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Liberty Northwest Insurance Corporation, Individually and As Subrogee of v. United States of America and John Doe Corporations 1-10

November 30, 2011


The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge


Currently pending before the Court is Defendant United States of America's Motion for Summary Judgment (Dkt. 28).


On February 27, 2008, Sean Perkins ("Perkins"), an employee of Extreme Electric, exited a work vehicle on Fox Hunt Loop on the Mountain Home (Idaho) Air Force Base, slipped on a patch of ice and fell, injuring his back. (Compl., ¶¶ 11, 13, Dkt. 1.) The vehicle was driven by a fellow Extreme Electric employee, Ryan Schaeffer. (Perkins Dep., p. 32, Dkt. 28-8.) Perkins later had surgery on his back in July 2009. (Compl. at ¶ 14.) Plaintiff Liberty Northwest Insurance Corporation ("Liberty") alleges that at the time of the accident, the road was completely covered with ice and there appeared to be no salt, sand or other maintenance to address the ice. (Id. at ¶ 13.)

As a result of his injury, Perkins submitted a claim for worker's compensation benefits with Liberty, Extreme Electric's worker compensation insurer, which paid out benefits to Perkins in the amount of $74,436.32. (Id. at ¶ 15.)

At the time of the accident, Parsons Evergreene ("Parsons") was the general contractor on a construction contract with the Army Corps of Engineers to construct 148 new military housing units on the Mountain Home Air Force Base. Parsons subcontracted with Extreme Electric for the electrical work to be done in those housing units in March 2007. (Derbridge Aff., Exs. A & B, Dkts. 28-4, 28-5.)

In this negligence and subrogation action, Liberty (as the subrogee of Extreme Electric and Perkins) alleges that the United States of America ("the Government") caused injury which resulted in the payment of worker compensation benefits. Liberty alleges that the United States, through the Department of Defense, the Department of the Air Force, and Mountain Home Air Force Base, owned and operated property in Elmore County, specifically Fox Hunt Loop, and was responsible for the maintenance of the property, including removal of snow and ice.


A. The Summary Judgment Standard

One principal purpose of summary judgment "is to isolate and dispose of factually unsupported claims . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is "not a disfavored procedural shortcut," but is instead the "principal tool [ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

The evidence, including all reasonable inferences which may be drawn therefrom, must be viewed in a light most favorable to the non-moving party and the Court must not make credibility findings. See id. at 255. Direct testimony of the non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party's case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000).

This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in his favor. See id. at 256-57. The non-moving party must go beyond the pleadings and show "by [his] affidavits, or by the depositions, answers to interrogatories, or admissions on file" that a genuine issue of material fact exists. Celotex, 477 U.S. at 324.

However, the Court is "not required to comb through the record to find some reason to deny a motion for summary judgment." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (quoting Forsberg v. Pac. Northwest Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988)). Instead, the "party opposing summary judgment must direct [the Court's] attention to specific triable facts." Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003). Statements in a brief, ...

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