SNIDER et al v. STERLING AIRWAYS, INC. et al

Filing 268

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE J. CURTIS JOYNER ON 8/3/2016. 8/5/2016 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ELIZABETH C. SNIDER, Individually
and as Executrix of the Estate of
DANIEL A. SNIDER, and
LEE W. SNIDER, a minor, by his
mother, ELIZABETH C. SNIDER
vs.
STERLING AIRWAYS, INC., et. al.
vs.
THE UNITED STATES OF AMERICA

:
: CIVIL ACTION
:
:
: NO. 13-CV-2949
:
:
:
:
:
:
:
:

MEMORANDUM AND ORDER

JOYNER, J.

August 3, 2016

This civil action has been brought before the Court on
Motion of the Third-Party Defendant, United States of America, to
Dismiss for Lack of Subject Matter Jurisdiction or alternatively,
for Summary Judgment.

For the reasons articulated in the

paragraphs which follow, the Motion to Dismiss shall be granted.
History of the Case
This is the remaining lawsuit of three1 originally assigned
to the undersigned, all of which arose out of the tragic crash of
a Cessna T210L single engine aircraft in the early afternoon of
June 21, 2010 as it neared the William T. Piper Memorial Airport

1

Those other matters, Lewis-Whiteman v. Continental Motors, Inc., et.
al., Civ. A. No. 13-CV-2950, and Jessup v. Continental Motors, Inc., et. al.,
Civ. A. No. 12-CV-4439 have since been amicably resolved by the parties.

in Lock Haven, Pennsylvania.

As a result of the accident, which

was caused by a total engine failure as the plane was preparing
to land, the pilot, Patrick Jessup, and his two passengers,
United States Forest Service employees Rodney Whiteman and Daniel
Snider were killed.

At the time of the accident, Messrs.

Whiteman and Snider were in the process of conducting an aerial
deforestation survey on behalf of the Forest Service.

The plane

was being operated pursuant to a charter plane and pilot contract
between its owner, Defendant Sterling Airways, Inc. of Hornell,
New York and the U.S. Forest Service, dated March 28, 2008.

The

accident airplane had been manufactured in 1973 and was equipped
with a Continental Motors’ TSIO-520-H engine that had last been
overhauled in 2004.
With varying degrees of specificity, the complaints in the
actions filed by the estates of the three individuals killed as a
result of the crash allege negligence, gross negligence,
recklessness and/or strict liability on the part of the various
defendants in, inter alia, the manufacture, maintenance and
operation of the Cessna, its engine and component parts.

While

all of the lawsuits were initially filed in the Court of Common
Pleas of Philadelphia County, after removal and remand, the
Lewis-Whiteman and Snider matters were eventually re-removed to
this Court following the filing of Third-Party Complaints against

2

Patricia Pierce and Rodney Whiteman2, the United States Forest
Service Contracting Officer and Contracting Officer’s
Representative on the Aircraft and Pilot Services Contract
between the Forest Service and Sterling.

The United States then

substituted itself for the individual employees pursuant to 28
U.S.C. §2679(d).

As noted, by the motion which is now before us,

the United States moves to dismiss this action for lack of
subject matter jurisdiction or, in the alternative for the entry
of summary judgment in its favor.
Standards Governing Rule 12(b)(1) and Rule 56 Motions
Dismissals of claims for lack of subject matter jurisdiction
are contemplated under Fed. R. Civ. P. 12(b)(1).

Of course, the

party asserting jurisdiction bears the burden of showing that at
all stages of the litigation the case is properly before the
federal court.

Samuel-Bassett v. Kia Motors America, Inc., 357

F.3d 392, 396 (3d Cir. 2004).3

A motion pursuant to Rule

12(b)(1) affords the opportunity to challenge the Court's
jurisdiction both on the face of the complaint and as a factual

2

Inasmuch as Rodney Whiteman was killed in the subject accident, his
widow and Executrix of his Estate, Megan Lewis-Whiteman was named as the
third-party defendant.
3

The United States likewise relies upon Fed. R. Civ. P. 12(h)(3) in
requesting dismissal for want of subject matter jurisdiction. That Rule
essentially codifies the foregoing legal principle inasmuch as it reads:
If the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.

3

matter.

Common Cause of Pennsylvania v. Pennsylvania, 558 F.3d

249, 257 (3d Cir. 2009).

If the motion presents a facial attack,

it concerns “an alleged pleading deficiency” whereas a factual
attack concerns “the actual failure of a plaintiff’s claim to
comport factually with the jurisdictional prerequisites.”

CNA v.

United States of America, 535 F.3d 132, 139 (3d Cir. 2008)
(quoting U.S. ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d
506, 514 (3d Cir. 2007)).

“When a defendant attacks subject

matter jurisdiction ‘in fact,’ as opposed to an attack on the
allegations on the face of the complaint, the Court is free to
weigh the evidence and satisfy itself whether it has power to
hear the case.”

