Petition for Writ of Certiorari — Stewart v. United States

ie

84-2870 PTS]

AUG 20 1984

~. ALEXANDER L. STEVAS.

CLERK

In The «

SUPREME COURT OF THE UNITED STATES

October Term 1984

LEROY STEWART,

Petitioner,

-vVs.>-

UNITED STATES OF AM™RICA,

GARY D. NUSS, and ROCKWELL

INTERNATIONAL CORPORATION,

| Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

RANDALL J. DAVIS

7907 Zenobia Street

westminster, Colorado 80030

303-426-1770

Attorney for Petitioner

\

\2

?

No.

In The

SUPREME COURT OF THE UNITED STATES

October Term 1984

LEROY STEWART,

Petitioner,

-vVsS .-

UNITED STATES OF AMERICA,

GARY D. NUSS, and ROCKWELL

INTERNATIONAL CORPORATION,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

RANDALL J. DAVIS

7907 Zenobia Street

Westminster, Colorado 80030

303-426-1770

Attorney for Petitioner

Page:

Questions Presented for Review...... TeTTTTTT

Parties to the ACtion........ccccscccscccecs .

Tables of AuthoritiesS.........ccceecccccccees

Reference to Opinions Below....... PUTTTTTT TT

DURABEICCION. cccccccccccccccceccce TYeUTTTITT

Statutory Provisions Involved............e00.

Statement of FactS...........06. ecccccccccece

Statement of the Case............ eeesececoccs

Reasons for Granting of the Writ............ .

Appendix:

A. Opinion of United States Court

of Appeals for the Tenth Circuit

B. Order Denying Petition for

Rehearing by United States Court

of Appeals for the Tenth Circuit

C. Opinion of United States District

26

62

Court for the District of Colorado 63

D. Statutory Provisions

-ji-

68

No.

In the

SUPREME COURT OF THE UNITED STATES

October Term 1984

LEROY STEWART,

Petitioner,

-vs.-

UNITED STATES OF AMERICA,

GARY D. NUSS, and ROCKWELL

INTERNATIONAL CORPORATION,

Respondents.

QUESTIONS PRESENTED FOR REVIEW

The following questions are presented for

review in this Petition:

1. Did the Court of Appeals err in affiming

the summary judgment against Petitioner?

2. Did the Court of Appeals err in holding

that Respondent United States was covered by workmen's

compensation insurance pursuant to 40 U.S.C. 290?

PARTIES TO THE PROCEEDING

The Parties are as set forth in the caption.

Respondents were the defendants in the lower court

proceedings.

TABLE OF AUTHORITIES

Statutes:

S$ U.B.C. GAGE, SS. OGMe cccccccccces 20

28 U.S.C.

28 U.S.C.

28 U.S.C.

28 U.S.C.

40 U.S.C.

42 U.S.C.

42 U.S.C.

L34G(B) cccccccccccccsess 18

BOTA, GO. OOMccccccccces 7

2674. ccccccccevcccccsece 18

26 7S(A) . cccccccccccccces 9

290. weccccccccces -- 8,20,22,24

2061...... cevecces .-. 17,19,23

Z2OL(K) woccccccccecccsess 19,23

Colo.Rev.Stat.8-41-105. eeeeeeeeeee 19,21

Colo.Rev.Stat. 8-41-106. +eeeeeeeee 21

Colo.Rev.Stat.8-48-101( 2) cee eeeeee 18,22

Colo. Rev.Stat.8=-52-102............ 12

Colo.Rev.Stat.42-4-1401, et.seq... 15

Court Rules:

Rule 56, Federal Rules of Civil

Procedure....cceceeeeeees L1,12,16

Cases:

TABLE OF AUTHORITIES(con't)

Page:

Breeding v. Tennessee Valley Authority,

243 Ala.240, 9 So.2d 6(1942)....... 20

Colorado Civil Air Patrol v. Hagans, 662

P.2d 194(Colo.App. 1983)........... 13

Finn v. Industrial Cammission, 165 Colo.

106, 437 P.2d 542(1968)............ 14

Frohlick Crane Service v. Mack, 182 Colo.

39, S10 P.2d 891(1973).........4... 23

Kandt v. Evans, 645 P.2d 1300(Colo.

Ree Pb cde odssesodeabeseetecoccccccce 14

Martin K. Eby Construction Company v.

Indust.Camm., 151 Colo. 320, 377

P. 2d SER ORR aR RS EE a 13

Matter of Welham, 653 P.2d 760(Colo.

BEET c6bencccesecececcesessecasecee SF

Mineral County v. Industrial Commis-

Sion, 649 P.2d 728(Colo.App. 1982). 13

Peak v. Small Business Administration,

660 F.2d 375(8th Cir., 1981)..... 18,20

Potanac Elec.Power Co. v. Director,

449 U.S. SE 21

Richardson v. United States, 577 F.2d

133(10th Cir., 1978)............ 18

Rogers v. Industrial Cammission, 40

Colo. App.313, 574 P.2d 116(1978)... 13

Roleofs v. United States, 501 F.2d

87( 5th Cir., ee 18

cation

Cases:

TABLE OF AUTHORITIES(con't)

Page:

Silkwood v. Kerr-McGee, _U.S._, 104

S.Ct. of rere |: |

Standard Oil Campany v. Industrial

Cammission, 38 Colo.App.39, 522 P.2d

T029(18

( = Te ee ee ee eee eee eee eee eeeeee 22

Stewart v. United States, 716 F.2d 755

(Oth Cir., 1062)... .cccccccccccces 5

United States v. Orleans, 425 U.S. 807

CEPTS) cocnccecces eccccccccecccccese L7

Washington Metro Area Transit Auth. Vv.

Johnson, U.S. __,104 S.Ct.2827(1984) 21

CITATIONS TO OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Tenth Circuit is reported at 716 F.2d

755(1982). A copy is set out in the Appendix, infra at

p. 26. The denial of the petition for rehearing is set

out in the Appendix, infra at p. 62. The decision of

the United States District Court for the District of

Colorado is not reported, but is set out in the

Appendix, infra at p. 63.

JURISDICTION

The judgment of the United States Court of

Appeals for the Tenth Circuit was entered on December

28, 1982. The petition for rehearing was denied on May

23, 1984. The jurisdiction of this Court is invoked

under 28 U.S.C. 2101(c).

STATUTORY PROVISIONS INVOLVED

Various provisions of the Colorado Workmen's

Compensation Act are involved in this case. These will

not be set forth verbatim at this point. Those

necessary for resolution of this Petition are set

forth either in the body of this Petition or in the

Appendix, infra at p. 68.

aS =

STATEMENT OF FACTS

Petitioner is a former employee at the Racky

Flats Nuclear Weapons Plant, which is located

northwest of Denver, Colorado. He was an emplayee of

Rockwell International and was involved in the

manufacturing of nuclear weapons, though his exact job

description is classified, and his job duties are

unknown to counsel.

On May 20, 1976, Petitioner arrived at the

parking lot at that plant at 7:06 a.m. He opened his

car door, stepped out, and reached for his lunch pail

in the car. Before he could turn around, he was

crushed between his own vehicle and a car driven by

Respondent Nuss and owned by Respondent United States

of America(Vol.VII, p. 22). Petitioner suffered

massive injuries. He spent severai weeks in the

hospital, later lost his right leg in 1979 as a result

of the accident, and has not worked a day since the

accident. He remains totally disabled at the time of

the writing of this Petition,

Petitioner had been employed at the plant

since 1958. This plant is owned by Respondent United

aljee

j

ee

States. Respondent Rockwell took over the day-to-day

operations of the plant in 1975. At the time of the

accident, no investigation was done by law enforcement

officials of the State of Colorado or any Federal

agency. The report of Respondent Rockwell established

that Respondent Nuss had fallen asleep. There has

never been any dispute that Petitioner was merely

exiting his vehicle at the time of the

accident(Vol.VII, p. 22).

After the accident, Petitioner filed a claim

under the Federal Tort Claims Act(28 U.S.C. 2671, et.

seq.)(hereafter FICA). No action was ever taken on the

claim, and the initial complaint was filed with the

United States District Court for the District of

Colorado. After a period of time, it became known to

Petitioner that the Rocky Flats Plant was operated on

a daily basis by Respondent Rockwell. The complaint

was then amended to include Respondents Rockwell and

Nuss.

The documents of record established that

several material factual issues exist. The lower

courts dismissed Petitioner's amended camplaint on

=, a

summary judgnent on the basis that he was precluded

from pursuing any remedy except workmen's

campensation. The record reflects that Petitioner

carpooled with two other workers and either drove

or rode with them every morning(Vol.VII, p.11). He

normally traveled from his hame to work on roads in

the western suburbs of Denver. He would then enter

through the eastern gate at the plant(Vol.VII, p.

