and Rose Kathleen Blanco, and as Administratrix of the Estate of Frank Jerry Blanco, Plaintiffs, v. UNITED STATES of America et al., Defendants.
• Court: United States District Courts. 9th Circuit. United States District Court (Montana)

267 F. Supp. 420

Elsie HAMMAN, Plaintiff, v. UNITED STATES of America, Washington Iron Works, a Washington corporation, Morrison-Knudsen Company, Inc., a Delaware corporation, Perini Corporation, a Massachusetts corporation, Walsh Construction Company, Inc., an Iowa corporation, and Kaiser Company, a Nevada corporation, jointly and severally, Defendants.

Arlene Hartung REED, Administratrix of the Estate of her deceased husband, Adam Hartung, Plaintiff, v. UNITED STATES of America et al., Defendants.

Anna LOYNING, Adminstratrix of the Estate of her deceased husband, Sidney A. Loyning, Plaintiff, v. UNITED STATES of America et al., Defendants.

Alice R. BLANCO, Individually and as Guardian ad Litem for Tony Jerome Blanco, David Martin Blanco, Sylvia Irene Blanco, Angela Fern Blanco and Rose Kathleen Blanco, and as Administratrix of the Estate of Frank Jerry Blanco, Plaintiffs, v. UNITED STATES of America et al., Defendants.

Civ. Nos. 476, 477, 522, 493.

United States District Court D. Montana, Billings Division.

March 22, 1967.

In causes 476, 477 and 522: Marcus, McCroskey, Libner, Reamon, Williams & Dilley, Muskegon, Mich., Lee Overfelt, Billings, Mont., J. H. McAlear, Red Lodge, Mont., and Robert H. Wilson, Hardin, Mont., for plaintiffs. In cause 493, Sandall, Moses & Cavan, Billings, Mont., for plaintiffs.

Moody Brickett, U. S. Atty., and Robert T. O'Leary, Asst. U. S. Atty., Butte, Mont., for defendant United States.

Cooke, Moulton, Bellingham & Longo, Billings, Mont., for defendant Washington Iron Works.

Anderson, Symmes, Forbes, Peete & Brown, Billings, Mont., for defendants Morrison-Knudsen Co., Inc., Perini Corp., Walsh Const. Co., Inc., and Kaiser Co.

ORDER AND MEMORANDUM OPINION

JAMESON, Chief Judge.

Defendants Morrison-Knudsen Company, Inc., Perini Corporation, Walsh Construction Company, Inc., and Kaiser Company have filed motions for summary judgment in cases 476, 477 and 522. By stipulation it has been agreed that these motions and all documents filed with respect thereto will apply equally to case 493.

In each of the four actions, which have been consolidated for trial, the plaintiff seeks damages for the death of a workman who was killed when a cableway "man-skip" used in the construction of Yellowtail Dam and in which the decedent was riding, ran against a canyon wall and spilled its occupants to the floor of the canyon. The decedents were all employees of Yellowtail Constructors,¹ which was building Yellowtail Dam pursuant to a contract with the Bureau of Reclamation, an agency of the United States Government.²

The defendants contend that they were joint venturers doing business as "Yellowtail Constructors"; that each of the decedents was an employee of the joint venture and was killed in the course of his employment; and that the joint venturers accordingly are immune from civil liability under the terms of the Workmen's Compensation Act of the State of Montana. Plaintiffs contend that (1) under the Montana law, a member of a joint venture is not an "employer" to an employee of the joint venture, and therefore, receives no immunity from third party tort actions; (2) there was no joint venture relationship in fact; (3) the employment contract under which the decedents were employed named one employer, Yellowtail Constructors, and since this agreement is consensual, defendants are estopped from asserting that they were employers of the decedents; (4) assuming the existence of a joint venture, defendant Morrison-Knudsen dealt independently as a third party with the joint venture in providing engineering services and may therefore not claim immunity under the Montana Workmen's Compensation Laws; and (5) the agreement among the defendants was an illegal conspiracy in restraint of trade which estops the defendants from asserting the agreement as a defense to achieve immunity.