Carpet Group International v. Oriental Rug

Importers Ass’n., 227 F.3d 62, 69-70 (3d Cir. 2000)(quoting
Mortensen v. First Federal Savings & Loan Assoc., 549 F.2d 884,
891 (3d Cir. 1977).

In such a situation, “no presumptive

truthfulness attaches to plaintiff’s allegations, and the
existence of disputed material facts will not preclude the trial
court from evaluating for itself the merits of jurisdictional
claims.” Id.
Motions for summary judgment, on the other hand, are
governed by the provisions of Fed. R. Civ. P. 56.

Subsection (a)

of that Rule provides,
A party may move for summary judgment, identifying each
claim or defense - or the part of each claim or defense - on
which summary judgment is sought. The court shall grant
summary judgment if the movant shows that there is no
4

genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. The court should
state on the record the reasons for granting or denying the
motion.
Under this rule then, summary judgment is appropriate only
if there are no genuine issues of material fact such that the
movant is entitled to judgment as a matter of law.

Erdman v.

Nationwide Insurance Co., 582 F.3d 500, 502 (3d Cir. 2009).

In

considering a motion for summary judgment, the reviewing court
should view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s
favor.

Burton v. Teleflex, Inc., 707 F.3d 417, 425 (3d Cir.

2013).

The initial burden is on the party seeking summary

judgment to point to the evidence “which it believes demonstrate
the absence of a genuine issue of material fact.”

United States

v. Donovan, 661 F.2d 174, 185 (3d Cir. 2011)(quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed.2d
265 (1986)).

An issue is genuine only if there is a sufficient

evidentiary basis on which a reasonable jury could find for the
non-moving party, and a factual dispute is material only if it
might affect the outcome of the suit under governing law.
Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir.
2006)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S. Ct. 2505, 91 L. Ed.2d 202 (1986)).

If the non-moving

party bears the burden of persuasion at trial, “the moving party
may meet its burden on summary judgment by showing that the
5

nonmoving party’s evidence is insufficient to carry that burden.”
Id, (quoting Wetzel v. Tucker, 139 F.3d 380, 383 n.2 (3d Cir.
1998)).

“The mere existence of some evidence in support of the

nonmovant is insufficient to deny a motion for summary judgment;
enough evidence must exist to enable a jury to reasonably find
for the nonmovant on the issue.”

Renchenski v. Williams, 622

F.3d 315, 324 (3d Cir. 2010)(quoting Giles v. Kearney, 571 F.3d
318, 322 (3d Cir. 2009).

Thus, “if there is a chance that a

reasonable juror would not accept a moving party’s necessary
propositions of fact,” summary judgment is inappropriate.
Id.(quoting El v. SEPTA, 479 F.3d 232, 238 (3d Cir. 2007)).
Discussion
A. Independent Contractor Exclusion
Noting that “[b]ecause the United States has answered, and
discovery is complete, this motion has ‘moved into the realm of a
factual challenge to the court’s subject matter jurisdiction,’”
the United States first avers that because the entire action is
premised upon the alleged negligence of a government contractor
and CMI has failed to show any independent negligence of a
federal employee, the claims against the U.S. are barred by the
independent contractor exclusion to the Federal Tort Claims Act.4
Generally speaking as a sovereign, the United States is
immune from suit unless it consents to be sued.

4

White-Squire v.

28 U.S.C. §2671, et. seq., hereafter referred to as the “FTCA.”

6

United States Postal Service, 592 F.3d 453, 456 (3d Cir. 2010).
This consent to be sued “must be unequivocally expressed.”

Id.

The Federal Tort Claims Act has long been recognized as a limited
waiver of the sovereign immunity of the United States, making 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.

United States v. Orleans, 425 U.S. 807, 813,

96 S. Ct. 1971, 1975, 48 L. Ed. 2d 390 (1976). Indeed, the
Federal Tort Claims Act, reads as follows in pertinent part:
The United States shall be liable, respecting the provisions
of this title relating to tort claims, in the same manner
and to the same extent as a private individual under like
circumstances, but shall not be liable for interest prior to
judgment or for punitive damages.
...
28 U.S.C. §2674.

Thus, “[t]he Federal Tort Claims Act vests

exclusive jurisdiction in district courts for claims against the
United States ‘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 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
occurred.’” Norman v. United States, 111 F.3d 356, 357 (3d Cir.
1997)(quoting 28 U.S.C. §1346(b)).
“Title 28 U.S.C. §2671 explains that ‘Federal agency’ and
‘Employee of the government’ do not include any contractor with
the United States” and “[t]hus, there is an independent7

contractor exemption in the Federal Tort Claims Act.”

Id.

As a

result, the United States is not liable for torts committed by
its independent contractors.

Orleans, 425 U.S. at 814, 96 S. Ct.

at 1976; Theokary v. United States, No. 13-3143, 2014 U.S. App.
LEXIS 6072 at *4, 562 Fed. Appx. 116, 118 (3d Cir. March 31,
2014).
However, “the FTCA does not immunize the United States from
claims against it for injuries caused by the negligence or
omission of its own employees if those employees were acting
within the scope of their employment.”