12-13). A cursory check of badges was made at that

gate. Petitioner would then park his vehicle, as

occurred on the date of the accident.

The parking lot outside of Building 750 is

where the accident took place. Petitioner had no

assigned parking place nor was he ever given an

authorization sticker. The parking lot was outside of

the final checkpoint where badges were checked. At the

time of the accident, Petitioner was exiting his

vehicle and had not yet gone into the secured area. He

was still in transit to his work. Respondent Nuss was

an employee of Respondent Rockwell, acting in the

capacity of a security guard. There never has been a

question about Nuss' negligence.

-

Other facts necessary for resolution of this

Petition will be set forth in argument. It is

sufficient to say that the defenses raised by

Respondents all revolved around workmen's campensa-

tion as a bar to Petitioner's action.

STATEMENT OF THE CASE

After the accident, Petitioner filed a claim

under the FICA. This was filed with the United States

Department of Energy which had assumed jurisdiction

over the Rocky Flats Plant from previous government

agencies. Nothing ever was done on the claim, and

after six months had elapsed, Petitioner filed his

initial complaint with the District Court. See 28

U.S.C. 2675(a). This camplaint named only Respondent

United States, as it was presumed that the plant was

owned and operated by the Government.

After same discovery, it became know to

Petitioner that the plant was owned by the United

States, but that a contract was in effect which placed

the day-to-day operation in the hands of Respondent

~9-

Rockwell International, Inc.(hereafter Rockwell). ‘The

amended complaint named Respondent Rockwell on the

basis of diversity} jurisdiction and Respondent Nuss on

a pendent claim. Though the Court of Appeals appeared

concerned about jurisdiction, that has never been an

issue between the parties. It finally concluded that

jurisdiction was proper (Appendix, infra at p. 34).

When discovery was campleted, Respondents

Rockwell and Nuss moved for summary judgment on the

basis that Petitioner's claim was precluded by the

Colorado Workmen's Compensation Act. They alleged

that he had no other recourse, as he was covered on

the parking lot and therefore could not sue either

party. The District Court agreed and granted summary

judgnent (Appendix, infra at p. 63). This was

affirmed by the United States Court of Appeals

(Appendix, infra at p. 26).

After the granting of summary judgment, the

District Court held a status conference. At that

time, Respondent United States moved for the dismissal

of the claims remaining against it. This was granted

on the basis of failure to state a claim, with

=JRu

Respondent United States bein, allowed to claim the

same immunity as the other Respondents. The Court of

Appeals correctly treated the review of this issue as

one of summary judgment, rather than a motion to

dismiss (Appendix, infra at p. 57). The result was

the same, aS the Respondent was allowed to use the

Colorado Workmen's Compensation Act as a bar to the

action brought under the FICA.

The Court of Appeal's decision was issued on

December 28, 1982. A petition for rehearing was filed

pranptly. The denial of the petition for rehearing

was not entered until May 23, 1984 (Appendix, infra at

p. 62). This Petition for Writ of Certiorari now

follows.

REASONS FOR GRANTING THE WRIT

I.

THE COURT OF APPEALS ERRED IN AFFIRMING SUMMARY

JUDGMENT AGAINST THE PETITIONER.

The issue here involves the misapplication

of Rule 56, Federal Rules of Civil Procedure, as well

as provisions of the Colorado Workmen's Cdmpensation

Act(hereafter Act). This issue and that in Argument

aha

II are intertwined.

Summary judgment was granted by the District

Court on the basis that Petitioner had no remedy other

than workiaen's campensation. Little is set forth in

that order as to reasoning (Appendix,infra at p. 63).

The Court of Appeals affirmed, though conceding that

Colorado law was perhaps not as clear-cut as thought

by the trial court. It held that the ruling of the

District Court was proper(Appendix, infra at p.45-46).

The question before both courts was one of fact, not

properly decided as a matter of summary judgment.

Summary judgment is to be granted when there

is no disputed issue of fact. Rule 56, Fed.Rules of

Civ.Proc. With a showing of factual dispute, summary

judgment should not be granted. The burden is upon

the party moving for summary judgnent to show that

there is no factual dispute. Both lower courts

acknowledged that the applicable Colorado law mandates

a showing of a connection between the injury and

employment. C.R.S. §8-52-102. These courts further

acknowledged that the applicable rule of law in

Colorado is that travel to and from work is not

considered work related, absent a showing of special

circumstances(Appendix, infra at p.40).

| -)]2—

See Rogers v. Industrial Cammission, 40 Colo.App.313,

574 P.2d 116(1978). Recent decisions have again

stressed that the burden is upon a workmen's

campensation claimant to show a causal relationship

between his or her work and the injury. Mineral

County v. Industrial Commission of Colorado, 649 P.2d

728(Colo.App. 1982). Travel to and fram work is not

compensable, absent special circumstances. Colorado

Civil Air Patrol v. Hagans, 662 P.2d 194 (Colo.App.

1983); also see Martin K. Eby Construction Co. v.

Industrial Cammission, 151 Colo. 320, 377 P.2d

745(1963). Further, an accident in a parking lot is

not in and of itself sufficient to establish causal

relationship. Matter of Welham, 653 P.2d 760 (Colo.

App. 1982). As Respondents have conceded in the past,

the parking lots were not used only for employees.

This was acknowledged by the Court of Appeals

(Appendix, infra at p.35). Nor has there ever been a

formal adjudication of liability, as Respondent

Rockwell filed an admission almost immediately

(Appendix, infra at p.36). Respondents were not

unaware of the massive exposure facing them, and

workmen's campensation gave to them an expedient

-13-

at ‘ —_— ————e eo ee

means of trying to avoid it.

The question then becames one of why this

Court should grant this Petition. Aside fram the

massive suffering of Petitioner, the reasons are

these. First, both the Court of Appeals and District

Court misapplied state law. This Court has the power,

indeed duty, to correct such misapplication. The

decisions of the lower courts presumed causal

connection under the Colorado Workmen's Campensation

Law. But see Finn v. Industrial Cammission, 165 Colo.

106, 437 P.2d 542(1981); Kandt v. Evans, 645 P.2d

1300(Colo. 1982).

Second, the lower courts have misapplied the

standard for summary judgment under Rule 56. A

reading of both opinions clearly indicates that there

was a resolution of facts. This is contrary to the

standard for summary judgment. The issue of workmen's

campensation is one of an affirmative defense, to be

considered by the finder of fact. See Silkwood v.

Kerr-MoGee Corp., _U.S.__, 104 S.Ct. 615(1984).

Resolution of any disputed facts will require a trial,

not a grant of summary judgment.

~14-

Respondents have believed that they could

pick and choose which Colorado statutes could be used

at the plant site. The plant location is totally

federally owned land, a point not disputed by

Respondents. There is no indication in the Colorado

Act that it is applicable on a federal reservation.

Indeed, there is same question that the Colorado

Legislature would have such authority. More will be

discussed about this point in the second Argument.

Likewise, Respondents may not pick and choose which

statutes are then applicable. See C.R.S. 42-4-1401,

et seq. (Colorado law enforcement officials will be

contacted whenever there is a motor vehicle accident

anywhere within the State, and this was not done in

this case).

Respondent United States has not filed an

election as mandated by the Act. In effect,

Respondents have engrafted onto a federal reservation

a state act which they find beneficial when facing a

massive negligence case. Then they raise it as a

ene of all other available remedies. The

opinions of the lower courts expand a state

campensation act without benefit of legal basis.

=] §-

Fran this tlows the result that Petitioner is

therefore precluded fram bringing his action becaus2

of this expanded coverage. This simply is not

correct, and even more so in light of the

misapplication of the Colorado Act itself.

The result reached by the lower court:: runs

counter to Rule 56, Federal Rules of Civil Procedure,

as well as state law. It would be perhaps easy to

simply brush aside this issue, but to do so would

allow a precedent neither mandated by law nor

supported by the record. Summary judgnent was

inappropriate in this case, as there was no causal

connection with employment. This Court should grant

this Petition and reverse the Court of Appeals,

directing that a trial take place in this case.

II.

THE COURT OF APPEALS ERRED IN HOLDING THAT

RESPONDENT UNITED STATES WAS COVERED BY

WORKMEN'S COMPENSATION INSURANCE.

Even more puzzling is the rationale of the

Court of Appeals in affirming the dismissal of the

United States as a defendant. It did not reach the

issues raised by Petitioner, but rather held that the

Respondent United States could utilize the workmen's

al Gu

campensation coverage of Respondent Rockwell to escape

liability. This ruling is an incorrect application of

federal law.

