Albert Peak, Appellant, v. Small Business Administration, Appellee, 666 F.2d 1121 (8th Cir. 1981)

Plaintiff has filed a petition for rehearing en banc. No judge has requested a vote on the rehearing en banc; the petition is therefore denied. The court similarly denies the petition for rehearing 660 F.2d 375 (8th Cir.) before the three judge panel.

Plaintiff urges that the panel erred in holding that the Federal Tort Claims Act was his exclusive remedy and that he was barred from pursuing his claim. Plaintiff cites authority holding that a claim under a workmen's compensation act does not sound in tort, and that workmen's compensation claims arise solely from a statutory liability based on the employee-employer relationship.

We write this addendum to clarify our holding. We adhere to the concept that an action under a workmen's compensation act is one of strict liability. W. Prosser, Law of Torts § 82, at 555 (3d ed. 1964). The language of the opinion stating that plaintiff's claim arising from the Nebraska Workmen's Compensation Act sounds in tort is not to be retracted. If we erred, it was in making the broad statement that an action under the Workmen's Compensation Act sounds in tort. Our opinion should have been stated in more explicit terms. We deal only with the nature of the suit before us. In our attempt to provide plaintiff the benefit of any doubt, we did not construe his complaint to state a claim under the Nebraska Workmen's Compensation Act. If we do construe his complaint in that way, then the Nebraska Supreme Court's decision leaves little doubt as to the result to be reached: the plaintiff cannot sue the SBA under the Nebraska Workmen's Compensation Act since exclusive jurisdiction over claims brought under the Workmen's Compensation Act lies in the Nebraska Workmen's Compensation Court. Neb.Rev.Stat. § 48-161 (1978); Peak v. Bosse, 202 Neb. 1, 4, 272 N.W.2d 750, 752 (1978).¹  Plaintiff's claim alleges that his suit is based on the "performance of ... duties" vested in the administrator of the SBA as described under section 634(b). However this may be, the suit must necessarily rest on a claim for personal injuries outside of the Nebraska Workmen's Compensation Act, but nonetheless arising out of alleged liability created by the state workmen's compensation law. According to plaintiff's argument, the basis of liability for the SBA is that it is a "statutory employer" under Nebraska Revised Statute section 48-116. The SBA's alleged liability thus arises out of the claim that plaintiff's employer, the subcontractor, did not purchase workmen's compensation insurance as it had agreed to do. Under Nebraska law, in order to hold liable a contractor or owner who is not the immediate employer of an injured employee it must be shown that the contractor or owner carried into operation "any scheme, artifice or device" to enable it to avoid its responsibility under the act. Neb.Rev.Stat. § 48-116 (1978). This statute does not require proof of evil intent or design, but if the contractor or owner fails to procure insurance, it does subject a contractor or owner to statutory liability for personal injuries to workmen. See Gardner v. Kothe, 172 Neb. 364, 109 N.W.2d 405 (1961); Heistand v. Ristau, 135 Neb. 881, 284 N.W. 756 (1939). Thus, on this basis we viewed the SBA's failure to procure proper insurance under the Nebraska Workmen's Compensation laws to be an alleged breach of statutory duty. We view the language encompassing a "scheme, artifice or device" as one sounding in tort. Thus, we reaffirm our conclusion. The only basis upon which plaintiff's claim can be brought against the government under the allegations made in the present complaint is the Federal Tort Claims Act.