Diggins v. Faulkner County Detention Center et al
ORDER granting in part and denying in part 69 Motion in Limine; granting 71 Motion in Limine; and taking 76 Request for Judicial Notice under advisement. Signed by Judge Kristine G. Baker on 5/9/2022. (ldb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
RYAN BEACH, et al.,
UNITED STATES OF AMERICA, et al.,
Motion to Dismiss
Defendant the United States of America moves1 to dismiss all claims asserted against
it by plaintiffs Ryan, April, K.B., R.B. Jr., and L.B. Beach. This motion is opposed.2 Oral
argument was not requested and is not deemed necessary.
On February 28, 2019, Ryan Beach, who was employed by Corvias Group, LLC
(“CG”), was working at a premises located at 2168 Midnight Sun Drive, Apartment A, on
Docket No. 36.
Docket No. 107.
Case 4:20-cv-00034-HRH Document 112 Filed 05/10/22 Page 1 of 22
Eielson Air Force Base in Alaska.3 Plaintiffs allege that on that day, Ryan was electrocuted
“by unreasonably dangerous electrical wiring in the kitchen of the premises.”4 Plaintiffs
allege that the “[k]itchen appliances at the premises were ‘double wired.’ That is, one
appliance was hot wired to more than one circuit breaker.”5 Plaintiffs allege that “[t]he outlet
that electrocuted Ryan was required to have a Ground Fault Circuit Interrupter (GFCI)[,]”
which it did not have.6 Plaintiffs allege that “[t]he electrocution caused Ryan to suffer an
aortic dissection, stroke, and other serious medical conditions.”7
Plaintiffs allege that the electrical wiring was negligently installed, inspected, and
approved in the 1990s by one or more of four contractors: Ben Lomond, Inc.; VECO
Construction, Inc.; HEBL, Inc.; and/or Worley Alaska, Inc. The Building in which the
premises at issue are located was “constructed as a part of a Section 801 housing program
in the 1990s.”8 Under the Section 801 housing program, “the Secretary of the Air Force”
could “‘enter into a contract for the lease of family housing units to be constructed on or near
[any] military installation within the United States . . . at which there [was] a validated deficit
Second Amended Complaint at 2, ¶ 4; 5, ¶ 33; and 10, ¶ 81; Docket No. 28.
Id. at 13, ¶ 114.
Id. at 12, ¶ 105.
Id. at 13, ¶¶ 106-107.
Id. at 14, ¶ 115.
Second Declaration of Walter D. Graves [etc.] at 2, ¶ 3, Docket No. 37.
Case 4:20-cv-00034-HRH Document 112 Filed 05/10/22 Page 2 of 22
in housing.’”9 In 1994, the United States entered into a lease with an entity called “Housing
Eielson Build to Lease, which the Section 801 Lease state[d was] a successor entity to Ben
Lomond.”10 The Section 801 Lease provided that the property in question was being leased
“for purposes of designing, constructing and operating a Family Housing Development” at
Eielson.11 The 801 Lease provided that the Developer, identified as Housing Eielson Build
to Lease, was solely responsible for compliance with “all applicable Federal, State, and local
laws,” including building codes and that “[t]he Department of the Air Force assumes no
enforcement or supervisory responsibility except with respect to matters committed to its
jurisdiction and authority.”12 The 801 Lease provided that “[i]t is specifically understood that
the construction of the improvements herein is a private undertaking, and the Government’s
sole and exclusive interest in the Lease is limited to that of lessor of the land.”13
“The Section 801 housing program was the precursor to the current Military Housing
Privatization Initiative (‘MHPI’).”14 Under the MHPI, ownership of military housing “units
Id. (quoting Pub. L. 98-115, § 801, 97 Stat. 782 (1984)).
Id. at 3, ¶ 4.
Section VI Department of Air Force 40 Year Lease of Property on Eielson Air Force
Base, Alaska at 1, Exhibit A, Second Graves Declaration, Docket No. 37.
Id. at 5-6, ¶ 8(a), (e).
Id. at 6, ¶ 9(a).
Second Graves Declaration at 3, ¶ 3, Docket No. 37.
