Grandjean et al v. United States Postal Service

Filing 55

ORDER by Judge Frank H. Seay granting 29 Motion for Summary Judgment (dma, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
YVONNE GRANDJEAN, as Daughter and next of
kin to JOHN MCCARTHA, deceased, BRUCE
MCCARTHA and ETHEL TEETER,
Plaintiff,
vs.
UNITED STATES OF AMERICA, ex. rel. UNITED
STATES POSTAL SERVICE,
Defendant.

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ORDER
Before the court for its consideration is defendant United
States of America’s Motion For Summary Judgment and Brief in
Support (Doc. #29). This is an action brought pursuant to the
Federal Tort Claims Act.

Plaintiffs seek to impose liability on

defendant by alleging the United States Postal Service (USPS) was
negligent when contractor Gary Don Lemmons, through his employee
James Lemmons, rear-ended a car driven by the Plaintiff Ethel
Teeter in which Bruce McCartha and John McCartha were passengers.
In its motion, defendant argues plaintiffs’ injuries were not
caused by the negligent or wrongful act or omission of any
employee of the government while acting within the scope of their
employment. Plaintiff responded that it should not be possible
for citizens of this country to be injured as a result of the
delivery of the U.S. Mail and someone not be held financially
responsible.

Plaintiffs also argue this court should look to the

Interstate Common Carrier Act to decide this case.

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STANDARD FOR SUMMARY JUDGMENT
Summary Judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56 ( c) See also

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
The moving party has the burden of demonstrating the absence of a
genuine issue of fact.
(1986).

Celotex v. Catrett, 477 U.S. 317, 325

If this initial burden is satisfied, the nonmoving party

then has the burden of coming forward with specific facts showing
there is a genuine issue for trial as to elements essential to
the nonmoving party’s case.

Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus.,
Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991).
The nonmoving party cannot rest on the mere allegations of the
pleadings, but must go beyond the pleadings and “set forth
specific facts showing there was a genuine issue for trial as to
those dispositive matters for which [it] carries the burden of
proof.” Applied Genetics v. First Affiliated Securities, 912 F.2d
1238, 1241 (10th Cir. 1990).
“A fact is ‘material’ only if it ‘might affect the outcome
of the suit under the governing law,’ and a dispute about a
material fact is ‘genuine’ only ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”
Thomas v. IBM, 48 F.3d 478, 486 (10th Cir. 1995) (quoting
Anderson, 477 U.S. at 248).

In this regard, the court examines

the factual record and reasonable inferences therefrom in the
light most favorable to the nonmoving party.

Deepwater Invs.

Ltd. v. Jackson Hole Ski Corp, 938 F.2d 1105, 1110 (10th Cir.
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1991).

This court’s function is not “to weigh the evidence and

determine the truth of the matter but to determine whether there
is a genuine issue for trial.”

Anderson, 477 U.S. at 249.

With

these standards in mind, the court turns to the merits of the
defendant’s motion.
Factual Findings
The court finds the facts as follows. The United States
Postal Service “USPS” uses independent contractors to supply the
mail delivery services for the United States mail in some parts
of the United States, particularly in rural areas.

These

contractors are referred to as Highway Contract Route Suppliers
“HCR Supplier”.
Star Routes.

Highway Contract Routes were previously called

Gary Lemmons was awarded HCR Contract No. 74932,

Contract for Regular Services by the USPS for a four year term
beginning December 1, 2007, and ending on March 31, 2011.

Gary

Lemmons, as an HCR Supplier, was required to perform
transportation services to the customers and all other related
services as outlined in Section B.3 of the Contract.
Lemmons was paid monthly based upon a per annum rate.

Gary
By the

express terms of the Contract between the USPS and Gary Lemmons,
employees of the USPS are ineligible to become suppliers.

The

Terms and Conditions applicable to Gary Lemmons Highway Contract
Route states that no proposal for a contract shall be considered
unless the offeror (Gary Lemmons) submitting it can assure either
personal or representative supervision over the operation of the
route and can be easily contacted in the event of emergencies, to
give personal or representative attention to the problem at hand.
Pursuant to the terms of the Contract, Gary Lemmons supplied his
own vehicle to deliver the mail.

Gary Lemmons did not use the

USPS’s mail delivery vehicles, as do employees of the USPS.
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Under the Liability for Equipment Damage and Repairs provision of
Gary Lemmon’s contract Lemmons was solely liable for loss or
damage to his equipment.

Under the Liability for Equipment

Damage and Repairs provision of the Contract, the supplier is
solely responsible for all repairs to and maintenance of its
equipment utilized in the performance of the contract.

Pursuant

to the Insurance Requirements terms of the Contract, Gary Lemmons
was required to establish and maintain continuously in effect a
policy of liability insurance for all motor vehicles to be used
under the Contract. On or about November 3, 2009, the USPS’s
Southwest Area Transportation Contracts Office was provided with
a copy of an insurance policy for Gary Lemmons insured through
State Farm Fire and Casualty Company, Policy No. 1349611-E03-36
reflecting that he had coverage in effect from November 3, 2009,
through May 3, 2010.

