Roelofs v. Lewals, Inc., Civ. A. No. 14081

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
Citation344 F. Supp. 1003
Docket Number15428,15382,15944,14856,14556,15951-15954.,14661,Civ. A. No. 14081
PartiesAlbert ROELOFS, Jr., and Vivian Roelofs v. LEWALS, INC., et al., The Travelers Insurance Company, Intervenor. The TRAVELERS INSURANCE COMPANY and Travelers Indemnity Company, Third-Party Defendants. Albert ROELOFS, Jr., and Vivian Roelofs v. The UNITED STATES of America. The Travelers Insurance Company, Intervenor. B. B. DURHAM v. The UNITED STATES of America. Frank Lee JACKSON and Erma Lea Jackson v. HONEYWELL, INC. William Carl MONTGOMERY, Jr., Individually, etc., et al. v. The UNITED STATES of America. Mrs. Elsie E. Breda TEWELL, Individually, etc., et al. v. The UNITED STATES of America. Mrs. Dorothy Mae THOMAS, Individually, etc., et al. v. The UNITED STATES of America and Honeywell, Inc. Arnold McKINNEY v. The UNITED STATES of America. The Travelers Insurance Company, Intervenor. Nelson E. PETERSON v. The UNITED STATES of America. The Travelers Insurance Company, Intervenor. Thomas HOLLAND v. The UNITED STATES of America. The Travelers Insurance Company, Intervenor. Harrison Lee JACKSON v. The UNITED STATES of America. The Travelers Insurance Company, Intervenor.
Decision Date31 May 1972

344 F. Supp. 1003

Albert ROELOFS, Jr., and Vivian Roelofs
v.
LEWALS, INC., et al., The Travelers Insurance Company, Intervenor.

The TRAVELERS INSURANCE COMPANY and Travelers Indemnity Company, Third-Party Defendants.

Albert ROELOFS, Jr., and Vivian Roelofs
v.
The UNITED STATES of America.

The Travelers Insurance Company, Intervenor.

B. B. DURHAM
v.
The UNITED STATES of America.

Frank Lee JACKSON and Erma Lea Jackson
v.
HONEYWELL, INC.
William Carl MONTGOMERY, Jr., Individually, etc., et al.
v.
The UNITED STATES of America.

Mrs. Elsie E. Breda TEWELL, Individually, etc., et al.
v.
The UNITED STATES of America.

Mrs. Dorothy Mae THOMAS, Individually, etc., et al.
v.
The UNITED STATES of America and Honeywell, Inc.
Arnold McKINNEY
v.
The UNITED STATES of America.

The Travelers Insurance Company, Intervenor.

Nelson E. PETERSON
v.
The UNITED STATES of America.

The Travelers Insurance Company, Intervenor.

Thomas HOLLAND
v.
The UNITED STATES of America.

The Travelers Insurance Company, Intervenor.

Harrison Lee JACKSON
v.
The UNITED STATES of America.

The Travelers Insurance Company, Intervenor.

Civ. A. Nos. 14081, 14556, 14661, 14856, 15382, 15428, 15944, 15951-15954.

United States District Court, W. D. Louisiana, Shreveport Division.

May 31, 1972.


344 F. Supp. 1004
COPYRIGHT MATERIAL OMITTED
344 F. Supp. 1005
Kenneth Rigby, Love, Rigby, Dehan & Love, Shreveport, La., for plaintiffs Albert Roelofs, Jr., and Vivian Roelofs

Jack Benjamin, Kierr & Gainsburgh, New Orleans, La., for B. B. Durham.

James J. Thornton, Jr., Johnston, Johnston & Thornton, and Hugh M. Stephens, Shreveport, La., for Frank Lee Jackson and Erma Lea Jackson.

Leonard L. Lockard, Booth, Lockard, Jack, Pleasant & LeSage, Shreveport, La., for William Carl Montgomery, Jr.

Nesib Nader, Shreveport, La., for Mrs. Elsie E. Breda Tewell, and others.

Donald R. Miller, Miller & DeLaune, Shreveport, La., for Mrs. Dorothy Mae Thomas, and others.

Lewis Weinstein, Shreveport, La., for Arnold McKinney, Nelson E. Peterson, Thomas Holland and Harrison Lee Jackson.

