Columbia Gas Transmission Corporation v. United States of America et al

Filing 206

MEMORANDUM OPINION AND ORDER denying the United States' 163 MOTION for Summary Judgment and dismissing the action against the United States for lack of jurisdiction, as more fully set forth herein. Signed by Judge Robert C. Chambers on 2/4/2016. (cc: counsel of record; any unrepresented parties) (jsa)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

COLUMBIA GAS TRANSMISSION LLC,
Plaintiff,
v.

CIVIL ACTION NO. 3:14-11854

UNITED STATES OF AMERICA
and TRI-STATE AIRPORT AUTHORITY,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is Defendant United States of America’s (“United States”) Motion for Summary
Judgment. ECF No. 163. In this case, Plaintiff Columbia Gas (“Columbia Gas”) alleges the United
States and Defendant Tri-State Airport Authority (“the Airport”) by their negligent acts caused a
landslide that damaged Columbia Gas’s natural gas pipeline and required emergency remediation
by Columbia Gas. Columbia Gas asserts claims against both the United States and the Airport; the
claims against the United States are brought under the Federal Tort Claims Act (“FTCA”) for
negligence, trespass, and nuisance. The United States asks for summary judgment on these claims
because, it contends, (1) the FTCA’s discretionary function exception applies; (2) the FTCA’s
independent contractor exception applies; (3) no federal employee committed any of the
complained of negligent acts; and (4) even if federal employees were negligent as alleged,
Columbia Gas has failed to demonstrate the causation element of the negligence claim against the
United States. As explained below, the Court finds the independent contractor exception applies
in this case, and for that reason it does not address any other ground for summary judgment in the
United States’ favor. Therefore, the Court DENIES the United States’ Motion for Summary

Judgment but DISMISSES the claims against the United States for lack of jurisdiction under the
FTCA. Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995) (“[i]f [independent contractor
exception applies] . . . , the United States has not waived its sovereign immunity[, and] the case
should be dismissed for want of jurisdiction under Rule 12(b)(1)”).
I.

Background

According to the Complaint and evidence adduced to-date, Columbia Gas sells natural gas,
which it transports via underground high-pressure pipelines to its customers. Compl. ¶ 12, ECF
No. 1. One of Columbia Gas’ underground gas pipelines, BM-74, is located on a right of way (an
“easement”) on property owned by the Airport in Wayne County, West Virginia and leased to the
West Virginia State Armory Board for the Tri-State Armed Forces Reserve Center (the “Armory”),
which is used by both the United States Army Reserve and the West Virginia Army National Guard
(“WVANG”). Compl. ¶¶13–14; Airport’s Answ. ¶ 14, ECF No. 6. In 2012, a landslide occurred
on the Airport’s property leased to the West Virginia State Armory Board, which in turn displaced
a section of Columbia’s BM-74 high-pressure natural gas transmission pipeline.
A. The 2012 Landslide and its Cause
On March 9, 2012, a Columbia Gas employee was inspecting the BM-74 pipeline and
discovered that a 400 foot landslide had formed above Columbia Gas’ pipeline. Compl. ¶ 18; Dep.
of Timothy Sweeney, at 21–22, 27 (Nov. 10, 2015) [hereinafter “Sweeney Dep.”]. As the slide
progressed over the next several days, the sliding soil displaced the pipeline approximately 18 feet
from its original position, causing the pipeline to buckle. Compl. ¶ 18; Dep. of Steve Bellini, at 79
(Sept. 1, 2015) [hereinafter “Bellini Dep.”]. This required Columbia Gas to take the pipeline out
of service and to remediate the area by excavating, stabilizing, and reconstructing the failed slope.
Compl. ¶ 19; Bellini Dep. at 17. Approximately 50,000 cubic yards of organic material was