The Rocky Flats Plant is a nuclear weapons

production facility. The land upon which it sits is

under total federal jurisdiction, a point conceded by

Respondents. The entire production facility is owned

by Respondent United States. 42 U.S.C. 2061. Indeed,

the very intent of Congress precludes anything but

ownership by the Government. Respondent Rockwell

could not be a truly independent contractor due to the

nature of the production facility. This is not a case

controlled by United States v. Orleans, 425 U.S. 807

(1976). The Court of Appeals recognized this, but

found that the mere fact that Respondent Rockwell had

workmen's campensation coverage allowed Respondent

United States to claim employer or landlord status,

which would then preclude any liability under the

FICA. This analysis is incorrect and an impermissible

extention of the law.

The Court of Appeals' analysis presumes

applicability of workmen's campensation coverage.

a] Fo

i a

Fran this tlows the turther assumption that Colorado

law will allow the Respondent United States to claim

statutory employer status. C.R.S. §8-48-101(1) & (2).

The Court of Appeals also found that the FICA

specifically allowed such a defense to be raised. 28

U.S.C. 1346(b) and 2674. All of this reasoning was

predicated on the assumption that Colorado law is

applicable at the Rocky Flats plant and binding upon

all parties. It should be noted that Respondent

United States has not elected coverage. This the

Court of Appeals did not feel was dispositive

(Appendix, infra at p.51-52). It further ruled that

the applicability could be predicated on 40 U.S.C.

290. Richardson v. United States, 577 F.2d 133 (10th

Cir., 1978). The question about the import of this

last cited statute has yet to be resolved by this

Court, and lower court decisions have lead to

confusion. See Roelofs v. United States, 501 F.2d 87

(Sth Cir., 1974), cert.den. 423 U.S. 830; but see Peak

v. Small Business Administration, 660 F.2d 374 (8th

Cir., 1981).

-18-

The rationale of the Court of Appeals

carries this result far beyond applicable law or case

decision. The provisions of the Colorado Act do not

include Respondent United States, its employees, or

land totally under its jurisdiction. C.R.S. 8-41-105.

The error in the lower court's ruling is

multifacited. First, the Atamic Energy Act precludes

Respondent United States fram turning over control of

the Rocky Flats Plant to any private contractor. 42

U.S.C. 2061. Unlike the normal contract which would

be entered into between the Government and a private

contractor, the very nature of the production at the

Plant mandates that Respondent United States be the

employer, with control over production, facilities,

and personnel. This has been provided by Congress in

the previously cited statute. Respondent United States

is the employer in this case, not Respondent

Rockwel 1 .

Second, Respondent Nuss' status as a

security guard makes him an express employee and agent

for Respondent United States. 42 U.S.C. 2201(k).

Though this case was resolved on summary judgment,

-]19-

eer reer mnemenmeen

the record reflects that Respondent Nuss was driving a

security vehicle owned by Respondent United States and

was actiny in his position as a security guard. This

has never been disputed. The status of Respondent Nuss ©

was then one of a direct Government agent, not as an

employee of an independent contractor. The negligence

of Respondent Nuss was thus transmitted to Respondent

United States.

Third, the Court of Appeals’ extension of 40 |

U.S.C. 290 is unwarranted and improper. This statute

is cited, in part, in the Appendix, infra at p.68. The

lower court apparently believed that this statute was

self-executing, and therefore applicable to the Rocky

Flats Plant. Nowhere in 40 U.S.C. 290 is there any

indication as to wham the law is applicable. At least

one Court of Appeals has held that this section does

not impose a duty on Respondent United States. See

Peak v. Small Business Administration, supra. Indeed,

it would seem difficult to believe that Congress

intended this statute to apply to federal employees.

See 5 U.S.C. 8101, et.seqg.; also see Breeding v.

Tennessee Valley Authority, 243 Ala. 240, 9 So.2d

«20.

6(1942). Further, Congress could not impose upon the

several states automatic coverage under their

workmen's campensation laws. It would incumbent upon

the several states through appropriate legislation to

extend these acts to include exclusively federal

jurisdictions. The Colorado Legislature has taken no

such step. See C.R.S. 8-41-105(definition of

employers); C.R.S. 8-41-106(definition of employees).

The Court of Appeals reasoning fram 49

U.S.C. 290 allows Respondent United States to use this

as a means of avoiding liability. To do sc requires

applicability of the Act at the plant. As this Court

has said only recently, there must be a careful

reading of Congressional intent, particularly if there

is a question as to other remedies. See Silkwood v.

Kerr-McGee Corporation, supra. The immunity granted to

an employer from a workmen's compensation law will

require narrow contruction, as well as a careful

examination of the applicable law. See Washington

Metro Area Transit Auth. v. Johnson, _U.S.__, 104

S.Ct. 2827(1984); also see Potamac Elec.Power Co. v.

Director, 449 U.S. 268(1980). The reliance by the

<Q)

Court of Appeals upon 40 U.S.C. 290 is misplaced, and

an erroneous interpretation and extension of that

statute. .

Third, the Court of Appeals held that

Respondent United States was a statutory employer

under C.R.S. 8-48-101(2), and thus entitled to claim

immunity fram a subcontractor. This is inconsistent

with the position advanced throughout by Respondents,

that being that a true independent contractor status

existed. C.R.S. 8-48-103. On the other side of the

coin, the Court of Appeals’ ruling means that

Respondent United States would be directly answerable

under the Act if no campensation coverage existed. See

Standard Oil Company v. Industrial Commission, 38

Colo.App. 39, 552 P.2d 1029(1976). No authority exists

for this proposition. In either case, the ruling of

the lower court is neither consistent with the law nor

facts in this case.

Finally, the nature of the record at this

point precluded summary judgment as to Respondent

-22-

United States. Respondent Nuss was acting in his

capacity as security guard. As has been shown, he was

an agent of Respondent United States pursuant to 42

U.S.C. 2201(k). He was in a security vehicle owned by

Respondent United States. Respondents have argued that

the Government contracted with Respondent Rockwell for

a turnover of everything, including vehicles. This is

legally impossible under 42 U.S.C. 2061. This line of

reasoning allows Nuss to be considered as a

co-empLoyee and therefore immune from any action

dealing with his negligent acts. The position of

Respondent Nuss was different fram that of a fellow

employee. He was not a fellow exployes, and therefore

not immune from suit. See generally Frohlick Crane

Service, Inc. v. Mack, 182 Colo. 34, 510 P.2d

891(1973).

The Court of Appeals' reasoning stretches

the applicable statutes beyond their breaking point.

To reach the point of allowing immunity to Respondent

United States, the lower courts had to find a binding

effect of the Act on federal reservations. No such

authority exists, absent an explicit state declaration

that its workmen's campensation act will apply on

= |

exclusive federal jurisdiction properties. No such

grant exists in Colorado. Further, Respondent Nuss was

acting as an agent of the Respondent United States. He

was driving a Government car, had arrest authority

conferred by Congress, and was acting in the capacity

of security guard. The granting of the motion to

dismiss/motion for summary judgment was improper.

CONCLUSION

The issues in this case appear to be easier

than they are. The lower courts could discern that

substantial injuries are present, and the negligence |

of Respondent Nuss is not open to question. The only

available defense is that of raising workmen's

compensation as a bar. This was relied upon by both

lower courts, with the application of 40 U.S.C. 290 by

the Court of Appeals. As has been shown, the Colorado

Legislature has not specifically directed that its Act

apply on federal reservations. There is no legal

support for the rationale of the lower courts.

Even if the Act applied, the lower courts

have misapplied the law. Petitioner was in transit to

his work at the time of the accident. He merely

<24-

reached back into his car for his lunch pail. There is

no causal connection between his massive injuries and

his work, as required under Colorado law. Merely being

in a parking lot is not enough. Further, the issue of

workmen's campensation as a bar to civil litigation is

a matter to be resolved at trial, not on a motion for

summary judgment. The disputes that exist in the

record may not be resolved except at a trial.

This Court should grant the Petition and

reverse the decision of the Court of Appeals. This

matter should be set for trial.

Respectfully submitted,

RANDALL J. DAVIS

7907 Zenobia Street

Westminster, Colorado 80030

303-426-1770

Attorney for Petitioner.

i=

APPENDIX-OPINION OF U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LEROY STEWART,

Plaintiff-Appellant,

Vv No. 80-1329

UNITED STATES OF AMERICA, GARY D.

NUSS, and ROCKWELL INTERNATIONAL

CORPORATION, a Delaware Corpora-

tion,

———— — i

Defendants-—Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. Civil 78-K-1061)

Richard M. Borchers, Westminster, Colorado(John E.

