Johnson v. Bechtel Associates Professional Corp., D.C., s. 82-2017

• Decision Date: 19 August 1983
• Docket Number: 82-1899,82-2525,82-2458,82-2148,82-1809,82-1813,82-2062,82-2530,Nos. 82-2017,82-1784,82-2529,82-2459,82-2531 and 83-1003,82-2063,82-2374,s. 82-2017
• Citation: 230 U.S.App.D.C. 297,717 F.2d 574
• Parties: , 230 U.S.App.D.C. 297 Paul D. JOHNSON, Appellant, v. BECHTEL ASSOCIATES PROFESSIONAL CORPORATION, D.C., et al. (Three cases). Howard L. EIGHMEY, et al., Appellants, v. BECHTEL CIVIL AND MINERALS, INC., et al. Calvin WALKER, et al., Appellants, v. BECHTEL CIVIL AND MINERALS, INC., et al. John Warren CLANAGAN, Appellant, v. BECHTEL ASSOCIATES PROFESSIONAL CORPORATION, D.C., et al. (Three cases). Calvin WALKER and Rena Walker, Appellants, v. BECHTEL ASSOCIATES PROFESSIONAL CORPORATION, D.C., et al. Howard L. EIGHMEY, et al., Appellants, v. BECHTEL ASSOCIATES PROFESSIONAL CORPORATION, D.C., et al. Stanley WILMES, Appellant, v. BECHTEL ASSOCIATES PROFESSIONAL CORPORATION, D.C., et al. (Two cases). James H. BUCHANAN and Shirley Buchanan, his wife, Appellants, v. BECHTEL ASSOCIATES PROFESSIONAL CORPORATION, D.C., et al. Calvin WALKER, et al., Appellants, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY. Howard L. EIGHMEY, et al., Appellants, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, et al. Glenwood WILLIAMS, Appellant, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 574

717 F.2d 574

1984 A.M.C. 2999, 230 U.S.App.D.C. 297

Paul D. JOHNSON, Appellant, v. BECHTEL ASSOCIATES PROFESSIONAL CORPORATION, D.C., et al.

(Three cases).

Howard L. EIGHMEY, et al., Appellants, v. BECHTEL CIVIL AND MINERALS, INC., et al.

Calvin WALKER, et al., Appellants, v. BECHTEL CIVIL AND MINERALS, INC., et al.

John Warren CLANAGAN, Appellant, v. BECHTEL ASSOCIATES PROFESSIONAL CORPORATION, D.C., et al.

(Three cases).

Calvin WALKER and Rena Walker, Appellants, v. BECHTEL ASSOCIATES PROFESSIONAL CORPORATION, D.C., et al.

Howard L. EIGHMEY, et al., Appellants, v. BECHTEL ASSOCIATES PROFESSIONAL CORPORATION, D.C., et al.

Stanley WILMES, Appellant, v. BECHTEL ASSOCIATES PROFESSIONAL CORPORATION, D.C., et al.

(Two cases).

James H. BUCHANAN and Shirley Buchanan, his wife, Appellants, v. BECHTEL ASSOCIATES PROFESSIONAL CORPORATION, D.C., et al.

Calvin WALKER, et al., Appellants, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY.

Howard L. EIGHMEY, et al., Appellants, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, et al.

Glenwood WILLIAMS, Appellant, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY.

Nos. 82-2017, 82-1784, 82-1809, 82-1813, 82-1899, 82-2062,

82-2063, 82-2148, 82-2374, 82-2458, 82-2459,

82-2525, 82-2529, 82-2530, 82-2531 and 83-1003.

United States Court of Appeals, District of Columbia Circuit.

Argued March 28, 1983.

Decided Aug. 19, 1983.

Appeals from the United States District Court for the District of Columbia (D.C. Civil Action Nos. 81-00963, 81-01261, 81-01125, 81-01481, 81-00114, 81-03057 and 82-00999).

Peter J. Vangsnes and William F. Mulroney, Washington, D.C., with whom James M. Hanny and Michelle A. Partiff, Washington, D.C., were on the brief, for appellants. Michael H. Feldman, Washington, D.C., also entered an appearance for appellants.

Gary W. Brown, Washington, D.C., with whom James F. Bromley, James W. Greene, William G. Schaefer and Ronald Flagg, Washington, D.C., were on the brief, for appellees, Bechtel Associates Professional Corporation, et al. Catherine H. Lesica and Elaine L. Johnston, Washington, D.C., also entered appearances for appellees, Bechtel Associates Professional Corporation, et al.

Vincent H. Cohen, Washington, D.C., with whom Robert B. Cave, Washington, D.C., was on the brief, for appellee, Washington Metropolitan Area Transit Authority.

Robert L. Ellis, Edward J. Lopata, J. Joseph Barse, F. Wainwright Barnes, and Laurence T. Scott, Washington, D.C., were on the joint brief of amici curiae, Metro Subway Const. Contractor/Employers.

Before ROBINSON, Chief Judge, WRIGHT, Circuit Judge and MacKINNON, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge MacKINNON.

MacKINNON, Senior Circuit Judge:

These consolidated appeals ¹ arise from negligence actions instituted by employees of contractors who performed underground work on the Washington Metropolitan Area Transit subway project (Metro). With the exception of Eighmey who was injured in a construction accident, the appellants allegedly sustained respiratory injuries as a result of exposure to high levels of silica dust and other industrial pollutants in the subway project. The injured employees all filed workmen's compensation claims and received compensation awards. The employees then instituted third-party negligence actions against either the Washington Metropolitan Area Transit Authority (WMATA or the Authority) ² or Bechtel, ³ the safety engineer for the project.