Jackson v. Liberty Mutual

Insurance Co., No. 06-4960, 2008 U.S. App. LEXIS 11468 at *2 282
Fed. Appx. 150, 151 (3d Cir. May 29, 2008).

“If such acts are

alleged, a district court would have subject matter jurisdiction
to entertain the claim, with the finding of liability ultimately
for the factfinder.”

Id.(citing 28 U.S.C. §1346(b)(1)).

“The determination of whether a party is an independent
contractor or a government employee is at the crux of many FTCA
cases and requires a fact-intensive determination.”

Smiley v.

Artisan Builders, Civ. A. No. 13-7411, 2015 U.S. Dist. LEXIS
83800 at *11 (E.D. Pa. June 26, 2015).

The Supreme Court has

adopted the traditional, common law distinction between employees
of the principal and employees of an independent contractor with
the principal in construing the “contractor of the United States”
language of §2671,” and has held that the critical factor in

8

making this determination is the “authority of the principal to
control the detailed physical performance of the contractor.”
Logue v.

United States, 412 U.S. 521, 527-528, 93 S. Ct. 2215,

2219, 37 L. Ed. 2d 121 (1973); Smith v. Steffens, 429 F. Supp. 2d
719, 721 (E.D. Pa. 2006).

Indeed, the “question is not whether

the contractor receives federal money and must comply with
federal standards and regulations, but whether its day-to-day
operations are supervised by the Federal Government.”

Id.; See

also, Orleans, supra. “If a federal actor supervises the day-today operations of the contractor’s job, the contractor is
generally considered an employee of the United States.”

Nolden

v. United States, No. 1:12-cv-1541, 2014 U.S. Dist. LEXIS 52881
at *10 (M.D. Pa. April 16, 2014)(citing Orleans, 425 U.S. at
815).

“Conversely, if the contractor manages the job’s daily

functions, and the federal actor exercises only broad supervisory
powers, the contractor is likely an independent contractor even
if the Government reserves the right to inspect the contractor’s
work and monitor its compliance with federal law.”

Id, at *11.

In applying the foregoing principles, we first observe that
the basis for CMI’s joinder of the United States is the alleged
duty on the part of the Forest Service to “assure that proper
maintenance was performed upon the Aircraft at its home base at
the Sterling facility in Hornell, New York.”

(Defendants’

Complaint against Additional Third-Party Defendants Patricia

9

Pierce and Megan Lewis-Whiteman, as Executrix of the Estate of
Rodney L. Whiteman, attached to the United States’ Motion to
Dismiss or for Summary Judgment as Exhibit “1” at ¶ 4).
According to the joinder complaint, this purported duty arose out
of the 2008 contract between the U.S. Department of Agriculture,
Forest Service and Sterling Airways which identified Patricia
Pierce as the Contracting Officer with responsibility for, inter
alia, giving “written notice of any defects or non-conformance to
the requirements of the Contract.” (Exhibit 1, ¶ 19).

Ms.

Pierce, in turn, designated Mr. Whiteman as the “Contracting
Officer’s Technical Representative,” with responsibility for
“administering the performance of work under the Contract” and
“technical aspects of the Contract.”

(Exhibit 1, ¶s 17, 18).

In

follow-up to its averment that “Sterling failed to inspect and
maintain the Aircraft in a reasonably safe condition in accord
with the requirements of Part 135 of the Federal Aviation
Regulations,” CMI contends that “Ms. Pierce and Mr. Whiteman,
severally or jointly, along with other presently unknown federal
officers, employees, and agents, were negligent, grossly
negligent, and reckless in that they knew or should have known by
an inspection of the Sterling facility and its records and the
Aircraft ... that Sterling lacked the qualifications and
equipment to properly maintain the Aircraft in reasonably safe
condition and that Sterling was not properly maintaining or

10

providing for the maintenance of the Aircraft in reasonably safe
condition at its home base in Hornell, New York.”

(Exhibit 1, ¶s

20-22).
It has been said that “FTCA plaintiffs must meet the
criteria of [28 U.S.C.] §1346(b)(1) before a district court may
exercise jurisdiction,” which criteria mandate that a claim must
be made:
[1] against the United States, [2] for money damages, [3]
for injury or loss of property, or personal injury or death
[4] caused by the negligent or wrongful act or omission of
any employee of the Government [5] while acting within the
scope of his office or employment, [6] 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.
CNA v. United States, 535 F.3d 132, 141 (3d Cir. 2008)(quoting
FDIC v. Meyer, 510 U.S. 471, 477, 114 S. Ct. 996, 1001, 127 L.
Ed. 2d 308 (1994)).

Inasmuch as the preceding allegations

clearly evince that the gravamen of CMI’s joinder complaint is
the purported negligence of Ms. Pierce and the late Mr. Whiteman,
acting within the course and scope of their employment as
Contracting Officer and Contracting Officer’s Technical
Representative for the U.S. Forest Service, and that the result
of that alleged negligence was the crash of the aircraft and the
deaths of Messrs. Snider, Jessup and Whiteman, we find that the
above “threshold requirements” are satisfied such that this Court
properly possesses subject matter jurisdiction.