Joslin, Kansas City, Missouri, was on the brief) for

Plaintiff-Appellant

James E. Elliott, Jr.(Elliott, Martinez & Allman,

Denver, Colorado, was on the brief) for Defendants- 7

Appellees Rockwell International Corporation and Gary

D. Nuss

i

:

Jake J. Chavez, Assistant United States Attorney

(Joseph F. Dolan, United States Attorney, and Donald

M. Hoerl, Assistant United States Attorney, Denver,

Colorado, and Jan Elizabeth Mitchell, United States

Department of Energy, Albuquerque, New Mexico, were on

the brief) for the Defendant-Appellee United States of

America

Before SETH, Chief Judge, and HOLLOWAY and McKAY,

Circuit Judges

HOLLOWAY, Circuit Judge

=26-

In this suit brought against the United

States under the Federal Tort Claims Act (FICA),

plaintiff-appellant Leroy Stewart appeals a dismissal

as to the defendant United States and a summary

judgment granted for defendants Gary Nuss(Nuss) and

Rockwell International Corporation(Rockwell), also

named as defendants. Plaintiff seeks damages for

personal injuries incurred in a parking lot accident

at the Rocky Flats nuclear weapons facility in

Colorado, owned by United States and operated by

Rockwell, charging negligence against all defendants.

The injury is alleged to have occurred on May 20,

1976, shes plaintiff was struck, while exiting his car

in the parking lot on arrival for work, by a

Government vehicle driven by Nuss, who was on a

security patrol.

I.

Plaintiff originally sought relief solely

against the United States under the FICA, 28 U.S.C.

§2671 et seg. and 28 U.S.C. §1346(b). His amended

complaint also named Rockwell and Nuss as defendants.

The amended camplaint asserted jurisdiction pursuant

-27-

to the FICA. It also claimed diversity jurisdcition as

to Rockwell and pendent jurisdiction as to Nuss.

Defendants have not challenged subject matter

jurisdiction as to any of the claims except by a

formal denial earlier in the answer of Rockwell and

Nuss of pencent jurisdiction as to Nuss.(See note 2,

infra).

However as we must, we note that there is a

question as to whether pendent jurisdiction is proper

as to a non-diverse party such as Nuss. See, e.g.,

Ayala v. United States, 550 F.2d 1196(9th Cir.).

Moreover, we have also noted, sua sponte, that the

amended camplaint failed to aver the principal place

of business of Rockwell, which prevented reliance on

diversity jurisdiction as to the corporation at that

point. American Motorists Ins. Co. v. American

Employers' Ins. Co., 600 F.2d 15(5th Cir.); Walsh v.

International Precious Metals Corp., 510 F.Supp 867,

873(D.Utah); see Fed.R.Civ.Proc., 8(a)(1)(requiring a

short and plain statement of grounds of jurisdiction).

We requested supplemental briefing from the parties on

the question of whether there was proper subject

matter jurisdiction of the claims against Rockwell

-28-

and Nuss. The supplemental brief of Rockwell and Nuss

noted that Rockwell's diversity of citizenship was

never questioned below and suggested that Rockwell be

treated as diverse. Rockwell's supplemental brief

included an affidavit stating that its principal place

of business is in Pennsylvania. The Government

submitted a statement on jurisdiction which adopted

the position of Rockwell and Nuss. On consideration of

the supplemental briefs, the affidavit and the

Government's statement, we will treat the matter as an

unopposed motion to amend the camplaint to cure the

defective diversity allegation as to Rockwell, which

we grant. 28 U.S.C.A. §1653; 3 Moore's Federal

Practice §15.11(2d ed. 1982).

The question remains whether there is proper

subject matter jurisdiction of the claim against Nuss

as a matter of pendent jurisdiction. By their

supplemental statements on jurisdiction, filed by the

parties at the direction of the court, all the parties

take the position that the district court properly

exercised pendent jurisdiction over Nuss. The question

—-29-

is, however, "Subtle and canplex," Aldinger v. Howard,

427 U.S. 1,2, and we feel we must note and carefully

decide it because it touches on constitutional and

statutory foundations of jurisdiction.

Jurisdiction of the claim as to Nuss

involves more than just the assertion of two claims,

one federal and one non-federal, in litigation between

the same parties plaintiff and defendant. E.g. Hurn v.

Oursler, 289 U.S. 238; United Mine Workers v. Gibbs,

383 U.S. 715. The asertion of a separate claim arising

out of the same operative facts concerning conduct of

the same parties, but as a pendent claim against an

added party, implicates the so-called “pendent party"

problem where jurisdiction was held lacking as to the

pendent party in Ayala v. United States, 550 F.2d

1196(9th Cir.), in an FICA case, The problem involves

both Article III constitutional power and the

statutory basis for such jurisdiction. See Aldinger v.

Howard, 427 U.S. 1,18.

We note that plaintiff's camplaint is based

on the single accident in the Rocky Flats parking lot.

Further, the claim against the United States under the

-30-

FTCA properly invoked the subject matter jurisdiction

conferred by that Act exclusively on the federal

district courts. And we are satisfied that the claim

asserted under the FTCA has sufficient substance so

that it was proper to invoke that jurisdictional

grant. To these circumstances we apply the guidelines

laid down in Gibbs which are instructive here in

deciding the pendent party question:

Pendent jurisdiction, in the sense of

judicial power, exists whenever there

is a claim “arising under [the] Consti-

tion, the Laws of the United States,

and Treaties made, or which shall be

made, under their Authority...." U.S.

- Const., Art. III, §2, and the relation-

ship between that claim and the state

claim permits the conclusion that the

entire action before the court camprises

but one constitutional "case." The

federal claim must have substance suffi-

cient to confer subject matter juris-

diction on the court. Levering & Garri-

ques Co. v. Morrin, 289 U.S. CER The

state and federal claims must derive

fran a cammon nucleus of operative fact.

But if, considered without regard to

their federal or state character, a

plaintiff's claims are such that he

would ordinarily be expected to try

them all in one judicial proceeding,

then, assuming substantiality of the

federal issues, there is in federal

courts to hear the whole. 385 U.S. at

725. (emphasis in original) (footnotes

omitted).

alia

We are persuaded that under these concepts _

subject matter jurisdiction of the claim against Nuss

exists, pendent to that of the claim under the FICA

against the Government, in accord with the constraints

of Article III. Dick Meyers Towing Service, Inc. v.

United States, 577 F.2d 1023, 1024 n.1(5th Cir.),

cert.denied, 440 U.S. 908; Johnston, et al. v. United

States, et al., 546 F.Supp 879(D.Kan.); Dumansky v.

United States, 486 F.Supp 1078, 1086-89(D.N.J.);

Pearce v. United States, 450 F.Supp 613, 619(D.Kan.);

Maltais v. United States, 439 F.Supp 540, 547

(N.D.N.Y.); cf.Florida East Coast Railway Co. v.

United States, 519 F.2d 1184(5th Cir.); Transok

Pipeline Co. v. Darks, 565 F.2d 1150, 1154-55 (10th

Cir.), cert.denied, 435 U.S. 1006; State of New Mexico

v. Molybdenum Corp. of America, 570 F.2d 1364, 1367

(10th Cir.). Contra, Kack v. United States, 570 F.2d

754(8th Cir.); Ayala v. United States, 550 F.2d 1196

(9th Cir.), cert.dismissed per stip., 435 U.S. 982;

Falk v. United States, 264 F.2d 238(6th Cir.). While

Aldinger rejected pendent jurisdiction in the context

of a claim principally asserted under §1983, the Court

=32<

noted that different considerations apply where there

is a case like this one under the FICA which confers

exclusive jurisdiction on the federal court!;

Other statutory grants and other align-

ments of parties and claims might call

for a different result. When the grant of

jurisdiction to a federal court is exclu-

sive, for example, as in the prosecution

of tort claims against the United States

under 28 U.S.C. §1346, the argument of

judicial econamy and convenience can be

coupled with the additional argument that

only in a federal court may all of the

claims be tried together....

427 U.S. at 18(emphasis in original).

Moreover, we find no congressional

disapproval of the exercise of such pendent party

jurisidiction in the PICA. The waiver of immunity,

granting jurisdiction to the federal district courts

of such tort suits against the Government, was made in

"sweeping language." United States v. Yellow Cab Co.,

340 U.S. 543, 547. Moreover the grant of jurisdiction

was made exclusively to the federal courts. Thus there

is no indication that Congress declined to extend

federal jurisdiction over such a pendent party as was

the case in Aldinger. See 427 U.S. at 16-19.

-33-

We hold, therefore, that subject matter

jurisdiction in the district court existed of the

claim against Nuss as one over which the district

court properly exercised jurisdiction, pendent to the

claim against the Government under the FTCA over which

the federal court has exclusive jur isdiction.2

II

Most of the facts concerning the accident

and the workmen's campensation defenses are undisputed

and can be stated briefly.

On the morning of May 20, 1976, plaintiff

left for work and picked up two co-employees who

shared a car pool with him. Plaintiff's employment at

this time was as a probe and cable fabricator. By

rotating the driving duties, plaintiff drove his car

approximately every third day. The routine of the car

pool was to arrive at the Rocky Flats plant in time to

have coffee and change into work clothing before the

beginning of their 7:30 a.m. shift.

