Mahoney v. United States
| Decision Date | 07 December 1962 |
| Docket Number | Civ. A. No. 4214. |
| Parties | H. T. MAHONEY v. UNITED STATES of America. |
| Court | U.S. District Court — Eastern District of Tennessee |
H. Calvin Walter, Knoxville, Tenn., for plaintiff.
J. H. Reddy, U. S. Atty., Chattanooga, Tenn., for defendant.
Plaintiff sues the United States of America for damages under the Federal Tort Claims Act for injuries or disease resulting from his exposure, as a maintenance mechanic of Union Nuclear Carbide Company (hereinafter called Carbide) in the K-25 Area at Oak Ridge, Tennessee, to radioactive and toxic substances and materials. Plaintiff went to work for that Company in 1951 and was placed on leave and hospitalized in March, 1961 for chronic lymphocytic leukemia.
The defendant has filed a motion for summary judgment and in the alternative for dismissal. The grounds are (1) that the Tennessee Workmen's Compensation Law provides the sole remedy for injury or disease since the plaintiff at the time was an employee of Carbide, a division of Union Carbide Corporation, which was operating the Government-owned K-25 facilities at Oak Ridge pursuant to contract with the Atomic Energy Commission (hereinafter called the Commission), (2) that the United States is not a "third party" tortfeasor within the meaning of the Tennessee Workmen's Compensation Act, and (3) that the action cannot be maintained under the Federal Tort Claims Act since a private person would not be liable under like circumstances under Tennessee law.
At the original pre-trial and in the first argument on the Government's motion, it developed that both plaintiff and his employer, Carbide, had elected to come under and were subject to the provisions of the Workmen's Compensation Act of Tennessee. This fact was not contested by plaintiff. It is the Government's contention that plaintiff's sole remedy is against Carbide under the Workmen's Compensation Law. Title 50 T.C.A. 908 reads, in part, as follows:
Also at the original pre-trial and argument on the motion, the Court pointed out that if Carbide were the agent of the defendant, under the Tennessee cases, plaintiff's chances of recovery were greatly weakened and plaintiff conceded this. But because of the complexity of the relationship between the defendant (acting by and through the Commission) and Carbide, the Court overruled the motion of defendant in order to provide plaintiff full opportunity to present evidence on said relationship. However, in overruling the motion, the Court made it clear that its action was without prejudice to defendant to renew its motion at the hearing on the merits.
After the original pre-trial, and after the argument and ruling on the motion, the plaintiff amended his complaint to allege that Union Carbide Corporation, the signatory to the contract with the Commission (and not the Union Carbide Nuclear Company, which was alleged to be the employer in the original complaint) was an independent contractor and employer of plaintiff in place of the allegations in the original complaint that Union Carbide Nuclear Company was the operator of defendant's facilities in the K-25 Area and subject to defendant's control. In its amended answer, defendant denies that Union Carbide Corporation or its operating subsidiary, Union Carbide Nuclear Company, by whom it alleged plaintiff was employed, was or is an independent contractor.
Subsequently, on March 21, 1962, the Court amended its Order Pursuant to Pre-Trial to direct that at the hearing the Court would first try all legal issues between the parties and bearing upon the right of plaintiff to maintain the action and excluding issues and questions of causal relation and damages. Included for hearing were application of the Tennessee Workmen's Compensation Law, whether the action is maintainable under the Federal Tort Claims Act and other issues involving the jurisdiction of the Court.
At this hearing on November 1 and 2, 1962, the additional defense of the statute of limitations was raised and argued.
The Court has heard proof on the question, whether Carbide, in the operation of K-25, acted in the capacity of an independent contractor or as agent for the Government.
A brief summary of the proof and stipulations shows that Union Carbide Corporation is qualified to do business in Tennessee and that the Union Carbide Nuclear Company is merely a division of Union Carbide and not a separate agent. Carbide negotiates labor contracts, but the Government has the right to approve or disapprove. Carbide operates the health program. Carbide cannot subcontract work without the approval of the Government. Plaintiff is a member of Local Union No. 9288 and was employed in the K-25 plant as a mechanic. He had many supervisors, but all of them were Carbide employees. He states that his only connection with the Commission was in obtaining his Q Clearance; that Commission personnel made inspections on an average of each three months. He was laid off from work on March 10, 1961 and terminated June 28, 1961 due to reduction of force. His suit was filed April 6, 1961.
Aetna Insurance Company carries workmen's compensation insurance on all of the employees of Carbide at K-25 plant. It is called a retrospective policy. In 1947, occupational diseases were brought within the workmen's compensation coverage. The Government bears all expenses for investigation of sickness of employees of Carbide. Carbide pays Aetna from funds advanced by the Government. Eighty-three hundred workmen's compensation claims have been filed in an eighteen-year period and the Government has paid out in excess of $3,300,000.00 workmen's compensation benefits over that period.
In May, 1958, several suits that were filed under the Federal Tort Claims Act against the Government were settled.
The workmen's compensation policy was issued to Carbide.
The Commission has about 770 employees at Oak Ridge, while Carbide employs about 22,000. There are about 2,750 employees at the K-25 plant, which utilizes the gaseous diffusion process for enriching uranium. This plant receives its feed material from other plants. The material is owned by the Government as well as all the plant and plant properties. Carbide operates K-25 and the Government works closely with it or on a day-to-day basis. Carbide was the original operator of gaseous diffusion plants for the Government.
The Government supervises the operation of management contracts. The Commission staff helped integrate the Oak Ridge program with the entire program of the Commission. The schedules are established by the Commission. It procures the electric power and keeps inventories of the materials and prepares the form of order for purchases of isotopes from Carbide. Carbide estimates the cost of operation which the Commission approves or disapproves and the estimates are submitted to Congress for appropriations. The Commission supervises engineering and construction of facilities of each Government-owned plant. It controls litigation. It controls the shutdown of the plants, and has almost daily meetings with officers of Carbide.
The Commission has licensing and regulatory control over Carbide. It deals with exposures of employees and approves all contracts with contractors. It prepares forms for invitations to bidders. It advances operating costs to Carbide, the funds for which are deposited in the bank in the name of Carbide but never lose their identity as Government funds. The accounting records of the Government are kept separate from Carbide's corporate records.
The six categories of jobs in the Carbide set-up are approved by the Commission. Carbide's method of accounting is controlled by the Commission. Carbide furnishes the "know-how" to operate the plant. The technical direction of the plant is with the employees of Carbide. Carbide fixes salaries and wages of all employees except that a salary of over $20,000.00 per year must be approved by the Commission. Carbide has health and safety programs which meet certain criteria fixed by the Commission. Carbide is given the right to hire and fire employees at the plant.
Relevant provisions of the Federal Tort Claims Act are found in Sections 1346(b) and 2674 of Title 28 U.S.C. We quote each, in part, as follows:
There are two further Tennessee statutes which have a bearing on the problem. We quote in part from 50 T.C.A. 914, and quote all of Section 915:
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