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March 26, 1974

Robert SHERIDAN, Plaintiff,
Gaspare DiGIORGIO et al., Defendants and Third-Party Plaintiffs, v. UNITED STATES of America, Third-Party Defendant

Travia, District Judge.

The opinion of the court was delivered by: TRAVIA

TRAVIA, District Judge.

The instant action arose out of an automobile accident occurring in Queens, New York on December 21, 1971. The plaintiff, Robert Sheridan, was a passenger in a government owned vehicle, being driven by Robert Cooper. Both Sheridan and Cooper were federal employees working for the Food and Drug Administration. The other vehicle involved in the collision was owned by LPI Transport Corporation and was being operated by Gasper DiGiorgio in the business of Pepsi-Cola, Incorporated.

 Sheridan commenced a personal injury action against DiGiorgio, LPI Transport and Pepsi-Cola in the Supreme Court of the State of New York, Kings County. The defendants in turn brought a third-party action against both Sheridan and Cooper, seeking a Dole v. Dow apportionment of damages. *fn1" On December 29, 1972, the United States Attorney, pursuant to the provisions of Title 28 U.S.C. § 2679, certified that the third-party defendant, Cooper, was acting within the scope of his employment as an employee of the United States at the time of the accident. Accordingly, the entire action was removed to this court and the United States of America was substituted as a third-party defendant in the place of Cooper. *fn2"

 On November 9, 1973 a similar certification was made by the United States Attorney with respect to Sheridan. Accordingly, on January 8, 1974, this court issued an order upon motion dismissing Sheridan as a third-party defendant. See Title 28 U.S.C. § 2679(b). On that same date, this court granted the United States leave to amend its third-party answer, but denied the Government's motion for partial summary judgment.

 Thereafter, the Government made application, pursuant to Rule 12(d) of the Federal Rules of Civil Procedure, to dismiss the third-party action based upon the third affirmative defense of its amended third-party answer, to wit:

"The third-party claimant fails to state a complaint upon which relief can be granted as the exclusive liability of the United States of America is under the Federal Employees Compensation Act, 5 U.S.C. § 8116(c)."

 The third-party plaintiffs then filed a cross-motion, under Rules 12(f) and 56 of the Federal Rules of Civil Procedure, requesting that this court grant partial summary judgment dismissing the Government's third affirmative defense.

 The legal issue presented to this court for resolution is whether a cause of action for indemnity or contribution exists against the United States, as a third-party defendant, where the injured plaintiff is a government employee. It is well established that a federal employee is precluded from suing the United States for injuries sustained during the course of his employment and that his avenue of redress is strictly confined to the stated benefits set up under the Federal Employees Compensation Act (hereinafter referred to as "FECA"). See Granade v. United States, 356 F.2d 837 (2d Cir. 1966), cert. denied, 385 U.S. 1012, 87 S. Ct. 720, 17 L. Ed. 2d 549 (1967). Stated in a different manner, the question now posed is whether or not the exclusivity section of FECA *fn3" can be legitimately extended to revoke the consent of the United States to be sued for contribution or indemnity under the Federal Tort Claims Act.

 The third-party plaintiffs maintain that the determination of this issue should be governed by the local law of the state where the injury occurred, namely, New York. In support of this contention, the third-party plaintiffs rely chiefly upon the United States Supreme Court's decision in United States v. Yellow Cab Co., 340 U.S. 543, 71 S. Ct. 399, 95 L. Ed. 523 (1951). The Yellow Cab case, however, is not controlling in this particular context. That case involved an injured plaintiff who was not a federal employee. Consequently, the court never dealt with the impact of FECA upon actions brought under the Federal Tort Claims Act, which is the central issue now confronting this court. See Busey v. Washington, 225 F. Supp. 416, 421 (D.D.C. 1964). Moreover, the Government's immunity from suit under FECA is federally created and the dimensions of that exemption must be measured by federal rather than state standards. See Newport Air Park, Inc. v. United States, 419 F.2d 342, 346-347 (1st Cir. 1969); 12 A.L.R. Fed. 616, 620 n. 7.

 A review of the applicable federal case law, reveals an obvious conflict of authority among the various circuits on the question. See 12 A.L.R. Fed. 616. The third-party plaintiffs urge this court to adopt the reasoning employed in Wallenius Bremen G.m.b.H. v. United States, 409 F.2d 994 (4th Cir. 1969), cert. denied, 398 U.S. 958, 90 S. Ct. 2164, 26 L. Ed. 2d 542 (1970) and Travelers Ins. Co. v. United States, 331 F. Supp. 189 (E.D. Pa. 1971). *fn4" These cases are, however, representative of what might be termed a "minority viewpoint" and this court believes that the "majority approach" is far more persuasive.

 Illustrative of the majority stance is Busey v. Washington, supra, wherein a mail carrier was injured while riding in a mail truck which struck a protruding piece of angle iron on a salvage truck. The plaintiff, who had collected FECA benefits, subsequently brought an action against the owner and operator of the salvage truck. The defendants, seeking contribution, impleaded the United States and the postal truck driver. The court held that the exclusive remedy provision of FECA prohibited third-party suits by one joint tortfeasor against the United States, as an alleged joint tortfeasor, for contribution when the injured party was a federal employee. After exploring the legislative history of the exclusivity provision of FECA, the court found that:

"[The] purpose of Workmen's Compensation Statutes such as the one herein involved, is not only to provide for employees 'a remedy which is both expeditious and independent of proof of fault, but also for employers a liability which is limited and determinate. ' To permit contribution against the United States would not be in keeping with this purpose, inasmuch as the liability of the employer, the United States in this case, would cease to be limited and determinate." Id. at 423, of 225 F. Supp. (Emphasis in original).

 A third-party action cannot be used as a vehicle to circumvent the statutory intent of limiting the Government's liability to the amount scheduled under FECA. If the rule were otherwise, the Government's immunity would be illusory, evaporating the instant that another wrongdoer could be found and brought in as a defendant. Thus, the United States would be forced to pay an amount in excess of its statutory obligation to the injured employee, albeit indirectly through a third-party plaintiff.

 Another convincing rationale compelling the dismissal of the third-party suit here springs from the very nature of an action for contribution. Contribution was designed to obviate the inequity of permitting an injured plaintiff to select by whim or caprice a single defendant, from among several common joint tortfeasors, to shoulder the entire burden of liability. This danger is no longer present, however, where one of two joint tortfeasors is immune from suit. As Judge Coffin ...

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