Opposition Brief — Stewart v. United States

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No. 84-287 oct 18 1984

—T ALEXANDER LT STEVAS, |

In the Supreme Court of the Hni

OCTOBER TERM, 1984

LEROY STEWART, PETITIONER

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FORA WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Rex E. LEE

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Cases:

Brogger v. Kexer, 626 P.2d 700 ............6-:. 2

Capetola v. Barclay White Co.,

139 F.2d 556, cert. denied, 321 U.S.

nts ins Gabe SRE RO ETA eRe anes. eae 6

Faith Realty & Development Co. v. Industrial

Commission, 170 Colo. 215, 460 P.2d

Pe eee eC eee CERES GHEE EN 644 60-0 00% 5

Peak v. Small Business Administration,

gk A a eS te 6

Prescott v. United States, 523 F. Supp.

a no cad wcde tsncacecces 6

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

SE, Ge OI, I os sec ed/eunccccces.s 6

Sieck v. Trueblood, 29 Colo. App. 432,

EE oc Cad Ubahwew lds G UNS deca s ese 2

Wallach v. Lieberman, 366 F.2d 254 ........... 6

Statutes:

Federal Tort Claims Act:

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Pe es Te Oe OE nak dca ccaneudusevads 2

ena cai eirers swede eaees 3

Small Business Act, 15 U.S.C.

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EE scale kice heed ctnncsvlaeeeees 4,5

II

Page

Statutes—Continued:

Colorado Workmen’s Compensation Act,

Colo. Rev. Stat. (Supp. 1983):

§ $-48-101(1} * 6s cc hes ie ee ee 3,4

6 8-46-1002) 6 6cccacde epee 3

§ $-52-1GZ IC) . 0.200560 bsnneesaneeesw anes 2

In the Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-287

LEROY STEWART, PETITIONER

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioner contends that the court of appeals erred in

holding that his claim against the United States under the

Federal Tort Claims Act :was barred by provisions of the

Colorado Workmen’s Compensation Act.

1. This suit arises out of a traffic accident in the parking

lot of the Rocky Flats nuclear weapons facility in Colorado.

This facility is owned by the United States and operated by

respondent Rockwell International Corporation (Rock-

well). As petitioner was leaving his parked car on the way to

work, he was injured by a government vehicle driven by

respondent Gary Nuss, who was employed in the Rockwell

Plant Protection Department. Pet. App. 34-36.

Petitioner filed suit in the United States District Court

for the District of Colorado against the United States,

Rockwell, and Nuss, alleging that the accident resulted

(1) :

Ee a a

2

from their negligence. The district court granted summary

judgment for Nuss and Rockwell, ruling that petitioner’s

injury arose “out of and in the course of his employment”

within the meaning of the Colorado Workmen’s Compen-

sation Act (the Act), Colo. Rev. Stat. § 8-52-102(1)(c)

(Supp. 1983), and that the Act constituted petitioner’s

exclusive remedy against his employer or a co-employee.

Pet. App. 63-67. The government then moved that the claim

against it be dismissed as well. The government argued that

it was immune under the Act by virtue of its contract with

Rockwell. Under that contract, Rockwell assumed the

responsibility for managing, staffing, maintaining, and

operating the plant (Pet. App. 37). The district court

granted this motion and dismissed the claim (id. at 63-67).

The court of appeals affirmed (Pet. App. 26-61). The

court agreed with the district court’s determination that

petitioner’s accident arose in the course of his employment

(id. at 40-46). Stating that this issue turned on whether

petitioner’s presence in the parking lot had been solely for

his own benefit or for the mutual benefit of petitioner and

his employer (Brogger v. Kezer, 626 P.2d 700 (Colo. App.

1980)), the court noted petitioner’s deposition testimony

that his supervisor expected him to be dressed and ready for

work at 7:30 a.m., approximately 20 minutes after the time

of his accident in the parking lot (Pet. App. 44-45). The

court of appeals also observed (ibid.) that in considering a

similar factual situation involving a parking lot accident

prior to work, the Colorado Court of Appeals had held that

the injury occurred within the scope of employment even

though the benefit to the employer was slight. Sieck v.

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

The court of appeals then held (Pet. App. 46-53) that the

claim against the United States under the Federal Tort

Claims Act (FTCA), 28 U.S.C. 1346(b), 2671 et seq., was

barred by the Colorado Workmen’s Compensation Act.

3

The court noted (Pet. App. 48) that the FTCA waives

sovereign immunity for tort liability “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). See

also 28 U.S.C. 2674. The court observed that one who

contracts out work is deeried an employer under the Colo-

rado Workmen’s Compensation Act (Colo. Rev. Stat. §

8-48-101(1) (Supp. 1983)), that he is cloaked with a deriva-

tive immunity when the party to whom he contracts out

work secures workers’ compensation insurance (Colo. Rev.

Stat. § 8-48-101(2)), and that alternatively, he may be liable

in damages if the party to whom he contracts out work fails

to procure such insurance (Pet. App. 48).!