Case 4:20-cv-00034-HRH Document 112 Filed 05/10/22 Page 3 of 22
is vested in the private developer – not the government. The developers build, own and
manage the housing units. The military tenants provide an income stream for debt
refinancing repayments through assignment of their BAH [Basic Allowance for Housing] to
the lockbox account.”15
In 2013, the United States and defendant Corvias Air Force Living, LLC (“CAFL”)
entered into a lease as part of an MHPI project to revitalize military housing on Eielson. The
MHPI lease provided that the United States was leasing certain real property “for purposes
of the development, demolition, design, construction, renovation, operation, maintenance,
repair, replacement and management of a rental housing development . . . primarily for use
by military personnel and their dependents. . . .”16 As part of the revitalization project, the
United States also conveyed to CAFL, by quitclaim deed, title to “all family housing units
and ancillary improvements and all personal property contained therein . . . located on lands
on Eielson Air Force Base, Fairbanks North Star Borough, Alaska[,]” including the Building
in which the premises in question were located.17 Walter Graves, “the current Air Force
Housing Privatization Branch Chief at the Air Force Civil Engineering Center (AFCEC),
Joint Base San Antonio - Lackland[,]” avers that “[t]he United States acquired title to the
Building and other units by quitclaim from the assignee of HEBL, and concurrently conveyed
United States’ Motion to Dismiss at 8, Docket No. 36 (citation omitted).
Department of the Air Force Lease of Property on Eielson Air Force Base, Alaska
at 2, Exhibit 2, Plaintiffs’ Response [etc.], Docket No. 107.
Exhibit 3 at 1, Plaintiffs’ Response [etc.], Docket No. 107.
Case 4:20-cv-00034-HRH Document 112 Filed 05/10/22 Page 4 of 22
by quitclaim deed the ownership of these housing units to” CAFL.18 The United States
continues to own the ground on which the Building sits.
The MHPI lease provides that the housing units were being “conveyed in an ‘AS IS,
WHERE IS’ condition without any representation or warranty by the Government concerning
their condition and without obligation on the part of the Government to make any alterations,
repairs or additions except as otherwise expressly provided in Condition 10.”19 Condition
10 deals with “Environmental Protection.”20 The MHPI lease further provides that “[e]xcept
as set forth in Condition 10, the Government shall not be liable to the Lessee for any
damages or losses, whether direct or consequential, incurred by the Lessee as result of the
discovery of any latent or patent defect in the Base Project.”21 The MHPI lease provides that
the Government shall not be responsible for damages to property
or injuries or death to persons that may arise from or be attributable or incident to the condition or state of repair of the Base
Project, or the use and occupation of the Base Project, or for
damages to the property of the lessee, or injuries or death of the
lessee’s officers, agents, servants, employees or tenants, or
others who may be on the Base Project at their invitation or the
invitation of any one of them.
Second Graves Declaration at 2, ¶ 1; 3, ¶ 5; Docket No. 37.
Department of the Air Force Lease of Property on Eielson Air Force Base, Alaska
at 5, § 3.1, Exhibit 2, Plaintiffs’ Response [etc.], Docket No. 107.
Id. at 14.
Id. at 5, § 3.1.
Id. at 27, § 14.1 (emphasis omitted).
Case 4:20-cv-00034-HRH Document 112 Filed 05/10/22 Page 5 of 22
And, the MHPI lease provides that CAFL was to “at all times preserve, maintain, repair and
manage the Leased Premises and Leased Premises Improvements and keep them in good
working order and condition” and to “manage and maintain [the property] in an
acceptable, safe and sanitary condition in accordance with this Lease.”23
On August 15, 2019, Ryan submitted an administrative claim to the Air Force.24
There is no evidence that any of the other plaintiffs submitted administrative claims, although
plaintiffs allege that “[a]ll conditions incident to [their] right to bring and maintain” a lawsuit
against the United States “have been satisfied or waived by the US. . . .”25 The United States
does not dispute that April timely submitted an administrative claim to the Air Force but does
contend that “[t]he children did not submit” administrative claims.26 The United States
contends that it denied Ryan’s and April’s administrative claims on April 8, 2020.
Plaintiffs commenced this action on October 8, 2020. In their second amended
complaint, plaintiffs assert negligence, loss of consortium, and negligent infliction of
emotional distress claims against the United States.
On August 12, 2021, the court granted in part and denied in part the United States’
motion to stay discovery. The court denied the motion as to the issue of whether the United
Id. at 25, § 11.1.