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removed and replaced, and 200 feet of pipeline was replaced, costing approximately $1,116,915.00
for the whole remediation effort. Compl. ¶ 19.
Columbia Gas maintains the 2012 landslide was caused by two negligent acts: the Airport’s
improper placement of end-dump fill on the slope above Columbia Gas’s easement and the United
States’ approval of a negligently constructed drainage system at the Armory. 1 As for the
negligently constructed drainage system, Columbia Gas claims contractors constructed the
Armory’s drainage system not in accordance with its design. Pl.’s Resp. to U.S.’s Mot. for Sum.
J. at 6, ECF No. 168. As constructed, the drainage system collected and diverted large amounts of
surface water directly onto the end-dump filled slope. Supplemental Report of Cardno, Inc., at 14–
16 (June 30, 2015) [hereinafter “Cardno Supp. Report”]. At least three construction variations from
the Armory’s design diverted water onto the slope. Id. First, the channel constructed to direct

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Columbia Gas claims the Airport’s decision to place end-dump fill above its easement
containing a natural gas pipeline was negligent. As a result of end-dump filling, organic
material—which included tree trunks, stumps, telephone poles, tires, and other deleterious
materials—was placed in the slope during construction projects dating back to the 1950s and
1970s, and this organic material in turn compromised the slope’s stability. Compl. ¶ 20; Initial
Report of Cardno, Inc., at 4 (Nov. 17, 2014) [hereinafter “Cardno Initial Report”]; Dep. of Bruce
Allan Reynolds, at 23, 38 (Nov. 11, 2015) [hereinafter “Reynolds Dep.”]; Dep. of W. Dale
Nicholson at 116 (Sept. 10, 2015) [hereinafter “Nicholson Dep.”]. According to the Airport’s
expert, John Weaver:
End dumping of fill materials is a common practice on earthmoving
projects of discarding unsuitable, structural deleterious, or excess
soil and rock due to its low cost . . . Nothing is inherently wrong
with this practice. It is a trade-off of lessening current construction
costs while possibly limiting the future use at the fill site . . .
additional measures will need to be taken to make these types of fills
suitable for future development.
Superseding Expert Report of John Weaver at 12–13 (Jan. 30, 2015) [hereinafter
“Weaver Superseding Report”]. According to Columbia, although the end-dump
fill was constructed properly, it was improper for the Airport to place end-dump fill
on a slope above Columbia Gas’s easement containing a natural gas pipeline and
then to permit development of the Armory using part of that slope.
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runoff from the Armory (the “rip rap channel”) had not been properly constructed or lined,
allowing surface water collected from the mountaintop to soak into the slope, instead of guiding
that water to the drainage reservoir situated below Columbia Gas’s pipeline. Id. at 14; Compl. ¶21.
Second, the drainage system emptied directly onto the slope rather than emptying into the
established storm drainage system or a dedicated drainage channel. Cardno Supp. Report, at 15;
Compl. ¶ 21. Third, the swales were improperly constructed such that they diverted significantly
less surface water from the slope. See Cardno Supp. Report, at 16; Report of E.L. Robinson
Engineering, at 3 (Dec. 1, 2014). As a result, the slope’s soil was saturated with water that
otherwise would not have collected on the filled slope. See Nicholson Dep. at 140.
B. The Armory
The Armory was constructed in 1994. Dep. of Col. David P. Shafer, at 24, 29 (Sept. 2,
2015) [hereinafter “Shafer Dep.”]. Before the Armory was built, the State of West Virginia
contracted with Gandee and Partners, an Architect and Engineering firm (“A&E Firm”), to design
the Armory. See Contract for Architect-Engineer Services (Apr. 19, 1993), ECF No. 163–4. This
design contract was between the State of West Virginia and the A&E firm, as evidenced by the
signatures of Gaston Caperton, then-governor of West Virginia, and a representative of the A&E
firm. Id. In September 1994, the State of West Virginia awarded the construction contract to
Neighborgall Construction Company (“construction firm”). See Army Nat. Guard Construction
Contract (Sept. 19, 1994), ECF No. 163–5. The construction contract was between the State of
West Virginia and the construction firm, and it explicitly stated “[t]he Federal Government is not
a party to this contract. Id. at WVANG007320.