Because of the nature of the contractual relationship between the parties, WMATA or Bechtel appeared to be a proper third-party defendant. WMATA exercises the ultimate control of and authority for the construction and operation of the subway system. WMATA contracted with Bechtel to provide safety engineering services. Contracts for the actual construction work were awarded to a variety of subcontractors. Appellants were employees of these subcontractors.

In the district court each defendant, WMATA or Bechtel, moved for and was granted summary judgment. Appellants contest these judgments and present four issues for our resolution. We discuss each issue separately and conclude:

(1) Bechtel was an agent of WMATA and therefore, under section 80 of the Compact, WMATA is exclusively liable for Bechtel's torts. Accordingly we affirm the grant of summary judgment to Bechtel on this issue.

(2) WMATA is not entitled to the immunity accorded to employers under section 905(a) of the Longshoremen's Act. Accordingly we reverse the grant of summary judgment to WMATA on this issue.

(3) A more complete factual record is necessary to determine whether, under Fed.R.Civ.P. 15(c), WMATA was properly added as a defendant. Accordingly we remand these cases.

(4) Under section 33(b) of the Longshoremen's Act an injured employee cannot institute a third-party negligence action after the expiration of the six-month period following acceptance of a compensation award. Accordingly we affirm the dismissal of the Williams case.

I. SECTION 80 OF THE WMATA COMPACT

Defendant Bechtel based its motion for summary judgment upon section 80 of the WMATA Compact. ⁴ Section 80 establishes WMATA's contract and tort liability and provides:

The Authority shall be liable for its contracts and for its torts and those of its Directors, officers, employees and agent committed in the conduct of any proprietary function, in accordance with the law of the applicable signatory (including rules on conflict of laws), but shall not be liable for any torts occurring in the performance of a governmental function. The exclusive remedy for such breach of contracts and torts for which the Authority shall be liable, as herein provided, shall be by suit against the Authority. Nothing contained in this Title shall be construed as a waiver by the District of Columbia, Maryland, Virginia and the counties and cities within the Zone of any immunity from suit.

Bechtel asserted that it functioned as an "agent" of WMATA when performing its safety duties, and was therefore entitled to immunity from negligence actions by operation of section 80 of the Compact. Bechtel argued that WMATA was exclusively liable for any work-related tortious injury suffered by the employees. Each district court which considered this issue found that Bechtel was an agent of WMATA within the meaning of section 80 and granted summary judgment. ⁵ We affirm the judgments of the district courts on this issue.

A. Legal Standard

While conceding that, in its role as safety engineer, Bechtel was an agent of WMATA within the "broadest terms," appellants nevertheless assert that the term "agent" in section 80 of the Compact should be given a narrow construction. Appellants attempt to remove Bechtel from the operation of section 80 by arguing that Bechtel was an "independent contractor"-agent and, therefore, not within the class of "servant"-agents for whom a principal is vicariously liable. However, this attempted distinction, based primarily upon the Restatement (Second) of Agency (1958), fails because resolution of this issue turns on the use of the word "agent" within a statute expressly designed to shift liability exclusively to the principal, WMATA. ⁶ While resort to the Restatement may be informative, it is not dispositive; instead, we look to the statute itself.

The use of the word "agent" in section 80 is unqualified ⁷ and there is no reason, under these circumstances, for distinguishing between "independent contractors" who are agents and "servants" who are agents. Guided by accepted rules of statutory construction and noting that there is no indication that the drafters of the Compact intended to use "agent" in a restrictive manner, we accord the term its common and usual meaning. Diamond v. Diehr, 450 U.S. 175, 182, 101 S.Ct. 1048, 1054, 67 L.Ed.2d 155 (1981) ("Unless otherwise defined, 'words will be interpreted as taking their ordinary, contemporary, common meaning,' Perrin v. United States, 444 U.S. 37, 42 [100 S.Ct. 311, 314, 62 L.Ed.2d 199] (1979) ....").

An agent is one who is authorized by another (principal) to act on his behalf. An agent-principal relationship is characterized by the presence of two elements. First, there must be an indication by the principal that the agent will act on his behalf and subject to his control. And second, there must be a manifestation of consent by the agent so to act. Restatement (Second) of Agency Sec. 1 (1958); Rose v. Silver, 394 A.2d 1368 (D.C.App.1978). Accord Lott v. Burning Tree Club, Inc., 516 F.Supp. 913, 917 (D.D.C.1980) (Police are not agents of Country Club because not designated as such and Club exercised no control over the police.). The extent of control and consent is evidenced both by the terms of the contract and by the actual dealings between the parties. Applying the foregoing legal standards, we examine the contract between Bechtel and WMATA and the actual on-the-job practice.

B. The WMATA-Bechtel Relationship

WMATA contracted with Bechtel to administer the safety program on the entire subway construction project. ⁸ Taken as a whole, the contract provides that Bechtel shall act on behalf of and subject to the authority of WMATA. Numerous provisions of the contract specify the exact nature and extent of control which WMATA exercises over Bechtel. For example, Paragraph 1 of the Scope of Services portion of the WMATA-Bechtel contract provides:

The [WMATA] Contracting Officer shall be kept fully informed of all operations under this contract and [Bechtel] shall have authority to conduct these operations for and in the name of the Authority [WMATA], subject to the approval of the [WMATA] contracting officer.

Article XVI of the General Provisions section of the Contract provides:

The extent and character of the work to be done by [Bechtel] shall be subject to the general supervision, direction, control and approval of the [WMATA] Contracting Officer and the authorized representative of the Contracting Officer to whom [B...