Newport Air Park, Inc. v. United States

• Decision Date: 29 November 1968
• Docket Number: Civ. A. No. 3894.
• Citation: 293 F. Supp. 809
• Parties: NEWPORT AIR PARK, INC. v. UNITED STATES of America.
• Court: U.S. District Court — District of Rhode Island

293 F. Supp. 809

NEWPORT AIR PARK, INC. v. UNITED STATES of America.

Civ. A. No. 3894.

United States District Court D. Rhode Island.

November 29, 1968.

Bruce G. Sundlun, Providence, R. I., for plaintiff.

William L. Morrow, Atty., Dept. of Justice, Washington, D. C., Edward P. Gallogly, U. S. Atty., Frederick W. Faerber, Jr., Asst. U. S. Atty., Providence, R. I., for defendant.

OPINION

PETTINE, District Judge.

This is an action for contribution against the United States of America commenced by the plaintiff, Newport Air Park, Inc., under the Federal Tort Claims Act. Jurisdiction is grounded upon 28 U.S.C. § 1346.¹

The plaintiff's complaint alleges the following facts. Robert Allin McFarland was killed on January 22, 1966, while in the course of government employment. The accident occurred when the aircraft in which McFarland was a student pilot collided with an aircraft owned by the plaintiff, Newport Air Park, Inc. The collision was caused by the concurring negligence of plaintiff and the United States. After the accident, Mrs. McFarland, in behalf of herself and Rebecca McFarland, a female child born shortly after her husband's death, instituted a negligence action against Newport Air Park, Inc. That action was settled for $50,000.00. Subsequent to that settlement, Mrs. McFarland discharged the statutory liability of the United States.² The plaintiff's complaint concludes that under Rhode Island law, R.I.G.L. §§ 10-6-1 et seq., as amended, 1956, the defendant, if a private person, would be liable to the plaintiff.³

The United States answered and in addition has moved for summary judgment on the basis of the pleadings and certain affidavits submitted by it. Those affidavits represent that Mrs. McFarland claimed and was awarded compensation benefits from the United States pursuant to 5 U.S.C. §§ 8101 et seq., the Federal Employees' Compensation Act.⁴

For purposes of the United States' motion for summary judgment, all of the facts stated by the plaintiff and uncontroverted by the defendant must be taken to be true. Likewise, the uncontroverted facts contained in the affidavits of the United States regarding the payment to Mrs. McFarland of federal employees' compensation benefits must be taken to be true.

Given these facts, the United States moves for summary judgment on two legal theories, either of which, if accepted by the court, entitles it to judgment. First, the United States claims that the Federal Employees' Compensation Act, 5 U.S.C. § 8116(c), by its terms, completely excludes relief under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), not only as to Mrs. McFarland, but also as to Newport Air Park, Inc. Second, the defendant claims that even if 5 U.S.C. § 8116(c) is not a bar to 28 U.S.C. § 1346(b) recovery, the United States, as a private person, would not be liable to plaintiff under Rhode Island law, because R.I.G.L. §§ 10-6-1 et seq. should be so construed as to place the United States outside the category of joint tort-feasor.⁵

The Federal Employees' Compensation Act As An Express Bar to Contribution

5 U.S.C. § 8116(c), the portion of the Federal Employees' Compensation Act relied upon by the United States, states in pertinent part:

The liability of the United States * * * with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States * * * to the employee, his legal representative * * and any other person otherwise entitled to recover damages from the United States * * * because of * * * death in a direct judicial proceeding * * * under a federal tort liability statute. * * * (Emphasis added.)

The United States would have this court so construe the emphasized statutory language as to encompass persons who seek contribution from the United States under the Federal Tort Claims Act in actions arising out of injuries to employees of the United States compensable by the United States under the Federal Employees' Compensation Act and caused by the concurrent negligence of the United States and such persons. Such a construction has been accepted by some courts. E. g., Christie v. Powder Power Tool Corp., 124 F.Supp. 693 (D.D.C. 1954); Rhoades v. United States, 216 F. Supp. 732 (S.D.Cal.1962). Nevertheless, the emphasized statutory language is susceptible of a differing construction. By such a construction, commonly referred to as the ejusdem generis rule of construction, "any other person otherwise entitled * * *" would be limited to the class which includes but is not limited to the persons previously specified in the statute, namely, "* * * the employee, his legal representative, spouse, dependents, next of kin, * *". As the plaintiff states in its supplemental brief at p. 4:

When read in context, "any other person" stands in apposition to legal representative, spouse, dependents, next of kin, and is clearly intended to embrace persons in a quasi-legal capacity, such as stepmothers or foster children who depended for their support upon the injured or deceased employee but who would normally not be entitled to claim benefits absent on explicit statutory purpose to include them.