Equally evident

is that the defendant Government is not being charged with
11

liability for the actions and/or inactions of Sterling or any
other independent contractor, but rather for the actions and
inactions of its own employees in fulfilling the contract’s
requirements.

For these reasons, we deem the independent

contractor exclusion inapplicable and deny the motion to dismiss
for lack of subject matter jurisdiction on the basis of the
independent contractor exclusion.
B.

Discretionary Function Exception

As an alternative ground for dismissal, the United States
asserts that the discretionary function exception to the FTCA
also bars this action.
The so-called “discretionary function exception” is in fact
the first exception denominated under 28 U.S.C. §2680.

It

provides:
The provisions of this chapter [28 USCS §2671 et. seq.] and
section 1346(b) of this title [28 USCS §1346(b)] shall not
apply to (a) Any claim based upon an act or omission of an
employee of the Government, exercising due care, in the
execution of a statute or regulation, whether or not
such statute or regulation be valid, or based upon the
exercise or performance or the failure to exercise or
perform a discretionary function or duty on the part of
a federal agency or an employee of the Government,
whether or not the discretion involved be abused.
28 U.S.C. §2680(a).
The Supreme Court has opined that “[t]he §2680 exceptions
are designed to protect certain important governmental functions
and prerogatives from disruption.
12

They mark the ‘boundary

between Congress’ willingness to impose tort liability upon the
United States and its desire to protect certain governmental
activities from exposure to suit by private individuals.”

Molzof

v. United States, 502 U.S. 301, 311, 112 S. Ct. 711, 718, 116 L.
Ed.2d 731, 743 (1992).

“‘Congress has taken steps to protect the

Government from liability that would seriously handicap efficient
government operations.’”

Id.(quoting United States v. Varig

Airlines, 467 U.S. 797, 808, 104 S. Ct. 2755, 81 L. Ed. 2d 660
(1984)).
The discretionary function exception “covers only acts that
are discretionary in nature, acts that ‘involve an element of
judgment or choice,’ ... and ‘it is the nature of the conduct,
rather than the status of the actor’ that governs whether the
exception applies.”

U.S. v. Gaubert, 499 U.S. 315, 322, 111 S.

Ct. 1267, 1273, 113 L. Ed. 2d 335 (1991)(quoting, inter alia,
Berkovitz v. United States, 486 U.S. 531, 536, 108 S. Ct. 1954,
1958, 100 L. Ed. 2d 531 (1988) and Varig, 467 U.S. at 813, 104 S.
Ct. at 2764).

“Because the purpose of the exception is to

prevent judicial second-guessing of legislative and
administrative decisions grounded in social, economic, and
political policy through the medium of an action in tort, when
properly construed, the exception protects only governmental
actions and decisions based on considerations of public policy.”
Id, 499 U.S. at 323, 111 S. Ct. at 1273-1274.

13

“As a threshold matter, before determining whether the
discretionary function exception applies, a court must identify
the conduct at issue.”

S.R.P. v. United States, 676 F.3d 329,

332 (3d Cir. 2012)(citing Merando v. United States, 517 F.3d 160,
165 (3d Cir. 2008)).

Once done, the court next must engage in a

two-step inquiry to ascertain “whether the discretionary function
exception immunizes the government from a suit arising out of
such conduct.”

Id.

“First a court must ‘consider whether the

action is a matter of choice for the acting [government]
employee’” given that “‘conduct cannot be discretionary unless it
involves an element of judgment or choice.’” Baer v. United
States, 722 F.3d 168, 172 (3d Cir. 2013)(quoting Berkovitz, 486
U.S. at 536, 108 S. Ct. 1954).

“Second, a court must determine

whether the judgment exercised ‘is of the kind that the
discretionary function exception was designed to shield.’” Id.
It should further be noted that “[a]lthough a plaintiff bears the
burden of establishing that his claims fall within the scope of
the FTCA’s waiver of the federal government’s sovereign immunity,
the Government has the burden of proving the applicability of the
discretionary function exception.”

S.R.P., 676 F.3d at

333(quoting Merando, 517 F.3d at 164).
In this case, the Government’s conduct at issue arose under
the Aircraft and Pilot Services Contract between the U.S.
Department of Agriculture, United States Forest Service and

14

Sterling Airways.

As alleged in the third-party complaint,

Patricia Pierce, as the Contracting Officer and Rodney Whiteman,
who was appointed by Ms. Pierce as the Technical Representative
for the Contract, were charged with the duty on behalf of the
Forest Service to, inter alia, ensure that the contract
requirements that Sterling provide an “appropriate and Forest
Service certified and approved aircraft and pilot” that complied
“with all FAR part 135 requirements” was being fulfilled, “to
approve an inspection system for the services provided under the
contract,” and “to have a safety plan in place” before each
flight.