Plaintiff was not being paid for work at the

time of the accident and pay was not to start until

7:30 a.m, As the riders approached the plant, they

=

passed through a security checkpoint where they

displayed their indentification badges to security

personnel. They continued to Parking Lot No 50 where

they were to leave the car and pass a final security

checkpoint before entering Building No. 750 to change

clothes. Parking places were unassigned in the parking

lot, which was used because it was most convenient.

The lot was used by persons other than plant

employees.

They parked in Lot No. 50. Plaintiff's

riders left the car and he stepped out of the

automobile. As he reached back into the car for his

lunch pail, he was crushed against the car by a

Government vehicle. This occurred at about 7:06 or

7:08 a.m.? Plaintiff suffered campound fractures of

both ankles, a tibia plato fracture of the right leg,

and a deep laceration of the upper left thigh about

twelve inches long. In August 1979 plaintiff's right

leg was amputated, a procedure necessitated by

osteomyelitis. His medical expenses have exceeded

$75,000.

Defendant Gary Nuss was the driver of the

tits.

Governnent vehicle. He was employed in the Rockwell

Plant Protection Department and was performing his

regular guard duties near the end of his midnight

shift. An investigation revealed that he had fallen

asleep at the wheel of the vehicle. The parties agree

that Nuss was acting within the course and scope of

his employment at the time of the accident.

Four days after the acciderit(May 24, 1976),

Rockwell filed an accident report with the Colorado

Division of Labor(the Division). In June 1976

Traveler's Insurance Company(Traveler's), Rockwell's

workmen's compensation carrier, submitted an admission

of liability for the accident to the Division. In

October and November of that year, plaintiff lodged an

accidental injury claim for campensation and an

"Election of Remedies" with the Division, electing

workmen's campensation coverage. He received benefits

fran both Traveler's and Social Security.

The Rocky Flats installation is situated on

a 6500 acre tract owned by the United States in fee

simple for the sole purpose of fabricating nuclear”

weapons parts.(United States v. State of Colorado, 460

=36-

~ 1184, 1186(D.Colo.); II R.53). Though the actual

operation of the plant is accomplished through private

companies under management contracts, no work on

behalf of any private entities is undertaken there.

Since June 1975 the plant has been operated under a

management contract with Rockwell, which is charged

with managing, staffing, maintaining, and operating

the plant. (II R. 67,70). Under the management

contract the Department of Energy provides all funds

to sustain the operation. No money or property of

Rockwell is used. The contract with Rockwell provides

that persons employed by Rockwell shall not be deemed

employees of the Government.(II R. 70).

Under Rockwell's contract with United

States, Rockwell is required to maintain workmen's

compensation insurance for the benefit of its

employees. (II R. 213, 233). The contract provides

that Rockwell will receive an annual negotiated fee

for its management services in addition to

reimbursement for its operating expenses, including

the cost of workmen's campensation insurance. (II R.

77, €2).

-37-

Plaintiff's camplaint averred that the

Government, Rockwell and mane were all liable for his

injuries due to their negligence. After discovery,

Nuss and Rockwell filed motions for summary judgnent

claiming the Colorado Workmen's Compensation Act(Act)

barred plaintiff's cammon law remedy. The Government

also sought summary judgment, arguing that its status

as a “statutory employer" under the Act freed it of

liability on such a claim.

The district court granted summary judgment

for Nuss and Rockwell, holding that the Act

constituted plaintiff's exclusive remedy. At a

subsequent status conference the Government made an

oral motion to dismiss for failure to state a claim on

which relief can be granted. Fed.R.Civ.P.,12(b)(6).

The motion was granted based on the “statutory

employer" argument and this timely appeal followed

fran all these adverse rulings.4

Plaintiff urges several grounds for reversal

of the summary judgments and dismissal. He contends

that under Colorado law injuries incurred by an

employee while travelling to and from work are not

—s

campensable under the Act, that plaintiff's common law

remedy is not foreclosed, and that material factual

issues concerning applicability of the Act prevent

summary judgnent. Plaintiff also maintains that

dismissal as to the United States was improper if the

Government, and not Rockwell, was the actual employer.

He reasons that, in this scenario, workmen's

compensation coverage secured by an employee of the

United States (Rockwell) will not insulate the UnitedJ

States from suit. Further, the employer United States

must make an election to be covered by the Act, which

plaintiff says it has not done. Plaintiff also argues

that the Act does not apply to territory owned in fee

simple by the United States.

Plaintiff further says that Rockwell

improperly influenced his decision to file a claim for

workmen's campensation benefits and forego a tort

action, Finally, plaintiff claims that the district

court's order is defective for failing to satisfy

specificity requirements of Rules 56 and 52, Federal

Rules of Civil Procedure.

oa

ITT

Plaintiff first contends that the district

court erroneously concluded that his injury arose “out

of and in the course of employment" as required by the

Colorado Workmen's Compensation Act.? Plaintiff

argues that this incorrect conclusion resulted in the

equally erroneous holding that the Act barred suit

against defendants Rockwell and Nuss by virtue mh, its

exclusivity provisions.® ik

Plaintiff correctly notes that, in general,

injuries going to and from work are not within the

ambit of the Act. Rogers v. Industrial Cammission, 40

Colo.App 313, 547 P.2d 116. Absent same special

circumstances, plaintiff urges, a parking lot injury

sustained before work hours is not causally related to

employment as contemplated by the Act.

In factual support of his contention that

the Act is inapplicable, plaintiff observes that: (1)

he was only exiting his car and had made no move

toward Building 750; (2) he was not paid for any time

spent changing clothes prior to starting time, though

he was paid for time spent changing in the afternoon;

-40-

(3) before work cammenced he had to clear a final

security check; (4) the parking lot was open to

persons other than Rockwell employees such as

repairmen and spouses picking up employees; (5) use of

the lot was not mandatory, and (6) parking spaces

within the lot were unassigned. (Appellant's Opening

Brief, pp.10-11). These facts indicate, he maintains,

that he was still in transit to his workplace at the

time of the accident and no causal connection linked

his injury to his employment.

The totality of the circumstances must be

examined in such case to determine if there is a

sufficient nexus between employment and injury to say

that the accident occurred within the scope of

employment. City & County of Denver School Dist. No. l

v. Industrial Commission, 196 Colo. 131, 581 P.2d

1162, 1163. Under Colorado law, an injury arises out

of and in the course of employment even though

incurred on the way to work if special circumstances

create a causal connection between the employee's

injury and employment. Woodruff World Travel, Inc. v.

-'

Industrial Camm., 38 Colo.App. 92, 554 P.2d 705,707.

The Act may encampass injuries received on the

premises after work hours, Maintenance Management,

Inc. v. Tinkle, 40 Colo.App. 80, 570 P.2d 840(1977)

(employee returns to premises without express

authority one and one half hours after work), off the

premises after work hours. State Campensation

Insurance Fund v. Walter, 143 Colo. 549, 354 P.2d 591

(employee walking along public street to assigned

parking place from university shop work place), and in

the employee parking lot shortly before work started.

Sieck v. Trueblood, 29 Colo.App.432, 485 P.2d 134./

Further, Colorado case law indicates that it

is not determinative that the employee is not required

to arrive at work in a car or that the employer is not

obliged to provide parking. Walter, 143 Colo. at ___,

354 P.2d at 594, quoting 99 C.J.S., Workmen's

Compensation §234, p.833. It is not decisive that the

employer of an injured employee is not the record

title owner of the parking lot where the injury

occurred. Woodruff, 38 Colo.App.at _, 554 P.2d at 706

(landlord makes parking lot available to tenant's

-42-

employees), or that the injured employee was not being

paid at the time of the injury. Kitchens v. Department

of Labor & Employment, 29 Colo.App. 374, 486 P.2d 474,

475-76(gunshot injury to plaintiff in employer's

parking lot just before work cammenced). Rather such

circumstances are only factors in the decisional

calculus. City & County of Denver, 196 Colo. at __,

581 P.2d at 1163. In all the authorities cited in the

proceding two nevenreche, the employee's injury was

adjudged work-related.

Plaintiff seeks to distinguish these cases

by contending that no causal connection between the

employment and injury can be established where the

“only thing present was the mere happenstance that

[plaintiff] was in the parking lot getting out of his

car." (Appellant's Opening Brief, p. 14). Plaintiff

argues correctly that the mere presence of the injured

employee on the employer's premises is, without more,

insufficient to invoke the bar of the Act. Finn v.