Gary Lemmons was issued a Form 1099

annually for payments made under the contract by the USPS.
Suppliers are not issued W-2 Forms.
Gary Lemmons monthly check.

HCR

Taxes were not withheld from

The USPS did not provide Workman’s

Compensation benefits for Gary Lemmons as it does for employees
of the USPS.

Gary Lemmons was not eligible for retirement

benefits from the USPS.

Gary Lemmons was not entitled to

participate in or receive federal government benefits such as the
Thrift Savings Plan as are employees of the USPS.

Gary Lemmons

was not entitled to annual or sick leave from the USPS.

Gary

Lemmons could subcontract responsibilities under the contract.
Under the terms of his contract, Gary Lemmons had the contractual
authority under his Contract to hire his own employees as relief
drivers to help deliver the mail or fulfill his requirements
under his contract.

James Lemmons worked for Gary Lemmons.

On

the day of the accident, James Lemmons was the driver of the
vehicle transporting USPS mail under Gary Lemmons’ contract.
James Lemmons was not hired by the USPS nor was he paid by the
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USPS.
First, it should be noted plaintiffs failed to properly
object to the material facts as set forth by defendant in its
motion.

Defendant listed 29 material facts in its Motion for

Summary Judgment, to which Defendant contended their was no
dispute.

The only response the plaintiff makes to the

defendant’s Statement of Material Facts is: “In response to the
defendant’s Statement of Material Facts as to Which There is No
Genuine Dispute, Plaintiffs dispute any alleged facts that
purport to establish an independent contractor relationship
between Gary Lemmons and the USPS.

All other material facts are

admitted.” The Local Rules for the Eastern District of Oklahoma
provide:
the response brief in opposition to a motion for
summary judgment (or partial summary judgment) shall
begin with a section which contains a concise statement
of material facts as to which the party asserts genuine
issues of fact exist. Each fact in dispute shall be
numbered, shall refer with particularity to those
portions of the records upon which the opposing party
relies, and, if applicable, shall state the numbered
paragraphs of the movant’s fact that are disputed. All
material facts set forth in the statement of the
material facts of the movant shall be deemed admitted
for the purpose of summary judgment unless specifically
controverted by the statement of material facts of the
opposing party. LCVR Rule 56.1 ©.
Further, F.R.C.P. 56 (e) provides:
If a party fails to properly support an assertion of
fact or fails to properly address another party’s
assertion of fact as required by Rule 56 © the court
may....(2) consider the fact undisputed for purposes of
the motion.
Plaintiffs have failed to properly support their response

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with admissible evidence as required by F.R.C.P. 56.

Plaintiffs

were required to specifically dispute the individual facts which
they failed to do.

Any fact not specifically controverted by

Plaintiffs is deemed admitted.

As a result, the court finds all

the facts in the Defendant’s Motion for Summary Judgment are
deemed admitted.

F.R.C.P. 56.

In the Motion for Summary Judgment filed by defendant it
argues that under the Federal Tort Claims Act the government is
only liable for injuries “caused by the negligent or wrongful act
or omission of any employee of the Government while acting within
the scope of his employment....”

Thus, defendant argues the

negligent act was not done by an employee of the defendant but
rather was done by James Lemmons who was working for Gary
Lemmons.
This action is brought under the Federal Tort Claims Act
“FTCA”.

The FTCA is a limited waiver of sovereign immunity which

makes the federal government liable to the same extent as a
private party for certain torts of federal employees acting
within the scope of their employment.

28 U.S.C. Sec. 2675 (a).

The language of 28 U.S.C. Sec. 1346 (b) provides that injuries
caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his
office or employment...” are covered by the act.

The FTCA

defines government employees as those including officers and
employees of “any federal agency” but specifically excludes “any
contractor with the United States.” 28 U.S.C. Sec. 2671. As a
result, the general statutory rule or principle under the FTCA is
“The United States is not liable for the negligence of a
government contractor.” United States v. Orleans, 425 U.S. 807
(1976)and Lurch v. United States, 719 F.3d 333, 336 (10th Cir.
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1983).
Whether one is a governmental employee or an independent
contractor under the FTCA is a question of federal law.

Logue v.

United States, 412 U.S. 521, 526-527 (1973) and Autery v. United
States, 424 F.3d 944, 957 (9th Cir. 2005). The power of the
federal government to “control the detailed physical performance
of the contractor” is the critical factor in making this
distinction.
1996).

Curry v. United States, 97 F.3d 412, 414 (10th Cir.

Furthermore, the court should focus on “whether the

government supervises the day-to-day operations of the
individual.” Id.
In Lilly v. Fieldstone, 876 F.2d 857, 859 (10th Cir. 1989),
the Tenth Circuit Court of Appeals, provided seven factors to
consider in determining whether an individual is an independent
contractor: (1) intent of the parties; (2) whether the United
States controls only the end result or may also control the
manner and method of reaching the result; (3) whether the person
uses his own equipment or that of the United States; (4) who
provides liability insurance; (5) who pays social security taxes
(6) whether federal regulations prohibit federal employees from
performing such contracts; and (7) whether the individual has
authority to subcontract to others.
The undisputed facts reveal the intent of the parties was
for Gary Lemmons to be an independent contractor.