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C. Procedural Posture of this Case
On March 7, 2014, Columbia Gas filed a Complaint against the United States, the Airport,
and State Defendants—the West Virginia Army National Guard, the West Virginia State Armory
Board, the Adjutant General of West Virginia (“TAG”). Compl., ECF No. 1. Columbia Gas sued
the United States under the FTCA. Id. In July 2015, the Court dismissed the State Defendants
because they were entitled to Eleventh Amendment immunity. Columbia Gas Transmission, LLC
v. United States, No 14-11854, 2015 WL 4276334, at *1 (S.D.W. Va. July 14, 2015).
Subsequently, the United States moved for summary judgment in its favor, contending: (1)
Columbia Gas’s claims under the FTCA are barred by that Act’s discretionary function exception
to liability; (2) the FTCA’s independent contractor exception applies to preclude the United States’
liability; (3) no federal employee committed any of the complained of negligent acts; and (4) even
if federal employees were negligent as alleged, Columbia Gas has failed to demonstrate the United
States caused the landslide that damaged Columbia Gas’s pipeline, entitling the United States to
summary judgment on the negligence claim. United States Mot. for Sum. J. 1–2, ECF No. 163.
Having summarized the evidence adduced to date, the Court will detail the standard of
review for summary judgment and then discuss the United States’ motion.
II.

Legal Standard

To obtain summary judgment, the moving party must show there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the evidence
and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Instead, the Court will draw any permissible inference from the underlying facts in the light most
favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

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U.S. 574, 587-88 (1986).
Although the Court will view all underlying facts and inferences in the light most favorable
to the nonmoving party, the nonmoving party nonetheless must offer some “concrete evidence
from which a reasonable juror could return a verdict in his favor.” Anderson, 477 U.S. at 256.
Summary judgment is appropriate when the nonmoving party has the burden of proof on an
essential element of his or her case and does not make, after adequate time for discovery, a showing
sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Satisfying the burden of proof requires more than a mere “scintilla of evidence.” Anderson, 477
U.S. at 252.
III.

Discussion

As a sovereign, the United States is immune from all suits against it absent an express
waiver of its immunity. Welch v. United States, 409 F.3d 646, 650 (4th Cir. 2005). In the FTCA
the United States has explicitly waived sovereign immunity by making the federal government
liable in tort “in the same manner and to the same extent as a private individual under like
circumstances.” 28 U.S.C. § 2674. This waiver is tempered, however, by a number of exceptions.
See 28 U.S.C. § 2680. Because the Court finds the FTCA’s independent contractor exception
applies in this case, it will discuss only the United States’ argument regarding that exception.
A. Independent Contractor Exception
The United States argues the independent contractor exception applies to immunize the
United States from liability in this case. Specifically, the Government contends independent
contractors employed by the State of West Virginia constructed the allegedly negligent drainage
system without the sort of day-to-day supervision by federal employees necessary for the United
States to be held liable for actions of independent contractors under the FTCA; because the United