(Joinder Complaint, ¶s 6-9, 17-19).

CMI essentially

alleges that Ms. Pierce and Mr. Whiteman were negligent, grossly
negligent and reckless in that they permitted the accident
aircraft to be operated on the day that it crashed.

We can find

nothing in these allegations which is in any way suggestive of or
involves the permissible exercise of policy judgment or
considerations of social, economic or political policy.
Consequently we cannot find that the alleged negligence is of the
kind that the discretionary function exception was designed to
shield.

See, e.g., Berkovitz, 486 U.S. at 537, 108 S. Ct. at

1959.
Moreover the joinder complaint avers that the United States,
by and through its employees, were “required” to undertake and
had the “responsibility” to, inter alia, inspect Sterling’s

15

facilities, books, records, etc. to ensure that the airplane
complied with the terms and conditions of the contract, to
approve an inspection system, to have a safety plan in place, to
terminate the contract for default and to enforce the contract’s
warranty provisions.

This language, on the other hand, strongly

evinces that the said employees had no discretion or choice as to
whether or not to engage in such activities.5

For this reason as

well, we conclude that the discretionary function exception has
no application here and we therefore deny the motion to dismiss
on the basis of 28 U.S.C. §2680(a).
C.

Worker’s Compensation Bar

The United States next contends that the complaint against
it should be dismissed because a similarly situated private
person could not be liable under state law, insofar as the
Plaintiff has received worker’s compensation benefits pursuant to
the Federal Employees’ Compensation Act (“FECA”), 5 U.S.C. §8101,
et. seq.

The gist of this argument appears to be that because in

most states the payment of worker’s compensation benefits is an
exclusive remedy for an employee who is injured or killed while
working, and since Plaintiff’s estate received FECA benefits, the
United States cannot be held liable for contribution and/or

5

While Ms. Pierce and/or Mr. Whiteman may have had some discretion in
how to best fulfill these requirements, this does not equate to possessing
discretion or having a choice in whether to undertake the actions necessary to
satisfy the contract’s mandates.

16

indemnity on the joinder complaint.

Thus, according to the

Government, this Court lacks jurisdiction and the claims against
it are properly dismissed.
The FECA is a workers’ compensation statute for federal
employees.
1998).

Pourier v. United States, 138 F.3d 1267 (8th Cir.

“Like most workers’ compensation statutes, FECA

guarantees injured federal employees the right to receive
immediate, fixed benefits, regardless of fault and without need
for litigation from their employer, i.e. the federal government,
in exchange for statutory immunity from personal injury claims.”
In re McAllister Towing, 432 F.3d 216, 218 (3d Cir. 2005).

To

this end, 5 U.S.C. §8116©, further provides:
The liability of the United States or an instrumentality
thereof under this subchapter [5 U.S.C. §8101, et. seq.] or
any extension thereof with respect to the injury or death of
an employee is exclusive and instead of all other liability
of the United States or the instrumentality to the employee,
his legal representative, spouse, dependents, next of kin,
and any other person otherwise entitled to recover damages
from the United States or the instrumentality because of the
injury or death in a direct judicial proceeding, in a civil
action, or in admiralty, or by an administrative or judicial
proceeding under a workmen’s compensation statute or under a
Federal tort liability statute. However, this subsection
does not apply to a master or a member of a crew of a
vessel.
Indeed, because the FECA provides an “exclusive” remedy, it
deprives the federal courts of subject-matter jurisdiction to
adjudicate claims brought under the FTCA for work-place injuries
that are covered by FECA.

Mathirampuzha v. Potter, 548 F.3d 70,

81 (2nd Cir. 2008).
17

The exclusivity provision of FECA, however, “does not
directly bar a third-party indemnity action against the United
States.”

Lockheed Aircraft Corp. v. United States, 460 U.S. 190,

199, 103 S. Ct. 1033, 1039, 74 L. Ed. 2d 911 (1983); Weyerhaeuser
S.S. Co. v. United States, 372 U.S. 597, 83 S. Ct. 926, 10 L. Ed.
2d 1 (1963).

Rather, courts must look to the underlying cause of

action and determine whether a claim for indemnity is viable
based on the state of the law, which can include general legal
principles as well as a particular statutory scheme.

McAllister,

432 F.3d at 222 (citing Eagle-Picher Indus., Inc. v. United
States, 846 F.2d 888, 892 n.6 (3d Cir. 1988)).

“Thus, the right

to contribution or indemnity either does or does not exist as a
matter of law, separate and apart from the exclusivity
provision.”

Id.