1. Is a member of a joint venture an "employer" within the meaning of the Montana Workmen's Compensation Act?

The pertinent portions of the Montana Act, found in R.C.M.1947, sections 92-201-92-204 provide:

"92-201. Defenses excluded in personal injury action—negligence of employee—fellow servant—assumption of risk. In an action to recover damages for personal injuries sustained by an employee in the course of his employment, or for death resulting from personal injuries so sustained, it shall not be a defense:

(1) That the employee was negligent, unless such negligence was willful (2) That the injury was caused by the negligence of a fellow employee;

(3) That the employee has assumed the risks inherent in, incident to, or arising out of his employment, or arising from the failure of the employer to provide and maintain a reasonably safe place to work, or reasonably safe tools or appliances."

"92-203. Employers not liable for death or injury other than herein defined—employees who elect not to come under law. Any employer who elects to pay compensation as provided in this act shall not be subject to the provisions of section 92-201, nor shall such employer be subject to any other liability whatsoever for the death of or personal injury to any employee except as in this act provided; and, except as specifically provided in this act, all causes of action, actions at law, suits in equity, and proceedings whatever, and all statutory and commonlaw rights and remedies for and on account of such death of, or personal injury to, any such employee are hereby abolished; provided, that section 92-201 shall not apply to actions brought by an employee who has elected not to come under this act, or by his representatives, for damages for personal injuries or death, against an employer who has elected to come under this act."

"92-204. Election of employer and employee to come under act—action against third party causing injury. Where both the employer and employee have elected to come under this act, the provisions of this act shall be exclusive, and such election shall be held to be a surrender by such employer and such employee, as between themselves, of their right to any other method, form or kind of compensation, or determination thereof, or to any other compensation, or kind of determination thereof, or cause of action, action at law, suit in equity, or statutory or common-law right or remedy, or proceeding whatever, for or on account of any personal injury to or death of such employee, except as such rights may be hereinafter specifically granted; and such election shall bind the employee himself, and in case of death shall bind his personal representative, and all persons having any right or claim to compensation for his injury or death, as well as the employer, and those conducting his business during liquidation, bankruptcy or insolvency. Provided, that whenever such employee shall receive an injury while performing the duties of his employment and such injury or injuries, so received by such employee, are caused by the act or omission of some persons or corporations other than his employer, then such employee, or in case of his death his heirs or personal representatives, shall in addition to the right to receive compensation under the Workmen's Compensation Act, have a right to prosecute any cause of action he may have for damages against such persons or corporations, causing such injury. * * *"

It thus appears that if parties to a joint venture agreement may be considered "employers" under the above act, an injured employee may not avail himself of any remedy other than the Workmen's Compensation Act itself.

Yellowtail Constructors had elected to be bound by plan two of the Workmen's Compensation Act of Montana.³ A policy of insurance was issued by The Travelers' Insurance Company to "Yellowtail Constructors, a Joint Venture, et al". An endorsement designated the name of the insured as "Yellowtail Constructors, a Joint Venture consisting of Morrison-Knudsen Company, Inc., Perini Corporation, The Kaiser Company, Walsh Construction Company, and F & S Contracting Company".

Claims for compensation were asserted by the dependents of all of the deceased workmen, compensation was awarded by the Industrial Accident Board of Montana for the amounts to which they were respectively entitled, and this compensation has been maintained and paid by The Travelers' Insurance Company.

Plaintiffs do not question these facts but still argue that the members of the joint venture were not "employers" within the meaning of the Act. Since both parties rely in part upon cases involving partnerships, it seems advisable to refer briefly to the relationship between partnerships and joint ventures under Montana law. The Supreme Court of Montana has discussed quite fully the similarities and distinctions between joint ventures and partnerships and has concluded that in general they are similar and analogous, except that a joint venture has narrower functions. In Rae v. Cameron, et al, 1941, 112 Mont. 159, 114 P.2d 1060, 1066, the court quoted with approval the following statement from 30 Am.Jur. 679, § 5:

"It is sometimes difficult, and often unnecessary, to distinguish in particular cases between joint adventures and partnerships, since the relations of the parties to a joint adventure and the nature of their association are so similar and closely akin to a partnership that it is commonly held that their rights, duties, and liabilities are to be tested by rules which are closely analogous to, and generally substantially the same as, those which govern partnerships. Some courts have gone so far as to say that a joint adventure is subject to exactly the same rules as a technical partnership, and must be enforced by the same principles. In general, however, it is now understood that the two relationships are not identical and that decisions defining and describing partnerships are not necessarily controlling upon the question of whether parties to a particular contract are joint adventures. The outstanding difference between a joint

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