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States is not subject to suit for the tortious conduct of the State’s independent contractors, this
Court lacks subject matter jurisdiction over Columbia’s claims against the United States. The
Court agrees.
The acts of independent contractors are not acts of federal employees for which the United
States is liable under the FTCA. 28 U.S.C. §§ 1346(b)(1), 2671; Logue v. United States, 412 U.S.
521, 525–527 (1973). Whether a person is a contractor or a federal employee for purposes of the
independent contractor exception is determined under federal law. Robb v. United States, 80 F.3d
884, 887 (4th Cir. 1996) (citing Logue, 412 U.S. at 528; Berkman v. United States, 957 F.2d 108,
112 (4th Cir.1992)). Interpreting the FTCA, the Supreme Court has made clear that the United
States will not be liable for negligent acts of independent contractors unless the United States
supervised the “day-to-day operations” of the contractors. Williams, 50 F.3d at 306 (citing Logue,
412 U.S. at 529); see also United States v. Orleans, 425 U.S. 807, 815–16 (1976). “Stated
differently, a court must consider whether the government exercises day-to-day control over the
performance of the work under the contract.” Berkman, 957 F.2d at 113 (citing Wood v. Standard
Products Co., 671 F.2d 825, 829 (4th Cir. 1982)). Establishing standards, supplying financial
support, providing advice and oversight, inspecting and approving final work—all in order to
ensure that federal funds are not used on unauthorized expenditures—will not give the federal
government the “day-to-day control” over contractors necessary for the United States to be held
liable for the contractors’ actions. See Orleans, 425 U.S. at 818 (independent contractor exception
applied because United States did not have power to supervise “daily operations” of contractor,
even though United States did supply financial aid, advice, and oversight to assure federal funds
were not diverted to unauthorized purposes); Logue v. United States, 412 U.S. 521, 530 (1973)
(independent contractor exception applied because United States had no authority to physically

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supervise contractor-jail's employees, although agreement did require United States to pay jail for
its services and reserved a right for the United States to inspect the institution); Berkman v. United
States, 957 F.2d 108, 114 (4th Cir. 1992) (independent contractor exception applied because
United States did not have “physical control” over contractor’s day-to-day operations, even though
United States had right to inspect in order to ensure contractor’s services were in compliance with
contract). In determining the extent of control the United States exercises over contractors, courts
should look to the contract between the United States and the contractor, if any exists. Logue v.
United States, 412 U.S. 521, 529 (1973). The plaintiff bears the burden of showing a waiver of
sovereign immunity and to show that none of the FTCA exceptions applies. See Welch v. United
States, 409 F.3d 646 (4th Cir. 2005).
Viewing the evidence in a light most favorable to Plaintiff, the Court concludes that
contractors hired by the State of West Virginia constructed the Armory’s allegedly negligent
drainage system without the day-to-day supervision of federal employees necessary for the United
States to be held liable for the contractor’s actions. Discovery has revealed the Armory was
constructed pursuant to a contract between the State of West Virginia and independent contractors,
and the United States was not a party to that contract. See Army Nat. Guard Construction Contract
at WVANG007320. The WVANG monitored construction activities and progress; the A&E firm
hired by the State designed the Armory and oversaw construction, among other things; the
construction firm and its subcontractors actually constructed the Armory. See TAG’s Resp. to Pl.’s
First Set of Interrog. and Requests for Production of Documents at 2 and 9, ECF No. 163–12. If
modifications were required during construction, the contractor submitted change orders to the
State purchasing division for approval. Id. The State of West Virginia paid for the Armory’s
construction, and the federal government reimbursed the State of West Virginia pursuant to 10

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U.S.C. § 18231, et seq. See id.; Maintenance Agreement between U.S. and W. Va., ECF No 16810.
Although several federal employees participated in the construction process, no evidence
indicates any federal employee exercised day-to-day control over the State contractors’
construction work. Columbia Gas asserts that two federal employees—Colonel Southern and
Major Walker—served as “project managers” and were the “ultimate authority on the project,
overseeing the A&E Firm and construction company.” Pl.’s Memo. in Opp. to U.S. Mot for Sum.
J. at 16, ECF No. 168. However, none of the evidence adduced to-date indicates they exercised
“physical control” over the contractors’ day-to-day operations. 2 The deposition testimony of
Colonel David Shafer indicates these two federal employees oversaw the State’s contractors for
the limited purpose of ensuring compliance with federal standards so the construction could be
reimbursed by federal funds. See Shafer Dep., at 63–69 (explaining federal employees reviewed
design submittals and had right to inspect Armory, and the review and inspections were to ensure

