Hefley v. Textron, Inc.

• Decision Date: 10 August 1983
• Docket Number: 81-2307 and 81-2308,Nos. 81-2091,s. 81-2091
• Citation: 713 F.2d 1487
• Parties: Tommy L. HEFLEY, Ronald G. Wood, and James A. Popplewell, Plaintiffs, v. TEXTRON, INC. and Bell Helicopter Textron, Third-Party Plaintiffs, Defendants- Appellants, v. UNITED STATES of America, Kansas Army National Guard and its Adjutant General Major General Edward R. Fry, individually, and The State of Kansas, Third Party Defendants, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1487

713 F.2d 1487

Tommy L. HEFLEY, Ronald G. Wood, and James A. Popplewell, Plaintiffs, v. TEXTRON, INC. and Bell Helicopter Textron, Third-Party Plaintiffs, Defendants- Appellants, v. UNITED STATES of America, Kansas Army National Guard and its

Adjutant General Major General Edward R. Fry,

individually, and The State of Kansas,

Third Party Defendants, Appellees.

Nos. 81-2091, 81-2307 and 81-2308.

United States Court of Appeals Tenth Circuit.

Aug. 10, 1983.

Fred L. Marrs, Wichita, Kan. (Windell G. Snow and Susan K. McKee of Curfman, Harris & Weigand, Wichita, Kan., with him on the brief), for appellants.

Susan Gillett, Trial Atty., U.S. Dept. of Justice, Washington, D.C. (J. Paul McGrath, Asst. Atty. Gen., Paul M. Honigberg, Trial Atty., U.S. Dept. of Justice, Washington, D.C., and Jim J. Marquez, U.S. Atty., Wichita, Kan., with her on the brief), for the U.S. and Major General Edward R. Fry.

Robert T. Stephan, Atty. Gen. of Kansas, and William M. Henry, Asst. Atty. Gen. of Kansas, Topeka, Kan., for Kansas Army Nat. Guard, Adjutant General Edward R. Fry, and The State of Kan.

Before BARRETT, DOYLE and LOGAN, Circuit Judges.

BARRETT, Circuit Judge.

Textron, Inc. and Bell Helicopter Textron (Textron), third-party plaintiffs, appeal from the district court's grant of summary judgment in favor of the United States, the Kansas Army National Guard (KANG), Major General Edward R. Fry, and the State of Kansas.

The underlying action arose from a helicopter crash near Salina, Kansas on July 19, 1976. The helicopter was manufactured by Textron, owned by the United States, and operated by KANG. Investigations by the United States Army and KANG apparently generally attributed the cause of the crash to pilot error. Three occupants of the helicopter, Lieutenant Colonel Ronald G. Wood, PFC Tommy L. Hefley, and the pilot, CW 3 James A. Popplewell, were injured in the accident. All three were members of KANG and were participating in federal training exercises. The injured national guardsmen received treatment and rehabilitation at military facilities and each received federal military disability benefits.

Wood, Hefley, and Popplewell brought suit against Textron, alleging negligence, gross and wanton conduct, strict liability in tort, and breach of express and implied warranties. Federal jurisdiction was based on diversity of citizenship. Textron then filed a third-party complaint against the United States, KANG, Major General Fry, and the State of Kansas, seeking indemnity, contribution, discovery, and assessment of proportionate fault under the Kansas comparative negligence statute. The third-party defendants filed motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (6) on the grounds that the third-party action was barred by the doctrine of sovereign immunity.

After accepting affidavits on the motions, the trial court treated the motions to dismiss as motions for summary judgment. In a memorandum and order that was specifically incorporated into its final order, the trial court concluded that the United States and Major General Fry were immune from suit under the doctrines announced in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), and Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977). The court found that it did not have jurisdiction over Textron's claim that there existed an implied contract of indemnity between it and the United States. The court then ruled that Kansas and KANG were immune from suit under the provisions of the Eleventh Amendment. Finally, the court concluded that no procedural mechanism existed which would permit Textron to join the immune entities solely for the purposes of discovery and assessment of proportionate fault. The court accordingly granted summary judgment in favor of the third-party defendants.

The issues on appeal are not well defined. It appears, however, that Textron concedes that the United States, KANG and Kansas are immune from suit to the extent that Textron seeks indemnity and contribution based on concepts of negligence. Consequently, we perceive the following to be the matters in dispute:

(1) Can Major General Fry be held liable for his own negligence in performing non-discretionary duties?

(2) Can the third-party defendants be kept in the case to determine whether they are liable to Textron under a theory of an implied contract of indemnity?