Exhibit A, United States’ Motion to Dismiss, Docket No. 21.
Second Amended Complaint at 6, ¶ 37, Docket No. 28.
United States’ Motion to Dismiss at 11, Docket No. 36.
Case 4:20-cv-00034-HRH Document 112 Filed 05/10/22 Page 6 of 22
States was a project owner for purposes of the Alaska Workers’ Compensation Act
(“AWCA”), but otherwise granted the motion.27 Discovery on issues other than the project
owner issue was stayed pending the outcome of the instant motion. Discovery on the project
owner issue has been completed.
Pursuant to Rule 12(b)(1), Federal Rules of Civil Procedure,28 the United States now
moves to dismiss plaintiffs’ claims against it.
“A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Circ. 2004). “In a facial attack, the challenger
asserts that the allegations contained in a complaint are insufficient on their face to invoke
federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the
allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id. “The
district court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6):
Accepting the plaintiff’s allegations as true and drawing all reasonable inferences in the
plaintiff’s favor, the court determines whether the allegations are sufficient as a legal matter
to invoke the court’s jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014).
“In resolving a factual attack on jurisdiction, the district court may review evidence beyond
the complaint without converting the motion to dismiss into a motion for summary
Order re Discovery Motions at 3, Docket No. 72.
Although the United States makes reference to Rule 12(b)(6) in its motion to
dismiss, all of its arguments are Rule 12(b)(1) jurisdictional arguments.
Case 4:20-cv-00034-HRH Document 112 Filed 05/10/22 Page 7 of 22
judgment.” Safe Air for Everyone, 373 F.3d at 1039. “The court need not presume the
truthfulness of the plaintiff’s allegations.” Id. “‘Once the moving party has converted the
motion to dismiss into a factual motion by presenting affidavits or other evidence properly
brought before the court, the party opposing the motion must furnish affidavits or other
evidence necessary to satisfy its burden of establishing subject matter jurisdiction.’” Id.
(quoting Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003)).
Plaintiffs have “the burden of establishing subject matter jurisdiction.” Friends of the Earth
v. Sanderson Farms, Inc., 992 F.3d 939, 944 (9th Cir. 2021).
The United States first moves to dismiss the children’s claims for failure to exhaust
administrative remedies. This is a Rule 12(b)(1) facial attack.
The Federal Tort Claims Act (“FTCA”) “waives the United States’ sovereign
immunity for tort actions and vests the federal district courts with exclusive jurisdiction over
suits arising from the negligence of government employees.” D.L. by and through Junio v.
Vassilev, 858 F.3d 1242, 1244 (9th Cir. 2017). “Before a plaintiff can file an FTCA action
in federal court, however, he must exhaust the administrative remedies for his claim.” Id.
“The FTCA’s exhaustion requirement is jurisdictional and may not be waived.” Id.
The United States contends that “[t]he children did not submit” administrative
claims.29 However, the United States has offered no evidence to support this contention. In
their second amended complaint, plaintiffs allege that “[a]ll conditions incident to [their]
United States’ Motion to Dismiss at 11, Docket No. 36.
Case 4:20-cv-00034-HRH Document 112 Filed 05/10/22 Page 8 of 22
right to bring and maintain” a lawsuit against the United States “have been satisfied or
waived by the US. . . .”30 In light of this allegation, which the court assumes is true for
purposes of a facial jurisdictional attack, the United States’ argument that the children’s
claims should be dismissed for failure to exhaust administrative remedies fails.
The United States next moves to dismiss plaintiffs’ claims on the grounds that their
claims are barred by the exclusive remedy provision of the AWCA. This is a factual Rule
12(b)(1) jurisdictional attack because the United States offered the declaration of Walter
Graves in support of this argument. Although the United States argues in its reply brief that
this was actually a facial attack, it is not. It was and is a factual attack.
“Under the FTCA, the United States has waived its sovereign immunity for certain
tort claims.” Esquivel v. United States, 21 F.4th 565, 573 (9th Cir. 2021). The waiver of
sovereign immunity under the FTCA “must be construed strictly in favor of the sovereign.”
