## Facts

- Natalia Makarova, a performer in the musical *On Your Toes*, was injured in 1982 at the John F. Kennedy Center for the Performing Arts when stage scenery fell on her shoulder.
- The Kennedy Center produced the show and undertook core production functions, including contracting for production rights, hiring key production personnel, paying performers during the Washington, D.C. run, arranging bond coverage, and maintaining workers’ compensation coverage for performers and workers.
- Makarova’s services were contracted through her personal services corporation, “NMK Productions, Inc. f/s/o Natalia Makarova.”
- Makarova signed a rider stating she read and approved the contract terms and agreed to perform as though she personally had entered the contract.
- The rider incorporated Actors’ Equity’s Standard Run-of-the-Play Contract and associated “Agreement and Rules Governing Employment,” which required the producer to obtain and maintain workers’ compensation insurance for actors.
- The incorporated rules contained a clause stating that contracts of employment would be construed under New York law.
- After the injury, Makarova received workers’ compensation benefits under District of Columbia law.
- She later pursued an administrative claim and then filed a federal negligence action against the United States under the Federal Tort Claims Act (FTCA).

## Issues

1. Whether the District of Columbia Workers’ Compensation Act (DCWCA) provided Makarova’s exclusive remedy, depriving the federal court of subject-matter jurisdiction over her FTCA claim.
2. Whether Makarova was an “employee” covered by the DCWCA, notwithstanding the New York choice-of-law clause and the use of a personal services corporation.

## Decision

- The Second Circuit affirmed dismissal under Rule 12(b)(1) for lack of subject-matter jurisdiction.
- The court held that Makarova was an “employee” of the Kennedy Center for purposes of the DCWCA.
- Because the DCWCA applied and made workers’ compensation the exclusive remedy for covered employees, the FTCA negligence action was barred.

## Legal Principles

- The FTCA waives sovereign immunity only to the extent a private person in like circumstances would be liable under applicable local law; where local workers’ compensation is exclusive, an FTCA tort claim against the employer is barred.
- Whether a claimant is an “employee” under a local workers’ compensation statute is governed by that statute and the jurisdiction’s law, not by a contractual choice-of-law clause.
- Under District of Columbia law, “employee” is defined broadly (persons in the service of another under any contract of hire), and workers’ compensation coverage is construed liberally to effect remedial purposes.
- Courts look to the substance of the working relationship; contractual form, including interposition of a personal services corporation, does not defeat employee status where the performer personally undertakes the work and the producer functions as the hiring entity.
- Once DCWCA coverage applies, its exclusive-remedy provision precludes separate negligence suits for the same workplace injury.

## Conclusion

The court held that District of Columbia workers’ compensation law governed employee status and, because Makarova was a covered employee injured in the course of her work at the Kennedy Center, the DCWCA supplied her exclusive remedy and the federal court lacked jurisdiction over her FTCA negligence claim.


Makarova v. United States, 201 F.3d 110 (2d Cir. 2000)