(3) Can the third-party defendants be kept in the case, despite their immunity, for purposes of discovery and assessment of proportionate fault under the Kansas comparative negligence statute?

LIABILITY OF MAJOR GENERAL FRY

Major General Fry serves both the United States and KANG. Because of this dual role, he asserted immunity from suit on both federal and state law grounds. The trial court determined that state law immunity depended on resolution of factual issues concerning Fry's good faith. See Kern v. Miller, 216 Kan. 724, 533 P.2d 1244, 1248 (1975). Relying on the federal Feres doctrine, however, the court concluded that Fry was immune from a suit for damages. Textron contends that under either federal or state law, a public officer such as Fry is entitled to immunity only if his actions were discretionary functions, as opposed to operational functions. According to Textron, Fry's alleged negligent acts involved operational functions, so that he was not entitled to the protection of sovereign immunity. See Jackson v. Kelly, 557 F.2d 735, 737 (10th Cir.1977); Kern v. Miller, supra, 533 P.2d at 1248.

Initially, we note that Textron has not challenged Fry's status as a federal officer, nor do we discern any reason to question that status. Thus, if federal immunity exists, the availability of state immunity is immaterial. We conclude that Fry possessed federal immunity under the federal Feres doctrine.

The Feres doctrine arose out of three related cases decided in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). In the lead case, the Supreme Court decided that although the then new Federal Tort Claims Act contained no such express exception, the United States would not be liable under the Federal Tort Claims Act for "injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Id. at 146, 71 S.Ct. at 159. This judicial exception to the broad waiver of sovereign immunity contained in the Tort Claims Act was roundly criticized, but any question concerning its validity was dispelled in Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977).

In Stencel, the Supreme Court not only reaffirmed the Feres doctrine, it also extended the doctrine to absolve the United States from liability "when a member of the Armed Services brings a tort action against a private defendant and the latter seeks indemnity from the United States under the Tort Claims Act, claiming that Government officials were primarily responsible for the injuries." Stencel, supra, 431 U.S. at 670, 97 S.Ct. at 2057. In Stencel, the plaintiff was a member of the National Guard who sued the manufacturer of certain aircraft components and the United States. The manufacturer cross-claimed against the United States, seeking indemnity. In upholding the dismissal of the claims against the United States for lack of subject matter jurisdiction, the Court noted that three factors supported the application of Feres. First, there is a "distinctively federal" relationship between the United States and members of its armed forces and its suppliers of ordinance, so that the liability of the United States should not depend on the situs of the accident. Second, the United States has established generous "no fault" compensation schemes for servicemen as a substitute for tort liability. The Court concluded that those schemes existed not only to provide a remedy to injured servicemen, but also to limit the liability of the United States:

Given the broad exposure of the Government, and the great variability in the potentially applicable tort law, see Feres, 340 U.S. at 142-143, 71 S.Ct. at 157-158, the military compensation scheme provides an upper limit of liability for the Government as to service-connected injuries. To permit [the claim for indemnity] would circumvent this limitation, thereby frustrating one of the essential features of the Veterans' Benefits Act.

Stencel, supra, 431 U.S. at 673, 97 S.Ct. at 2059. Third, the Court noted that, whether the suit is a direct one or a claim for indemnity, suits challenging orders given or acts undertaken in the course of military duty would have a deleterious effect on military discipline. Id. at 671-73, 97 S.Ct. at 2057-2059. In Carter v. City of Cheyenne, 649 F.2d 827, 831 (10th Cir.1981), this court followed Stencel and Feres in ruling that a private defendant could not implead and recover from the United States in a suit by a serviceman's personal representative.

In decisions both preceding and following Stencel, courts have routinely ruled that the protection of the Feres doctrine extends to officers and other servicemen, as well as to the United States. See, e.g., Stanley v. Central Intelligence Agency, 639 F.2d 1146, 1152 (5th Cir.1981); Hass v. United States, 518 F.2d 1138, 1143 (4th Cir.1975); Mattos v. United States, 412 F.2d 793, 794 (9th Cir.1969); Bailey v. DeQuevedo, 375 F.2d 72, 73-74 (3rd Cir.), cert. denied, 389 U.S. 923, 88 S.Ct. 247, 19 L.Ed.2d 274 (1967). Indeed, in Feres, supra, 340 U.S. at 141, 71 S.Ct. at 157 (footnote omitted), the Supreme Court stated: "We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving." While we are unsure of the extent to which the first two Stencel factors would apply in this case, clearly a suit against Fry would "involve second-guessing military orders, and would ... require...