Snow v. United States

• Decision Date: 05 November 1979
• Docket Number: No. CIV-LV-79-40,CIV-LV-79-40
• Citation: Snow v. United States, 479 F.Supp. 936 (D. Nev. 1979)
• Parties: Gladys SNOW, Individually, and Gladys Snow as Administratrix of the Estate of Randall Alan Chambers, Deceased, Plaintiff, v. UNITED STATES of America, Reynolds Electrical and Engineering Co., Inc., Fenix and Scisson, Inc., Lawrence Livermore Laboratories and University of California, Defendants.
• Court: U.S. District Court — District of Nevada

479 F. Supp. 936

Gladys SNOW, Individually, and Gladys Snow as Administratrix of the Estate of Randall Alan Chambers, Deceased, Plaintiff, v.UNITED STATES of America, Reynolds Electrical and Engineering Co., Inc., Fenix and Scisson, Inc., Lawrence Livermore Laboratories and University of California, Defendants.

No. CIV-LV-79-40, HEC.

United States District Court, D. Nevada.

September 5, 1979.

Supplemental Decision November 5, 1979.

I. Russell Phillips, John P. Foley, Las Vegas, Nev., for plaintiff.

Arthur L. Williams, Jr., Las Vegas, Nev., for defendant REECo.

B. Mahlon Brown, U. S. Atty. by William C. Turner, Asst. U. S. Atty., Las Vegas, Nev., Sandra Wien, Simon, James P. Klapps, Mark S. Feldheim, U. S. Dept. of Justice, Civ. Div., Washington, D. C., for defendant U. S.

Leland Eugene Backus, Las Vegas, Nev., for defendants, Fenix and Scisson, Inc.

DECISION AND ORDER

CLAIBORNE, District Judge.

The within action is before the Court on separate Motions to Dismiss or, in the Alternative, for Summary Judgment, filed on behalf of Defendants United States of America ("the government") and Reynolds Electrical and Engineering Co.("REECo").Both Defendants allege that the complaint fails to state a claim, and cannot possibly be amended to do so.With one exception as hereafter mentioned, the facts are undisputed.

On or about February 20, 1978, Randall Alan Chambers was employed as a driller helper at the U19t drillsite location at the Nevada Test Site by Defendant REECo.The government owns the Nevada Test Site and, by and through the Department of Energy, maintains a contract for drilling work with REECo; as such, REECo stands in the position of an independent contractor.¹At approximately 7:55 p. m. on the 20th, while performing a routine operational task of removing a sheet of plywood covering the drillsite hole, Chambers fell some 1172 feet to his death.

Plaintiffs allege that the proximate cause of Chamber's death fall was Defendants' failure to analyze or enforce numerous safety standards surrounding this type of work activity.These include the hiring of Chambers despite his limited drilling experience and in contravention to REECo regulations, providing him little or no safety instructions regarding plywood removal, failing to maintain safe footing around the hole by not repairing its metal covers and by not removing ice, mud, grease and snow from the covers, failing to wear or require the wearing of mandatory safety belts around the hole, and the apparent nonposting of adequate warning signs regarding the necessity of wearing safety belts.

The affidavits and exhibits surrounding this motion indicate that on February 20, 1978 REECo was authorized to maintain appropriate Worker's Compensation coverage, the costs of which were allowable and were in fact paid by the Department of Energy to REECo pursuant to a contract between said parties.According to the affidavit of Kenneth Johnson, claims manager for the Nevada Industrial Commission, the accident was reported to the N.I.C. and the N.I.C. paid compensation in the form of funeral expenses to the Estate of Chambers.²According to the affidavit of Gladys Snow, Plaintiff herein, the funeral burial expenses of her son were accepted by Palm Mortuary, but she never directed Palm Mortuary to accept said expenses, ratified the acceptance thereof, or personally filed a claim on behalf of her deceased son against the N.I.C.

Plaintiff, the administratrix of the Estate of Chambers and mother of the deceased, filed a claim with the government on August 14, 1978, in accordance with 28 U.S.C. § 2672and10 C.F.R. Part 14, which was subsequently denied.Thereafter, she filed the within action under the Federal Torts Claims Act(28 U.S.C. § 2671), alleging jurisdiction under 28 U.S.C. § 1346(b), which states:

. . . The district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for . . . 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.

