Morrison v. United States of America et al

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UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
STEVEN D. MORRISON, )
)
Plaintiff, ) 4:15-CV-00014 JWS
)
vs. ) ORDER AND OPINION
)
) [Re: Motion at docket 46]
UNITED STATES OF AMERICA )
and CHENEGA INTEGRATED )
SYSTEMS, LLC, )
)
)
Defendants. )
)
I. MOTION PRESENTED
At docket 46, Defendant United States of America (the Government) filed a
motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure
based on the court’s lack of subject matter jurisdiction. Plaintiff Steven Morrison
(Plaintiff) opposed the motion at docket 50. The Government replied at docket 54. The
court directed that the parties file supplemental briefing at docket 56. The
Government’s supplement is at docket 58. Plaintiff’s supplement is at docket 59. Oral
argument was not requested and would not be of assistance to the court.
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Case 4:15-cv-00014-SLG Document 60 Filed 07/30/17 Page 1 of 8

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II. BACKGROUND
In January of 2012, Plaintiff was working for Pacific Alaska Freightways (PAF) as
a commercial delivery driver and was assigned to make a delivery to Iceman Outfitters,
a store within the confines of Eielson Air Force Base (Eielson or Base). After arriving at
Eielson for the delivery and exiting his truck for routine inspection and paperwork,
Plaintiff alleges that he fell on an icy surface while walking back to his truck and injured
his right knee. He alleges that he was parked where the security guards had instructed
him to and was walking where he was expected and instructed to walk. He
subsequently brought this lawsuit in federal court, alleging negligence and negligence
per se against the Government and The Chenega Corporation, which was the company
providing armed security guard services on Base pursuant to a subcontract. The
Government now requests the court dismiss all claims against it, arguing that the
Federal Tort Claims Act (FTCA) does not waive the Government’s sovereign immunity
and confer jurisdiction here.
III. STANDARD OF REVIEW
“The question whether the United States has waived its sovereign immunity
against suits for damages is, in the first instance, a question of subject matter
jurisdiction.”1 A party may seek dismissal of an action for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1). In order to survive a
defendant’s motion to dismiss, the plaintiff has the burden of proving jurisdiction.2
Where the defendant raises a factual challenge to the court’s subject matter jurisdiction,
as opposed to a facial challenge to the subject matter jurisdiction as described in the
complaint, and the issue of jurisdiction is not intertwined with the merits for the case,
1McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).
2Tosco v. Cmtys. for a Better Env’t, 236 F.3d 495, 499 (9th Cir. 2000).
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the court is free to consider matters outside the pleadings.3 “‘[N]o presumptive
truthfulness attaches to plaintiff’s allegations, and the existence of disputed material
facts will not preclude the trial court from evaluating for itself the merits of jurisdictional
claims.’”4
IV. DISCUSSION
Under the framework of the FTCA, the Government has only provided a limited
waiver of its sovereign immunity. It may be held liable in a tort action “in the same
manner and to the same extent as a private individual under like circumstances.”5 In
other words, the Government has only waived immunity in circumstances where state
law would make a similarly situated private person liable.6 Consequently, this court only
has jurisdiction over tort actions against the Government “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.”7 Where there is no liability
for a private entity in an analogous situation, the court must dismiss the action for lack
of jurisdiction.8 Thus, to determine whether the court has jurisdiction over Plaintiff’s
negligence claims against the Government, it must analogize the government to a
private actor in a similar situation and apply Alaska state law to determine amenability
to suit.9
3See Roberts v. Corrothers, 812 F.2d 1173, 1177-78 (9th Cir. 1987); Kingman Reef Atoll
Invs., L.L.C. v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008).
4Kingman Reef, 541 F.3d at 1195 (quoting Roberts v. Corrothers, 812 F.2d 1173, 1177
(9th Cir. 1987)).
528 U.S.C. § 2674.
6United States v. Olson, 546 U.S. 43, 44 (2005).
