United States District Court, District of Columbia
RUDOLPH CONTRERAS United States District Judge
in Part and Denying in Part Federal Defendants' Motion to
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.
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.
Court begins with a description of the facts giving rise to
Verizon's claims and then turns to the procedural history
of this case.
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,
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.
to the Amended Complaint, M & M 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.
The Agreement Between GSA and M &
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.
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.White Decl. ¶
4; see also White Decl., Ex. A, ECF No.
12-2. 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).
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.
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.
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.
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.
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.
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.
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. 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.
(“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 ...