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.

FAIRCHILD REPUBLIC COMPANY v. U.S.

November 17, 1988

FAIRCHILD REPUBLIC COMPANY, A CORPORATION, THIRD-PARTY PLAINTIFF,
v.
THE UNITED STATES AND THE DEPARTMENT OF THE AIR FORCE, THIRD-PARTY DEFENDANTS



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

MEMORANDUM AND ORDER

Before the Court is third-party defendants' motion to dismiss or, in the alternative, for summary judgment. In its second amended third-party complaint, Fairchild asks that the third-party defendants be held liable in indemnity or contribution for all or part of the amount which Catherine Baker, administratrix of the estate of Gearold Baker, received in settlement with Fairchild.

I. PROCEDURAL HISTORY

The original plaintiff, Gearold Baker, brought suit against Fairchild, alleging that he had incurred an asbestos-related disease as a result of his exposure to Fairchild's products while employed as an aircraft mechanic for the Department of the Air Force at Scott Air Force Base in Illinois, between 1962 and 1966.

Baker's fifth amended complaint was framed in four counts. Counts I and II were based on defendants' strict liability for design or manufacturing defects in aircraft auxiliary power units with exhaust system asbestos tape assemblies, which were designed, distributed, manufactured or sold by Fairchild. Counts III and IV were based on defendants' alleged negligence in using asbestos for the insulation of the auxiliary power units, which Fairchild knew or should have known would cause injury to persons in contact with the units, and in failing to warn Baker of the dangers of asbestos exposure. Following Gearold Baker's death, Catherine Baker was substituted as plaintiff.

Subsequently, Fairchild filed a third-party complaint against the United States and the Department of the Air Force seeking contribution or indemnity pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346 (b), 2401(b), 2671-2680. Thereafter, Fairchild filed a second amended third-party complaint which is before this Court. Specifically, Fairchild alleges that the Air Force was negligent in failing to warn Baker and Fairchild of the dangers of asbestos inhalation, in supplying asbestos tape to Baker and requiring him to use it in his work on the airplane, in allowing asbestos dust to remain in the workplace, and in failing to provide Baker with protective equipment to prevent inhalation of asbestos.

Baker subsequently settled the original action with Fairchild and voluntarily dismissed the complaint. Counts I and II were voluntarily dismissed on July 18, 1986. Counts III and IV were dismissed with prejudice on April 7, 1987, pursuant to a stipulation for dismissal. Therefore, only the second amended third-party complaint remains before the Court.

The second amended third-party complaint is framed in two counts. Count I seeks recovery based on indemnity for the liability of Fairchild to Baker under the negligence counts (Counts III and IV) of Baker's fifth amended complaint. Count II seeks recovery based on contribution for the liability of Fairchild to Baker under the negligence counts (Counts III and IV) of Baker's fifth amended complaint.

The United States and the Air Force seek dismissal pursuant to Fed.R.Civ.P. 12(b)(1) and (6), asserting that the Court lacks subject matter jurisdiction and that Fairchild has failed to state a claim upon which relief can be granted. The defendants move, in the alternative, for summary judgment, pursuant to Fed.R.Civ.P. 56.

II. JURISDICTION

[1] The Court will first address the motion to dismiss for lack of subject matter jurisdiction. The issue of the Court's jurisdiction is one which is properly considered under Fed.R.Civ.P. 12(b)(1), not under Rule 56. Winslow v. Walters, 815 F.2d 1114, 1116 (7th Cir. 1987); Shockley v. Jones, 823 F.2d 1068, 1070 (7th Cir. 1987). As the court in Shockley stated, "A grant of summary judgment is a decision on the merits, whereas if a court concludes it has no jurisdiction, it must dismiss the case without reaching the merits. The question of jurisdiction is therefore inappropriate for summary judgment." Id. (citations omitted). Moreover, the Court may consider matters outside the pleadings which bear on a motion to dismiss for lack of jurisdiction without converting that motion into one for summary judgment. Sanchez v. Edgar, 710 F.2d 1292, 1295 (7th Cir. 1983).

In the case at bar, Fairchild asserts that this Court has subject matter jurisdiction under the FTCA, 28 U.S.C. § 1346 (b) and 2671, et seq. The defendants respond that this Court is deprived of subject matter jurisdiction by the "discretionary function exception" found in 28 U.S.C. § 2680.

[2, 3] It is well-established that the United States, as a sovereign, may only be sued to the extent that it has consented to suit by statute. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953-54, 47 L.Ed.2d 114 (1976); United States v. Sherwood 312 U.S. 584, 586, 61 S.Ct. 767, 769-70, 85 L.Ed. 1058 (1941); United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888 (1940). "A waiver of sovereign immunity cannot be implied, but must be unequivocally expressed." United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980) quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502-03, 23 L.Ed.2d 52 (1969). Moreover, statutory waivers of sovereign immunity must be strictly construed. United States v. Sherwood, 312 U.S. at 590, 61 S.Ct. at 771; Lojuk v. Quandt, 706 F.2d 1456, 1461 (7th Cir. 1983). Finally, the plaintiff ...


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.