The parties are in agreement that 28 U.S.C. § 1346(b) means that this Court is to apply Nevada law to these facts and, since the accident undisputably occurred while the deceased was acting in the scope and course of his employment, the Nevada law to be applied is the Nevada Industrial Insurance Act (NIIA), or N.R.S. ch. 616.It is the basic contention of the government and REECo that this lawsuit cannot be maintained as a matter of law because Plaintiff's entitlement to death benefits under the NIIA constitutes her exclusive remedy.

As to the Defendant REECo, the deceased's employer at the time of the accident who was covered under the NIIA, the Nevada Supreme Court outlined its duties and liabilities in Outboard Marine Corp. v. Schupbach,93 Nev. 158, 561 P.2d 450(1976):

Employers who accept the Nevada Industrial Insurance Act and provide and secure compensation for injuries by accident sustained by an employee arising out of and in the course of employment are `relieved from other liability for recovery of damages or other compensation for such personal injury . . .'NRS 616.270.This provision, of course, forbids suit by the injured employee against his employer. cites omitted This "exclusive remedy" provision of the Act is exclusive in the sense that no other common law or statutory remedy under local law is possessed by the employee against his employer. cites omitted

561 P.2d at 454.The only difference between Schupbach and the case at bar is that the former applied the exclusivity principle to a disabled worker covered under the act, while this case involves entitlement to death benefits.The distinction is without a difference, however;N.R.S. 616.370(1) specifically states that the rights and remedies provided in Chapter 616 for an employee on account of an injury by accident sustained arising out of and in the course of the employment shall be exclusive of all other rights and remedies of the employee's personal or legal representatives.

As to the government, three cases directly support their argument of exclusivity.In Frith v. Harrah South Shore Corp.,92 Nev. 447, 552 P.2d 337(1976), an employee of a construction company who had contracted with Harrah's for some construction work was injured while working on Harrah's property.After the accident he received workers compensation, but thereafter sued Harrah's.The Nevada Supreme Court affirmed the trial court's judgment for Harrah's, and held that where an owner of property on which a construction worker was injured is the principal contractor and therefore the principal employer of the injured worker,³ and the construction company is the bona fide employer of the worker who was injured in the scope and course of employment, an award of compensation under the NIIA constitutes the worker's exclusive remedy.552 P.2d at 341.

The Nevada Supreme Court's decision applied to private individuals, of course, but this Court more recently applied the same principles to the government in the context of an action filed under the Federal Torts Claims Act.In Barker v. Luna,439 F.Supp. 810(D.Nev.1977), an employee of a construction company who had entered into a construction contract with the Small Business Administration of the United States government for some construction work was injured in the course and scope of employment.The Barker Court denied judgment in favor of the government in that case for the reason that neither the prime contractor nor the subcontractor had procured industrial insurance for the plaintiff, but in so doing noted that the case of Roelofs v. United States,501 F.2d 87(5th Cir.1974) accurately stated the law as to the "converse" situation (i. e., where industrial insurance has been procured at the time of the accident), since both the compensation statutes in the Roelofs case and the NIIA make compensation under the act"the sole remedy against any employer."439 F.Supp. at 813.

Roelofs is indistinguishable from the case at bar.In that case, an employee of Sperry Rand, who had a government contract with the United States Army and thereunder operated an army ammunition plant on government-owned land, was injured in the scope and course of employment.The government-Sperry contract obligated Sperry to provide its workers with workmens compensation coverage and the government to reimburse Sperry therefor.Such coverage was obtained and in effect at the time of the accident.The Fifth Circuit reversed an order of summary judgment for the employee, holding that inasmuch as compensation coverage had been procured, the government was entitled to the same immunity as a private state employer under the state worker's compensation statutes.501 F.2d at 93-94.The implication of Roelofs and Barker, then, is that the Nevada Supreme Court's decision in Frith would be every bit as applicable to the government, where the government is in the position of a "principal contractor," as it was to Harrah South Shore Corp.Plaintiff argues that this is not the appropriate law to apply, however, for two reasons: 1) There presently exists a question of fact as to whether Plaintiff rejected the N.I.C.'s award in this case; if she did not, she contends, then she may bring this lawsuit since the NIIA would no longer apply to the situation at bar; 2) The NIIA does not apply where the work is extrahazardous in nature, as was the situation at bar.

The California Court of Appeals, applying Nevada law in a "conflict-of-laws" case, directly rejected Plaintiff's first argument in Howe v. Diversified Builders, Inc.,262 Cal.App.2d 741, 69 Cal.Rptr. 56(1968).The Howe court held that a purported rescission and waiver of...