Industrial Comm., 165 Colo. 106, 437 P.2d 542; Rocky

Mountain Fuel Co. v. Kruzic, 94 Colo. 398, 30 P.2d

868; McKnight v. Houck, 87 Colo. 234, 286 P.279.

a

The Sieck case is instructive on the scope

of the Act in this type of case. There the injured

employee, a truck driver, arrived at his employer's

place of business, a trucking firm, at 7:15 a.m. for a

work shift cammencing at 7:30. AS was his custam(and

that of several other drivers), he drove his car

across the truck yard to warm up his tractor motor

before work. At that time he collided with a truck

driven by a co-employee. The Colorado Court of Appeals

held that the injury occurred within the scope of

employment. The court focussed on the mutual benefit

of this conduct to employee and employer, even though

the benefit to the employer was slight. 485 P.2d at

135. Accord, Berry's Coffee Shop, Inc. v. Palamba, 161

Colo. 369, 423 P.2d 2; Walsh v. Industrial Cammission,

34 Colo.App. 371, 527 P.2d 1180.

In the instant case, plaintiff testified at

deposition that his supervisior expected employees to

be dressed and ready for work at 7:30.8 (vII R. 71).

Further, Rockwell expected that employees would drive

or ride in private vehicles because there was no

-44-

other transportation to the plant. (IV R.415). While

other uses of Lot No. 50 occurred (IV R.307),

plaintiff admits the principal use was for employee

parking. (VII R. 51). Both plaintiff and his employuer

benefitted from the availability of the lot. See

Brogger v. Kezer, 626 P.2d 700(Colo.)(test to

determine if injury arises “out of and in the course"

of employment is whether acts or employee were solely

for his own benefit). The reciprocal benefit and the

express or yeaalied direction of plaintiff's supervisor

concerning start\ng time bring this case squarely

within the rule of Sieck and other authorities cited

above.

The Act is to be broadly and liberally

construed to achieve its salutary purposes. Finnerman

v. McCormick, 499 F.2d 212, 214(10th Cir), cert

denied, 419 U.S. 1049. Chief among the Act's purposes

is that the employee is favored with speedy

compensation regardless of fault, the employer is

granted immunity from common law claims, Frohlick

Crane Service, Inc. v. Mack, 182 Colo. 34, 510 P.2d

891, 893, and in return a vicarious statutory

-~45-

liability is substituted. See generally Thamas v.

Farnsworth Chambers Co., 286 F.2d 270, 273(10th Cir.).

The district court correctly recognized these purposes

by ruling that plaintiff's suit against Nuss and

Rockwell is barred by the Act. Sieck, supra, 485 P.2d

at 135; Varsity Amusement Co. v. Butters, 155 Colo.

330, 394 P.2d 603. We are persuaded that the ruling

was proper in light of the Colorado law.

IV

Plaintiff acknowledges that the Government

is not responsible under the Federal Tort Claims Act

for liabilities of truly “independent contractors,"

citing United States v. Orleans, 425 U.S. 807.

(Appellant's Opening Brief at p. 18). Plaintiff argues

that the question of whether Rockwell is a truly

independent contractor is one of fact which cannot be

decided on the present record so that the summary

dismissal as to the Government was error.

Reaching the substance of the issue,

plaintiff further says that the United States retains

virtually camplete control over production of nuclear

weapons because of their very nature. Therefore

-46-

Rockwell is only an “alter ego" acting on behalf of

the Government. Plaintiff asserts that the United

States has not made an election to be covered by the

Act as required. Furthermore he says a suit like his

is not barred where workmen's campensation coverage is

secured by Rockwell as an “alter ego." Finally

plaintiff contends the Act does not apply to territory

owned in fee simple by the United States. Thus

palintiff maintains he is entitled to recover fram the

Government for negligent supervision of its vehicle

and Nuss. (I R.2).

We must reject the argument that genuine

issues of fact barred the dismissal as to the

Government. We.sustain the ruling of the district

court without determining whether an "independent

contractor" relationship existed in the ordinary

sense. We hold instead that on the undisputed facts

Colorado law, made applicable under the FIcA, afforded

the Government immunity fram this action as a

“statutory employer" since Rockwell, as required by

its contract to perform work for the Government,

obtained workmen's campensation insurance which

-,

ieee

covered the plaintiff's injury.

The FTCA authorizes suit against the United

States for personal injuries inflicted by the

negligent or wrongful acts or ommissions of its

employees "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." 28 U.S.C. §$§1346(b) and

2674. Thus plaintiff's right to prevail on the merits

of his tort claim turns on the interpretation of

Colorado law. The Colorado Workmen's Compensation Act

provides, inter alia, a derivative immunity froma

negligence suit to anyone who contracts with another

for work to be done when the party to whom the work is

contracted secures workmen's compensation insurance.

C.R.S. §8-48-101(1),(2).? The Act declares that the

party who contracts the work away shall be construed

to be the employer. §8-48-101(1). If the party to whan

this statutory employer has contracted work out fails

to secure workmen's campensation insurance, the

statutory employer is liable to respond in damages to

the injured employees of the other party. Edwards v.

wii

Price, 191 Colo. 46, 550 P.2d 856, 860, appeal

dismissed, 429 U.S. 1056. This statutory employer

immunity was-recently at issue in Posey v.

Intermountain Rural Electric Ass'n, 41 Colo.App. 7,

583 P.2d 303. There the court stated that a

"corporation will be determined to be a statutory

employer when it contracts out work which is a part of

ies vend webidemepane’ Wich weak: codidastiy be

accanplished with its own employee," id. at 304, and

held the defendant immune from suit.

Plaintiff nevertheless argues that the

Government and not Rockwell is the actual empoloyer at

Rocky Flats. He relies on the testimony of James

Nicks, the Department of Energy assistant area manager

for administration for the Rocky Flats area in a

criminal trespass case unrelated to the present

action.(V. R. 484-500). Nr. Nicks testified that

approximately 50 Department of Energy employees are

stationed at Rocky Flats, with a third of them

involved in monitoring operational aspects of the

facility such as inspection and quality control. These

facts, plaintiff reasons, demonstrate that the United

-49-

States is the actual employer. Therefore, workinen's

compensation coverage secured by Rockwell does not

shield the Government, especially if it has not made

the election to be covered as required by the Act.

Plaintiff says that a trial is required to ascertain

the Government's exact status and "[p]laintiff would

suggest that ieaiteiibin secured by someone else will

not suffice under the Colorado Workmen's Compensation

Act so as to preclude a lawsuit.” (Appellant's Opening

Brief at 19).

Plaintiff does not cite Colorado authority

for this proposition. It appears that his

interpretation runs against the plain language of

§8-48-101(2) itself. See note 9, supra. The Act

specifically bars an “action of any kind," inter alia,

against the person contracting out the work when the

party to wham the work is contracted obtains workmen's

campensation coverage. In effect, the Act requires an

employer such as the United States to make certain

that the party to wham the work is contracted has

obtained such insurance or face the risk of suit. In

this manner the Legislature has assured that

~50-

employers will not evade the protective policy of the

Act by contracting with uninsured parties to perform

the employer's work. Frohlick Crane Service Inc. v.

Mack, 510 P.2d 891, 893(Colo). Colorado case law does

not indicate that these duties are imposed solely for

the principal-independent contractor relationships as

the term is understood in agency law. Rather the

statute is intended to cover normal business conducted

through the activities of another under various kinds

of contractual relationships. Faith Realty & Develop-

ment Co. v. Industrial Camm., 170 Colo. 215, 460 P.2d

228, 230. This conclusion is supported by the fact

that the immunizing provision also extends to lessors

and lessees. See n.9, supra.

Plaintiff's argument that the United States

has not elected coversge is not persuasive. First,

the statutory employer immunity provisions do not

speak of an express election. Second, as noted, the

United States—Rockwell contract requires Rockwell to

maintain workmen's campensation insurance as an

allowable operating expense. (II R.213,82). Finally,

Rockwell did in fact obtain and maintain such insur-

ance. Moreover, Plaintiff's contention that state

-_ + on

workmen's campensation acts co not apply to land owned

by the Government is patently untenable. See 40 U.S.C.

§290;10 Travelers Insurance Co. v. Cardillo, 141

F.2d 362, 363(D.C.Cir.).

Had a private corporation, instead of the

Government, as part of its normal business contracted

with another for the operation of Rocky Flats, the

corporation would be immune from suit by plaintiff as

a statutory employer. See e.g., Posey, 583 P.2d at

304-305; O'Quinn v. Walt Disney Products, Inc., 177

Colo. 190, 493 P.2d 344(construing C.R.S. §81-9-1

(1963), the predecessor Workmen's Compensation Act);

Herriot v. Stevenson, 172 Colo. 379, 473 P.2d 720(to

the same effect, but finding intermediate employer

uninsured). Plaintiff has not explained why the United

States should be denied the statutory employer

immunity available to a private party. No reason for

such a result is apparent. Despite whatever

characterization plaintiff appends to the United

States-Rockwell relationship, we are persuaded that

the statutory employer immunity bars his suit under

Colorado law and that |the district court properly

-52-

dismissed his suit against the Goverrment. See Roelofs

v. United States, 501 F.2d 87, 93(5th Cir.), cert.

denied, 423 U.S. 830(applying Louisiana workmen's

campensation law to an Army munitions plant operated

by Speery Rand); Oveda v. United States, 508 F.Supp.