While this construction does not seem to account for the use of the term "otherwise" in the statute,⁶ it is entirely compatible with the legislative history. The Federal Employees' Compensation Act was first enacted in 1916, well before the elimination of the immunity afforded the United States because of its sovereignty. When the United States decided to allow itself to be sued, government employees injured by the negligence of the government became the gratuitous and fortuitous beneficiaries of a choice to sue the United States in tort or to accept compensation under the Federal Employees' Compensation Act. Because of the alleged inadequacy of statutory benefits, suits in tort against the United States proliferated. In 1949, the Federal Employees' Compensation Act was amended to increase the scope and amount of statutory benefits. The quid pro quo for that increase was the statutory provision excluding "all other liability of the United States." Nowhere in the legislative history is there any indication that the statutory exclusion was intended to concern private party contribution suits. Rather, the statutory history emanates an intent to deal exclusively with the employer-employee relationship. The statutory section which embodies the exclusive remedies facet of the 1949 adjustment is the section under consideration in this case. This court concludes that it was not intended to eliminate private party claims for contribution.

In an extremely analogous case, the United States Supreme Court concluded that 5 U.S.C. § 8116(c) does not bar a private shipowner's admiralty claim to recover half the damages paid to a government employee injured as a result of a mutual fault collision between the shipowner and the United States. In Weyerhaeuser S.S. Co. v. United States, 372 U.S. 597 (1963), the court stated at p. 601, 83 S.Ct. 926, at p. 929, 10 L.Ed. 2d 1:

* * * as between the Government on the one hand and its employees and their representatives or dependents on the other, the statutory remedy was to be exclusive. There is no evidence whatever that Congress was concerned with the rights of unrelated third parties * * *.

Although the United States has sought to distinguish Weyerhaeuser on the basis of its admiralty peculiarities, the language upon which the government relied in that case is the precise language of the same statute upon which it relies in this case. With respect, therefore, to this phase of the government's motion,⁷ Weyerhaeuser is controlling, and this court accepts the weight of the authority, e. g., United Air Lines, Inc. v. Wiener, 335 F.2d 379, 402 (9th Cir. 1964); Hart v. Simons, 223 F.Supp. 109 (E.D.Pa.1963); Drake v. Treadwell Const. Co., C.A. No. 14517, (W.D.Pa. 1963),⁸ that 5 U.S.C. § 8116(c) does not in and of itself bar claims for contribution by private party tortfeasors against the United States under the Federal Tort Claims Act in actions arising out of injuries to employees of the United States compensable by the United States under the Federal Employees' Compensation Act and caused by the concurrent negligence of the United States and such private parties.

The Liability of the United States For Contribution As A Joint Tortfeasor Under Rhode Island Law

28 U.S.C. § 1346(b), the relevant portion of the Federal Tort Claims Act for purposes of the plaintiff's claim for contribution, states in pertinent part:

* * * the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, * * * for * * * 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. (Emphasis added.)

The plaintiff contends that the United States, if a private employer, would in the circumstances of this case be liable for contribution under Rhode Island law, R.I.G.L. §§ 10-6-2, 3, notwithstanding the exclusive liability section of the employees' compensation scheme, R.I.G.L. § 28-29-20, as amended, 1956. The plaintiff relies heavily, as it must, on federal, e. g., Hart v. Simons, 223 F. Supp. 109 (E.D.Pa.1963); Drake v. Treadwell Const. Co., C.A. No. 14517 (W.D.Pa.1963); Kim v. Michigan Ladder Co., 208 F.Supp. 298 (W.D.Pa.1962); Quinones v. Township of Upper Moreland, Pa., 187 F.Supp. 260, 273 (E.D.Pa. 1960); and state, e. g., Maio v. Fahs, 339 Pa. 180, 14 A.2d 105 (1940); Brown v. Dickey, 397 Pa. 454, 155 A.2d 836 (1959); Stark v. Posh Const. Co., 192 Pa.Super. 409, 162 A.2d 9 (1960); Rommell v. United States Steel Corp., 66 N.J.Super. 30, 168 A.2d 437 (App.Div. Super.Ct.N.J.1961) (Pa. law applied); Elston v. Industrial...