As noted previously, jurisdiction in this matter6 arises
under 28 U.S.C. §1346(b)(1):
Subject to the provisions of chapter 171 of this title, the
district courts, together with the United States District
Court for the District of the Canal Zone and the District
Court of the Virgin Islands, shall have exclusive
jurisdiction of civil actions on claims against the United
States, for money damages, accruing on and after January 1,
1945, for injury or loss of property, or personal injury or
death caused by the negligent or wrongful act or omission of

6
We note that diversity jurisdiction also exists in this matter
inasmuch as Plaintiffs are citizens of West Virginia, Defendant Sterling is a
citizen of New York, Defendant CMI is a citizen of Delaware and Alabama,
Defendant TDY is a citizen of California and Pennsylvania, Defendant Allegheny
is a citizen of Delaware and Pennsylvania, Defendant TTI is a citizen of
Delaware and California and Defendant Technify is a citizen of Alabama. See,
28 U.S.C. §§1332(a)(1), (c)(1).

18

any employee of the Government while acting within the
of his office or employment, under circumstances where
United States, if a private person, would be liable to
claimant in accordance with the law of the place where
act or omission occurred.

scope
the
the
the

Turning to CMI’s joinder complaint against Pierce and
Whiteman, we find that the gist of CMI’s allegations against them
and the grounds for their joinder is their purported failure to
assure that Sterling was properly repairing and maintaining

the

accident aircraft at its home base in Hornell, New York.
(Joinder Complaint, ¶s 4, 22-26, 28).

We therefore look to New

York law as that is the place where the alleged negligent act or
omission occurred.

In doing so, the Supreme Court has decreed

that the whole law (including the choice of law rules) of the
place where the negligence occurred is to be applied, as opposed
to the internal law of the place where the negligence occurred or
the internal law of the place where the operative effect of the
negligence took place.

Richards v. United States, 369 U.S. 1, 2,

11, 82 S. Ct. 585, 587, 592, 7 L. Ed. 2d 492, 494, 499 (1962);
Simon v. U.S., 341 F.3d 193, 200 (3d Cir. 2003).

As a

consequence, we are compelled to also look to New York conflicts
law for guidance.
New York was at the forefront of a revolution in the manner
in which courts throughout the United States approached choice of
law questions.

In the landmark case of Babcock v. Jackson, 12

N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S. 2d 743 (1963), the New

19

York Court of Appeals discarded the “traditional choice of law
rule, embodied in the original Restatement of Conflict of Laws
(§384) ... that the substantive rights and liabilities arising
out of a tortious occurrence are determinable by the law of the
place of the tort.”

Babcock, 12 N.Y.2d at 477, 191 N.E.2d at

281, 240 N.Y.S. 2d at 746.

In its place, the Court formally

adopted a “center of gravity” or “grouping of contacts” doctrine
which operated to give “controlling effect to the law of the
jurisdiction which, because of its relationship or contact with
the occurrence or the parties, has the greatest concern with the
specific issue raised in the litigation.”

Babcock, 12 N.Y.2d at

481, 191 N.E.2d at 283, 240 N.Y.S. at 749.
“Over time, the ‘grouping of contacts’ approach put into
place by Babcock evolved into a more explicit ‘interest
analysis.’” Edwards v. Erie Coach Lines Co., 17 N.Y. 3d 306, 320,
952 N.E.2d 1033, 1036, 929 N.Y.S.2d 41, 44 (2011)(citing Miller
v. Miller, 22 N.Y.2d 12, 17, 237 N.E.2d 877, 290 N.Y.S.2d 734
(1968)).

Further, “a distinction was drawn between laws that

regulate primary conduct (such as standards of care) and those
that allocate losses after the tort occurs (such as guest
statutes or vicarious liability rules).”

Simon v. Philip Morris,

124 F. Supp. 2d 46, 57 (E.D. N.Y. 2000)(citing Cooney v. Osgood
Machinery, Inc., 81 N.Y.2d 66, 72, 595 N.Y.S.2d 919, 612 N.E.2d
277 (1993)).

Generally speaking, loss-allocation rules

20

“prohibit, assign, or limit liability after the tort occurs,”
whereas conduct-regulating rules “have the prophylactic effect of
governing conduct to prevent injuries from occurring” in the
first place.

Edwards, 17 N.Y.3d at 318, n.1, 952 N.E.2d at 1034,

n.1, 929 N.Y.S.2d at 42, n.1.
It should be noted that “[l]oss-allocation and conductregulation are not rigid categories, though the distinction
between them serves as a proxy for the ultimate question of which
state has the greater interest in having its law applied to the
litigation at hand.”

Hamilton v. Accu-Tek, 47 F. Supp. 2d 330,

337 (E.D.N.Y. 1999).

“If conflicting conduct-regulating laws are

at issue, the law of the jurisdiction where the tort ‘occurred’
will generally apply because that jurisdiction usually has the
greatest interest in regulating behavior within its borders.”
Simon, supra.

“If competing ‘post event remedial rules’ are at

stake, other factors are considered.”

Id.(citing, inter alia,

Schultz v. Boy Scouts, 65 N.Y.2d 189, 195, 197, 491 N.Y.S.2d 90,
480 N.E.2d 679 (1985) and Hamilton, 47 F. Supp. 2d at 336-337).
Under New York’s choice of law rules, the interest of the locus
jurisdiction in having its loss-allocation rule applied is deemed
to be minimal.

