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 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 bears the burden of establishing that
immunity has been waived. McNutt v. General Motors Acceptance Corp.,
298 U.S. 178, 187-89, 56 S.Ct. 780, 784-85, 80 L.Ed. 1135 (1936); Seglin
v. Esau, 769 F.2d 1274, 1277 (7th Cir. 1985).
A. THE FEDERAL TORT CLAIMS ACT
In the FTCA, 28 U.S.C. § 1346 (b) and 2671, et seq., Congress
provided a limited waiver of sovereign immunity in cases involving the
torts of government employees. Section 1346(b) provides, in pertinent
[T]he district courts . . . shall have exclusive
jurisdiction of civil actions on claims against the
United States, for money damages, accruing on and
after January 1, 1945, 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). Defendants maintain that, under this section,
this Court has subject matter jurisdiction.
B. THE DISCRETIONARY FUNCTION EXCEPTION
However, § 2680 provides several exceptions to the jurisdictional
grant of § 1346(b). Under § 2680, neither § 1346, nor
Chapter 171 (Tort Claims Procedure), apply to any claim "based upon the
exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved be
abused." 28 U.S.C. § 2680. The discretionary function exception has
been a much litigated subject, yet the Supreme Court has been reluctant
to define its parameters. The leading case interpreting this provision of
the FTCA is Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97
L.Ed. 1427 (1953). Although subsequent cases seemed to limit Dalehite,
the Supreme Court squarely reaffirmed the Dalehite holding in United
States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines),
467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). Dalehite involved
claims for damages against the United States arising out of a disastrous
explosion of ammonium nitrate fertilizer, which had been produced and
distributed under the direction of the United States for export to areas
occupied by the Allied Armed Forces after World War II. The Court
concluded that the action was barred by § 2680 because the allegedly
negligent acts involved governmental discretion "to act according to
one's judgment of the best course" to follow as to the program generally
and the handling of its product. Dalehite, 346 U.S. at 34, 73 S.Ct. at
967. The Supreme Court stated:
It is unnecessary to define, apart from this case,
precisely where discretion ends. It is enough to
hold, as we do, that the "discretionary function or
duty" that cannot form a basis for suit under the
Tort Claims Act includes more than the initiation
of programs and activities. It also includes
determinations made by executives or administrators
in establishing plans, specifications or schedules
of operations. Where there is room for policy
judgment and decision there is discretion. It
necessarily follows that acts of subordinates in
carrying out the operations of government in
accordance with official directions cannot be
Id. at 35-36, 73 S.Ct. at 768 (footnote omitted).