Foster v. United States, 522 F.3d 1071, 1074 (9th Cir. 2008). “The FTCA authorizes private
tort actions against the United States ‘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.’” Jachetta v. United States, 653 F.3d 898, 904 (9th Cir. 2011)
(quoting 28 U.S.C. § 1346(b)(1)).
Here, the act or omission occurred in Alaska.
“Accordingly, if Alaska law imposes tort liability upon a private person for any of the claims
alleged in [plaintiffs’] complaint, the FTCA may waive the [United States’] sovereign
Second Amended Complaint at 6, ¶ 37, Docket No. 28.
Case 4:20-cv-00034-HRH Document 112 Filed 05/10/22 Page 9 of 22
immunity.” Id. The court must “analogize the government to a private actor in a similar
situation and apply state law to determine amenability to suit and substantive liability.”
LaBarge v. Mariposa County, 798 F.2d 364, 366 (9th Cir. 1986).
The United States argues that it would not be amenable to suit under Alaska law
because it would be considered a project owner for purposes of the AWCA. The “AWCA’s
exclusive remedy provision . . . states that workers’ compensation is the sole remedy
available to an injured employee.” James v. United States, 470 F. Supp. 3d 1013, 1017 (D.
Alaska 2020). “The benefit of that exclusive remedy provision extends not only to the direct
employer but anyone else who is liable or ‘potentially liable’ for securing workers’
compensation to an injured employee under AWCA.” Id. (quoting AS 23.30.055). “A
‘project owner’ is potentially liable for securing workers’ compensation for employees of the
contractor if the contractor fails to do so, and thus benefits from the exclusive remedy
provision.” Id. at 1017-18.
In their second amended complaint, plaintiffs allege that CG “has denied [Ryan’s]
injury was work related and has failed to secure the payment of [workers’] compensation
benefits” for Ryan. Second Amended Complaint at 10, ¶ 81, Docket No. 28. This allegation
might be read two ways: (1) that CG had workers’ compensation insurance, but that Ryan’s
injury was claimed to be not job-related, or (2) that CG did not have workers’ compensation
insurance. However, in his administrative claim filed with the Air Force, Ryan expressly
stated that CG had workers’ compensation insurance. In answer to the question, “do you
carry accident insurance,” Ryan responded: “Corvias Group, LLC Workers’ Compensation[.]” Exhibit A at 2, United States’ Motion to Dismiss, Docket No. 21. Thus, there is no
doubt that Ryan’s direct employer had workers’ compensation insurance.
Case 4:20-cv-00034-HRH Document 112 Filed 05/10/22 Page 10 of 22
Plaintiffs allege that “[t]he FTCA trumps state Workers Compensation laws.”32
However, as the United States points out, under the FTCA, the United States is “subject to
the immunities provided by the state law in whichever state the action is brought[.]” Bell
Helicopter v. United States, 833 F.2d 1375, 1378 (9th Cir. 1987). One such state law is the
AWCA. Id. Here, the United States is immune from suit if “an Alaska employer under the
same circumstances would be immune” under the AWCA. Id. Plaintiffs’ allegation that the
FTCA trumps the AWCA is meritless.
Plaintiffs have also alleged that Section 11(b)(ii) of the Alaska Statehood Act
preempts the AWCA.33 Plaintiffs allege that because Eielson is a federal enclave, state
statutes do not apply. However, Congress has expressly decreed that state worker’s
compensation laws apply on federal land. 40 U.S.C. § 3172(a) provides that
[t]he state authority charged with enforcing and requiring
compliance with the state workers’ compensation laws . . . may
apply the laws to all land and premises in the State which the
Federal Government owns . . . and to all projects, buildings,
constructions, improvements, and property in the State and
belonging to the Government, in the same way and to the same
extent as if the premises were under the exclusive jurisdiction of
Plaintiffs’ allegation that Section 11(b)(ii) of the Alaska Statehood Act preempts the AWCA
Second Amended Complaint at 10, ¶ 83, Docket No. 28.
Id. at 11-12, ¶¶ 96-102.
