Certiorari Granted April 5, 1982. See 102 S.Ct. 1766.
Opinion for the court filed by Circuit Judge TAMM.
In this case the Government appeals from a judgment holding it liable for a claim in contribution or indemnity entered by the United States District Court for the District of Columbia. Believing that the district court erred in failing to find the exclusivity provision of the Federal Employees' Compensation Act a bar to such a claim, we reverse and remand.
The factual circumstances leading to this litigation are set out in Schneider v. Lockheed Aircraft Corp., 658 F.2d 835, at 838-839 (D.C.Cir.1981). For present purposes it suffices to note simply that on April 4, 1975, an accident occurred aboard a Lockheed-manufactured C5A aircraft that was being used by the United States to transport approximately 301 passengers, including at least 226 Vietnamese orphans, from Saigon to the United States. The plane crashed, killing approximately 144 persons.
On November 4, 1975, Vincent C. Thomas, Jr., filed a complaint as administrator of the estate of Ann Nash Bottorff, a civilian employee of the Department of the Navy, seeking damages for her wrongful death and for injuries she suffered prior to her death.
The conflict between doctrines governing third-party suits for contribution or indemnification and statutory exclusive remedy provisions of workmen's compensation laws is "[p]erhaps the most evenly-balanced controversy in all of workmen's compensation law ...." Larson, Workmen's Compensation: Third Party's Action Over Against Employer, 65 Nw. U.L.Rev. 351, 351 (1970). The policies underlying the two sides of this controversy are simply stated but starkly opposed. On the one hand, the employer, here the federal government, can point to the explicit congressional statement that its liability "with respect to the injury or death of an employee," 5 U.S.C. § 8116(c), is limited to the compensation payments set out in the Act. Assuming arguendo the primary
In examining this case, it seems clear that "[w]hen an employee covered by workmen's compensation sues in negligence a third party who then impleads the employer, there is no way fully to satisfy all policies coming into play." Galimi v. Jetco, Inc., 514 F.2d 949, 952 (2d Cir. 1975). We believe that the controversy is no longer a live one, at least as far as FECA is concerned. The pertinent provision in FECA states in part:
5 U.S.C. § 8116(c) (1976). We believe that the settled rule applicable to the case at hand is that this exclusivity provision serves to bar a third-party claim against the United States with respect to the injury of a government employee that is not based upon an independent duty owed by the Government to the purported indemnitee. E. g., Galimi v. Jetco, Inc., 514 F.2d 949 (2d Cir. 1975); Travelers Insurance Co. v. United States, 493 F.2d 881 (3d Cir. 1974); United Air Lines, Inc. v. Wiener, 335 F.2d 379 (9th Cir.), cert. dismissed sub nom. United Air Lines v. United States, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1964). Contra, Wallenius Bremen G.m.b.H. v. United States, 409 F.2d 994 (4th Cir. 1969), cert. denied, 398 U.S. 958, 90 S.Ct. 2164, 26 L.Ed.2d 542 (1970). Because these courts have ably analyzed this area of the law, we see nothing to be gained in extended reiteration. See Kudelka v. American Hoist & Derrick Co., 541 F.2d 651, 659 (7th Cir. 1976).
This weighty authority notwithstanding, Lockheed asserts that section 8116(c) of FECA does not bar an action for contribution by a third party against the United States. In Murray v. United States, 405 F.2d 1361, 1364 (D.C.Cir.1968), we explicitly held to the contrary. Noting that no right of contribution exists "unless there is a joint liability of both parties to the injured person," we stated that "the Federal Employees' Compensation Act ... precludes a tortfeasor held liable to a government employee from suing to obtain contribution from the government." Id. Lockheed has not attempted to distinguish this case and we see no reason to retreat from this aspect of our decision in Murray.
Because we find that Lockheed has alleged only derivative tort claims, we need not dwell upon this question. Here Lockheed alleges the breach by the United States of three basic duties owed it: first, the duty to use the aircraft in the manner contemplated by both Lockheed and the United States; second, the duty to provide adequate maintenance of the aircraft to prevent accidents of this type from occurring; third, the duty to provide Lockheed with information about incidents involving the safety of the aircraft. The first two of these duties are clearly derivative and based upon the duties owed by the Government to its employees and passengers. Lockheed's third assertion alleges no delictual duty but rather one that sounds in contract. As pointed out above, however, Lockheed did not pursue its claim of contractual indemnity in the district court. See note 2, supra.
The two cases cited by Lockheed to support its assertion of the above duties as "independent," running from the Government to Lockheed, in fact offer no such support. In Holden v. Placid Oil Co., 473 F.Supp. 1097 (E.D. La. 1979), the court did not find that an independent duty running from the employer to the third party existed. Rather, summary judgment was denied in that case because the facts were not sufficiently developed to determine whether under Louisiana law an independent duty, based upon the employer's position as the manufacturer of an allegedly defective product, might exist. Id. at 1102. In Roy v. Star Chopper Co., 442 F.Supp. 1010 (D.R.I. 1977), aff'd, 584 F.2d 1124 (1st Cir.), cert. denied, 440 U.S. 916, 99 S.Ct. 1234, 59 L.Ed.2d 466 (1978), the court expressly found that an exclusivity provision in the Massachusetts Workmen's Compensation Act barred indemnity claims against the employer based on any noncontractual relationship. Id. at 1018. Under the unusual circumstances of that case, the court found that an implied contract to indemnify existed based largely upon the relationship between the parties "in the nature of co-manufacturers." Id. at 1020.
In our examination of the duties alleged by Lockheed to have been owed it by the Government, and on the facts before us, we agree with those courts that have refused to find an independent duty running from the purchaser to the manufacturer to use the product in question in such a way as not to bring liability upon the latter. See, e.g., Santisteven v. Dow Chemical Co., 506 F.2d 1216 (9th Cir. 1974); Boldman v. Mt. Hood Chemical Corp., 288 Or. 121, 602 P.2d 1072 (1979); Olch v. Pacific Press & Shear Co., 19 Wn.App. 89, 573 P.2d 1355 (1978). But see Dole v. Dow Chemical Co., 30 N.Y.2d 143, 282 N.E.2d 288, 331 N.Y.S.2d 382 (1972). We believe that this issue is succinctly summarized by Professor Larson, who states that
2A A. Larson, Workmen's Compensation Law § 76.44 at 14-405 (1976). Here the
It is so ordered.