Hamilton, 47 F. Supp. 2d at 336 (citing Schultz,

65 N.Y.2d at 198, 480 N.E.2d at 685, 491 N.Y.S.2d at 96).

And

where the conflict is between loss-allocating rules, the locus
jurisdiction has a lesser interest and the interest of the

21

parties’ domiciles assumes correspondingly greater importance,
although other factors may be taken into consideration as well.
Hamilton, at 337.

In the opinion of the New York Court of

Appeals, the correct way to conduct a choice-of-law analysis is
to consider each plaintiff vis-a-vis each defendant while
applying the three general rules which were first articulated in
Neumeier v. Kuehner, 31 N.Y.2d 121, 127, 286 N.E.2d 454, 335
N.Y.S.2d 64 (1972), a case involving application of a “guest
statute” but which have since been adopted and routinely applied
to conflicts in loss-allocation situations not involving guest
statutes.

Edwards, 17 N.Y.3d at 322, 329, 952 N.E.2d at 1037,

1042, 929 N.Y.S.2d at 45, 50.

Contribution rules are loss

allocating, not conduct regulating and so the Neumeier rules are
properly applied here.

Cooney, 81 N.Y.2d at 74, 612 N.E.2d at

282, 595 N.Y.S.2d at 924; Gleason v. Holman Contract Warehouse,
250 A.D.2d 339, 341, 681 N.Y.S.2d 664, 666 (App. Div. 3d 1998).
The first Neumeier rule provides that when the plaintiff and
the defendant are domiciled in the same state, the law of that
state shall govern.

Edwards, 17 N.Y.3d at 321, 952 N.E.2d at

1037; Cooney, 81 N.Y.2d at 73, 612 N.E.2d at 281(both citing
Neumeier, 31 N.Y.2d at 128).

The second rule has been said to

address “‘true’” conflicts, where the parties are domiciled in
different states and the local law favors the respective
domiciliary.”

Cooney, id.

In that case, when the defendant’s

22

conduct occurred in the state of [defendant’s] domicile and that
state would not impose liability, the defendant should not be
exposed to liability under the law of the victim’s domicile.

Id.

If, on the other hand, the plaintiff is injured or harmed in the
place of [plaintiff’s] domicile and would be entitled to recover,
the out-of-state defendant should generally be unable to
interpose the law of his or her domicile to defeat recovery.
Id,(citing Neumeier, 31 N.Y.2d at 128).

In essence, then, the

second Neumeier rule adopts a “place of injury” test.

Id.

Under the third rule, which applies when the plaintiff and
defendant are domiciled in different jurisdictions, “the usually
governing law will be that of the place where the accident
occurred, unless ‘displacing that normally applicable rule will
advance the relevant substantive law purposes without impairing
the smooth working of the multistate system or producing great
uncertainty for litigants.’

This rule too, generally uses the

place of injury, or locus, as the determining factor.”
81 N.Y.2d at 73-74.

Cooney,

Consequently, the domiciles of the various

parties is of paramount importance.

In New York, the domicile of

a corporation for choice-of-law purposes is the state where it
maintains its principal place of business.

Elson v. Defren, 283

A.D.2d 109, 116, 726 N.Y.S.2d 407, 413 (App. Div. 1st 2001);
Dorsey v. Yantambwe, 276 A.D.2d 108, 111, 715 N.Y.S.2d 566 (App.
Div. 4th 2000).

23

In this case, it appears that Defendants/Third Party
Plaintiffs CMI and Technify Motors are domiciliaries of Alabama,
having principal places of business in Mobile; Teledyne
Technologies is domiciled in California (Thousand Oaks); and
Allegheny Technologies, Inc. and TDY Industries with principal
places of business in Pittsburgh are Pennsylvania domiciliaries.
While it appears that New York law may consider the United States
to be domiciled in the District of Columbia, the sole decision
holding to that effect is quite old and predates modern New York
choice of law rules.

Gould Electronics, Inc. v. U.S., 220 F.3d

169, 185 (3d Cir. 2000)(citing Fisher v. Fisher, 250 N.Y. 313,
165 N.E. 460, 462 (1918)).

As noted by the Third Circuit in

Gould, there are three possibilities for the domicile of the
United States for purposes of New York choice of law: (1) the
U.S. is domiciled in all 50 states; (2) the U.S. is domiciled
nowhere; and (3) as noted above, the U.S. is domiciled in the
District of Columbia.

Gould, at 184-186.