Case 4:20-cv-00034-HRH Document 112 Filed 05/10/22 Page 11 of 22
Turning then to the question of whether the United States is a project owner for
purposes of the AWCA, a “project owner” is defined as “a person who, in the course of the
person’s business, engages the services of a contractor and who enjoys the beneficial use of
the work[.]” AS 23.30.045(f)(2). The United States argues that it meets all three parts of this
definition because it “engage[d] the services of a contractor,” id., namely CAFL;34 that it did
so in the course of government business; and that it enjoyed the beneficial use of the work
that CAFL was hired to do, including the electrical work which CAFL had subcontracted to
CG.35 Plaintiffs disagree.
As for whether the United States “engaged the services of a contractor,” id., at one
point in their briefing, plaintiffs seem to be suggesting that there was no contract between
the United States and CAFL. Plaintiffs cite to the following deposition testimony of Graves:
Q. Okay. Can you tell me -- let me make sure I understand this
first. The United States doesn’t hire Corvias Air Force Living;
am I correct?
Q. The United States has an agreement with Continental Group,
LLC; am I right?
A “contractor” for purposes of the AWCA is defined as “a person who undertakes
by contract performance of certain work for another but does not include a vendor whose
primary business is the sale or leasing of tools, equipment, other goods, or property[.]” AS
23.30.045(f)(1). CAFL meets this definition.
CG meets the definition of a subcontractor under the AWCA. A “subcontractor” is
defined as “a person to whom a contractor sublets all or part of the initial undertaking.” AS
Case 4:20-cv-00034-HRH Document 112 Filed 05/10/22 Page 12 of 22
A. Correct. A lease of land along with performance agreements
on what they’re going to do with it.
But, plaintiffs then concede that Graves “was in error when he referred to an entity called
‘Continental Group, LLC.’ Specifically, as [Graves] clarified in a subsequent deposition,
there is no such entity of that name[.]”37 And, as Graves also testified, “Corvias Air Force
Living is a signat[ory] on an agreement that says they’re going to manage the program, and
we’re a signat[ory] on that agreement too[.]”38 Moreover, the actual contract between the
United States and CAFL is part of the record in this case. There can simply be no dispute
that the United States and CAFL entered into a contract for military housing under which
CAFL leased the land on which the Building sat and the terms of which required the United
States to quitclaim the structures on that land to CAFL.
According to plaintiffs, however, that does not mean that the United States “engaged
the services of a contractor.” Rather, plaintiffs contend that the United States must have
“engaged” CAFL to perform the specific work Ryan was doing when he was injured.
Plaintiffs emphasize that for purposes of the AWCA, “a project owner is someone who
engages the services of — that is, contracts with — a person to perform specific work. . . .”
Lovely v. Baker Hughes, Inc., 459 P.3d 1162, 1169 (Alaska 2020) (second emphasis added).
Videotaped Deposition of Walter Graves via Zoom Videoconference at 38:2-11,
Exhibit 1, Plaintiffs’ Response [etc.], Docket No. 107.
Plaintiffs’ Response [etc.] at 11 n.1, Docket No. 107.
Graves Deposition at 38:15-18, Exhibit 1, Plaintiffs’ Response [etc.], Docket No.
Case 4:20-cv-00034-HRH Document 112 Filed 05/10/22 Page 13 of 22
Plaintiffs argue that there is no contractual agreement between the United States and CAFL
for the performance of the services that Ryan was providing at the time of the incident.
Plaintiffs cite to a number of cases in which the Alaska Supreme Court has considered and
applied the “project owner” definition, and plaintiffs contend that the Alaska Supreme Court
has consistently found that a project owner is an entity which contracted for the specific
services or work involved in the accident in question.