It is

undisputed that the USPS use independent contractors to supply
mail delivery services for the United States mail.
was hired as an HCR supplier.

Gary Lemmons

By the express terms of the

contract between the USPS and Gary Lemmons, employees of the USPS
are ineligible to become suppliers.
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Thus, Gary Lemmons could not

be an employee of the USPS by the mere terms of the contract.
The contract also reveals an intent for Gary Lemmons to be an
independent contractor.

In the Terms and Conditions provision

applicable to Gary Lemmons’ contract it specifically states that
no proposal for a contract shall be considered unless the offeror
(Gary Lemmons) submitting it can assure either personal or
representative supervision over the operation of the route and
can be easily contacted in the event of emergencies, to give
personal or representative attention to the problem at hand.
This further demonstrates that Gary Lemmons was an independent
contractor in that is shows the intent of the parties that Gary
Lemmons was to personally supervise the route or was permitted to
do so by representation.
It also appears the USPS had little control over how Gary
Lemmons delivered the mail.

There was no supervision by the USPS

of the day to day operations of the contractor, Gary Lemmons, as
required by Lurch v. U.S., 719 F.2d 333, 337 (10th Cir. 1983).
The defendant did not control the detailed physical performance
of the services rendered by Gary Lemmons.

This is a critical

factor in the decision of making the determination of whether a
contractual relationship is that of an independent contractor.
Logue at 528.
The facts also indicate the equipment being used by the
defendant Lemmons was his own.

Pursuant to the terms of the

Contract, Gary Lemmons, supplied his own vehicle to deliver the
mail. Gary Lemmons did not use the USPS’s mail delivery vehicles
as do employees of the USPS.

Under the Liability for Equipment

Damage and Repairs provisions of Gary Lemmons’ contract, Gary
Lemmons was solely liable for loss or damage for his equipment.
It further states that Lemmons was solely responsible for all
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repairs to and maintenance of his equipment used in the
performance of his contract.

He was required to keep the

equipment used in the performance of the contract in sound
working condition.

The undisputed fact shows that Gary Lemmons

provided and maintained all the equipment used in the performance
of the contract.

This fact supports the conclusion that Gary

Lemmons was an independent contractor.
The court must also look at who carries the liability
insurance.

Gary Lemmons, and not the USPS, was required to

establish and maintain continuously in effect a policy or
policies of liability insurance for all motor vehicles to be used
under the Contract.
The court must also look at whether social security is taken
from a check.

HCR Suppliers are issued a Form 1099 annually for

payments made under the contract.

Social Security taxes were not

withheld from Gary Lemmons monthly check.

In addition, Gary

Lemmons was not issued a W-2 Form and no taxes were withheld from
his monthly check.

Gary Lemmons was not eligible for any

retirement benefits from the USPS. In addition, Gary Lemmons was
not eligible for participation in the federal government’s Thrift
Saving Plan.
Further, the terms of the contract expressly prohibited
employees of the USPS to become suppliers for mail delivery
services. By the terms of the contract, Gary Lemmons cannot be an
employee of the USPS.

Finally, the court must look to the

contract to see if subcontracting was allowed under the contract.
Gary Lemmons’ Contract allows subcontracting.

Gary Lemmons also

had the ability under his Contract to hire his own employees as
relief drivers to help deliver the mail or fulfill his
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requirements under his contract.

On the date of the accident,

James Lemmons was the driver of the vehicle transporting USPS
mail.

James Lemmons was not hired by the USPS nor was he paid by

the USPS.

James Lemmons worked for Gary Lemmons.

It was Gary

Lemmons’ responsibility to pay compensation directly to his
employees and to withhold taxes and amounts for social security
benefits for the work performed under any agreement.

Applying

the seven factors in Lilly to the facts at issue, this court
finds that Gary Lemmons is an independent contractor.
Plaintiffs argued this court should look to the Interstate
Common Carrier Act to decide this case.

Plaintiffs argue that

under this act a private carrier cannot avoid liability by
delegating their delivery duties to independent contractors.
Plaintiffs are requesting this court to follow that legislative
act.

However, this is a FTCA case not a case under the

Interstate Common Carrier Act.

The court cannot apply the law of

the Interstate Common Carrier Act to a FTCA case.

Defendant Gary

Lemmons was not working as an interstate carrier but rather he
had a contract with the USPS to deliver mail.

According to the

general statutory rule or principle under the FTCA “The United
States is not liable for the negligence of a government
contractor.” United States v. Orleans, 425 U.S. 807 (1976).

The

court has found Gary Lemmons was an independent contractor.

It

is undisputed that the injuries in this case were caused by James
Lemmons who was working for Gary Lemmons the day of the accident.
Thus, since the injuries were caused by an independent contractor
the USPS is not liable for the injuries in this case.

Accordingly, defendant’s motion for summary judgment (Doc.
29) is hereby granted.
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IT IS SO ORDERED this 17th day of May, 2012.

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