Winston Bros. Company v. United States

• Decision Date: 28 August 1973
• Docket Number: No. 4-73-Civil 30.,4-73-Civil 30.
• Citation: 371 F. Supp. 130
• Parties: WINSTON BROS. COMPANY et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Minnesota

371 F. Supp. 130

WINSTON BROS. COMPANY et al., Plaintiffs, v. UNITED STATES of America, Defendant.

No. 4-73-Civil 30.

United States District Court, D. Minnesota, Fourth Division.

August 28, 1973.

Ronald D. Olson, Carlsen, Greiner & Law, Minneapolis, Minn., for plaintiff.

Neal J. Shapiro, Asst. U. S. Atty., Minneapolis, Minn., for defendant.

MEMORANDUM

LARSON, District Judge.

This is an action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), seeking $81,238.39 reimbursement for damages to two drill jumbos. The pieces of heavy construction equipment were buried and subsequently demolished in a cave-in of a portion of a tunnel being excavated in connection with the DeGray Dam and Reservoir Project in Clark County, Arkansas. The case comes here after adjudications by the Contracting Officer, Board of Contract Appeals for the Army Corps of Engineers, and the Court of Claims, all of which have denied the claim.

Plaintiffs Winston Brothers Company and Green Construction Company, d/b/a Winston-Green, are engaged in the heavy construction industry. They assert breach of contract, breach of warranty, and negligence on the part of the Government in preparing and issuing allegedly deficient plans and specifications in connection with the project, resulting in the cave-in and attendant damages incurred by Winston-Green. Additionally, a subrogation claim is asserted by Connecticut Fire Insurance Company (Connecticut Fire), Winston-Green's insurer.

The Government advances two dispositive arguments in its motion for summary judgment: the Court lacks jurisdiction over contract claims being asserted here, and the other claims are barred by the statute of limitations. Because the pleadings and other matters before this Court establish as a matter of law that the claims cannot be heard by this Court, the Government's motion will be granted.

Winston-Green and the Department of Army, Corps of Engineers, made a $4,687,947.35 contract (later modified to $5,145,789.05) on January 10, 1964, under which Winston-Green was to construct a 1,684 foot tunnel and appurtenances in connection with the DeGray Project. Plans and specifications were to be furnished by the Corps.

Work on the upstream portal of the tunnel began August 11, 1964, with excavation to be done mainly by blasting. On August 20, 1964, about three hours and forty-five minutes after a misfired dynamite blast, a large cave-in occurred in which the two drill jumbos and other equipment were ruined. Connecticut Fire paid Winston-Green the full amount of the claimed loss in a November 20, 1964, transaction cast in the form of a "loan" agreement, repayment contingent on Winston-Green's recovery from the Government.

Since then Winston-Green has thrice attempted to secure reimbursement from the Government. First, a claim was filed with the Contracting Officer on May 19, 1965, pursuant to the contractually specified procedures for handling disputes under the contract. On July 1, 1965, the Officer ruled that there was no provision in the contract for reimbursement for losses of this kind.

Winston-Green then appealed to the Board of Contract Appeals on July 13, 1965. After hearing extensive evidence, the Board on September 6, 1968, ruled that the collapse resulted from the Corps' deficient design of rock bolts shoring up the walls of the tunnel. Lacking authority to hear tort allegations, both the Contracting Officer and Board ruled only on the contractual aspect of the claim. Accordingly, the Board's finding that the Government was "responsible" for the cave-in was not necessarily indicative of fault cognizable under tort law.

Although granting time extension and price adjustments, the Board affirmed the denial of reimbursement for the damaged equipment. Its decision was grounded on relevant provisions of the contract and the Armed Services Procurement Regulations incorporated therein leaving the risk of this kind of loss on the contractor. Eng. BCA Nos. 2732 and 2768, 68-2 BCA Par. 7240.

Winston-Green next instituted suit in the Court of Claims on June 20, 1969, seeking review under the Wunderlich Act, 41 U.S.C. § 322 (1970), and, in the alternative, claiming breach of warranty. In an opinion rendered April 14, 1972, the Court agreed with the reasoning of the Board. It found relevant contractual provisions precluding the contractor's claims and also rejected the contention of a Government "warranty" to pay for damages to equipment due to defective specifications. Winston Brothers Co. v. United States, 458 F.2d 49, 198 Ct.Cl. 37 (1972). The instant action was commenced January 15, 1973.

Winston-Green's breach of contract claim must be dismissed because this Court lacks jurisdiction under the Tucker Act, 28 U.S.C. § 1346(a)(2), to hear contractual claims against the Government in excess of $10,000. Akin Mobile Homes, Inc. v. Secretary of Housing & Urban Development, 475 F.2d 1261, 1262 (5th Cir. 1973); Putnam Mills Corp. v. United States, 432 F.2d 553, 554 (2d Cir. 1970); Murray v. United States, 132 App.D.C. 91, 405 F.2d 1361, 1366 (1968).