Plaintiffs rely heavily on Lovely, 459 P.3d 1162. There, “Baker Petrolite Corporation
operated a chemical transfer facility on the Kenai Spur Highway.” Id. at 1164. “Baker
Hughes Oilfield Operations, Inc., entered into a construction contract with UIC Construction,
LLC for construction of a replacement ‘Baker Petrolite Facility’ with more capacity and
storage space.” Id. “Both Baker Hughes Oilfield Operations and Baker Petrolite are
subsidiaries of Baker Hughes, Inc.” Id. The plaintiffs in the case were UIC Construction
workers who “suffered chronic health problems as a result of their exposure” to mercaptan
while working on the Baker Petrolite project. Id. at 1165. The plaintiffs “received workers
compensation from UIC Construction” but then they later “sued Baker Hughes, Baker
Hughes Oilfield Operations, and Baker Petrolite (collectively the corporations), alleging
negligence causes of action.” Id. The corporations, however, “contended that the workers’
claims were barred because each of the corporations was a ‘project owner’” for purposes of
the AWCA. Id. at 1166. “[T]he corporations contended that if any of them was a statutory
project owner, each affiliated company [was] as well.” Id. (citations omitted). The plaintiffs
Case 4:20-cv-00034-HRH Document 112 Filed 05/10/22 Page 14 of 22
however contended that “the only corporation that might qualify as a project owner was
Baker Hughes Oilfield Operations, which they said owned the land and which had entered
into the construction contract as ‘the Owner.’” Id. The issue before the court was “whether
corporations that are not parties to a contract, but are related to a corporation that is a party,
may be ‘project owners’ under the Act and therefore protected from liability to the same
extent as employers.” Id. at 1168. The Alaska Supreme Court “conclude[d] that a project
owner is someone who engages the services of — that is, contracts with — a person to
perform specific work and enjoys the beneficial use of that work.” Id. at 1169. The court
rejected an argument by the corporations that the indemnity provisions in the applicable
contract played a role in the “project owner” analysis. The court explained that “regardless
of how the corporations defined themselves by contract, and regardless of the obligations
they claim to have assumed, whether they are protected from third-party liability as project
owners still depends on whether they satisfy the statutory definition.” Id. at 1171.
Plaintiffs also cite to Schiel v. Union Oil Company of California, 219 P.3d 1025
(Alaska 2009). There, “Schiel sued Union Oil Company of California (UNOCAL or the
company) for injuries he suffered when he was working on UNOCAL’s Grayling Drilling
Platform. Schiel was an employee of Peak Oilfield Services at the time of the injury.” Id. at
1028. “UNOCAL moved for summary judgment, arguing that the Alaska Workers’
Compensation Act barred Schiel’s tort claims because the company was Schiel’s statutory
employer and therefore immune from suit.” Id. Although the issue before the court was
Case 4:20-cv-00034-HRH Document 112 Filed 05/10/22 Page 15 of 22
whether the project owner provision in the AWCA was constitutional, the Alaska Supreme
Court referred to a master service agreement between UNOCAL and Peak that presumably
encompassed the work being done by Schiel. Id. at 1029, 1033.
Next, plaintiffs cite to Nelson v. Municipality of Anchorage, 267 P.3d 636 (Alaska
2011). There, “the Municipality [had] contracted with Western Power & Equipment
Corporation to work on remounting [a] cherry picker; that work included removing the bolts
that held the cherry picker in place. Western Power subcontracted with Alaska Concrete,
Nelson’s employer, to drill the bolts out of the concrete platform on which the cherry picker
sat.” Id. at 638. Nelson’s employer asked him, on his day off, “to deliver drill bits to [the]
job site. . . .” Id. While delivering the drill bits, Nelson “fell about 20 feet through [a] hole
in the floor to the lower level and suffered head trauma.” Id. at 639. Nelson “sued the
Municipality . . . for negligence.” Id. The Municipality argued that it was immune from suit
under the project owner provision of the AWCA. Id. at 640. Nelson argued that the
Municipality could not be a project owner “because, as a political subdivision of the State,
it is covered by a different subsection of the statute[;]” because “the Municipality is not a
‘person’ for purposes of the workers’ compensation act[;]” and because “the Municipality
should be classified as a ‘contract-awarding entity’ under subsection .045(d) rather than a
‘project owner[.]’” Id. But, Nelson did not dispute that the Municipality had “engaged the
services of a contractor in the course of its business and enjoyed the beneficial use of the
contractor’s work.” Id. at 642, n.26.
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Plaintiffs also cite to Anderson v. Alyeska Pipeline Service Co., 234 P.3d 1282
(Alaska 2010). There, “Anderson was injured while working for Doyon Universal Services
at Pump Station 5 on the Trans–Alaska Pipeline System. Alyeska Pipeline Service Company,
which operates the pipeline, contracted with Doyon to provide security, medical support,
lodging, and catering services for employees who operate and maintain the pipeline.” Id. at
1284. Anderson was injured when she was “helping the head cook clean the loading dock
area where food was stored.” Id. Anderson “brought a tort suit against Alyeska Pipeline
Service Company[.]” Id. Alyeska argued that it was immune from suit because it was a
project owner under the AWCA. Id. at 1286. The Alaska Supreme Court found that
Alyeska clearly meets the statutory definition of “project owner”
in AS 23.30.045(f)(2). In the course of Alyeska’s business,
which is operating the Trans–Alaska Pipeline System, it
engaged the services of Doyon Universal Services. No one
contests that Doyon is a contractor. Doyon undertook performance of work for Alyeska, including catering services for
employees who operate and maintain the pipeline.
