Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

AETNA LIFE & CAS. INS. CO. v. UNITED STATES

February 20, 1981

AETNA LIFE & CASUALTY INSURANCE COMPANY, AS SUBROGEE OF CLEO DANIELS, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Flaum, District Judge:

MEMORANDUM OPINION

This matter comes before the court on the defendant's motion for summary judgment on the complaint pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, the motion for summary judgment is granted.

The facts of the case are as follows. The plaintiff Aetna Life and Casualty Insurance Company ("Aetna"), as subrogee of one Cleo Daniels ("Daniels"), filed suit against the defendant United States of American ("United States") based upon the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), 2679(a) (1978). Aetna alleges that it was the insurer of certain property owned by Daniels located in Chicago, Illinois. Aetna further alleges that the United States, through the Secretary of the United States Department of Housing and Urban Development ("HUD"), was the owner of the property adjacent to Daniels' property. According to Aetna, the United States, by and through its agents and employees, had a duty to inspect and maintain its property. Aetna further alleges that, on or about June 10, 1976, the United States was guilty of one or more of the following acts and omissions: failure to secure its vacant property so as to prevent the entry of unauthorized persons whom the United States knew or should have known were vandalizing the property; failure to post a guard or watchman on the premises between 4:00 p.m. and 8:00 a.m. as required by the Chicago Municipal Code;*fn1 and failure to retain a qualified contractor to perform all services required for the property. As a direct result of these alleged acts and omissions by the United States, Aetna contends that a fire of unknown origin was caused to occur upon the United States property which destroyed the Daniels' property. Aetna seeks to recover $28,995.93 in insurance payments made to Daniels plus costs.*fn2

The United States filed a motion for summary judgment on the complaint pursuant to Federal Rule of Civil Procedure 56. In its motion, the United States first contends that HUD assigned possession and control of the property in March 1975 to an independent contractor, the South Austin Realty Association ("South Austin"). South Austin is the area management broker ("AMB") in the area where the property is located.*fn3 Thus, the United States contends that, even assuming negligent conduct in maintaining the property, no federal government employee was involved in such conduct. As a second ground in support of its motion for summary judgment, the United States contends that its choice of an AMB to manage certain HUD-owned property is a discretionary act exempt from FTCA liability. Thus, the United States contends that its actions fall within the so-called "discretionary function" exception to the FTCA. Finally, the United States contends that the alleged violation of the Chicago Municipal Code does not create a private right of action for Aetna against the United States.

Federal Rule of Civil Procedure 56(c) provides that summary judgment may be entered in a case "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden is upon the moving party to establish the lack of a triable issue of fact, and all doubts must be resolved against that party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Joseph v. Brierton, 431 F. Supp. 50, 52 (N.D.Ill. 1977). The court, however, "has the power to penetrate the allegations of fact in the pleadings and look at any evidential source to determine whether there is an issue of fact to be tried." Kirk v. Home Indemnity Co., 431 F.2d 554, 559 (7th Cir. 1970).

Pursuant to the doctrine of sovereign immunity, the United States may not be sued without its consent. C. Wright, Handbook of the Law of Federal Courts 82 (3d ed. 1976). The FTCA provides a limited waiver of sovereign immunity for recovery in tort actions against the United States. The FTCA permits an action against the United States:

  for injury or loss of property, or personal injury or
  death 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 or
  omission occurred.

28 U.S.C. § 1346(b) (1978). Thus, a valid cause of action against the United States under the FTCA is predicated upon the liability of a private person under applicable state law. See Emch v. United States, 630 F.2d 523, 526 (7th Cir. 1980).

For the purposes of the FTCA, a federal employee is defined as "officers or employees of any federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a federal agency in an official capacity. . . ." 28 U.S.C. § 2671 (1978). A federal agency for FTCA purposes is defined as "the executive departments, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States." Id. Whether an individual is an employee of the United States under the FTCA is determined by federal law. Brooks v. A.R. & S. Enterprises, Inc., 622 F.2d 8, 10 (1st Cir. 1980). The United States Supreme Court held in United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 1976, 48 L.Ed.2d 390 (1976), that the critical element in distinguishing an agency from a contractor is the power of the United States to control the detailed physical performance of the contractor. See Logue v. United States, 412 U.S. 521, 528, 93 S.Ct. 2215, 2219, 37 L.Ed.2d 121 (1973).

    Under the terms of the contract between HUD and
  AMB, the AMB is responsible for rentals and
  evictions; collection of rents and paying of
  operating expenses; continuing maintenance of
  buildings and grounds, and supervision of all repair,
  maintenance, and operating activities.
    HUD, in turn, is responsible for "supervisory
  inspection, examination and instruction; [and]
  over-all assistance in treating the basic problems
  incident to the responsibilities of the [AMB]. . . ."
  Thus, supervision is not on a day to day basis, but
  only if major difficulties arise to insure that the
  contract is being carried out according to its terms.

Id. at 629 (citations omitted). Under the rationale enunciated in United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 1976, 48 L.Ed.2d 390 (1976), the Harris court concluded that the AMB is an independent contractor not within the purview of the FTCA. 424 F. Supp. at 629. See Perez v. United States, 594 F.2d 280, 284 (1st Cir. 1979).

Applying the law to the facts of the instant case before this court, the court concludes that South Austin was an independent contractor of the United States for FTCA purposes. As in Harris, the AMB contract between South Austin and HUD provided that South Austin supervise all repair, maintenance, and operating activities on the property. (Area Management Broker Contract art. 3, ยง d.) The contract further provided that South Austin arrange for and supervise "[s]ecuring the properties against ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.