Wilton H. Williams, Jr., Blanchard, Walker, O'Quin & Roberts, Shreveport, La., for Travelers Ins. Co. and Travelers Indemnity Co.

G. M. Bodenheimer, Jr., Bodenheimer, Jones, Klotz & Simmons, Shreveport, La., for Lewals, Inc., and Zurich Ins. Co.

Donald E. Walter, U. S. Atty., and Dosite H. Perkins, Asst. U. S. Atty., Western

344 F. Supp. 1006
District of Louisiana, Shreveport, La., for the United States

Paul R. Mayer, Mayer & Smith, Shreveport, La., for Honeywell, Inc.

Wilton H. Williams, Jr., Blanchard, Walker, O'Quin & Roberts, Shreveport, La., for The Travelers Ins. Co.

BENJAMIN C. DAWKINS, Jr., Chief Judge.

OPINION

The above-captioned cases are before this Court on a motion filed by the plaintiffs1 to strike the Government's affirmative defense of non-liability under the Federal Tort Claims Act (28 U.S.C. §§ 1346, 2671 et seq.). The single question which now requires answering is: Does Louisiana Workmen's Compensation provide the exclusive remedy for plaintiffs?

Sperry Rand Corporation, pursuant to a contract with the Ammunition Procurement and Supply Agency of the United States Army, operates the Louisiana Army Ammunition Plant (LAAP), approximately 20 miles from Shreveport. Article II, Paragraph 1, of the contract (No. DA-11-173-AMC-80) authorizes the contractor to hire employees, obtain supplies, prepare and load products for shipment, and do other things required in running the plant. The United States reimburses all the corporation's allowable allocable costs plus a fixed fee. Sperry Rand is obligated, pursuant to the contract (Articles IV H(1) and S (a)) to obtain workmen's compensation insurance in accordance with Louisiana Statutory requirements. Premiums for that insurance are paid also by the Government according to the terms of the contract.

Each of the plaintiffs was an employee of Sperry Rand and was injured while allegedly in the course of his employment with that company. Prior to institution of the suits, one of the plaintiffs (Durham) filed a claim with the Department of Labor's Bureau of Employees' Compensation. The Bureau determined that Durham, and presumably, all the plaintiffs were not federal employees and, therefore, were not entitled to any benefits under the Federal Employees' Compensation Act (5 U.S.C. §§ 8101-8150).

The Government contends it is a statutory employer ("principal" or "remote," as is sometimes said) within the meaning of the Louisiana Workmen's Compensation Act (LSA-R.S. 23:1021, et seq.) which affords plaintiffs their exclusive remedy and as such is exempt from liability under the federal Act. Plaintiffs contend that the Louisiana Act is inapplicable and there is an available remedy against the United States through the Federal Tort Claims Act.

Legislatures in most of the States have enacted various workmen's compensation schemes to furnish employees a speedy and equitable salary replacement, and medical expenses, during convalescence, for injuries received while in the course of employment, or for payments to dependents, including funeral expenses, of an employee who dies in a job-connected accident. By Act No. 20 of 1914, the State of Louisiana enacted the Burke-Roberts Employers' Liability Act in keeping with the current throughout the country "so that the social obligations existing between the employee and employer might be readjusted to meet the modern trend. This act, with its amendments, has come in time to be referred to as the Workmen's Compensation Act."2 The Courts of Louisiana have given this Act a generous interpretation in order to effectuate the humane policies which it reflects. Green v. Heard Motor Co., 224 La. 1077, 71 So.2d 849 (1954); Brownfield v. Southern Amusement Company, Inc., 196 La. 73, 198 So. 656 (1940); Beard v. Wilson Wholesale

344 F. Supp. 1007
Distributors, Inc., 215 So.2d 664 (La. App., 1st Cir., 1968). Federal diversity Courts under the direction of Erie Railroad v. Tompkins uniformly apply the Act liberally. Serpas v. W. Horace Williams Co., 160 F.Supp. 850 (E.D.La., 1958), aff'd 261 F.2d 857 (5th Cir.); Fontenot v. Stanolind Oil & Gas Co., 144 F.Supp. 818 (W.D.La., 1956), aff'd 243 F.2d 574 (5th Cir.)

