Lopez v. Johns Manville, C84 155M.
Decision Date | 19 May 1986 |
Docket Number | No. C84 155M.,C84 155M. |
Citation | 649 F. Supp. 149 |
Parties | Albert LOPEZ, Shirley Lopez, husband and wife, v. JOHNS MANVILLE, Amatex, Unarco, Raymark Industries, Fibreboard Corporation, Pittsburgh Corning, Owens Illinois, Owens Corning Fiberglas, Celotex, Keene Corporation v. USA. |
Court | U.S. District Court — Western District of Washington |
Truman R. Castle, Seattle, Wash., for plaintiffs.
Richard Hilfer, Bangs, Castle, Schnautz & Hilfer, P.S., Carney, Stephenson, Badley, Smith, Mueller & Spillman, Eileen Concannon, Garvey, Schubert, Adams & Barer, Patrick Sheldon, Karr, Tuttle, Koch, Campbell, Mawer & Morrow & Sax, Paul Gibbs, Williams, Lanza & Gibbs, Jon Hunt, Stafford, Frey & Mertel, James Murphy, Michael McKay, McKay & Gaitan, Charles Moren, Moren Lageschulte & Cornell, Seattle, Wash., Richard Feldman, Rivkin, Leff, Sherman & Radler, Garden City, N.Y., for defendants.
H. Michael Semler, JoAnn Bordeaux, Torts Div., U.S. Dept. of Justice, Washington, D.C., Chris Pickrell, Asst. U.S. Atty., Seattle, Wash., for U.S.
ORDER GRANTING MOTION OF UNITED STATES FOR DISMISSAL
The United States moves to dismiss the third-party claims of Raymark Industries, Inc. and Eagle-Picher Industries, Inc. or for summary judgment. This case, and eighteen others in which the United States is a third-party defendant, arises out of asbestos exposure at Puget Sound Naval Shipyard (PSNS); both manufacturers who have brought third-party claims in Washington are involved in this case, and all major legal issues are raised.
Plaintiff Albert Lopez, was a civilian pipefitter, pipecoverer, and insulator at PSNS from 1947 to 1984 and was covered by the provisions of the Federal Employees Compensation Act (FECA) 5 U.S.C. § 8101-8193. Plaintiff has received FECA benefits, but following Plaintiffs' settlements with manufacturers, the United States has recovered from him (after his deduction of costs, reasonable attorney fees, and an amount equal to 20% of the remainder) all sums it paid pursuant to FECA, as required by 5 U.S.C. § 8132.1 Plaintiff will become eligible for additional FECA payments should his medical expenses ever exceed the amount recovered from the manufacturers.
Plaintiffs filed suit against approximately 20 manufacturers and suppliers of abestos-containing products. The complaint was settled as to all manufacturers except those in bankruptcy. Meanwhile, the third-party complaints were filed. Other manufacturers dismissed their third-party claims, but Raymark and Eagle-Picher seek to recover the respective settlement amounts of $7,200 and $10,000, plus associated fees and costs. The manufacturers assert claims under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) and 2671-2680; the Tucker Act (contract claims), 28 U.S.C. §§ 1346(a)(2), 1402; and in admiralty.
The United States has waived sovereign immunity respecting tort claims in the Federal Tort Claims Act (FTCA) at 28 U.S.C. § 2674:
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,....
This waiver extends to third-party claims against the Government. United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523 (1951).
28 U.S.C. § 1346(b).
Another statute is relevant to consider in this case. A provision of the Federal Employees' Compensation Act (FECA) limits the Government's liability to employees who have received compensation under the act. 5 U.S.C. § 8116(c). This section provides in pertinent part as follows:
(c) The liability of the United States or an instrumentality thereof under this subchapter 5 USCS §§ 8101-8193 or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States or the instrumentality because of the injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen's compensation statute or under a Federal tort liability statute....
Thus, in return for paying benefits to injured Government employees regardless of fault, the Government is immunized from further tort liability.
Eagle-Picher and Raymark argue that Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 103 S.Ct. 1033, 74 L.Ed.2d 911 (1983) further extends the FICA waiver of sovereign immunity from tort liability to third-party claims arising out of injuries to federal employees covered by FECA.
The Government contends that Lockheed does not so extend the FTCA waiver of immunity, did not confer an indemnity/contribution action upon third parties, and that although the FECA may not directly bar such suits, the Supreme Court recognized the possibility that the underlying substantive law might. The Court in Lockheed stated in its holding:
The District Court held that Lockheed had a right to indemnity under the governing substantive law, but the Court of Appeals did not rule on that question. Accordingly, we do not consider it. We adhere to the decision in Weyerhaeuser, and hold only that FECA's exclusive-liability provision, 5 U.S.C. § 8116(c), does not directly bar a third-party indemnity action against the United States.
Id. at 199, 103 S.Ct. at 1039. The Court reasoned that FECA's exclusive-liability provision, 5 U.S.C. § 8116(c), governs only the rights of employees, their relatives, and people claiming through or on behalf of them — these being the only parties benefiting from the quid pro quo compromise of FECA — and that Congress has not modified this provision to include third parties. Id. at 193-199, 103 S.Ct. at 1036-39.
Id. at 203, 103 S.Ct. at 1041.
Justice Rehnquist reached his conclusion by taking a broader, policy oriented perspective, and would find FECA's limitation provision waived for third-party suits only where there existed a special relationship creating direct duties. Although Eagle-Picher and Raymark assert that the Government breached independent duties owed them, this claim need not be addressed here in view of Lockheed's majority holding. For now, Lockheed will permit a third-party suit for contribution, FECA provisions creating no bar. There remains the question of whether the governing substantive law provides Eagle-Picher and Raymark with a right to indemnity.
The FTCA requires that the court apply the law of the state "where the act or omission occurred." 28 U.S.C. § 1346(b). There is no dispute that the tortious conduct complained of occurred in Washington state.
The manufacturers apply Washington law up to a point. Eagle-Picher argues that under Washington's choice-of-law principles, the Court must consider its claim against the United States as vessel owner pursuant to the federal jurisprudence of the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 905(b).2 Under the circumstances of this case, the argument continues, Washington state courts would have to look to the federal statute to determine the liability of a private person, thus, this court must look to that law in adjudging the conduct of the Government. See, Lambertson v. United States, 528 F.2d 441, 444 (2d Cir.), cert. denied, 426 U.S. 921, 96 S.Ct. 2627, 49 L.Ed.2d 374 (1976).
Raymark comes to the same conclusion arguing that although a private employer is immune from suit by its employees and third-parties claiming noncontractual indemnity or contribution, RCW 51.04.010, Glass v. Stahl Specialties Co., 97 Wash.2d 880, 652 P.2d 948 (1982), Title 51 does not reach activity covered by maritime remedies. RCW 51.12.100. The applicable maritime remedy is the LHWCA which sanctions third-party lawsuits against the United States in its capacity as vessel owner. 33...
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