USAA Cas. Ins. Co. v. PERMANENT MISSION OF NAMIBIA
2012 U.S. App. LEXIS 10688
| 2d Cir. | 2012Background
- Namibia housed its Permanent Mission to the UN at 135 E. 36th St. in Manhattan and hired Federation Development Corp. to supervise construction, with Ryback as a subcontractor.
- The adjoining townhouse at 133 E. 36th St. owned by Adelman was damaged when a party wall allegedly collapsed during construction.
- A reinforced concrete wall was poured in December 2008; the party wall collapsed on December 15, causing substantial damage to Adelman’s property.
- Adelman insured by USAA; USAA paid $397,730 to Adelman and sued as Adelman’s subrogee in New York state court, later removed to federal court.
- USAA’s Amended Complaint alleged five counts (negligence, nuisance, trespass, ultrahazardous activity, res ipsa loquitur) against the Mission and contractors, relying mainly on Building Code Section 3309.8.
- The District Court denied the Mission’s immunity defense under FSIA’s tortious activity exception, and this interlocutory appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FSIA tortious activity exception applies here. | USAA contends Mission’s tort caused damage in US. | Namibia argues immunity applies unless a listed exception applies. | Yes; tortious activity exception applies. |
| Whether Building Code Section 3309.8 imposes a nondelegable duty on the Mission. | Mission’s duty to shore the wall was nondelegable. | Contractors could bear the duty; owner delegation possible. | Mission has a nondelegable duty under Section 3309.8. |
| Whether the Mission’s duty could be delegated to contractors to avoid liability. | Nondelegable duty cannot be delegated; Mission liable. | General contractor liability may absolve Mission. | Duty not delegable; Mission remains liable. |
| Whether the discretionary function exception bars FSIA immunity here. | Construction to locate chancery involved discretionary policy. | Discretionary function exception could shield immunity. | Discretionary function exception does not apply; no policy-judgment shield. |
| Whether the construction-related act was compelled by statute/regulation, affecting the discretionary function analysis. | Regulation 3309.8 is a mandatory regulation; not discretionary. |
Key Cases Cited
- Morris v. Pavarini Constr., 9 N.Y.3d 47 (N.Y. 2007) (nondelegable duty for specific positive command under Building Code)
- Robinson v. Government of Malaysia, 269 F.3d 133 (2d Cir. 2001) (nondelegable duty in construction by independent contractors; exceptions for negligent hiring/supervision)
- Coulthurst v. United States, 214 F.3d 106 (2d Cir. 2000) (discretionary function exception not available when action compelled by statute/regulation)
- Gaubert v. United States, 499 U.S. 315 (U.S. 1991) (discretionary function analysis; regulation can mandate action or permit discretion)
- Roditis v. United States, 122 F.3d 108 (2d Cir. 1997) (nondelegable duty not preempted by FTCA-like considerations; FSIA analysis guidance)
- Swarna v. Al-Awadi, 622 F.3d 123 (2d Cir. 2010) (discretionary function exception analysis guidance; FTCA/FSIA parallels)