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Alyce Couch, Independent Administrator For the Estate of Billy Couch v. United States of America

December 14, 2011

ALYCE COUCH, INDEPENDENT ADMINISTRATOR FOR THE ESTATE OF BILLY COUCH, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Judge George M. Marovich

MEMORANDUM OPINION AND ORDER

Plaintiff Alyce Couch, as Independent Administrator for the Estate of Billy Couch ("Couch") filed against defendant United States of America (the "United States" or the "government") a two-count complaint. In Count I, the plaintiff asserts a claim for negligence under the Federal Tort Claims Act ("FTCA"). In Count II, plaintiff asserts an Illinois state-law claim for wrongful death. Defendant United States moves for summary judgment on the theory that Billy Couch was its borrowed employee when he was injured at work and, therefore, cannot bring a claim under the Federal Tort Claims Act. For the reasons set forth below, the Court grants the motion for summary judgment.

I. Background

Local Rule 56.1 outlines the requirements for the introduction of facts parties would like considered in connection with a motion for summary judgment. As the Court notes on its website (and has mentioned in multiple opinions), the Court enforces Local Rule 56.1 strictly. Facts that are argued but do not conform with the rule are not considered by the Court. For example, facts included in a party's brief but not in its statement of facts are not considered by the Court because to do so would rob the other party of the opportunity to show that such facts are disputed. Where one party supports a fact with admissible evidence and the other party fails to controvert the fact with citation to admissible evidence, the Court deems the fact admitted. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817-818 (7th Cir. 2004).*fn1 It is not enough at the summary judgment stage for either party to say a fact is disputed. The Court considers a fact disputed only if both parties put forth admissible evidence of his or its version of the fact. Asserted "facts" not supported by deposition testimony, documents, affidavits or other evidence admissible for summary judgment purposes are not considered by the Court.

The following facts are undisputed.

Alyce Couch filed suit against the United States after Billy Couch was injured while working as a truck driver for his employer, B & B Trucking Inc. ("B & B"). When he was injured, Couch was making a delivery to the Elk Grove Village postal facility, which (as part of the United States Postal Service ("USPS")) is operated and controlled by the United States.

The USPS, to save money, contracts out certain mail delivery services that were once performed by USPS employees. Among these contracts are Highway Contract Route ("HCR") contracts, pursuant to which a company provides drivers who perform mail delivery services that were once performed by USPS employees. B & B was one of the entities with whom the USPS entered into HCR contracts. In fact, B & B was founded in 1969 for "the express purpose of transporting mail for the United States Postal Service." According to B & B, its primary business is transporting mail for the Postal Service under HCR Contracts. B & B earns 90% of its revenues from HCR contracts with the USPS. B & B owns the trucks it uses to transport mail for the USPS.

The HCR at issue in this case (i.e., the one Couch was working under when he was injured) was HCR #607L9. Under that contract, about 60% of the cost was allocated to wages and employee benefits, about 20% was allocated to fuel, about 7% was allocated to vehicles (and maintenance thereof), and about 3% was allocated to tolls. To perform the contract terms, B & B employed drivers (including Couch) to perform the mail-delivery services. In addition to drivers, B & B employs dispatchers, custodians, mechanics and administrators. B & B screens, hires, supervises, pays and trains its employees. To train its drivers, B & B provided them an intensive, two-to-three-day program. As a B & B driver, Couch possessed a badge which allowed him access to postal facilities. The badge stated that he was a non-employee of the USPS.

B & B's drivers are covered by workers' compensation insurance policies purchased by B & B in case they are injured while working under an HCR contract. The United States, in turn, reimburses B & B for the cost of providing that workers' compensation insurance. Specifically, HCR #607L9's cost estimate contains a line-item for workers' compensation insurance. While the terms of HCR #607L9 require B & B to maintain certain liability insurance, the terms do not require B & B to maintain workers' compensation insurance. After Couch was injured while performing mail delivery services under HCR #607L9, B & B's workers' compensation insurance paid benefits to Couch under the Illinois Workers' Compensation Act.

II. Summary judgment standard

Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). When making such a determination, the Court must construe the evidence and make all reasonable inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary judgment is appropriate, however, when the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "A genuine issue of material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a jury to return a verdict for that party." Brummett v. Sinclair Broadcast Group, Inc., 414 F.3d 686, 692 (7th Cir. 2005).

III. Discussion

The United States argues that it is entitled to summary judgment on the FTCA claim, because, as a borrowing employer, the United States would be immune from tort liability under to the Illinois Workers' Compensation Act. The parties agree (and the Court concurs) that the Seventh Circuit has set out the relevant law in Luna v. United States, 454 F.3d 631 (7th Cir. 2006) and Belluomini v. United States, 64 F.3d 299 (7th Cir. 1995).In Belluomini, the Seventh Circuit concluded that the United States was immune from liability for injuries to a Court Security Officer killed while on duty protecting the Dirksen Federal Building, because his employer had a borrowing/lending employer relationship with the United States under the Illinois Workers' Compensation Act. Belluomini, 64 F.3d 299. Similarly, in Luna, the Seventh Circuit concluded that the United States was immune from suit for an injury to an employee of a company with whom the United States Navy borrowed employees. Luna, 454 F.3d 631.

The Federal Tort Claims Act is a limited waiver of the federal government's sovereignty. Luna v. United States, 454 F.3d 631, 634 (7th Cir. 2006). Under the FTCA, the United States is liable "for personal injuries as a result of its negligence to the same extent that a private person would be liable under the law of the place where the negligence occurred." Luna, 454 F.3d at 634 (citing 28 U.S.C. ยง 1346(b)(1)). Couch was injured at work in Illinois, and, in Illinois, what stands in the way of a private employer's liability for negligence is the Illinois Workers' Compensation Act ("IWCA"). The IWCA provides ...


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