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Verizon Washington, D.C., Inc. v. United States

United States District Court, District of Columbia

June 8, 2017

VERIZON WASHINGTON, D.C., INC., Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants. Re Document No. 12

          MEMORANDUM OPINION

          RUDOLPH CONTRERAS United States District Judge

         Granting in Part and Denying in Part Federal Defendants' Motion to Dismiss

         I. INTRODUCTION

         Plaintiff Verizon Washington, D.C., Inc. (“Verizon”) brings this action against the United States, the General Services Administration (“GSA”), and M & M Contractors, Inc. (“M & M”), a federal contractor. Verizon alleges it was injured when steam from underground facilities owned, maintained, controlled, or repaired by Defendants damaged Verizon's telecommunications equipment. Relying in part on the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-80, Verizon brings negligence, nuisance, and trespass/interference with easement claims against each of the three Defendants.

         The United States and GSA (collectively, “Federal Defendants”) move to dismiss. Federal Defendants argue that Verizon's claims are barred by sovereign immunity and that Verizon fails to state a claim upon which relief can be granted. For the reasons set forth below, the Court finds that GSA is not a proper defendant under the FTCA and therefore dismisses the three counts brought directly against the federal agency. The Court also finds that the independent contractor exception to the FTCA bars claims against the United States to the extent that the government delegated the relevant duties to M & M. But the Court also concludes that the vague allegations in Verizon's Amended Complaint prevent the Court from determining whether Verizon has alleged any claims that fall outside the scope of the contract between the government and M & M. Thus, the Court orders Verizon to provide a more definite statement of its claims. Finally, the Court rejects Verizon's argument that the inherently dangerous nature of the work at issue means that any duty is nondelegable under District of Columbia law. Federal Defendants' motion to dismiss is thus granted in part and denied in part.

         II. BACKGROUND

         The Court begins with a description of the facts giving rise to Verizon's claims and then turns to the procedural history of this case.

         A. Factual Allegations[1]

         Verizon alleges that, at all times relevant to this action, the company maintained telecommunication equipment near the intersection of 17th Street and F Street in Washington, D.C.[2] Am. Compl. ¶ 7. The equipment constitutes a part of the company's telephone service distribution system and was lawfully maintained in underground facilities at that location. Am. Compl. ¶¶ 7-8. On or about November 6, 2014, steam from steam pipes owned, maintained, and controlled by the United States and/or GSA caused damage to Verizon's facilities. Am. Compl. ¶ 8.

         According to the Amended Complaint, M & M[3] is a corporation that conducts business in Washington, D.C. Am. Compl. ¶ 6. On or about November 6, 2014, “agents, servants, and/or employees of M & M Contractors, Inc. were repairing steam pipes owned, maintained[, ] and controlled” by the Federal Defendants when they caused damage to Verizon's underground facilities. Am. Compl. ¶ 9. Plaintiff notified GSA of a claim for property damage on or about February 17, 2015. Am. Compl. ¶ 10.

         B. The Agreement Between GSA and M & M[4]

         In support of the motion to dismiss, Federal Defendants present the declarations of Kathy White and Greg Westphal. See Decl. of Kathy White (“White Decl.”); ECF No. 12-1, Decl. of Greg Westphal (“Westphal Decl.”), ECF No. 12-3. Ms. White is employed by GSA as a Contract Specialist assigned to the region covering Washington, D.C. White Decl. ¶ 1.

         In her role as Contract Specialist, Ms. White states that she was responsible for the “implementation of the operations and maintenance services contract that was in effect at the GSA Steam Distribution System located at Heating, Operation and Transmission District, 13th and C Street SW, Washington, DC, (‘SDS') on November 6, 2014.” White Decl. ¶ 3. Ms. White states that she has provided “the full set of contract documents” governing the relationship between GSA and M & M with regard to operations and maintenance services at the SDS.[5]White Decl. ¶ 4; see also White Decl., Ex. A, ECF No. 12-2.[6] The relevant contracting documents include a series of communications and agreements between GSA and M & M. See, e.g., White Decl., Ex. A at 32-186 (“Price Proposal Offer” submitted by M & M to GSA on January 10, 2014); White Decl., Ex. A at 1-3 (letter from GSA to M & M dated June 17, 2014, accepting M & M's offer submitted in response to a GSA solicitation for a contract); White Decl., Ex. A at 4-8 (“Solicitation, Offer, and Award” issued by GSA on June 25, 2014, awarding M & M the relevant contract).

         GSA formally awarded the contract to M & M for a period beginning on July 1, 2014. See White Decl. ¶ 5; White Decl., Ex. A at 5. For the purposes of this matter, a particularly relevant document is the Price Proposal Offer, especially Section C, which sets forth a detailed description of the agreement between GSA and M & M, including numerous specifications. See White Decl., Ex. A at 51-64. Section C states that the contractor “shall provide all management, labor, supervision, vehicles, equipment, and materials to perform all work as specified herein.” White Decl., Ex. A at 52. The agreement also specifies that the contractor “shall coordinate with the Government regarding the prioritization of maintenance and repair work, including any additional tasks.” White Decl., Ex. A at 52.

