Johnson v. Bechtel Associates Professional Corp.

• Citation: 545 F. Supp. 783
• Decision Date: 21 July 1982
• Docket Number: Civ. A. No. 81-963.
• Parties: Paul JOHNSON, Plaintiff, v. BECHTEL ASSOCIATES PROFESSIONAL CORPORATION, D. C., et al., Defendants.
• Court: U.S. District Court — District of Columbia

545 F. Supp. 783

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

Civ. A. No. 81-963.

United States District Court, District of Columbia, Civil Division.

July 21, 1982.

James Hanny, William F. Mulroney, Ashcraft & Gerel, Washington, D. C., for plaintiff.

Vincent H. Cohen, Robert B. Cave, Hogan & Hartson, Washington, D. C., for Washington Metropolitan Area Transit Authority.

Gary W. Brown, James W. Greene, Macleay, Lynch, Bernhard, Gregg & Attridge, Washington, D. C., for Bechtel Associates Professional Corp., D. C.

MEMORANDUM AND ORDER

CORCORAN, District Judge.

On February 23, 1982 the defendants Bechtel Associates Professional Corporation, D. C. and Bechtel Civil and Minerals, Inc. (Bechtel)¹ moved this Court for summary judgment on grounds that this tort action against them is barred by Section 80 of the Compact (Compact) creating the Washington Metropolitan Area Transit Authority (WMATA). Plaintiff has opposed, and the parties have submitted an extensive series of briefs on the issue.

On May 17 and 18, 1982, a hearing was held to clarify factual issues. Following the hearing, the parties submitted another series of briefs. The matter is now ripe for decision.

Upon consideration of the submissions of the parties and the relevant portions of the record, the Court concludes that this action against Bechtel is barred by Section 80 of the Compact.

I. Background

WMATA was created by and derives its authority from the Compact, an agreement among Maryland, Virginia, and the District of Columbia, entered into with the approval of Congress, to develop and operate a transit system (METRO) in the D. C. metropolitan area. Pub.L.No.89-774, 80 Stat. 1324 (1966). The Compact is codified at D.C. Code Ann. § 1-2431 et seq. (1981).

The Compact authorizes WMATA to enter any contracts necessary to construct a subway system in the D. C. metropolitan area. Under that authorization WMATA contracted with Bechtel to oversee the safety of the subway project and to administer the various construction contracts in the field.

The plaintiff seeks damages from Bechtel for injuries allegedly sustained while working as a hardrock miner on the METRO project. He was employed in that capacity by several contractors over a period of years beginning in 1968. His complaint alleges that he contracted silicosis from exposure to unreasonably high levels of silica dust, and other contaminants, while working in the subway tunnels. Plaintiff attributes his injuries to Bechtel's negligence in the performance of its duties as safety overseer.²

Section 80 of the Compact sets forth a limited waiver of WMATA's sovereign immunity. That section provides:

The Authority shall be liable for its contracts and for its torts and those of its Directors, officers, employees and agent (sic) 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. (Emphasis Supplied)

Bechtel contends that it acted as an agent of WMATA in the performance of its safety duties, and that accordingly Section 80 bars this action against it. Plaintiff responds that Bechtel's role with respect to safety matters was that of an independent contractor, and thus Section 80's exclusive liability mandate affords it no relief.³ Defendant concedes that it acted as an independent contractor on the subway project, but argues that Section 80's protection extends to it in any event. For the reasons stated below, we agree with the defendant.

II. Discussion

Every agency relationship has two fundamental components viz., consent and control. The relationship is established when the agent consents to act on behalf of the principal, but subject to the principal's control. Restatement (Second) of Agency § 1 (1981); Riss & Co. v. Ass'n of Western Railways, 159 F.Supp. 288, 293 (D.D.C.), mot. to vac., den. 162 F.Supp. 69 (1958). Both elements are critical. The parties must clearly manifest their intent that the agent will act on behalf of the principal, and the principal must retain the right to control the agent in the performance of his duties. Restatement (Second) of Agency §§ 1, 15 (1981); See: N. L. R. B. v. Local No. 64, AFL-CIO, 497 F.2d 1335, 1336 (6th Cir. 1974) (right to control is fundamental).