Treating the dismissal of the claim against the govern-

ment as the granting of summary judgment (Pet. App. 57

n.4), the court of appeals rejected “the argument that

genuine issues of fact barred the dismissal as to the

Government” (id. at 47). The court held (id. at 47-48) that

'Section 8-48-101(1) provides in pertinent part:

Any person, company, or corporation operating or engaged in or

conducting any business by leasing or contracting out any part or

all of the work thereof to any lessee, sublessee, contractor, or

subcontractor, irrespective of the number of employees engaged

in such work, shall be construed to be an employer. * * *

Section 8-48-101(2) provides:

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 compensation 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

* * * against the person, company, or corporation operating or

engaged in or conducting any business by leasing or contracting

out any part or all of the work thereof, or against its employees,

servants, or agents.

4

“on the undisputed facts Colorado law, made applicable

under the FTCA, afforded the Government immunity from

this action as a ‘statutory employer’ since Rockwell, as

required by its contract to perform work for the Govern-

ment, obtained workmen’s compensation insurance which

covered [petitioner’s] injury.” The court rejected (Pet. App.

48-51) the contention that a trial was required to determine

the government’s precise role in running the plant since the

undisputed facts placed the relationship within the scope of

Section 8-48-101(1). The.court also rejected the argument

that the United States had not elected coverage under the

Act, noting that the Act does not require such an election

and that Rockwell obtained insurance as required by its

contract with the government (Pet. App. 51). Finally, the

court ruled (id. at 51-52) that, contrary to petitioner’s con-

tention, Congress had made clear that state workers’ com-

pensation statutes may apply on land owned by the federal

government. 40 U.S.C. 290.

2. Petitioner’s claim plainly does not warrant review by

this Court. The decision below does not conflict with any

decision of this Court or any other court of appeals and

does not present any important issue of federal law.

Moreover, the court of appeals’ decision is clearly correct.

Petitioner contends (Pet. 11-16) that summary judgment

should not have been granted and that the question of

whether the accident occurred during the course of employ-

ment should have been set for trial. However, petitioner

does not dispute the facts upon which the court of appeals

concluded that his use of the parking lot was for the mutual

benefit of employer and employee; he does not indicate

what new relevant facts might be adduced at a trial; nor

does he explain how the court of appeals erred in its inter-

pretation of the relevant Colorado case law. Instead, peti-

tioner merely cites propositions recognized and discussed

by the court of appeals en route to its conclusion. The lower

5

courts’ resolution of this fact-bound issue does not warrant

further review.

Petitioner also contends (Pet. 16-24) that the lower courts

erred in holding that the Colorado Workmen's Compensa-

tion Act applies to the United States in the situation here.

Petitioner appears to argue (Pet. 17-19, 22-24) that there

were material issues of fact regarding the precise nature of

the relationship between the government, on the one hand,

and Rockwell and its employees, on the other. However, as

the court of appeals declared, “whatever characterization

[petitioner] appends to the United States-Rockwell rela-

tionsl..p, we are persuaded that the statutory employer

immunity bars his suit under Cclorado law” (Pet. App. 52)

(emphasis added). Colorado case law leaves no doubt that

this ruling is correct. See Faith Realty & Development Co.

v. Industrial Commission, 170 Colo. 215, 460 P.2d 228, 230

(1959) (“The [workmen’s compensation] statute is intended

to cover every business conducted by one through the activ-

ities of another under any kind of a contract.”).

Finally, petitioner argues (Pet. 19-20) that the Colorado

Workmen’s Compensation Act does not apply on federal

property, especially since no Colorado statute provides for

such application. However, 40 U.S.C. 290 unequivocally

provides that the states are free to apply their workers’

compensation law on federal property.2 Moreover, it has

240 U.S.C. 290 provides in pertinent part: ~

Whatsoever constituted authority of each of the several States is

charged with the enforcement of and requiring compliances with

the State workmen’s compensation laws of said States and with

the enforcement of and requiring compliance with the orders,

decisions and awards of said constituted authority of said States

shall have the power and authority to apply such laws to all lands

and premises owned or held by the United States of America

72

Petitioner cites two cases (Pet. App. 18) that he suggests create

“confusion” concerning the meaning of this statute. Petitioner does not

| a TE

6

long been recognized that a state legislature need not take

any special action in order to take advantage of this statute.

Wallach v. Lieberman, 366 F.2d 254, 258 (2d Cir. 1965);

Capetola v. Barclay White Co., 139 F.2d 556, 559 (3d Cir.

1943), cert. denied, 321 U.S. 799 (1944); Prescott v. United

States, 523 F. Supp. 918, 930(D. Nev. 1981), aff'd, 731 F.2d

1388 (9th Cir. 1984). Since the Colorado statute applies to

the facts of this case, the circumstance that the accident

occurred on federal property is of no consequence.

It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied.

Rex E. LEE

Solicitor General

OCTOBER 1984

explain what “confusion” he finds in these cases. In any event, it is clear

that neither case supports petitioner’s argument thai a state workers’

compensation statute may not apply on federally owned property. In

Roelofs v. United States, 501 F.2d 87 (Sth Cir. 1974), cert. denied, 423

U.S. 830 (1975), the court noted that 40 U.S.C. 290 did not impose an

obligation on the government to obtain Louisiana compensation insu-

rance but ruled that the government was nevertheless immune as a

“statutory employer” under Louisiana law. In Peak v. Small Business

Administration, 660 F.2d 375 (8th Cir. 1981), the court held that an

empioyee’s claim against the Small Business Administration for a

workers’ compensation award as “statutory employer” could not be

brought under the “sue and be sued” section of the Small Business Act,

15 U.S.C. 634(b\(1), but instead fell under the FTCA.

DOJ-1984-10