Metropolitan News-Enterprise


Tuesday, April 25, 2017


Page 1


Panel Revives Claims Over Disabled Access to Flyaway




Federal law does not bar the City of Los Angeles from seeking indemnification from its contractors in response to a suit against the city regarding disabled access to the Van Nuys Flyaway bus service, the Ninth U.S. Circuit Court of Appeals ruled yesterday.     

The panel reinstated the city’s third-party claims against AECOM Services, Inc. and Tutor Perini Corporation. It reversed U.S. District Judge of the Central District of California S. James Otero’s ruling that the claims were preempted by the Americans with Disabilities Act or the Rehabilitation Act.

AECOM and Tutor are successors-in-interest to companies that built the FlyAway facility. Disability activists sued the city—which operates the facility through its Department of Airports, claiming that the facility and its bus service to Los Angeles International Airport failed to meet the accessibility standards of state and federal law.

Contractual Duty

The city alleges that AECOM and Tutor have a contractual duty to defend and indemnify the city in connection with any liability it might have as a result of the builders’ non-compliance with relevant legal standards. 

In granting the companies’ motions to dismiss, however, Otero held that Title II of the ADA and §504 of the Rehabilitation are sufficiently comprehensive to reflect congressional intent to preempt state legislation with respect to the field in which those statutes operate.

Section 504 guarantees the right of disabled persons to participate, on a non-discriminatory basis, in federally funded programs. Title II extends that guarantee to all actions of state and local governments, even when federal funds are not involved.

Judge Milan D. Smith Jr., writing for the Ninth Circuit, said the district judge’s ruling was inconsistent with language in Title II expressing a lack of congressional intent to prevent states and localities from legislating “greater or equal protection for the rights of individuals with disabilities than are afforded by this chapter.”

The judge also rejected the companies’ contention that the city’s claims directly conflict with Title II.

Case Cited

Smith distinguished Equal Rights Center v. Niles Bolton Associates (4th Cir. 2010) 602 F.3d 597, in which the court held that the ADA preempted a developer’s claim for indemnification against an architect based on failure to comply with disability access requirements. The ruling was based on “obstacle” preemption, the court reasoning that the legislative intent to impose a non-delegable duty of care on the property owner would be frustrated if it could seek indemnity.

Smith said the cases were factually different, because the city was only seeking defense and indemnity in connection with the third-party defendants’ own actions, not to “completely insulate itself from Title II liability,” as was the case in Equal Rights Center.

The judge went on to say that because cities normally must contract out the design and construction of public facilities, requiring contractors to comply with Title II and §504 is “an important component in a city’s doing all it can to fulfill its duties,” not a means of shirking those duties. Barring third-party claims in those circumstances would impede, not enhance, the statutory purpose, the judge said.

Smith also rejected the argument that the field of disability discrimination is not one in which the states have traditionally regulated. He noted that every state had a disability rights statute by the time the ADA was enacted.

Judge N. Randy Smith and U.S. District Judge Gary Feinerman, visiting from the Northern District of California, concurred in the opinion.

City of Los Angeles v. AECOM, Services, Inc., 15-56606, was argued in the Ninth Circuit by Timothy T. Coates of Greines Martin Stein & Richland LLP for the city; Robert Nida of Castle & Associates APLC for Tutor; and Noel Eugene Macaulay of Schwartz & Janzen LLP for AECOM.


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