Vandergrift v. United States, Civ. A. No. 77-197-N.

• Decision Date: 28 November 1979
• Docket Number: Civ. A. No. 77-197-N.
• Citation: 500 F. Supp. 237
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Walter B. VANDERGRIFT, Administrator of the Estate of Walter James Vandergrift, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.

500 F. Supp. 237

Walter B. VANDERGRIFT, Administrator of the Estate of Walter James Vandergrift, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 77-197-N.

United States District Court, E. D. Virginia, Norfolk Division.

November 28, 1979.

George H. Gray, Outland, Gray, O'Keefe & Hubbard, Chesapeake, Va., for plaintiff.

Stephen Wainger, John F. Kane, Asst. U. S. Attys., Norfolk, Va., Dennis deLeon, Trial Atty., Torts Branch, Civil Division, U. S. Dept. of Justice, Washington, D. C., for defendant.

OPINION

KELLAM, District Judge.

By opinion filed herein March 30, 1978, 500 F.Supp. 229 (E.D.Va.) this Court found the United States guilty of negligence which caused the death of plaintiff's decedent and awarded plaintiff a judgment for $183,511.40.

The United States operates and maintains a large facility at Langley Air Force Center in Virginia, including National Aeronautics and Space Administration Research Center (NASA). It contracted with Mechanical Products, Inc. (Mechanical) for the performance of certain construction and installation work at Langley. Mechanical subcontracted a portion of the work to Sullivan Mechanical Contractors, Inc. (Sullivan). Plaintiff's decedent, Walter James Vandergrift, was an employee of Sullivan, and at the time of his fall and death was working on the roof of a building of NASA in the performance of his duties.

This action was filed pursuant to the Federal Tort Claims Act (FTCA) which holds the United States liable to damages for negligence under the same circumstances that "a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). Under the provisions of the Virginia Workmen's Compensation Act (Act) the employer of an injured person in industry is liable for payment of compensation to an injured person covered by the terms of the Act, and in return is granted immunity from further tort action by the employee. Virginia Code §§ 65.1-36 and 65.1-40. But the Act "does not deny an injured employee the right to pursue his action at law against a negligent third party. Veale v. Norfolk and Western Railway Company, 205 Va. 822, 139 S.E.2d 797, 799 (1965); Fauver v. Bell, 192 Va. 518, 526, 65 S.E.2d 575, 580. Under the Act, the exclusivity of recovery is only as to an employee and his employer, and only his right to sue his employer for damages is barred by the acceptance of compensation under the Act.

On appeal to the Fourth Circuit, that Court remanded the case "for determination of whether a private owner, engaged in repairs such as NASA was, would qualify for the tort immunity provided by the Virginia Act. See Va.Code § 65.1-29; Va.Code § 65.1-40." Slip Opinion May 10, 1979, No. 78-1407.

I

Jurisdiction of this Court is grounded in 28 U.S.C. § 1346(b) for claims against the United States for money damages for personal injury or death caused by the negligent or wrongful act or omission of any employee of the United States 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." Hence, we must follow the law of Virginia, and the interpretation placed on the statutes of Virginia by the highest court of that State. Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967); C.I.R. v. Stern, 357 U.S. 39, 78 S.Ct. 1047, 2 L.Ed.2d 1126 (1958); Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); St. Paul Fire & Marine Ins. Co. v. Lack, 476 F.2d 583 (4th Cir. 1973); Snowden v. Virginia Electric & Power Co., 432 F.Supp. 266, 268 (D.C.Va.1976).

II

The question at issue is whether under the Virginia Workmen's Compensation Act immunity "would apply to a private employer like NASA," and if so, "then the judgment against the United States should be set aside; for if the Virginia Act would have applied, the FTCA provided Vandergrift no claim against the United States." Slip Opinion of May 10, 1979, No. 78-1407.

Following remand plaintiff submitted interrogatories to the United States to which it responded. The following facts are established by the answers to interrogatories and the evidence in the case.

1. Langley Research Center was established in 1917 as a part of the National Advisory Committee for Aeronautics. Subsequently, all functions and powers were transferred to NASA. 42 U.S.C. § 2451 et seq.

2. By the terms of the Act it is authorized to acquire, construct, improve, repair, maintain laboratories and facilities, and in carrying out its functions to enter into and perform contracts, leases, agreements or other transactions as may be necessary in the conduct of its works and on such terms as it may deem appropriate, with any person, firm or association. See 42 U.S.C. § 2473.