Colonel Norm Southern’s title during construction was construction and facilities management
officer (CFMO). Shafer Dep., at 10–12, 74, 77–78. In this role, Colonel Southern was accountable
to TAG for construction work completed. Id. at 73–74. Colonel Southern coordinated funding
through the National Guard Bureau and made decisions in response to matters presented by the
contractors. Id. During construction, Colonel Southern was replaced by Lieutenant Colonel Mel
Burch. Id. at 11. There is no evidence that either Colonel Southern or Lieutenant Colonel Burch
exercised physical control over the contractors’ day-to-day construction work.
2

Major Rick Walker’s title during construction was “project manager,” but as the government
points out, he did not exercise duties typically associated with a construction project manager. Id.
at 10–11. The project manager role filled by Major Walker did not carry the duties of a construction
superintendent, who organizes work flow of contractors. Id. Instead, Major Walker was the
primary point of contact between the contractors and TAG; he answered questions, coordinated
paperwork, and attended meetings on TAG’s behalf. Id. at 11. No evidence adduced to-date
indicates Major Walker exercised any physical control over the contractor’s day-to-day
construction work. Instead, an employee of the A&E Firm, Don Moses, was the person who filled
the typical project manager role, directing the day-to-day work of the construction contractors. Id.
at 75.
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the Armory design and construction fell within the scope of what the federal government would
reimburse.).
Based on Colonel Shafer’s deposition testimony, the Court finds the sort of supervisory
acts and decisions of these two federal employees were of the same sort that courts have previously
held insufficient to constitute day-to-day control over contractors. For example, in Perez v. United
States, 594 F.2d 280 (1st Cir. 1979), the First Circuit held the independent contractor exception
immunized the United States from liability for a negligently constructed railing in a public housing
property. Perez, 594 F.2d at 285. The railing was constructed by a municipal housing authority, a
contractor of the United States. Id. at 283. The court found the contractor, not the United States,
was “fully responsible for the design and construction of the project,” even though the United
States provided funds contingent upon specifications being met; it had a right to inspect the project
and review all work completed; and a government inspector may have been on the construction
site “all the time.” Id. at 285–86. The court observed the inspector’s function at the construction
site was to “protect the [United States’] financial interests”; he was not responsible for supervising
the architects or construction crews, nor for the plans—which were drafted by the contractor and
approved by the United States. Id. at 286. In the end, the court concluded the United States’ control
over construction was that of a “financier with particular goals,” and the contractor was fully
responsible for the construction of the project. Id. at 285. Looking back to the present case, even
if the “buck stop[ped] at the United States,” Pl.’s Resp. at 16, the United States’ inspection and
approval of construction for purposes of federal reimbursement does not, in the absence of physical
control by the United States over the State contractors’ daily work, make the United States liable
for the negligent construction completed by the those contractors. Orleans, 425 U.S. at 818; Logue,
412 U.S. at 530; Williams, 50 F.3d at 306; Berkman, 957 F.2d at 114.

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Finding the United States lacked physical control over the State contractors’ daily work,
the Court concludes the independent contractor exception applies to immunize the United States
from any alleged liability in this case. More specifically, the United States cannot be held liable
for the allegedly negligently constructed drainage system completed by West Virginia’s
contractors. Because the independent contractor exception applies to Columbia Gas’s claims
against the United States, these claims must be dismissed for lack of jurisdiction.
IV.

Conclusion

As explained above, the Court finds the independent contractor exception applies to each
of Columbia Gas’s claims against the United States. Because the independent contractor
exception applies, the United States is immune from suit, and the Court lacks jurisdiction to enter
judgment on Columbia’s claims against the United States. Therefore, the Court DENIES the
United States’ Motion for Summary Judgment and DISMISSES the action against the United
States for lack of jurisdiction.
The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to counsel
of record and any unrepresented parties.

ENTER:

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February 4, 2016