255 (E.D.Tex.) (collecting other federal cases applying

to the United States the statutory employer defense);

Scanlon v. United States, Civil No. 78-F-509(D.Colo.,

June 21, 1979) .11

f v

There remain several miscellaneous arguments

of plaintiff which we will briefly treat.

Plaintiff argues that agents of Rockwell and :

Travelers aes influenced him to elect the

workmen's campensation exclusive remedy in order to

reduce their liability. (See VII R. 84-87). The

district court stated that there simply was no elec-

tion to be made. The workmen's compensation claim was

received by the Department of Labor and Employment on

October 26, 1976,(I R.36), five months after the acci-

dent. (VII R.53). There are no circumstances indica-

ting that defendants’ opportunings overcame the will

-53-

of plaintiff and his counsel. However, the district

court's holding on this point is grounded on the idea

that there was no prejudice to plaintiff when he had

no other remedy aside fram workmen's campensation

benefits. This conclusion is sound. See Varsity

Amusement Co. v. Butters, supra, at 394 P.2d at 305.

No reasoning based upon plaintiff's “election” appears

to have entered into the court's decision to dismiss

the action against the Government or to grant the

summary judgment for Rockwell and Nuss. (VI R. 2-13).

Plaintiff also contends that the district

court's orders are defective for failing to state the

facts on which it relied or the reasoning it used.

Plaintiff urges that the “provisions of Rule 56,

Federal Rules of Civil Procedure, cannot be read

separately from Rule 52 which requires specificity in

a trial court's findings of fact and conclusions of

law." (Appellant's Opening Brief, page 7). However

Rule 52(a) expressly states, in pertinent part, that

"(fJindings of fact and conclusions of law are

unnecessary on decisions of motions under Rules 12 or

56 or any other motion except as provided in Rule

-54-

41(b)." See also Williams v, Eaton, 443 F.2d 422,

433(10th Cir.). Because the court's orders were not

entered pursuant to Rule 52, which requires findings

after a non-jury trial, or pursuant to Rule 41(b)

requiring similar findings when a plaintiff's case is

diuatoned after presentation of his evidence, the

language quoted above from Rule 52 would appear to

dispose of plaintiff's contention. Further, plaintiff

was advised of the reasoning of the court by the

judge's orders and camments on record. (V R.

514-16) ;VI R. 2-13).12

Lastly, plaintiff maintains that the failure

of defendants to file a report with local police shows

that defendants did not treat Colorado law as applying

to the plant and that this further demonstrates that

the provisions of the Colorado Workmen's Compensation

Act are also inapplicable to the plant on federal

land. Plaintiff notes that C.R.S. 1973 §§42-4-1401,

1403 & 1406 require police reports of all accidents

within the state resulting in injury. These sections

are not a part of the Workmen's Compensation Act which

contains its own reporting requirements. C.R.S. 1973

-55-

§8-45-101. Defendants camplied with the reporting

requirements of that Act. (IV R. 308). Plaintiff's

argument on this point is without merit.

VI

We are convinced that no error is

demonstrated in the rulings made by the district court

on this record. Accordingly, the judgments entered

are

=~56-

FOOTNOTES

1 In Aldinger the Court quoted an

observation fram Kenrose Mfg. Co. v. Fred Whitaker

Co., 512 F.2d 890, 894(4th Cir.), that the arguments

for federal pendent jurisdiction are not the only

consideration to be taken into account; that

especially is so where the efficiency the plaintiff

seeks is available in the state courts. 427 U.S. at

15. In the instant case, of course, such efficiency is

unavailable because the FTCA vests exclusive

jurisidction of the claim against the government in

the federal courts.

2 While there is no express statement in

our record that the district court concluded it should

exercise its discretion to entertain the claim against

Nuss, that determination is implicit in the

disposition of the claim against him on the merits

since the camplaint alleged only pendent jurisdiction

as to Nuss. The amended complaint alleged that

"({j)urisdiction over defendant NUSS is pendent to the

jurisdiction over the other defendants." (I R.1). The

Government's answer stated that such conclusions of

law need not be admitted or denied. (I R. 6). The

answer of Rockwell and Nuss stated that they were

without sufficient knowledge and information to form a

belief as to this allegation and therefore denied it.

<x x Se

3 plaintiff's deposition testimony

indicates that he arrived at Lot No. 50 at 7:08 a.m.

(VII R.15). A Rockwell investigation found that the

accident occurred at 7:06 a.m.(III R. 533).

4 Though both counsel for the Government

and the court discussed the motion as one brought

under Rule 12(b)(6), Fed.R.Civ.P., we note

that matters outside of the pleadings were presented

and relied upon in disposition of the motion.

Therefore, we treat the motion as a "speaking motion,"

or motion for summary judgment, as provided in Rule

12(b), Fed.R.Civ.P.

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5 C.R.S.973 §8-52-102 states:

(1) The right to campensation provided

for in [the Act] in lieu of any other liability to any

person for any personal injury or death resulting

therefore, shall obtain in all cases where the

following conditions occur:

(a) Where, at the time of the injury,

both employer and employee are subject to the é

provisions of said article and where the employer has

camplied with the provisions thereof regarding

insurance;

(b) Where, at the time of the injury,

the employee is performing service arising out of and

in the course of his employment;

(c) Where the injury or death is

proximately < caused by an injury or occupational

1sease arising out of and in the course of his

employment and is not intentionally self-inflicted.

(Emphasis added).

6 C.R.S. §8-42-102 provides:

“An employer who has complied with the

provisions of Articles 40 to 54 of this title,

including the provisions relating to insurance, shall

not be subject to the provisions of Section 8-42-101;

nor shall such employer or the insurance carrier, if

any, insuring the emplcyer's liability under said

articles be subject to any other liability for the

death or personal injury to any employee, except as

provided in said article; and all causes of action at

law, suits in equity, proceedings, and statutory and

cammon law rights and remedies for and on account of

such death of or personal injury to any such employee

and accruing to any persons are abolished except as

provided in said articles." (Bmpahsis added).

The Act has been construed to bar suits by

one employee against a co-employee for injuries

sustained while both were acting within the course of

their employment, Sieck v. Trueblood, 29 Colo. App.

_

432, 485 P.2d 134,135; C.R.S. 1973 §8-42-102, just as

a claim against an employer is barred. Varsi

Amusement Co. v. Butters, 155 Colo. 330, P.2d 603,

605. From the record it is clear that Nuss was acting

within the course and scope of his employment by

Rockwell and we reach the same conclusion as to

plaintiff for reasons that follow.

7 See also Divelbiss v. Industrial Cam.,

140 Colo. 452, 344 P.2d 1084, 1086, quoting with

roval 1 Larson's Workmen's Campensation Law,

S160. p. 313: "The course of employment, for

employees having a fixed time and place of work,

embraces a reasonable interval before and after

official working hours while the employee is on the

premises engaged in preparatory or incidental acts

such as washing or changing his clothes."

8 In Appellant's Opening Brief, p. 10,

plaintiff states that his arrival time was not "a

result of any employer directive or request." At

plaintiff's deposition the following colloquy took

place(VII R. 71-72):

Q. And was it Mr. Johnson's expection

that you would be there ready to work

at 7:30 with coveralls on?

A.[Plaintiff] Yes, he was starting that.

Q. So you were expected then to be ready

at 7:30 with your coveralls on to

start work on your shift, is that correct?

A. In your area--or 7:30, you mean?

Q. Yes.

A. Right.

Q. So this was one of the reasons for

coming samewhat earlier, was to be able

to get through the security checkpoint,

get to the locker, change clothes and be

ready to work at your particular area in

76 at 7:30 a.m.? Is that correct?

A. Yes, and to kind of have a cup of

coffee before we start.

The disparity between these statements and plaintiff's

brief on appeal does not appear to create a contested

-59-

factual issue preventing summary judgment. See e.g.,

H.B. Zachry Co. we O'Brien, 378 F.2d 423(10th Cir.).

In light of the “totality of circumstances" test used

by Colorado courts, we feel the conclusion drawn by

the district court from the facts as detailed is not

in error.

9 Section 8-48-101(2) provides:

(2) If said lessee, sublessee, contractor,

or subcontractor is himself an employer in the doing

of such work and, before commencing such work insures

and keeps insured his liability for campensation as

provided in articles 40 to 54 of this title, neither

said lessee, sublessee, Contractor, or subcontractor,

its employees, or its insurer shall have any right of

contribution or action of any kind, including actions

under sectioon 8-52-108, against the person, campany,

or corporation operating or engaged in or conducting

any business by leasing or contracting out any part or

all of the work thereof.

