Woerth v. United States

Woerth v. United States

Opinion

 [*649]  G. Knute Woerth brought this action against the United States ("the government") under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., for injuries he sustained as a result of the government's alleged negligence. The facts are undisputed. Woerth contracted hepatitis from his wife, who was employed as a staff nurse by the Veteran's Administration Hospital in Lexington, Kentucky. Mrs. Woerth had contracted the disease as a result of the hospital's failure to follow its own prophylactic procedures.

Mrs. Woerth was awarded benefits under the Federal Employee's Compensation Act ("FECA") for her injuries, but Woerth's claims were administratively denied. He then brought this FTCA suit. On the government's motion for [**2]  summary judgment, however, the district court determined that although not an "employee," Woerth was bound by the exclusive remedy provision of the FECA, 5 U.S.C. § 8116(c), and that his claim was therefore barred. The court then dismissed his FTCA claim for lack of jurisdiction. Woerth appeals this final judgment.

] Title 5 U.S.C. § 8116(c) provides in relevant part:

The liability of the United States or an instrumentality thereof under this subchapter or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States or the instrumentality because of the injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen's compensation statute or under a Federal tort liability statute.

In dismissing Woerth's complaint, the district court reasoned that because Mrs. Woerth was subject to the FECA [**3]  as a government employee, her husband was limited by the exclusivity provision as well. In support of this interpretation, the district judge relied upon Posegate v. United States, 288 F.2d 11 (9th Cir.), cert. denied, 368 U.S. 832, 7 L. Ed. 2d 34, 82 S. Ct. 55 (1961); Thol v. United States, 218 F.2d 12 (9th Cir. 1954); Underwood v. United States, 207 F.2d 862 (10th Cir. 1953); Boyer v. United States, 510 F. Supp. 1081 (E.D. Pa. 1981); and Levine v. United States, 478 F. Supp. 1389 (D. Mass. 1979). These cases all held that section 8116(c) precludes a separate action for loss of consortium by a government employee's spouse.

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