While the principal's right to control is essential, the degree of control exercised need not be great. It is only necessary that the principal retain "some measure of control" over the agent's activities. National City Development Co. v. Fadeley, 148 A.2d 306, 307 (D.C.Mun.App.1959). Nevertheless, the degree of control is important for determining the type of agency relationship involved. A relatively large degree of control is required to establish a master/servant or employer/employee relationship, Lodge 1858, Am. Fed. of Gov't Employees v. Webb, 580 F.2d 496, 504-508 (D.C.Cir.1978); Kelley v. Southern Pacific Co., 419 U.S. 318, 95 S.Ct. 472, 42 L.Ed.2d 498 (1974); while a somewhat lesser degree of control is involved in an independent contractor relationship. Webb, supra at 504-505. For purposes of this motion we need not determine the precise degree of control exercised by WMATA over Bechtel for, as will be discussed more fully below, we believe WMATA exercised sufficient control over Bechtel to establish an agency relationship.

The parties agree that, in the performance of its safety duties, Bechtel acted as an independent contractor. However, Bechtel's independent contractor status is not dispositive of the agency question. For it is clear that "though a person cannot be an independent contractor and a servant, he can be an independent contractor and an agent." Bradley v. John M. Brabham Agency, Inc., 463 F.Supp. 27, 31 (D.S.C. 1978). This rule is set out in the Restatement (Second) of Agency § 14N (1981) as follows:

One who contracts to act on behalf of another and subject to the other's control except with respect to his physical conduct is an agent and also an independent contractor.

A number of courts have endorsed the rule. See: Petition of United States, 367 F.2d 505, 509 (3rd Cir. 1966) (following § 14N); Smith v. United States, 346 F.2d 449, 453 (4th Cir. 1965) (following § 14N); Rose v. Silver, 394 A.2d 1368, 1371 n.3 (D.C.App. 1978) (distinguishing application of the rule in tort liability analysis from application in jurisdictional analysis). Thus, despite Bechtel's independent contractor status, we conclude that it could act as an agent of WMATA in the performance of its safety duties.

A. The WMATA-Bechtel Contract

The WMATA-Bechtel contract⁴ evidences a clear intent to establish an agency relationship in accordance with the foregoing principles. Certain terms of the contract clearly contemplate that Bechtel will act on behalf of WMATA in the performance of its safety duties, while other terms grant WMATA a considerable measure of control over Bechtel's performance of its duties.

1. Bechtel's Authority to Act

The parameters of Bechtel's authority are defined in the Scope of Services provisions of the Bechtel-WMATA contract. Section 1 therein provides that Bechtel shall keep WMATA "fully informed of all operations under this contract, and Bechtel shall have authority to conduct these operations for and in the name of WMATA, subject to the approval of WMATA."⁵ (Emphasis Supplied) Section 7 therein requires Bechtel to provide safety services to ensure contractor compliance with WMATA's Safety Program. It authorizes Bechtel to order work stoppages "in the name of WMATA", in the event a contractor fails to correct a safety violation. It is thus apparent that the parties intended Bechtel to act on behalf of WMATA with respect to safety matters.

2. WMATA's Right to Control

Other provisions in the contract permit WMATA the right to control Bechtel in the performance of its duties. The WMATA Safety Manual provides that the WMATA Safety Engineer "shall evaluate and direct the activities of the Bechtel Safety Dept. (sic)." Id. at 10, while Section 8 of the Scope of Services requires WMATA approval of the Bechtel Resident Engineers' Manual, the operations manual for Bechtel's senior field representatives. Moreover, the contract gives WMATA considerable control over Bechtel's staffing decisions. Article XI of the General Provisions grants WMATA the right to approve all personnel hired by Bechtel, while Section III of the Special Provisions gives WMATA the right to approve the salary rates of Bechtel personnel. It is apparent from these provisions that WMATA retained the right to control Bechtel in the performance of its safety duties.

B. Performance of the Contract

The hearing of May 17-18 clearly established that the performance of the Bechtel-WMATA conformed to the agency relationship contemplated by the contract's terms.

Although Bechtel was responsible for overseeing field activities, WMATA actively involved itself in the administration of the construction contracts. During subway construction, the WMATA Contracting Officer served as the focal point and final arbiter in administering all construction contracts. In addition he had authority to direct and control all safety activities. He was assisted in this regard by a permanent staff of WMATA employees. However, in order to avoid fluctuations in staff size due to changes in construction load, the Contracting Officer utilized the Bechtel organization to administer the contracts in the field.

The Contracting Officer's staff and the Bechtel staff...