Norton v. Murphy, 81-1652

• Decision Date: 20 October 1981
• Docket Number: No. 81-1652,81-1652
• Citation: 661 F.2d 882
• Parties: Irving L. NORTON, a/k/a I. L. Norton, and Dana Norton, Plaintiffs-Appellants, v. Edmond L. MURPHY and the United States of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 882

661 F.2d 882

Irving L. NORTON, a/k/a I. L. Norton, and Dana Norton Plaintiffs-Appellants, v. Edmond L. MURPHY and the United States of America Defendants-Appellees.

No. 81-1652.

United States Court of Appeals Tenth Circuit.

Submitted Sept. 21, 1981.

Decided Oct. 20, 1981.

Clifford C. Fossum of Dilts, Dyer, Fossum, & Hatter, P.C., Cortez, Colo., for plaintiffs-appellants.

Joseph F. Dolan, U. S. Atty., and James W. Winchester, Asst. U. S. Atty., Denver, Colo., for defendants-appellees.

Before HOLLOWAY, McWILLIAMS, and BARRETT, Circuit Judges.

McWILLIAMS, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.

The issue here to be resolved is whether Edmond Murphy was an employee of the United States within the meaning of the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 (1976). ¹ The trial court held that Murphy was not an employee of the United States, but that he was an independent contractor. On this basis, the trial court entered summary judgment in favor of the United States.

Murphy was under contract to deliver mail for the United States near Pleasant View, in Montezuma County, State of Colorado. He delivered mail over a route which was approximately nine miles long, beginning and ending in Pleasant View. While thus delivering mail in his privately owned vehicle, Murphy struck Irving Norton, a pedestrian, causing personal injury.

Norton and his wife brought the instant proceeding in the United States District Court for the District of Colorado under the Federal Tort Claims Act, alleging damages as a result of Murphy's negligence and naming as defendants Murphy, the United States Postal Service and the United States. The Postal Service was later dismissed from the case. By answer, Murphy denied negligence, but admitted that he was an employee of the United States. By its answer, the United States denied that Murphy was its employee and alleged that Murphy was an independent contractor with the United States.

The United States later moved for summary judgment, attaching to the motion an affidavit which incorporated therein Murphy's contract with the United States. The trial court granted the motion for summary judgment, and dismissed, with prejudice, the Nortons' claim against the United States. The trial court dismissed the Nortons' claim against Murphy without prejudice to the Nortons' right to pursue their claim against Murphy in a court of competent jurisdiction. ² In so doing, the trial court held that there was no genuine issue of material fact and that the United States was not liable for Murphy's negligence since Murphy was not an employee of the United States, but an independent contractor. The trial court's Opinion and Order appears as Norton v. Murphy, 513 F.Supp. 944 (D.Colo.1981). Nortons now appeal the dismissal of their claim against the United States. We affirm.

On August 2, 1969, Murphy entered into a so-called Star Route Contract with the United States Post Office Department for the carrying of mail on Star Route 81366 out of the Pleasant View Post Office. Murphy bid for that particular route and he was awarded the contract on the basis of his bid. The contract expired by its own terms in 1972, and was then renewed for a period of four years by the United States Postal Service, successor to the Post Office Department, on a negotiated basis, i. e., with no competitive bidding. In 1976, the contract was renewed, at a slightly higher rate of payment, for a period of two years. In 1978, the contract was renewed for a period of four years. This latter contract was in effect when the accident involving Murphy and Norton occurred. The 1976 and 1978 renewals made use of a new renewal contract form, referred to as a "Transportation Services Contract." The issue presented is whether under the current Transportation Services Contract Murphy is an employee of the United States.

A person delivering United States mail pursuant to a Star Route Contract with the old Post Office Department has been held not to be an employee of the United States as that term is defined in the Federal Tort Claims Act. Fisher v. United States, 356 F.2d 706 (6th Cir.), cert. denied, 385 U.S. 819, 87 S.Ct. 41, 17 L.Ed.2d 57 (1966); Thomas v. United States, 204 F.Supp. 896 (D.Vt.1962); and Smick v. United States, 181 F.Supp. 149 (D.Nev.1960).

In Tunder v. United States, 522 F.2d 913 (10th Cir. 1975), we held that a person delivering United States mail under a Star Route Contract entered into with the old Post Office Department was an independent contractor, and not an employee of the United States, notwithstanding the fact that, by virtue of the Postal Reorganization Act of 1970, the Post Office Department had been succeeded by the new Postal Service. In Tunder, we stated that a Star Route Contract entered into by the Post Office Department was binding on its successor, the Postal Service, and that the latter must honor the contract. In Tunder, however, we did not have to decide the issue presented by this case, i. e., whether the holder of a negotiated renewal contract with the new Postal Service is in the same position as one having a Star Route Contract with the old Post Office Department.

In granting the motion of the United States for summary judgment, the trial court had before it the affidavit of one Leonard O'Hayre, the contracting officer of the United States Postal Service for air taxi and surface mail contracts originating in the States of Colorado, New Mexico, and Wyoming. Attached to O'Hayre's affidavit was a copy of Murphy's original Star Route Contract with the old Post Office Department, as well as copies of all renewal contracts with the new Postal Service. Also, the deposition of Murphy was a part of the record before the trial judge when he granted the motion of the United States for summary judgment. In our view, the case was ripe for summary judgment, and, under the circumstances, the trial judge did not err when he entered judgment for the United States.

The old Star Route Contract and the new Transportation Services Contract are not identical, but they are nonetheless sufficiently similar to the end that we are...