The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Stephen Pelinski ("Pelinski") and Pamela Pelinski brought this
diversity-based personal injury action against Goodyear Tire and
Rubber Company ("Goodyear"), owner of the Norfolk, Nebraska
premises on which the alleged injury occurred, and Behlen
Manufacturing Company ("Behlen"), general contractor for
construction of a plant on Goodyear's property. In turn, Goodyear
and Behlen filed third party complaints against Spacemark, Inc.
("Spacemark"), Pelinski's employer and Behlen's subcontractor.
Spacemark has moved (1) "to dismiss for lack of cause of
action" and (2) to transfer this action to the District Court for
the District of Nebraska.*fn1 For the reasons stated in this
memorandum opinion and order, Spacemark's motions are denied.
Except for a few oblique references, none of the parties really
addresses the question of what law applies to the questions
before the Court. Each essentially assumes the applicability of
Nebraska law, though there are some references in the briefs to
Illinois law as well. Because this Court cannot indulge such an
assumption, the choice of law question will be addressed briefly.
In this diversity action, Illinois choice of law doctrine of
course applies under familiar Erie v. Tompkins principles, Klaxon
Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85
L.Ed. 1477 (1941). Whichever party's view of the controversy
prevails, Illinois doctrines lead to the application of the
substantive law of Nebraska:
2. If Goodyear and Behlen are right, the third party
complaints would rest on grounds that are either
impliedly contractual or arise out of a "special
relationship" among the parties. In either case,
the conflict of laws test would look to the
jurisdiction having the most significant contacts
(plainly Nebraska), and once again Nebraska law
would apply. Arnold v. Industrial Commission,
21 Ill.2d 57, 61, 171 N.E.2d 26, 28-29 (1960).
Spacemark's motion to dismiss is based on its argument that the
Nebraska Workmen's Compensation Act (the "Act"), Neb.Rev.Stat. §
48-148, bars any third party actions against an employer:
If any employee, or his dependents in case of death,
of any employer subject to the provisions of section
48-109 to 48-147 files any claim with, or accepts any
payment from such employer, or from any insurance
company carrying such risk, on account of personal
injury, or makes any agreement, or submits any
question to the court under said sections, such
action shall constitute a release to such employer of
all claims or demands at law, if any, arising from
That statute was definitively construed in Vangreen v. Interstate
Machinery & Supply Co., 197 Neb. 29, 246 N.W.2d 652 (1976).
In Vangreen an employee filed a personal injury action against
a fellow employee and against the lessor of equipment leased to
plaintiff's employer, also making the employer a party to
determine its subrogation rights under the Act. After the lessor
had settled with plaintiff it cross-claimed against plaintiff's
employer, seeking indemnity and contribution.
Although the lessor had denied any negligence, the Nebraska
Supreme Court found that such denial had "little, if any,
validity in view of the nature of its settlement with Vangreen"
and that in any case it was required to assume that the third
party defendant was also guilty of negligence ...