3. It employs some 3200 persons. Its facilities represent a plant investment of about 500 million dollars with a replacement value of about one billion dollars.

4. It is normal and usual for NASA to contract with independent contractors to do work at Langley of the size and scope of the work which Sullivan was doing, rather than for NASA to undertake to do the work with its own employees.

5. There was no dollar figure which NASA used in determining whether the work would be done by independent contract or by NASA doing it with its employees.

6. Prior to the time of Vandergrift's fall, NASA had never performed with its own employees the same or similar type work as was being done by Sullivan.

7. It maintained no construction division or work crew to do the work of the type which was being done by Sullivan.

8. United States contracted with Mechanical Products, Inc. for the performance of substantial construction and installation work at Langley. Mechanical subcontracted a portion of the work to Sullivan, including installation of ducts for the air vent system in Building 643. Vandergrift was an employee of Sullivan.

9. Reference is also made to the facts found in the original opinion filed herein.

III

This case, like the case of Bassett Furniture Industries, Inc. v. McReynolds, 216 Va. 897, 224 S.E.2d 323 (1976), turns on a mixed question of law and fact. That is, was Vandergrift a statutory employee of the United States? Inasmuch as the Bassett case is of primary importance and the controlling authority, the facts are set forth in some detail.

Bassett is a large furniture manufacturer with plants in eight states, and employs about 7000 workers. It decided to enlarge one of its plants by adding a 3½ million dollar warehouse. It put the project out to bids. Among the work was the installation of a conveyor belt system in the new building to connect with an existing building. Bassett did the electrical work and periodically inspected the construction. It was necessary to cut a hole in the floor of the existing building in order for the conveyor to pass through. Bassett's carpenters cut this hole. This was the hole through which the plaintiff fell and was injured. Bassett had no separate construction division and employed only a dozen or so carpenters on the maintenance crew and about 60 electricians. Its employees were sometimes called upon to perform certain tasks in connection with new construction. During the few years prior to the injury Bassett contracted with independent contractors for most of its building work, and used its people to make modifications. It did not maintain a separate crew for purposes of conveyor systems.

The Court, after quoting the language from Virginia Code §§ 65.1-29, 65.1-30 and 65.1-31, said:

These three statutes must be "read and reconciled with" the language in what is now Code § 65.1-5 (Repl.Vol.1973). Sykes v. Stone & Webster Eng. Corp., 186 Va. 116, 121, 41 S.E.2d 469, 471 (1947). That language provides that "nothing in this act ... shall be construed to make .. the employees of an independent contractor the employees of the person ... contracting with such independent contractor."

When so read and reconciled:

"It clearly appears to be the purpose ... to bring within the operation of the Compensation Act all persons engaged in any work that is a part of the trade, business or occupation of the original party who undertakes as owner, or contracts as contractor, to perform that work, and to make liable to every employee engaged in that work every such owner, or contractor, and subcontractor, above such employee. But when the employee reaches an employer in the ascending scale, of whose trade, business or occupation the work being performed by the employee is not a part, then that employer is not liable to that employee for compensation .... At that point Code § 65.1-5 intervenes and the employee's right of action at common law is preserved." 186 Va. at 122-23, 41 S.E.2d at 472; quoted with approval in Anderson v. Thorington Construction Co., 201 Va. 266, 271, 110 S.E.2d 396, 399-400 (1959).

The Fourth Circuit in dealing with the provisions of the Virginia Act in Sears, Roebuck & Co. v. Wallace, 172 F.2d 802, 810 (4th Cir. 1949), quoted with approval from Sykes v. Stone & Webster Engineering Corp., 186 Va. 116, 121, 41 S.E.2d 469, 471 (1947), the following:

"The statute was not intended to relieve employers from liability for their own negligence which causes injury to the employees of independent contractors engaged in the performance of work for employers outside the scope of the latter's occupation."

An owner simply by contracting with independent contractors "does not thereby become a statutory employer unless the work performed by the independent contractor `is a part of owner's trade, business or occupation.'" Bassett Furniture Industries, Inc. v. McReynolds, supra 224 S.E.2d 326. Continuing in the Bassett case, supra, the Court said that the test of whether the work is a part of the owner's "trade, business or...