Id. at 1288.
Finally, plaintiffs cite to Trudell v. Hibbert, 272 P.3d 331 (Alaska 2012), vacated in
part on other grounds on reh’g, 299 P.3d 1279 (Alaska 2013). There, “Trudell was injured
on June 13, 2006, when he fell while trying to descend a ladder from the roof of a structure
on which he was working. At the time he was employed by Phillips Construction Co.” Id.
at 332. “The structure Trudell was working on was owned by John Brent Hibbert (Brent) and
Debra Hibbert.” Id. The Hibberts owned a taxi cab business and a property rental business,
Case 4:20-cv-00034-HRH Document 112 Filed 05/10/22 Page 17 of 22
and the structure on which Trudell was working “serve[d] as both the Hibberts’ residence and
the cab company’s business office.” Id. The primary question before the court was whether
the Hibberts were acting as homeowners or business owners when they contracted with
Phillips to do the repairs. If they were acting as homeowners, they could not be considered
project owners because “a project owner must . . . be a business.” Id. at 342. The court
concluded that the Hibberts “were acting in their business capacity as commercial landlords
when they contracted with Phillips” and thus could be considered project owners under the
AWCA. Id. at 344.
Plaintiffs insist that the foregoing cases illustrate that in order to be considered a
project owner for purposes of the AWCA, the United States must be able to show that it
directly contracted with CAFL for provision of the electrical services that Ryan was
performing on the day in question. But, plaintiffs argue that the United States can make no
such showing because the only contract the United States had with CAFL was for a lease of
real property and the transfer of ownership of the structures located on that property.
The problem with plaintiffs’ argument is that none of the cases they cite address the
question of how specific the contract for services must be in order to qualify an entity as a
project owner. None of the cases suggest that in order to a project owner for purposes of the
AWCA, the United States would have had to expressly contract with CAFL for the electrical
work being done on the premises in question. While these cases suggest that there must be
a nexus between what the plaintiff was doing when he or she was injured and the contract
Case 4:20-cv-00034-HRH Document 112 Filed 05/10/22 Page 18 of 22
in question, they do not stand for the proposition that a project owner must have expressly
contracted for the specific services being performed by the plaintiff.
Here, there is a nexus between the United States’ contract with CAFL and the work
Ryan was doing at the time of the incident. The MHPI lease required CAFL to “at all times
preserve, maintain, repair and manage the Leased Premises and Leased Premises Improvements and keep them in good working order and condition” and to “manage and maintain
[the property] in an acceptable, safe and sanitary condition in accordance with this Lease.”39
The “Leased Premises Improvements” included the Building. In other words, the United
States’ contract with CAFL required CAFL to maintain the premises in good working
condition and order, which would include having a working electrical system. In addition,
at his deposition, Graves was asked whether “[a]s part of its obligations under the lease, was
Corvias Air Force Living obligated to perform necessary renovations of the housing at issue
in this case[;]” and he answered, “Yes, they were.”40 Graves explained that CAFL had an
“obligation to keep the units up, and so they will submit plans . . . to do needed renovations
to keep the homes safe and habitable.”41 CAFL provided the United States with a “proposal”
Department of the Air Force Lease of Property on Eielson Air Force Base, Alaska
at 25, § 11.1, Exhibit 2, Plaintiffs’ Response [etc.], Docket No. 107.
Graves Deposition at 111:4-8, Exhibit A, United States’ Reply in Support of its
Second Motion to Dismiss, Docket No. 109.
Id. at 112:12-15.
Case 4:20-cv-00034-HRH Document 112 Filed 05/10/22 Page 19 of 22
for the renovation of a group of units, which included the premises in question.42 That
proposal included replacing kitchen appliances,43 and Ryan was allegedly injured by
“dangerous electric wiring in the kitchen. . . .”44 Plainly, there is a connection between the
contractual obligations which CAFL took on and Ryan’s injury. Thus, the United States
meets the portion of the “project owner” definition that requires that it “engage[d] the
services of a contractor.” AS 23.30.045(f)(2).