Similarly, federal compensation systems were enacted for humane purposes. The legislation, in each instance, made limited inroads on sovereign immunity to damage claims. In United States v. Demko, 385 U.S. 149, 151, 87 S.Ct. 382, 383, 17 L.Ed.2d 258 (1966), the Court wrote:

"Historically, workmen's compensation statutes were the offspring of a desire to give injured workers a quick and more certain recovery than can be obtained from tort suits based on negligence and subject to common-law defenses to such suits. Thus compensation laws are practically always thought of as substitutes for, not supplements to, common-law tort actions. A series of comparatively recent cases in this Court has recognized this historic truth and ruled accordingly. Johansen v. United States, 343 U.S. 427 72 S.Ct. 849, 96 L.Ed. 1051, and Patterson v. United States, 359 U.S. 495 79 S.Ct. 936, 3 L.Ed.2d 971, for instance, are typical of the recognition by this Court that the right of recovery granted groups of workers covered by such compensation laws is exclusive."

The States' workmen's compensation laws were made applicable to federal properties by Section 290, Title 40 of the United States Code.3 The Third Circuit Court of Appeals in Capetola v. Barclay White Co., 139 F.2d 556 (3rd Cir., 1943), cert. den'd 321 U.S. 799, 64 S.Ct. 939, 88 L.Ed. 1087, clearly placed that statute in its proper perspective.

"It is, of course, patent from a reading of the Act of 1936 that Congress did not thereby adopt State Compensation Acts as federal law applicable to federal territories within the exterior boundaries of the States. But it is our opinion that the purpose and effect of the congressional Act was to free State workmen's compensation laws from the restraint upon their enforcement theretofore existing by reason of the exclusive federal jurisdiction of lands within the States. . . (At p. 559.)

See also Wallach v. Lieberman, 366 F.2d 254 (2d Cir., 1966); Stacey v. United States, 270 F.Supp. 71 (E.D.La., 1967). The obvious intent of Congress was to protect employees of Government contractors injured on federal property. Nonetheless, Section 290 did not authorize the Government to avail itself of the rights or liabilities attendant to local workmen's compensation systems.

344 F. Supp. 1008

Plaintiffs assert that we have jurisdiction over their claims under the Federal Tort Claims Act.4 Plaintiffs object to the Government's defense on the ground that the Louisiana compensation system could make the United States liable as a statutory employer to suits by employees of private contractors. Plaintiffs contend that there is no legislative consent to be sued, unequivocally expressed, for a percentage of wages under the compensation system. Defendant suggests to the Court that it is precisely those statutes which, if read properly, require the application of Louisiana Workmen's Compensation laws and, consequently, would foreclose recovery against the Government here.

It is axiomatic that the United States cannot be sued without its consent, and this Court has no jurisdiction in a suit against the United States to which it has not consented. United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888 (1940).5 This consent can be given only by the Congress, must be specific and explicit, and cannot be implied by construction of an ambiguous statute. A district court's jurisdiction over the United States depends entirely upon the terms of the congressional enactment which waives sovereign immunity. See Stanton v. United States, 434 F.2d 1273 (5th Cir., 1970); Gnotta v. United States, 415 F.2d 1271 (8th Cir., 1969) (Blackmun, Circuit Judge) cert. den'd 397...

To continue reading

Request your trial
2 cases
  • Liles v. Riblet Products of Louisiana, Inc., Civ. A. No. 17943.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • 7 Septiembre 1973
    ...Chemical Company, 427 F.2d 390 (5th Cir. 1970); Whittington v. Gulf Oil Corp., 337 F.Supp. 952 (W.D.La., 1971); Roelofs v. Lewals, Inc., 344 F.Supp. 1003 (W.D.La., 1972); Foster v. Western Electric Co., 258 So.2d 153 (2nd Cir. 7 Plaintiff contends that escort service is a specialized busine......
  • Freeman v. Chevron Oil Co., 74-2445
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 7 Agosto 1975
    ...Company, La.App., 1972, 265 So.2d 787, 790. Cf. Seal v. Industrial Electric, Inc., supra, and Roelofs v. Lewals, Inc., W.D.La., 1972, 344 F.Supp. 1003, 1010 In the present case, Chevron failed to plead the affirmative defense of "statutory employer," as required by Rule 8(c), Fed.R.Civ.P. T......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT