LaBarge v. Mariposa County

• Decision Date: 26 August 1986
• Docket Number: No. 85-2300,85-2300
• Parties: Jo Ann LaBARGE and Brandon LaBarge, a minor By and Through his Guardian Ad Litem, Jo Ann LaBarge, Plaintiffs, v. COUNTY OF MARIPOSA, and Roderic B. Sinclair, Defendants and Third-Party Plaintiffs-Appellees, v. UNITED STATES of America, and Estate of George Patrick LaBarge, Third-Party Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 364

798 F.2d 364

Jo Ann LaBARGE and Brandon LaBarge, a minor By and Through

his Guardian Ad Litem, Jo Ann LaBarge, Plaintiffs, v. COUNTY OF MARIPOSA, and Roderic B. Sinclair, Defendants and Third-Party Plaintiffs-Appellees, v. UNITED STATES of America, and Estate of George Patrick

LaBarge, Third-Party Defendants-Appellants.

No. 85-2300.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 16, 1986.

Decided Aug. 26, 1986.

R. Steven Lapham, Asst. U.S. Atty., U.S. Dept. of Justice, Sacramento, Cal., for U.S.

Charles K. Brunn, Phillip W. Harvey, John J. Hollenback, Jr., Brunn & Thayer, Modesto, Cal., for appellees.

Harvey G. Sherzer, Howrey & Simon, Washington, D.C., Robert D. Batson, Denver, Colo., for Amicus Johns-Manville Sales.

Appeal from the United States District Court for the Eastern District of California.

Before CHAMBERS, SNEED and FARRIS, Circuit Judges.

FARRIS, Circuit Judge:

The United States appeals from a judgment of the district court compelling contribution to the County of Mariposa for thirty percent of the tort settlement paid to the estates of three federal secret service agents who were killed when their automobile collided with a Mariposa County Sheriff's patrol car.

I.

On March 5, 1983 a patrol car driven by Sgt. Roderick Sinclair of the Mariposa County Sheriff's Department collided with a car containing three secret service agents on a winding portion of Route 132. The agents, who were in California on special assignment to protect Queen Elizabeth of Great Britain during her visit to Yosemite National park, died instantly.

The decedents' survivors sued the County of Mariposa and Sgt. Sinclair for negligence and settled their claims for a total of $4 million. The County then commenced this third-party action against the United States. It asserted that the drivers of two federal vehicles--Agent Patrick LaBarge, in the car that was hit, and Agent Max Phillips, in the car travelling ahead of LaBarge's car--had been driving negligently at the time of the accident and thus were at least partly to blame for the resulting loss of life. Relying on a theory of respondeat superior, the County requested contribution from the federal government.

The third-party suit was tried before the district court. Both sides offered the testimony of percipient witnesses, as well as the expert testimony of accident reconstructionists, photogrammetrists, tire specialists, and human factors specialists. At the close of the evidence, the district court made the following factual findings: (1) the collision occurred on a blind curve; (2) at the time of the accident, Sgt. Sinclair was driving westbound at 64 mph in a 35 mph zone; (3) this speed was 6 mph below the "critical speed" for the curve (the top speed at which a westbound vehicle could negotiate the curve without losing traction or leaving its lane of travel); (3) just prior to the accident, the eastbound vehicles driven by Phillips and LaBarge were both halfway across the center dividing line into the westbound lane; and (4) the presence of the federal vehicles in the westbound lane caused Sgt. Sinclair to slam on the brakes precipitating the skid that ended in the collision. The district court concluded that Sinclair was 70% at fault and, accordingly, it ordered the United States to indemnify the County of Mariposa for 30% of its settlement--$1.2 million. This appeal followed. We have jurisdiction under 28 U.S.C. Sec. 1291.

II.

A. The United States' Amenability to Suit for Contribution

We review de novo the district court's legal conclusions regarding the United States' amenability to a third-party suit under the Federal Tort Claims Act. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

As a sovereign, the United States is immune from suit except to the extent that it has unequivocally consented to litigation against itself. See United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 1975, 48 L.Ed.2d 390 (1976). The Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b), Secs. 2671-2680 (1982), constitutes a limited waiver of that immunity. For the purposes of this case, the relevant portions of the Act are 28 U.S.C. Secs. 1346(b) and 2674. 28 U.S.C. Sec. 1346(b) provides in pertinent part that:

the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages ... 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.

