The opinion of the court was delivered by: Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiff James Fowler sued the United States under the Federal Claims Tort Act ("FTCA"), 28 U.S.C. § 1246(b)(1), for injuries that he allegedly suffered while making a delivery to the Libertyville Post Office. The United States has moved for summary judgment  arguing that Fowler was a "borrowed employee" of the United States Postal Service when he was injured and thus his recovery is limited to the amount that was paid under his workers compensation insurance. For the reasons discussed below, the Government's motion  is respectfully denied.
James Fowler, an Eagle Express employee, brought this suit against the Government after he sustained an injury while making a delivery to the United States Postal Service ("USPS") post office in Libertyville, Illinois, which is operated and controlled by the United States. To save money, the USPS contracts out certain mail delivery services. The USPS refers to these contracts as highway contract routes ("HCR"). Eagle Express is one of the contractors that has been awarded multiple HCRs to deliver mail between postal facilities. Fowler was assigned by Eagle Express to perform mail delivery services as required by one of these contracts, HCR #600L1.*fn2
Under HCR #600L1, the Eagle Express employees are paid by Eagle Express, trained by Eagle Express, and drive Eagle Express trucks. Eagle Express also covers its employees, including Fowler, under workers compensation insurance. Eagle Express' workers compensation insurance has paid Fowler's workers compensation benefits since the date of his injury, as required by the Illinois Workers Compensation Act ("IWCA").
The United States filed this motion for summary judgment arguing that Fowler's claim under the FTCA was barred because under the HCR #600L1 Fowler was a borrowed employee of the USPS and that the compensation that Fowler received under the IWCA was his exclusive remedy. Fowler claims, on the other hand, that at all times he was an employee of Eagle Express and not a borrowed employee of the USPS. Accordingly, he argues that the borrowed employee doctrine does not apply to him and he is entitled to recover under the FTCA.
After the parties had filed their briefs but before the Court had ruled on the motion, the parties made the Court aware that in another FTCA action involving an Eagle Express truck driver, Jorden v. United States, No. 09-C-6814, 2011 WL 4808165 (N.D. Ill. Oct. 11, 2001), a judge in this district issued a decision denying the government's summary judgment motion. The Court allowed both parties to respond to the Jorden decision. And just last week, in Couch v. United States, No. 11-C-2536 (N.D. Ill. Dec. 14, 2011), yet another action involving a contracted truck driver injured while making a delivery to a United States post office, the court issued a decision granting the government's motion for summary judgment. This Court has carefully reviewed both Jorden and Couch in considering the present motion.
Summary judgment is proper if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56
(a). In determining whether there is a genuine issue of fact, the Court "must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party." Foley v. City of Lafayette, Ind.,359 F.3d 925, 928 (7th Cir. 2004). To avoid summary judgment, the opposing party must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks and citation omitted).
A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. See Celotex Corp. v. Catrett,477 U.S. 317, 323 (1986). Summary judgment is proper against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252.
The FTCA allows for damage suits against the United States for personal injury or property damage "caused by the negligent or wrongful act or omission" of any federal government employee "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)(1). In an FTCA suit, "the United States shall be entitled to assert any defense based upon judicial or legislative immunity which otherwise would have been available to the employee of the United States whose act or omission gave rise to the claim." 28 U.S.C. § 2674. In Illinois, the IWCA "provides the exclusive recovery against employers and 'borrowing employers' for workers injured in the course of their employment." Luna v. United States, 454 F.3d 631, 632 (7th Cir. 2006). Because the remedy provided by the IWCA is exclusive, an employee's employer and any borrowing employer are immune from tort liability arising from such an injury. Jorden v. United States, 09 C 6814, 2011 WL 4808165, *2 (citing Luna, 454 F.3d at 634; Belluomini v. United States, 64 F.3d 299, 302 (7th Cir. 1995)).
As in Jorden and Couch, the Government's summary judgment motion in this case turns on whether the USPS was the borrowing employer of Fowler within the meaning of the IWCA. To determine if a relationship constitutes borrowed employment under the IWCA there are two alternative tests: the "control test" and the "statutory test." The Untied States concedes that ...