concurrence of the Contracting Officer. Tr. 33.
WMATA also controls the salary of Bechtel personnel working on Metro projects, Exhibit F to Defendants' Motion, and the number of contractor personnel and associates or consultants is subject to the approval of the Contracting Officer. Exhibit K to Defendants' Supplemental Statement; Tr. 34-36. WMATA has at least indirect control over the number of safety inspectors there will be on a job site. Tr. 36. In addition, Bechtel must obtain WMATA's approval before it can enter into any subcontracts. Scope of Services-1978.
Furthermore, at the evidentiary hearing, counsel for WMATA stated that WMATA "does not dispute" the characterization of Bechtel as its agent. Tr. 275; see also Tr. 8. Indeed, by allowing Bechtel's Resident Engineers to carry business cards identifying them as "Authorized Representative(s) of the Contracting Officer" and displaying WMATA's full name, Tr. 30; Defendants' Exhibit 3, WMATA certainly cloaked the Resident Engineers with the appearance of agents of the transit authority.
Plaintiffs concede that the activity performed by Bechtel is in the nature of a proprietary function, rather than a governmental function. Moreover, plaintiffs concede that it is possible to be at once an independent contractor and an agent. Indeed, the characterization in a contract of a party as an independent contractor is not controlling upon the question of whether an agency relationship exists. Northern v. McGraw-Edison Co., 542 F.2d 1336, 1343 n.7 (8th Cir. 1976), cert. denied McGraw-Edison Co. v. Soper, 429 U.S. 1097, 97 S. Ct. 1115, 51 L. Ed. 2d 544, reh. denied, 430 U.S. 960, 97 S. Ct. 1612, 51 L. Ed. 2d 812 (1977). As such, the only question at issue is whether the restrictions imposed upon Bechtel by WMATA render Bechtel WMATA's agent under law.
It is clear that the terms of the Bechtel-WMATA arrangement, as discussed above, establish an agency relationship between these entities. Essential to the establishment of an agency relationship is consent between two parties that one will act on the other's behalf and subject to his control. See, e.g., Riss & Co. v. Association of Western Railways, 159 F. Supp. 288, 293 (D.D.C.), motion to vacate denied 162 F. Supp. 69 (1958); Restatement (Second) of Agency § 1 (1958). The right of the principal to control the agent is crucial to the existence of an agency relationship. See, e.g., N. L. R. B. v. Local No. 64, 497 F.2d 1335, 1336 (6th Cir. 1974); Restatement (Second) of Agency § 14, and comments thereto. Similarly, the element of control and the obligation of the controlled party of obedience are important to establish that an independent contractor is also an agent. Restatement (Second) of Agency § 14N and comment a thereto; see also, e.g., Petition of United States, 367 F.2d 505, 509 (3d Cir. 1966), cert. denied Black v. United States, 386 U.S. 932, 87 S. Ct. 953, 17 L. Ed. 2d 805, and cert. denied Allen v. Mathiasen's Tanker Industries, Inc., 386 U.S. 932, 87 S. Ct. 957, 17 L. Ed. 2d 805, reh. denied 386 U.S. 1000, 87 S. Ct. 1303, 18 L. Ed. 2d 354 (1967). All these factors are present in the instant situation. WMATA did have sufficient control over Bechtel to put Bechtel in the position of WMATA's agent. As such, under Section 80 of the WMATA Compact, WMATA, and not Bechtel, is the proper defendant to this action.
In light of the foregoing, it is, by the Court, this 11th day of June, 1982,
ORDERED, that the motion of defendants Bechtel Associates Professional Corporation, D.C. and Bechtel Civil and Minerals, Inc. for summary judgment in light of Section 80 of the WMATA Compact shall be granted and an appropriate judgment entered, and it is
FURTHER ORDERED, that the motion of plaintiffs for partial summary judgment on the question of whether defendants are agents of the Washington Metropolitan Area Transit Authority for purposes of Section 80 of the WMATA Compact shall be and hereby is denied, and it is
FURTHER ORDERED, that plaintiffs shall be and hereby are granted leave to amend their complaint to name as a defendant the Washington Metropolitan Area Transit Authority, provided that the amended complaint be filed no later than 10 days from the date of this order, and it is
FURTHER ORDERED, that the complaint in this case shall be and hereby is dismissed as to defendants Bechtel Associates Professional Corporation, D.C. and Bechtel Civil and Minerals, Inc., and it is
FURTHER ORDERED, that the trial in this matter scheduled for June 21, 1982 shall be continued to a date to be set by the Court at a later time.
An appropriate Judgment accompanies this Memorandum Opinion and Order.
In accordance with the Memorandum Opinion and Order in this case filed this date, judgment shall be and hereby is entered in favor of defendants Bechtel Associates Professional Corporation, D.C. and Bechtel Civil and Minerals, Inc., and against plaintiffs Paul Ludolph and Nancy Ludolph, on the question of whether defendants were, for purposes relevant to this case, agents of the Washington Metropolitan Area Transit Authority and therefore rendered immune from suit, by Section 80 of the Washington Metropolitan Area Transit Authority Compact, D.C.Code § 1-2431, for the matters alleged in the complaint.