10 the relevant provisions of 40 U.S.C.

§290 read as follows:

Whatsoever constituted authority of each of

the several States is charged with the enforcement of

and requiring campliances with the State workmen's

campensation laws of said States and with the

enforcement of and requiring campliance with the

orders, decisions, and awards of said constituted

authority of said States shall have the power and

authority to wet such laws to all lands and premises

owned or held Un States of America by deed

or act of cession, by purchase or otherwise, which is

within the exterior boundaries of any State and to all

projects, buildings, constructions, improvements, and

property belonging to the United States of America,

which is within the exterior boundaries of any State,

in the same way and to the same extent as if the said

premises were under the exclusive jurisdiction of the

State within whose exterior boundaries such place may

be. (Emphasis added).

-60-

11 we are mindful that we denied a

statutory employer defense to the Government in

Richardson v. United States, 577 F.2d 133(10th Cir.).

There we applied Florida law and determined that the

Government was not entitled to the statutory employer

defense because it was not a “contractor,” since it

had no contractual relationship with the subcontractor

which employed the plaintiff. Id. at 135. We

distinguished Roelofs by noting ig that it was assumed in

that case that the United States would have been

immune from a third party tortfeasor action, had it

been a private employer. Id. at 137. However, in

Richardson we concluded that, if the United States had

been a private employer, it would not have been

immane. Id. In light of these substantial difference,

Richardson does not conflict with our conclusion here.

See 1d. at pp.135-37.

12 We are mindful of our decisions in

Hill v. Morton, 525 F.2d 327(10th Cir.); Heber Valley

Milk Co. v. Vv. Butz, 503 F.2d 96(10th Cir.); and Nichol

Vv. United States, 501 F.2d 1389(10th Cir.). We feel |

that their requirements of findings as a statement of

reasons for ruling in particular types of cases are

not at variance with what we hold here, namely that

the district court's orders, taken together with the

court's statements from the bench, gave the grounds

for the ruling adequately.

-61-

ORDER DENYING PETITION FOR REHEARING

MAY TERM-May 23, 1984.

Before the Honorable Oliver Seth, Honorable William J.

Holloway and Honorable Monroe G. McKay, Circuit Judges

LEROY STEWART,

Plaintiff-Appellant,

Vv. No. 80-1329

en

)

)

)

)

)

)

UNITED STATES OF AMERICA, GARY D. )

NUSS, ROCKWELL INTERNATIONAL )

CORPORATION, a Delaware corpora- )

tion, )

)

)

Defendants-Appellees.

This matter cames on for consideration of

the petition for rehearing filed by appellant in the

above captioned cause.

Upon consideration whereof, appellant's

petition for rehearing is denied.

HOWARD K. PHILLIPS, Clerk.

ios oe

DISTRICT COURT ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

LEROY STEWART,

Civil Action No.

78-K-1061

Plaintiff,

Vv.

UNITED STATES OF AMERICA, GARY D.

NUSS, and ROCKWELL INTERNATIONAL

CORPORATION, a Delaware corpora-

tion,

meee ee eee ee

Defendants.

KANE, District Judge

The above-entitled action is currently

before the court on defendant's motions for summary

judgment. As set forth below, the motions are granted

in part and denied in part.

The asad tel in Colorado makes it clear that

plaintiff's injury was compensable under the Workmen's

Compensation Act. See State Campensation Insurance

Fund v. Walter, 143 Colo. 549(1960)(en banc); Woodruff

World Travel, Inc. v. Industrial Commission, 38

Colo.App.92, 554 P.2d 705(1976), cert. denied, _

Colo. (1974); Deterts v. Times Publishing Company, 38

Colo. App. 48, 552 P.2d 1033(1976),

-63-

ies

cert.denied, { Colo.__(1976); Campbell v. Gates Rubber

H

Company, _Colo.App. _, 526 P.2d 679(1974); Sieck v.

Trueblood, 29 Colo.App. 432, 485 P.2d 134(1971); and

Kitchens v. Department. of Labor and Employment, 29

Colo.App. 374, 486 P.2d 474(1971). Accordingly,

plaintiff's exclusive remedy against defendant

Rockwell International is pursuant to workmen's

campensation,

Plaintiff has complained that defendant

Rockwell International took certain courses of action

to preclude plaintiff fram an election of a judicial

remedy and to reduce its own liability. In the

situation here, where an employer has camplied with

the Workmen's Campensation Act, there is simply no

election, since, as stated above, the workmen's

compensation res Jy is exclusive. See C.R.S.,

§8-42-102(1973); State Compensation Fund v. Foulds,

167 Colo. 123, 128-29(1968); Varsity Company v.

Butters, 155 Colo. 330, 335-37(1964).

There is no dispute that defendant Gary D.

Nuss was acting in the scope of his employment at the

time of the accident. While the workmen's compensation

-64-

preserves judicial remedies against third parties not

in the same employ as the complaining employee, see

C.R.S., §8-52-108(1973), the statute is a bar toa

suit by an employee against a co-employee for injuries

sustained when both were acting within the scope and

course of their employment. See Sieck v. Trueblood,

supra, 485 P.2d at 135; Nelson v. Harding, 29 Colo.

App. 76, 480 P.2d 851(1970), cert. denied, Colo. _,

(1971).

The claim against the United States is more

problematic. The Federal Tort Claims Act is both a

limited waiver of sovereign imminity and a grant of

jurisdiction. See 28 U.S.C. §1346 and 2671. The latter

section makes it clear that the United States is not

vicariously liable for the torts of its independent

contractors. See United States v. Orleans, 425 U.S.

807(1976); Logue v. United States, 412 U.S. 521(1973).

The issue becames whether this court has jurisdiction

over the claims asserted against the United States.

Whether Rockwell International is an independent

contractor, or the Rocky Flats facility is a federal

establishment or instrumentality are questions of

~65-

material fact that cannot be resolved here by way of

summary judgment. I note that Judge Matsch has

recently described the operations at Rocky Flats in

United States v. State of Colorado, 460 F.Supp. 1184

(D.Colo. 1978).

While jurisdiction cannot be assumed, I

think it is fair in the present situation to point out

that even should this court have jurisdiction, the

applicable law would give the United States the same

immunity under the workmen's campensation that it

gives to other "statutory employers." See C.R.S.

§8-48-101(1973); Edwards v. Price, 191 Colo. 46(1976);

Scanlon v. United States, Civil Action No. 78-F-509

(D.Colo. June 21, 1979). 3ee generally Richardson v.

United States, 577 F.2d 133(10th Cir., 1978); Roelofs

v. United States, 501 F.2d 87(5th Cir. 1974). While I

express no view on the jurisdictional question itself,

the parties’ decision on whether to pursue that

question may be better informed in light of the above.

Accordingly,

IT IS ORDERED that defendants’ motions for

summary judgment as to defendants Rockwell Interna-

-66-

| tional and Gary D. Nuss be and hereby are granted,

each party to bear his or its own costs.

IT IS FURTHER ORDERED that defendants'

motion for summary judgment as to defendant United

States be and hereby is denied.

DATED at Denver, Colorace this 3d day of

March, 1980.

JOHN L. KANE, JR.

U.S.District Judge

-67-

STATUTES :

40 U.S.C. 290

Whatsoever constituted outhority of eneh of the several States as

charged with the enforeenseot of and requiring” eotmplinne ss with the

State werkmen’s compen: ation buws of said States and with the en-

forcement of and requiring: complianes with the orders, decisions,

and awards of said constituted anthertty ot said States «ted have

the power and authority to apply such Paws to all Lunds aad) pie

ises owned or held by the Crated States of Amerien by deed or

act of cession, by purehase or otherwise, whieh is within the os-

ferior boundaries of any State and fo ail projects, Parbdings, cath

structions, improvements, aad property belomecu ft the United

States of America, which i within Che exterior boundaries of any

State, in the same way and to the satne extent as if said: premises

were under the exclusive juvisdicticn’ of the State within whose

exterior boundaries sueh place may be

Vor the purposes set out in this section, the United States oa

America vests in the several States within whose exterior boundaries

such place may be, imseiar cos the er forcement af State woerkinen’s

compensation Jaws are affected, (he meht, power, sped ccaulhrowits

nforesaid: Provided, hewover, That by the pamsce of tats seetton

the United States of America in mowiloe relimerudies ils putasdie!ion

for any purpose over the property named, with the exception of es

{onding: to the several Sfates within whose exterior bourdaites ota

place inay be only the power ahbeve eoummerabed 1 Yatinie te the on

forcement of their State Werknren’s compensation Taw. ce. heres

desiznated: Trovided farther, Th vothine au flits seetion sheath be

construed to modify or amend the United States Impiosees’ Conipen-

sation Act, as aniwernded

-68-