It thus appears clear

that in this case, unless we definitively find that the United
States is domiciled in all 50 states, we are concerned with
application of the third Neumeier rule.7
7

And, even if we were to find that the U.S. is domiciled in all
states and that it therefore shared a domicile with the third party
plaintiffs, under the law of Alabama, California and Pennsylvania, unless the
parties have entered into an express indemnity agreement providing therefor, a
third-party contribution or indemnity claim will not lie against an employer
who has paid worker’s compensation benefits to an injured employee. See,
Goodyear Tire & Rubber Co. v. J.M. Tull Metals Co., 629 So. 2d 633 (Ala.
1993); Shumosky v. Lutheran Welfare Services of Northeastern Pennsylvania, 754
A.2d 196 (Pa. Super. 2001); 77 P.S. §481; E.B. Wills Co. v. Superior Court, 56

24

If the United States is domiciled nowhere or in the District
of Columbia, then under the third rule, the law of Pennsylvania,
as the state in which the accident occurred will govern unless
“displacing that normally applicable rule will advance the
relevant substantive law purposes without impairing the smooth
working of the multistate system or producing great uncertainty
for litigants.”

Third party plaintiffs do not argue that

displacing the law of Pennsylvania is appropriate here and, as
the U.S. points out, there is nothing on the record before us to
show that New York has any real interest in applying its workers’
compensation statute (NY CLS Work Comp §11) to a situation like
this one where workers’ compensation benefits were paid to the
family of a deceased West Virginia-domiciled employee who was
fatally injured in an accident that occurred in Pennsylvania to
permit the recovery of contribution/indemnity by manufacturers
domiciled in Alabama, California, Pennsylvania and Delaware.8

Cal.App.3d 650, 128 Cal. Rptr. 541 (1976). Moreover, as pointed out by the
Third Circuit in Gould, the idea that the United States is domiciled in all 50
states runs counter to New York’s rule that a person may have only one state
of domicile and therefore under New York choice of law, it is unlikely that
the United States would be considered domiciled in all 50 states. Gould, 220
F.3d at 185 (citing In re Strobel’s Estate, 200 Misc. 483, 109 N.Y.S.2d 848,
850 (N.Y. Sur. Ct. 1951); 49 N.Y. Jur.2d, Domicile & Residence §1 (1985)). It
is of course, also conceivable that if Sterling had likewise asserted a
contribution and/or indemnity claim against the Ms. Pierce, Mr. Whiteman
and/or the United States that we would potentially be concerned with the
second Neumeier rule given that Sterling is a domiciliary of New York.
8

Specifically, NY CLS Work Comp §11 provides the following with
respect to contribution and indemnity claims against an employer:
An employer shall not be liable for contribution or indemnity to any
third person based upon liability for injuries sustained by an employee
acting within the scope of his or her employment for such employer

25

And, since Pennsylvania law irrefutably holds that third-party
claims for contribution or indemnity from an employer or its
insurance carrier that has paid workers’ compensation benefits to
an injured employee are barred in the absence of an express
written agreement to the contrary9, we are constrained to agree
that we lack subject matter jurisdiction in this matter under the
FTCA.

See, also, Schlosser v. Lyras, Civ. A. No. 04-140J, 2006

U.S. Dist. LEXIS 64125, *43, *44 (W.D. Pa. Sept. 7, 2006)(“Under
the law of Pennsylvania, the contribution and indemnity actions

unless such third person proves through competent medical evidence that
such employee has sustained a “grave injury” which shall mean only one
or more of the following: death, permanent and total loss of use or
amputation of an arm, leg, hand or foot, loss of multiple fingers, loss
of multiple toes, paraplegia or quadriplegia, total and permanent
blindness, total and permanent deafness, loss of nose, loss of ear,
permanent and severe facial disfigurement, loss of an index finger or an
acquired injury to the brain caused by an external physical force
resulting in permanent total disability.

9

77 P.S. §481 reads as follows:

§481. Exclusiveness of remedy; actions by and against third party;
contract indemnifying third party
(a) The liability of an employer under this act shall be exclusive and
in place of any and all other liability to such employes, his legal
representative, husband or wife, parents, dependents, next of kin or
anyone otherwise entitled to damages in any action at law or otherwise
on account of any injury or death as defined in section 301(c)(1) and
(2) or occupational disease as defined in section 108.
(b) In the event injury or death to an employe is caused by a third
party, then such employe, his legal representative, husband or wife,
parents, dependents, next of kin and anyone otherwise entitled to
receive damages by reason thereof, may bring their action at law against
such third party, but the employer, his insurance carrier, their
servants and agents, employes, representatives acting on their behalf or
at their request shall not be liable to a third party for damages,
contribution, or indemnity in any action at law, or otherwise, unless
liability for such damages, contributions or indemnity shall be
expressly provided for in a written contract entered into by the party
alleged to be liable prior to the date of the occurrence which gave rise
to the action.

26

pending against the United States are barred by Pennsylvania
Worker’s Compensation Act, 77 Pa. C. S. §481(b) [and] [t]he
United States, ‘if a private person, would not be liable’ under
Pennsylvania law to the parties currently seeking to advance
their contribution and indemnity claims.”) Accordingly, the
United States’ motion to dismiss the claims against it shall be
granted10.
An order follows.

10
In light of our determination that the motion to dismiss the ThirdParty Plaintiffs’ claims against the United States is properly granted on the
basis of the workers’ compensation bar, we need not and do not reach the
merits of the motion for summary judgment.

27