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