The nature of the warranty claim is unclear from the pleadings. The Court of Claims did treat a warranty claim as being based on the contract, but this is understandable in view of that Court lacking jurisdiction over claims sounding in tort. 28 U.S.C. § 1491. If Winston-Green is likewise here presenting a claim under the contract, it would meet the same fate of dismissal under the Tucker Act as the breach of contract allegation.

It is possible, however, to construe the warranty allegation here as constituting a claim of strict liability in tort. See Annot., Products Liability — Strict Liability, 13 A.L.R.3d 1057 (1967). Rather than being precluded by the Tucker Act, such a claim could be asserted under the Federal Torts Claims Act.¹ But it would be barred by the same statute of limitations defense that the Court finds fatal to the negligence and subrogation claims.

The applicable statute of limitations for tort claims against the Government provides as follows:

"A tort claim . . . shall be forever barred unless action is begun within two years after such claim accrues . . . ." 28 U.S.C. § 2401(b) (1964 ed.), Act of April 25, 1949, ch. 92, § 1, 63 Stat. 62.

This provision governs all claims accruing prior to January 18, 1967, even if a civil action is brought subsequent to that date. Katzer v. United States, 342 F.Supp. 1088 (E.D.Wis.1972); Rygg v. United States, 334 F.Supp. 219 (D.N.D. 1971); Whealton v. United States, 271 F.Supp. 770 (E.D.Va.1967).

Claims arising after that date are governed by the amended statute of limitation. 28 U.S.C. § 2401(b), as amended, Act of July 18, 1966, Pub.L. 89-506, § 7, 80 Stat. 307. This version requires a claim to be filed with the pertinent administrative agency in all tort claims and then gives the claimant six months after denial of the claim to sue in District Court.

It is well established that determination of when a claim accrues for purposes of beginning the statute of limitations under § 2401(b) is a question of Federal law.²E. g., Ashley v. United States, 413 F.2d 490 (9th Cir. 1969); Mendiola v. United States, 401 F.2d 695 (5th Cir. 1968); Kington v. United States, 396 F.2d 9 (6th Cir.), cert. denied, 393 U.S. 960, 89 S.Ct. 396, 21 L.Ed.2d 373 (1968); Kossick v. United States, 330 F.2d 933 (2d Cir.), cert. denied, 379 U.S. 837, 85 S.Ct. 73, 13 L. Ed.2d 44 (1964); Hungerford v. United States, 307 F.2d 99 (9th Cir. 1962). Application of Federal law is bottomed on the manifested congressional intention of achieving national uniformity regarding the time period during which tort suits against the Government can be bought. U.S.Code Cong.Service, 81st Cong., 1st Sess., pp. 1226-1229 (1949); Hungerford v. United States, supra, 101; Quinton v. United States, n. 2, supra, 236.

Although it is hazardous to assign an all-purpose definition of when a claim first accrues for purposes of triggering a limitations statute, United States v. Dickinson, 331 U.S. 745, 748, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947), it can safely be said that Winston-Green's tort claims accrued when the cave-in occurred, August 20, 1964. It was this event that gave rise to the liability being asserted here, establishing a "definitely ascertainable date" from which the time period can readily be measured. Foote v. Public Housing Commissioner, 107 F.Supp. 270, 274 (W.D.Mich.1952). There are no difficulties presented here with regard to lack of actual or constructive knowledge on Winston-Green's part that it had at that time suffered an injury for which legal relief might be available. See, e. g., Kossick v. United States, supra, 936; Quinton v. United States, n. 2, supra, 240-241; Tessier v. United States, n. 2, supra, 309. Since this event transpired prior to the effectiveness of the amended statute and more than eight years before this action was filed, the old version of § 2401(b) bars these claims.

There is no merit to Winston-Green's contention that the administrative and/or Court of Claims proceedings tolled the statute. In determining whether the limitations period has been tolled, the basic question is one "of legislative intent whether the right shall be enforceable . . . after the prescribed time." Burnett v. New York Central R. Co., 380 U.S. 424, 426, 85 S. Ct. 1050, 1053, 13 L.Ed.2d 941 (1965), quoting Midstate Horticultural Co. v. Pennsylvania R. Co., 320 U.S. 356, 360, 64 S.Ct. 128, 88 L.Ed. 96 (1943).

Aside from the aforementioned dominant desire for national uniformity, the legislative history of § 2401(b) is relatively unenlightening regarding congressional purposes and policies underlying the limitations provisions. The Senate Report elaborating on the 1966 amendment demonstrates a distaste for stale claims, a sentiment common to statutes of limitations. S.R.No.1327, U.S.Code Cong. & Admin.News, 89th Cong., 2d Sess., pp. 2515, 2516 (1966). To the extent that tolling is allowed, this goal of...