Liability and Relief of Government Contractors for Injuries to Service Members

• Author: by Captain Jules F. Miller
• Pages: 01

1. INTRODUCTION

   The recent litigation by Vietnam veterans suffering from expo. sure to the chemical Agent Orange is but one example of a trend by victims of the harmfuleffectsoftheresearchandproductsofgal.ernment contrsctori to seek damages directly from thecontractors. The government's demand for research on the fringes of technology and for products at thestateoftheartincreases thelikelihoodofinjurgor death

   Anyone can be harmed by a government contractor's research and products. Since military members are the most frequent users of such research and products. however. they are the most likely victims. Because these persons w e not a party to the contract between the government and the contractor. they are considered third-party YICtinlS.

   The purpose of this article is to examine the liability and the relief from liability of government contractors far their research and products The first section examines the immunity of the government from liability since the government's ability to avoid liability is becoming directly proportional to the attempts to establish liability in a contractor. The second Section considers the methadsof placing liability on a contractor as well as the contractor's defenses to those methods. The last two sections focus on the means by which a contractor heid liable for third-party damages may obtain relief either through insurance or by indemnificatian or contribution from the government.

   *The opinions and ~~ncluiioniexpressed in this article are those of the author and do

   not neeeiiarili rtprerenriha Ile,,( of the Departmental Defense or ani of the military

   drpsrrmenis This aifi~leis bawd upon a thesis submitted by rhe author I" partial

   mii.facrion of the requirements far the LL >I degree sf The George K2'aihinaan U",,erl,fi

   **Judge 4dvocafe Gentrak Department Reserve. L'nited States Air Force. Currently General Counnel Defense Audioiiaual Aeency and ourrentl) attached BI anAI^ Force re~erii~t

   10 the Air Force Litieafion Diriiion Warhlngton D C Formerly Arforne,.Adiiior Iary Office of General Counsel Karh#n@ton. D C. 1981-1982 Chlef of Contract Lar Office af the Staff Judge Advocate. Hiekarn An Force Base Hauaii 1977 1980' Asii~tant Staff Judee Adwcate Office af the Staff Judse Adva- Florida 1876-1976 LL.M The George U'sihington LouisCniiers~ri~SehaalofLau.1976,.~

   B,SaintLauis

   the bars of rhe stare of Miiiouri and tho United Stater

   11. GOVERNMENT IMMUNITY

   Theabiiityafthegorernment toavoid IIabilityforInjuriestothird parties rewlting from contractor research or products has had the obvious consequence of causing injured plaintiffs to look for other defendants. In such instances. the contractor providing the research or Droduct is the most logical candidate The broader the goxernment's immunity from suit by injured third parties, the more likely that a wit will be filed against the contractor.

   A. SOVEREIGN IMMUNITY

   Based on theprinciplerecognizedorer 150yearsago by theUnited States Supreme Court in Cohens t'. V?rg!,tza.' the United States enjoys sorereipn immunity from suit While the Supreme Court has based this immunx) an some occasions upon the theory that the United Stares LS the institutional descendant of the English C I ' O W ~ ~ and on other O C C ~ E ~ O ~ S upon the theor, that there IS no legal right against the authority that makes the 1 8 ~ ~

   the protection has remained Intact. The government IS immune from wit. at least insofar as It has not speciiically consented to be rued.:

   The C o n g r ~ has enacted a number of express waivers of the

   government's Immunit) from suit. such as rhe Tucker Acts and the Federal Tort Claims Act The Tucker Act permits suits on contracts. but this IS little relief to injured third parties not ~n privity with the United States. Tort actions are permitted by the Federal Tort Claims 4ct. but important Judicial and %atutory exceptions restrict the aiaiiabiiity of this relief. The Federal Tort Claims Act and the limitations thereof are the principal subjects of the remainder of this seetian.

   Of at least minor significance, however. IS the Iliiitary Claims Act.. While the Act 1s not a naiver of Sovereign immunprovide a statutory means of compensating victims injured or killed by the noncombatant activitieS of the military ser~wces.~

   The harm

   19841 LIABILITY OF GOVERXMEKT COXTRACTORS

   must be caused by service members or civilian empioyees of the military acting in the scope of theiremployment.'Miiitarymembersand civilian employees may notobtain relief if their injuryor death is incident to ier\ice,-lsuch aswhenasailor isstruckb,-aNaryvehicle while the sailor is walking to work Recovery under the Act is limited to $25,000 Nonetheless, third parties whose damages are less than this amount will not seek to recover from government COntLIaCtOrS