         The agreement describes two categories of responsibilities for the contractor. First, under the category “Basic Scope of Work (Lump Sum), ” the contractor is responsible for “tours, inspections, basic operation, preventive maintenance, minor repairs and replacements (≤$1, 000), and general housekeeping.” White Decl., Ex. A at 52. Second, under the category “Additional Tasks As-Needed (Task Order Services), ” the contractor is responsible for “additional tasks on a task order basis to assist the Government in accomplishing major and emergency repairs and replacements . . . (excluding capital improvement projects contracted separately).” White Decl., Ex. A at 52. Under this second category, GSA “will define the desired schedule for each specific task order to coordinate the Contractor's work with” GSA personnel and other contractors. White Decl., Ex. A at 58. The agreement also states that “work will be accomplished through close coordination with [the Heating Operation and Transmission District], but the Contractor shall be required to provide field supervision and quality control functions.” White Decl., Ex. A at 57-58.

         Section C states that the contractor “accepts full responsibility for the management and supervision of maintenance, minor repairs, inspections, and housekeeping of the [Heating Operation and Transmission District] steam distribution system.” White Decl., Ex. A at 53. The agreement also requires the contractor to “recognize[] that performance of the work described in this solicitation will not convert the acts of the Contractor into acts of the Government, and that the Government will not physically supervise the conduct of the Contractor's day to day activities.” White Decl., Ex. A at 53. But the agreement does permit GSA to “inspect the Contractor's performance of work to determine compliance with the solicitation requirements.” White Decl., Ex. A at 53. GSA may also “re-prioritize the Contractor's maintenance and repair work when doing so is in the best interest of the Government.” White Decl., Ex. A at 53. The agreement requires the contractor to “cooperate with Federal and local officials that enforce” mandatory safety requirements. White Decl., Ex. A at 59. Among other terms, Section C also requires GSA to provide the contractor “with radios and chargers that are to be supplied to each group of employees working in the tunnels” that “are to be used only to communicate with the [Federal Protective Service] MegaCenter and for emergencies.” White Decl., Ex. A at 61.

         Section H of the Price Proposal Offer sets forth special contract requirements. See White Decl., Ex. A at 76. One of those requirements is that the “Contractor shall provide insurance coverage for all risks associated with performing this Contract and its Task Orders.” White Decl., Ex. A at 88. The agreement also states that the “Contractor assumes full liability and responsibility for all losses and damages to property or injuries to persons occasioned through the performance of any services or the use, maintenance and operation of equipment and vehicles by the Contractor's employees and agents.” White Decl., Ex. A at 88. Another special contract requirement states that “the Contractor shall defend, indemnify, and hold harmless the Government, its officers, agents, and employees” even in cases where “the injury, death, or damage may have been caused by negligence of the Government.” White Decl., Ex. A at 91.

         Section J of the Price Proposal Offer includes a range of exhibits and attachments. See White Decl., Ex. A at 108-09. One of the exhibits provides general information on the GSA facility in question. See White Decl., Ex. A at 110. The exhibit sets forth GSA's staffing of the extensive tunnel facility, which “comprises one manager, three mechanical engineering technician (MET) supervisors, and ten mechanical engineering technicians.” White Decl., Ex. A at 110. According to the description, “[t]he MET supervisors have been facilitating and assuring quality of Steam Distribution Complex maintenance and repairs performed by the current maintenance contractor, ” presumably meaning the contractor that preceded M & M. See White Decl., Ex. A at 110.

         Federal Defendants' second declarant, Mr. Westphal, is employed by GSA as the Manager of the Steam Distribution Branch in Washington, D.C. Westphal Decl. ¶ 1. In general, Mr. Westphal states that M & M did, in fact, perform the duties set forth in the agreement between GSA and M & M. See Westphal Decl. ¶¶ 5-7. Mr. Westphal states that these duties included “all operations and maintenance services” at the steam pipe location where Verizon alleges its equipment was damaged. See Westphal Decl. ¶ 5. Mr. Westphal states that “GSA did not routinely direct, supervise or exercise control over [M & M's] day-to-day operations and maintenance duties, ” nor did GSA “control[] how [M & M] implemented its operations and maintenance practices on a daily or any other routine basis.” Westphal Decl. ¶ 8. Finally, Mr. Westphal states that “GSA does not routinely direct, control, or supervise the operations and maintenance services within the GSA [Steam Distribution System] because an independent contractor is responsible for those duties.” Westphal Decl. ¶ 11.

         C. Procedural History

         In September 2016, Verizon brought suit against the United States and GSA in this Court. See Compl., ECF No. 1 at 1. Verizon filed an Amended Complaint on October 18, 2016 that named M & M Contractors, Inc. as an additional Defendant.[7] See Am. Compl. at 1. The United States and GSA move to dismiss Verizon's Amended Complaint. See Fed. Defs.' Mot. Dismiss (“Mot. Dismiss”), ECF No. 12. Specifically, Federal Defendants argue that Verizon's claims cannot be brought against GSA under the FTCA, see Mem. P. & A. Supp. Fed. Defs.' Mot.

         Dismiss (“Defs.' Mem.”) at 5, ECF No. 12, that Verizon's claims against Federal Defendants are barred by sovereign immunity, see Defs.' Mem. at 5-9, and that Verizon fails to state a claim upon which relief can be granted, see Defs.' Mem. at 9. Federal Defendants' motion is fully briefed and ripe for decision. See Pl.'s Mem. P. & A. Supp. Pl.'s Opp'n Fed. Defs.' Mot. Dismiss (“Pl.'s Opp'n”), ECF ...


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