728 U.S.C. § 1346(b)(1).
8LaBarge v. Mariposa Cty., 798 F.2d 364, 366-67 (9th Cir. 1986).
9Id. at 366.
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The Government argues that the exclusive remedy provision of Alaska’s Workers
Compensation Act (“AWCA”) would bar suit against a similarly situated private actor,
and therefore Plaintiff’s claims against the Government cannot proceed under the
FTCA. It believes that a similarly situated private actor in Alaska would be considered
a “project owner” under the AWCA. A project owner is defined as “a person who, in
the course of the person’s business, engages the services of a contractor and who
enjoys the beneficial use of the work.”10 A project owner has a defense against a
negligence suit under the AWCA’s exclusive remedy provision, AS § 23.30.055. That
provision states that workers’ compensation is the sole remedy available to an injured
employee, and the benefit of that exclusive remedy provision extends not only to the
employer of the injured employee but anyone else who is liable or “potentially liable” for
securing workers’ compensation under the AWCA.11 Under AS § 23.30. 045(a), a
“project owner” is potentially liable for securing workers’ compensation for employees of
a contractor or subcontractor if that contractor or subcontractor fails to do so,12 and
therefore benefits from the exclusive remedy provision.
10AS § 23.30.045(f)(2).
11AS § 23.30.055 states as follows: “The liability of an employer prescribed in
AS 23.30.045 is exclusive and in place of all other liability of the employer and any fellow
employee to the employee, the employee’s legal representative, husband or wife, parents,
dependents, next of kin, and anyone otherwise entitled to recover damages from the employer
or fellow employee at law or in admiralty on account of the injury or death. . . . In this section,
“employer” includes, in addition to the meaning given in AS 23.30.395, a person who, under
AS 23.30.045(a), is liable for or potentially liable for securing payment of compensation.”
12AS § 23.30.045(a) states as follows: “An employer is liable for and shall secure the
payment to employees of the compensation payable . . . . If the employer is a subcontractor
and fails to secure the payment of compensation to its employees, the contractor is liable for
and shall secure the payment of the compensation to employees of the subcontractor. If the
employer is a contractor and fails to secure the payment of compensation to its employees or
the employees of a subcontractor, the project owner is liable for and shall secure the payment
of the compensation to employees of the contractor and employees of a subcontractor, as
applicable.”
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Here, an analogous private actor would be a company who contracted with
another company to stock and manage the employee supply store on its business
campus. The Government argues that such a situation makes an analogous private
company a “project owner” under the AWCA: the company engaged the services of a
contractor, Iceman Outfitters, to manage and stock the campus’s store, and the
employer, by having Iceman Outfitters operate a store for its on-site employees,
“enjoyed the beneficial use of the work.” Plaintiff argues that the Government is not
considered a project owner under the AWCA because, by contracting with Iceman
Outfitters, the Government engaged the services of “a vendor whose primary business
is the sale or leasing of . . . goods.” A vendor is explicitly excluded from the AWCA’s
definition for “contractor.”13 Consequently, a company who contracts with a vendor for
goods would not be potentially liable for securing workers’ compensation payments to
the vendor’s employees and thus would not benefit from the exclusive remedy
provision.
Given the terms of the contract, it is not clear that Iceman Outfitters is merely a
vendor. Iceman Outfitters did not just supply goods to the Base; it also provided
services in the form of operations manager of the Base’s store. That is, the
Government did not just contract with Iceman Outfitters to have Iceman sell goods or
equipment to it; it contracted with Iceman Outfitters so that Iceman Outfitters would
“conduct operations” necessary to run the Base’s store.14 However, even assuming
Iceman Outfitters is indeed a contractor and the Government a project owner immune
from tort suit by one of Iceman Outfitter’s employees, such a fact does not resolve the
question of whether the Government is liable for Plaintiff’s injury because Plaintiff was
not an employee of Iceman Outfitters at the time of his accident. He was working for
PAF. If Iceman Outfitters is indeed a contractor of the Government, and PAF is a
13AS § 23.30.045(f)(1).