28 U.S.C. Sec. 2674 provides in relevant part:

The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances...."

Both provisions direct the courts to analogize the government to a private actor in a similar situation and apply state law to determine amenability to suit and substantive liability.

The United States raises two arguments that California law bars this suit. The first is that California law does not provide for a right of contribution in this case because the original plaintiffs did not secure a joint judgment against the County and the United States. We reject the argument.

In American Motorcycle Ass'n v. Superior Court, 20 Cal.3d 578, 599-607, 578 P.2d 899, 146 Cal.Rptr. 182 (1978), the California Supreme Court established the common law right of a joint tortfeasor to obtain indemnification or contribution from the other tortfeasors on a comparative fault basis. The court later emphasized that such an action may be maintained regardless of whether the third-party defendant was named in the original plaintiff's complaint. People ex rel. Department of Transportation v. Superior Court, 26 Cal.3d 744, 748, 608 P.2d 673, 163 Cal.Rptr. 585 (1980). Even a settling joint tortfeasor may pursue his right of equitable indemnity against other joint tortfeasors. See Sears, Roebuck & Co. v. International Harvester Co., 82 Cal.App.3d 492, 497, 147 Cal.Rptr. 262 (1978); Turcon Construction, Inc. v. Norton-Villiers, Ltd., 139 Cal.App.3d 280, 283-84, 188 Cal.Rptr. 580 (1983).

The government's second argument is that, in this case, "a private individual under like circumstances" would be a private employer covered by California workmen's compensation law. Since such employers are immune from indemnity suits brought by third-party tortfeasors by virtue of the statute's "exclusive liability" provision, see Cal.Labor Code Sec. 3864 (Deering 1976), ¹ the government concludes that it also is immune. See In re All Maine Asbestos Litigation (PNS Cases), 772 F.2d 1023, 1027-28 (1st Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1994, 90 L.Ed.2d 675 (1986); General Electric Co. v. United States, 603 F.Supp. 881, 884-87 (D.Md.1985); Colombo v. Johns-Manville Corp., 601 F.Supp 1119, 1128 (E.D.Pa.1984); In re All Asbestos Cases, 603 F.Supp. 599, 603 n. 3 and n. 4 (D.Haw.1984).

The County presents three responses. First, it relies on the Supreme Court's decision in Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 103 S.Ct. 1033, 74 L.Ed.2d 911 (1983). In Lockheed, the Court held that the Federal Employees Compensation Act, 5 U.S.C. 8101 et seq. (1982)--the federal equivalent of state workmen's compensation laws--does not directly bar third-party indemnity or contribution suits against the government even though it bars suits against the government by covered employees. The government's position, the County contends, would emasculate this holding: because many states' workmen's compensation laws contain exclusive liability provisions similar to California's, third-party plaintiffs would seldom be able to pursue an indemnity or contribution action against the federal employer.

Lockheed, however, did not confer on third-party tortfeasors substantive rights against the United States. The case held only that the FECA did not modify the Federal Tort Claims Act so as to bar directly third-party suits that the applicable state law would otherwise allow. See 460 U.S. at 197-99 & n. 8, 103 S.Ct. at 1038-39 & n. 8.

Second, the County contends that because the United States has not complied with the terms of California's workmen's compensation law, it is not sufficiently "like" a covered private employer to take advantage of the exclusive liability provision of Cal.Labor Code Sec. 3864. This argument misperceives the operation of the "like circumstances" standard prescribed in 28 U.S.C. Sec. 2674. As the Supreme Court emphasized in Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), the statutory language refers not to private persons under "the same circumstances," but to those under similar circumstances. See id. at 64, 76 S.Ct. at 124. Because the federal government could never be exactly like a private actor, a court's job in applying the standard is to find the most reasonable analogy. In view of the fact that the FECA is comparable to state workmen's compensation laws, most courts that have considered the issue since Lockheed have held that--all other things being equal--the United States should be entitled to the same immunity from suit enjoyed by a private employer covered by state workmen's compensation laws. See In re All Maine Asbestos Litigation, 772 F.2d 1023; General Electric, 603...