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TESCH v. UNITED STATES

September 9, 1982

RAYMOND O. TESCH, et al.
v.
UNITED STATES OF AMERICA, et al.



The opinion of the court was delivered by: GILES

 GILES, District Judge.

 Third-party defendants Ballard, Spahr, Andrews & Ingersoll, John Tingalia, Esquire and Linda S. Martin, Esquire, (hereinafter referred to collectively as "Ballard") filed this Motion to Dismiss or Strike Defendant United States' Amended Third-Party Complaint against them. Since matters outside the pleadings were submitted, I shall treat the motion as one for summary judgment. *fn1" Fed. R. Civ. P. 12(b) (6). For the following reasons the motion is granted.

 Plaintiff, a representative of the estate of William Holck, filed suit against the United States under the Federal Tort Claims Act, 28 U.S.C. § 2672, alleging medical malpractice by the Veterans Administration Hospital ("VA Hospital"), which purportedly resulted in Holck's death. The United States filed an Amended Third Party Complaint against Ballard asserting that it is liable to the United States for contribution or indemnity.

 To understand fully the basis of the United States' claims against Ballard, some background is necessary. Ballard represented Holck in a personal injury action filed in 1977 before this court. In that suit Holck sought recovery of damages from GAF Corporation for injuries sustained on August 4, 1975, when the tractor-trailer he was driving failed to negotiate a turn. Holck was rendered a quadriplegic as a result of the accident and was hospitalized in VA hospitals, until December 16, 1977 when he was transferred from the VA hospital in Albuquerque, New Mexico to a private nursing home in the same city.

 In preparation for Holck's trial, which was scheduled for February, 1978, third-party defendant Martin requested VA District Counsel in Philadelphia to transfer Holck to Philadelphia to testify at his trial. On February 24, 1978, Holck was transferred by a private air ambulance service in a fifteen hour flight during which he allegedly received inadequate care. He was ill upon his arrival in Philadelphia, and his condition worsened until he finally died on March 15, 1978. Due to his illness, Holck could not testify at his trial and on March 10, 1978, his case settled for $400,000. In his complaint against the United States, plaintiff asserts the compromised settlement as an element of damage arising from Holck's death.

 In this action, the United States bases its claims against Ballard on two theories: (1) Ballard negligently decided to transport Holck even though his condition was precarious, and negligently provided for his care en route and (2) Ballard did not preserve Holck's testimony for trial, thus contributing to plaintiff's alleged injury -- the compromise of his personal injury action due to his inability to testify. Ballard's motion asserts that neither of these purported bases of liability supports the amended third party complaint. In deciding this motion, I must view all inferences to be drawn from the underlying facts in the light most favorable to the non-moving party, and must grant summary judgment only if there is no genuine issue of material fact and judgment as a matter of law is appropriate. Continental Insurance Co. v. Bodie, 682 F.2d 436 (3d Cir., 1982). However, once Ballard, as the moving party, sustains its burden, the United States, as the non-movant must come forward with opposing evidentiary matter beyond the allegations of the complaint to show the existence of a disputed issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). Applied to the undisputed facts and legal principles set forth below, these standards require granting Ballard's motion.

 In this case, the basis of the United States' (third-party plaintiff's) claim is either indemnity or contribution between joint tortfeasors. Impleader under Fed. R. Civ. P. 14(a) is procedural in nature and does not in itself create a right of indemnity or contribution. That right must be recognized by the applicable substantive law. See 3 J. Moore, Federal Practice para. 14.03[1] and cases cited therein. When the United States, as defendant in an action brought pursuant to the Federal Tort Claims Act seeks contribution or indemnity from a private person, courts have held that the law of the state where the tort occurred, in this case Pennsylvania, determines the right of contribution or indemnity. See United States v. Arizona, 214 F.2d 389, 391 n.1 (9th Cir. 1954); Lee v. Brooks, 315 F. Supp. 729, 732 n.14 (D. Haw. 1970); Yost v. United States, 212 F. Supp. 410, 412-13 (N.D. Cal. 1963). See generally 3 J. Moore, Federal Practice para. 14.29. *fn2"

 Under Pennsylvania law, indemnity is limited to situations in which the liability of the defendant is alleged to be secondary or passive. The Pennsylvania Supreme Court in Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951) stated:

 
The right of indemnity rests upon a difference between the primary and the secondary liability of two persons each of whom is made responsible by the law to an injured party. It is a right which inures to a person who, without active fault on his own part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable.

 366 Pa. at 325. (Emphasis in original).

 The court then distinguished primary from secondary liability, stating that the latter rests upon imputed or constructive fault. Id. at 328. Plaintiff's complaint cannot be construed as alleging passive or secondary negligence by the United States and primary negligence on the part of Ballard. Neither are facts alleged which would establish the requisite contractual or other special relationship between the United States and Ballard. Thus, there is no legally cognizable basis for a claim for indemnity by the United States against third-party defendants.

 The United States asserts, alternatively, that it is entitled to contribution from Ballard since they are joint tortfeasors, whose combined conduct caused a single injury to plaintiff -- his death and the ...


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