APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Van Dusen, Hunter and Garth, Circuit Judges.
VAN DUSEN, Circuit Judge.
The issue presented by this appeal is whether the exclusive remedy provision of the Federal Employees' Compensation Act (hereinafter "FECA"), 5 U.S.C. § 8116(c), bars the claim of a third party for indemnity or contribution against the Federal Government for damages paid an injured Government employee. Plaintiffs-appellants, Travelers Insurance Company (hereinafter "Travelers") and Branden-Aermotor Corporation, successor of Aermotor Inc. (hereinafter "Aermotor"), appeal from a district court order dismissing their complaint seeking indemnity or contribution from the defendant-appellee, United States, under the provisions of the Federal Tort Claims Act, 28 U.S.C. §§ 1346 and 2671 et seq.
This case arises as a result of an accident on September 16, 1962, in which Jake Arnold, an employee of the Coast and Geodetic Survey, an instrumentality of the Federal Government, fell 77 feet from a tower while in the course of his employment. Arnold sustained serious injuries which eventually caused his death. Thereafter, on April 8, 1964, Patricia Arnold, his wife and executrix of his estate, filed a wrongful death and survival action against Aermotor in the United States District Court for the Eastern District of Pennsylvania (Civil No. 35481). The theory of the law suit was that the decedent's injuries and subsequent death were the result of unsafe design and lack of safety measures in the tower, which was manufactured by Aermotor. On March 7, 1968, after a lengthy trial, the jury returned a verdict in the amount of $125,000. in favor of Arnold's estate, and Travelers, insurer of Aermotor, paid the amount of the verdict plus interest, costs of defense, and expenses, pursuant to its contract of insurance.
Subsequently, on March 18, 1969, Travelers and Aermotor filed a complaint in the District Court for the Eastern District of Pennsylvania (Civil No. 69-859) seeking indemnity or, alternatively, contribution from the United States. The basis of recovery alleged in the complaint was that the United States was exclusively responsible for the design, assembly, inspection, possession, and control of the tower from which Arnold fell. After both parties filed motions for summary judgment, the late Chief Judge John W. Lord, Jr. granted plaintiffs' motion for summary judgment on August 26, 1971. In his opinion granting the motion, Chief Judge Lord stated that "this case presents a classic example for indemnification"*fn1 but he failed to set out a specific monetary award.
The case was subsequently reassigned to the late Judge Body, and on January 10, 1973, plaintiffs filed a motion for assessment of damages and counsel fees, pursuant to the August 26, 1971, order granting summary judgment for indemnification. On April 5, 1973, Judge Body entered a Memorandum and Order reversing the August 26, 1971, order, denying plaintiffs' motion for assessment of damages and counsel fees, and dismissing the complaint.*fn2 The basis of this decision reversing the prior district court order was that, since the Federal Tort Claims Act, 28 U.S.C. § 2674 (1970), provides that the Government has the same status as a private individual under like circumstances, the Government should be treated as a Pennsylvania employer, and, in accordance with the applicable Pennsylvania law, as recently stated by this court in United States v. O'Neill, 450 F.2d 1012 (3d Cir. 1971), the Government need not pay damages in excess of its workmen's compensation liability. The district judge declined to assess damages to the extent of the Government's workmen's compensation liability. The plaintiffs have appealed from this order dismissing their complaint.
Plaintiffs' first contention is that the district court, in dismissing their complaint, erred in holding that the instant case was controlled by the recent decision of this court in United States v. O'Neill, supra. We agree. In O'Neill, this court considered a claim by the United States against a Pennsylvania employer for indemnification of damages paid by the United States to an injured employee of the Pennsylvania employer. The employer asserted as a defense that its liability under the Pennsylvania Workmen's Compensation Act, 77 P.S. §§ 1-1066, was exclusive of all other liability, direct or indirect. Considering both the purpose and policy of the statute and prior decisions of the state courts, we held that a Pennsylvania employer could not be liable for damages in excess of its workmen's compensation liability. O'Neill thus involved construction of a state workmen's compensation statute and is not determinative of the extent of a third party's rights to contribution or indemnity under the FECA. Determining the extent of the Federal Government's liability to third persons under the FECA is a matter which requires interpretation of a federally created immunity, if any, rather than a state created immunity, and as such it should be resolved as a matter of federal law. See Newport Air Park, Inc. v. United States, 419 F.2d 342, 346-47 (1st Cir. 1969). While examination of analogous practices under state workmen's compensation schemes, such as that of Pennsylvania,*fn3 may be instructive in resolving this issue, the determination nevertheless remains a matter of federal law.
We now consider the issue whether the exclusive remedy provision of the FECA, 5 U.S.C. § 8116(c),*fn4 bars the plaintiffs' claim for contribution or indemnity against the Federal Government for the damages paid the injured Government employee, Arnold.
The effect of the exclusive remedy provision upon the rights of third parties was analyzed in depth by the Supreme Court in Weyerhaeuser S.S. Co. v. United States, 372 U.S. 597, 10 L. Ed. 2d 1, 83 S. Ct. 926 (1963). Weyerhaeuser arose out of a collision between a dredge owned by the United States and a ship owned by Weyerhaeuser Steamship Company. A Government employee who was injured in the collision sued the shipowner and recovered a $16,000. settlement. When it was subsequently determined that both vessels had been at fault, the shipowner included the amount of the settlement in the damages to be divided under the traditional admiralty rule of "divided damages."
The United States, relying on that part of the exclusivity provision which states that recovery under the FECA "to the employee, his legal representative, spouse, and anyone otherwise entitled to recover damages from the United States" shall be exclusive, contended that the shipowner fell within the above language and was, therefore, precluded from recovering any part of the settlement. After initially determining that the language in question was ambiguous, the Supreme Court examined ...