   B. FEDERAL TORT CLAIMS ACT

   1. Ejfed of the Fedeml Tort Clnirns Act.

   Subject to numerous exceptions, the government has waived its sovereign immunity from suit for actions sounding in negligence. This waiver was accomplished by the Federal Tart Claims Act (FTCA). which provides:

   [Tlhe district courts. together with the United States Dis. trict Court for the District of the Canal Zone and the District Court of the Yirgin Islands. shail have ex~lu~ive jurisdiction of cirii actions on claims against the United States, far mone? damages, accruing an or after January 1. 1945, for injury or loss of property, or personal injuryor death caused by the neghgent or wrongful act or omission of any employee of the government while actingwithinthe scope of his office or employment. under circumstances where the United States, , f a private person. would be iiabie to the claimant in accordance with the law of the place where the act or omission o~curred.:~

   The FTCA makes the government liable to the same extent as if it mere a private party under state la.^.^^ The law of the jurisdiction where the act or omission occurred will govern.16 The sou~ceaf the

   government's duty. then, is a matter of state 1s.w

   The FTCA. however. does not create any new causesofaction.The most that it does 1s wive the government's sovereign immunity, so that otherwise recognized causes of action may proceed. It does nor bring novel 01 unprecedented liabilities upon the g0veinment.~6

   MILITARY LAM' REVIEW [Vol. 104

   Indeed, the waiver of Sovereign immunity is predicated upon a tort cause of action cognizable under state law . Consequentl! the FTCA should be viewed as a procedural rather than a substantiae StatUte.

   The waiver of sovereign immunity IS possible only u hen the plaintiff proves that he or she was harmed due to the negligent acts or omissmns b! government The act or omission must he operational in character rather than discretionary Furthermore, the government employees must be acting within the scope of their employment jF1

   If the government employees are milnarymembers acting within the scope of employment aould generally encompass acts performed while in the line of military duty.91

   2. Oprrntian ofthe Federal Tort Clatmr. Act.

   prerequisite to suit under the FTCA2' Suit may be ~n months thereafter or upon the final denial of the claim, occurs first Suit only maybe filed in afederal districtco

   IS by judge alone?s and neither punitive damages nor prejudgment interest are recorerable.2~

   Ail claims under the FTCA must be asserted administratively no later than two years after the claim accrues z- A "Sum certain" must be and a failure to do 50 wIi resuit in dismissal.z' Claims for relief other than money damages are not permitted 31

   Although federal district courts hare exclusiveFTCA actions. state courts may become intrinsicalproceedings. This tnraltement results because liablary issues are determined by state law Federal courts may cansequently defer to or even seek the opinion of state courts in relevant jurisdictions In Liiitsd States 8 . Areli.31 for example. a federal

   An administrative claim must be filed with the government ai a

   P"

   district court found the government iiabie under the FTCA far an evpiosion and fireataplantoperated byacontractor. After damages were airarded to one of the contractor's employees under the FTCA,al the case was appealed to the Fifth Circuit, which affirmed? but later granted a rehearing en hane.34 Finally, the panel certified question to the Supremecourt of Georgia"jand asked whether. under the law of Georgia, the Knited States owed a duty to the plaintiff and whether the breach af such duty was the proximate cause of the explosion. Answering that the United States did owe a duty and that the breach of that duty was the proximate cause of the injury, the state court essentially disposed of the action under the FTCA.36

   8. Specific Exaptions to the Federal Tort Claims Act.

   The largenumber ofstatutory andjudiclalexceptionstotheFTCA

   have made it something other than the broad waiver of sovereign immunity that a first reading may indieate it to be, The exceptions are of critical importance. since that which is excepted from the FTCA remains subject to the government's sovereign immunity. In ather words. whatever falls within an exception may not be brought as an action against the government.

   In most cases. military personnel and government civilian employees fall, respectively, within a judicial exception and a Statutory exception.3' Additionally. a number of other exceptions w e speeiiied within the FTCA.

   /

   1. Drseretiottary fimetmns.

   The government is not liable for harm resulting from the perfor. rnance of or failure to perform "discretionary" functians When an act is determined to be other than discretionary. it IS classified as "operational" 39 Government activity can involve both discretionary and operational aspects As an example, ~n an action by a shipowner for the negligent operation of alighthouse, thegovernment's decision to put a lighthouse where it did was discretionary, but Its maintenance of that lighthouse was operationai.'o

   Even if government employees w r e grossly negligent ~n...