In order to meet the definition of a “project owner,” the United States must also show
that the contract in question was entered into “in the course of the person’s business[.]” Id.
The United States’ business includes providing air defense. Its contract with CAFL was
entered into in the course of doing this business.
Finally, in order to meet the statutory definition of a “project owner,” the United
States must show that it enjoyed the beneficial use of the renovation work being done by
CAFL under its contract with the United States. Plaintiffs argue that the United States cannot
show that it enjoyed the beneficial use of that work because it did not own the Building in
which the premises were located. Plaintiffs argue that only CAFL could enjoy the benefits
of the renovation work being done on the units because CAFL owned the units and would
receive the income stream from renting the units to military personnel. Plaintiffs argue that
Id. at 67:21-25.
Eielson AFB and Corvias Air Force Living LLC Joint Proposal, Exhibit B at 5,
United States’ Reply in Support of its Second Motion to Dismiss, Docket No. 109.
Second Amended Complaint at 13, ¶ 114, Docket No. 28.
Case 4:20-cv-00034-HRH Document 112 Filed 05/10/22 Page 20 of 22
the United States’ contract with CAFL makes it clear that the United States no longer owned
the housing units being renovated and that it had no responsibility for the renovations. Thus,
plaintiffs argue that the United States cannot claim that it enjoyed the beneficial use of the
This argument is not supported by Alaska law. This is best illustrated by the
Anderson case, 234 P.3d 1282. As set out above, the plaintiff in Anderson was a Doyon
employee who was injured while working “at Pump Station 5 on the Trans–Alaska Pipeline
System.” Id. at 1284. Alyeska, “which operates the pipeline, contracted with Doyon to
provide security, medical support, lodging, and catering services for employees who operate
and maintain the pipeline.” Id. The Alaska Supreme Court held that Alyeska was a project
owner for purposes of the AWCA. Id. at 1288. The court reached this holding even though
Alyeska was not the “owner” of “Pump Station 5 on the Trans-Alaska Pipeline System.” Id.
at 1284. The Trans-Alaska Pipeline System is owned by a number of North Slope oil
producers. BP Pipelines (Alaska) Inc. v. State, Dep’t of Revenue, 325 P.3d 478, 480 n.1
(Alaska 2014). Alyeska “is the operating agent of the owners and operates” the pipeline for
the owners. Id. (citation omitted). Thus, even though Alyeska did not own the property
where Anderson was injured, the court found that Alyeska could still enjoy the benefits of
its contract with Doyon.
Similarly here, the United States does not have to be the owner of the Building in
order to enjoy the beneficial use of the renovation work that CAFL was doing. As set out
Case 4:20-cv-00034-HRH Document 112 Filed 05/10/22 Page 21 of 22
above, the United States’ business includes providing air defense. This business requires
people, and the United States arranges for housing for these people, i.e. military personnel,
to be available – at the expense of the Government through housing allowances which, in this
instance, are paid to CAFL. CAFL no doubt makes money through the leasing of the ground
and the ownership of the residential buildings, but it is equally true that the United States
benefits from having safe, well-maintained housing available for its military personnel. In
short, the United States enjoyed the beneficial use of the work being done by CAFL under
its contract with the United States, which means that the United States meets the third part
of the “project owner” definition.
The court concludes that the United States is a project owner for purposes of the
AWCA. Because the United States is a project owner under the AWCA, it “benefits from
the exclusive remedy provision” of the AWCA, James, 470 F. Supp. 3d at 1018, which
means that plaintiffs’ claims against the United States are barred.45
The United States’ motion to dismiss is granted. Plaintiffs’ claims against the United
States are dismissed. Plaintiffs are not given leave to amend as amendment would be futile.
DATED at Anchorage, Alaska, this 10th day of May, 2022.
/s/ H. Russel Holland
United States District Judge
Because the United States is a project owner, the court need not consider the United
States’ alternative argument that the independent contractor exception to the FTCA applies.
Case 4:20-cv-00034-HRH Document 112 Filed 05/10/22 Page 22 of 22
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