14Doc. 46-4 at p. 4.
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subcontractor of Iceman Outfitters, then both Iceman Outfitters, as the primary
contractor, and the Government, as the project owner, would be potentially liable for
securing workers compensation for PAF’s employees under § 23.30.045 and in turn
would be immune from any tort suit. If, on the other hand, PAF is not a subcontractor,
neither Iceman Outfitters nor the Government would be responsible for paying workers’
compensation under § 23.30.045 to PAF’s em ployees and in turn neither would be
immune from suit. The court directed the parties to provide supplemental briefing on
the issue.
The Government provided evidence that Iceman Outfitters uses PAF to deliver
the goods Iceman Outfitters purchases from vendors in other states that will not
transport goods to Alaska. When Iceman Outfitters purchases goods from a seller, the
seller sends the order to PAF’s port. PAF then puts the g oods on a barge to Alaska.
Once there, a PAF driver picks up the order and drives it to Iceman Outfitters. Iceman
Outfitters has a “freight forwarding” account with PAF that establishes the shipping
rates that Iceman Outfitters will have to pay. The Government argues that the
presence of the account between Iceman Outfitters and PAF to deliver goods it
purchases for the store, which it operates pursuant to a contract with the Government,
makes PAF a subcontractor of the Government.
The Government relies on this court’s decision in Marinese v. United States.15 In
that case, the plaintiff had flown freight from Ketchikan, Alaska, to Craig, Alaska, for his
employer, Promech Air. Promech Air was authorized to carry U.S. mail from Ketchikan
to Craig for the USPS based on certain federal statutes and regulations, and
consequently, the plaintiff’s plane was carrying mail for the Craig post office along with
other freight to be delivered to various businesses in Craig. The plaintiff was delivering
the mail to the post office in Craig when he was injured by the facility’s freight door.
The court found that Alaska’s workers’ compensation bar precluded a personal injury
15No. 1:10-cv-00008, 2013 WL 878284 (D. Alaska Mar. 7, 2013).
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claim by the plaintiff because both defendant USPS and the driver’s employer were
engaged in the package delivery business and had a contract-like relationship inherent
in the applicable law and regulations. It explained that a difference circumstance would
arise had the Promech employee been delivering freight to a local store at the time of
his injury; Promech’s employee was not just delivering goods that a business had
ordered or arranged to have brought to Craig, but rather he was doing the work of the
USPS—transporting and delivering USPS mail—pursuant to a contract-like situation.
The situation here is distinguishable from Marinese. The relevant contracting
parties, Iceman and PAF, are not engaged in the same business. PAF is a freight
hauling and delivery service, Iceman Outfitters is not. That is to say, PAF was not
contracting to do a part of Iceman’s business as was the case in Marinese. Under
Alaska law, a subcontractor relationship is only established if there is a “contractual
obligation on the part of the person to be held a contractor” and “a sub letting of a part of
that obligation to the person to be held a subcontractor.”16 Here, assuming Iceman
Outfitters is indeed a contractor, some examples of its obligations under the contract
include the following: provide and operate an on-base store; set competitive pricing;
keep certain hours; use the Government Purchase Card for customer billing; provide
employee and sales reports; use certain quality control and audit procedures; and
maintain the facilities in good repair. Shipping freight is not a listed obligation, and
there is no evidence that Iceman Outfitters otherwise sublets any of its contractual
obligations to PAF.
The court agrees with Plaintiff that PAF’s involvement in this matter is that of an
unaffiliated freight delivery service and not a subcontractor. Consequently, the
Government is not considered a project owner in relation to Plaintiff’s injury. It therefore
does not benefit from the AWCA’s exclusive remedy provision and is not immune from
suit under the FTCA.
16Thorsheim v. State, 469 P.2d 383, 388 (Alaska 1970); AS § 23.30.045(f)(3).
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V. CONCLUSION
Based on the preceding discussion, the Government’s motion to dismiss at
docket 46 is DENIED.
DATED this 30th day of July 2017.
/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT
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