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ALLEN v. UNITED STATES

January 7, 1986

JACKIE R. ALLEN, et al, Plaintiffs
v.
UNITED STATES OF AMERICA, Defendant



The opinion of the court was delivered by: RICHEY

 INTRODUCTION

 The Court has before it the defendant's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) & (6) or, in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56. The plaintiffs have filed a memorandum in opposition, and the defendant has submitted a reply. The plaintiffs have adopted the defendant's 1--9(i) statement of material facts as to which there is no genuine issue, and thus, there is no dispute as to any material fact.

 The issue presented in this case is whether the United States is entitled to immunity from third party tortfeasor actions brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 (1982), and the applicable "state law," the District of Columbia Workers' Compensation Act, D.C. Code §§ 36-301 to -345 (1981 & Supp. 1985), when it is required by its own regulations to have the plaintiff's employer procure workers' compensation insurance and then reimburse the employer for the reasonable cost of that insurance. The Court of Appeals for this Circuit has not yet ruled on this issue.

 This Court finds that under the laws of the District of Columbia, the United States is not entitled to immunity pursuant to the exclusive remedy provision of the District of Columbia Workers' Compensation Act, D.C. Code § 36-304(a), and therefore, is amenable to suit as a third party tortfeasor, even though it ultimately has incurred the cost of workers' compensation insurance. For the reasons hereinafter set forth, and based upon the analysis of the law, and upon consideration of the entire record therein, the Court must deny the defendant's summary judgment motion on the negligence count. *fn1" In view of the disposition herein, the Court finds it unnecessary to deal with the defendant's motion to dismiss under Fed. R. Civ. P. 12(b)(1) or 12(b)(6) and bases its ruling upon Fed. R. Civ. P. 56.

 FACTS

 At the time of the occurrence that gave rise to this lawsuit, the plaintiff, Jackie Allen, was an employee of Safeguard Maintenance Corporation ("Safeguard"). Safeguard was under contract with the General Services Administration to provide janitorial and maintenance services for an office building of the United States Department of Agriculture located in the District of Columbia. As required by the terms of the contract, Safeguard provided workers' compensation insurance for its employees. The contract further provided that the United States would pay the cost of the insurance as part of Safeguard's "general administrative costs."

 The plaintiff alleges that on June 29, 1983, while performing his duties, he was injured when a "motorized hand jack" operated by an employee of the United States government struck him. The plaintiff filed a workers' compensation claim and received approximately $5000 in benefits. In May, 1984, the plaintiff filed an administrative claim pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2675, with the appropriate federal agency. This claim was denied in March, 1985. The plaintiff then filed this suit against the United States on May 16, 1985.

 I. THE UNITED STATES IS AMENABLE TO SUIT UNDER THE FEDERAL TORT CLAIMS ACT ONLY TO THE SAME EXTENT AS A PRIVATE INDIVIDUAL WOULD BE UNDER THE APPLICABLE STATE LAW

 It is well settled that the United States may not be sued except when it consents to such suit. United States v. Testan, 424 U.S. 392, 399, 47 L. Ed. 2d 114, 96 S. Ct. 948 (1976); United States v. Sherwood, 312 U.S. 584, 586, 85 L. Ed. 1058, 61 S. Ct. 767 (1941). Generally, tort claims, such as the plaintiff's present negligence suit, can only be brought pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 (1982). Moreover, under the provisions of the Act, the United States would be liable "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. In order to determine if the federal government is liable for the negligent acts or omissions of its employees who are acting within the scope of their employment, the Court must look to the law of the state where the act or omission occurred. 28 U.S.C. § 1346(b); United States v. Muniz, 374 U.S. 150, 152-53, 10 L. Ed. 2d 805, 83 S. Ct. 1850 (1963). In the present case, the accident occurred in the District of Columbia.

 II. UNDER THE DISTRICT OF COLUMBIA WORKERS' COMPENSATION ACT, AN EMPLOYEE COVERED BY WORKERS' COMPENSATION INSURANCE ONLY GIVES UP HIS TRADITIONAL TORT REMEDIES AGAINST HIS EMPLOYER

 a. The history of the District of Columbia Workers' Compensation Act


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