593 F.2d 827 (8th Cir. 1979), 77-1306, United States v. Lepatourel

Docket Nº:77-1306.
Citation:593 F.2d 827
Party Name:UNITED STATES of America, Appellant, v. Edward LePATOUREL and Valerie LePatourel, Appellees.
Case Date:March 12, 1979
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 827

593 F.2d 827 (8th Cir. 1979)

UNITED STATES of America, Appellant,

v.

Edward LePATOUREL and Valerie LePatourel, Appellees.

No. 77-1306.

United States Court of Appeals, Eighth Circuit

March 12, 1979

Submitted Jan. 9, 1979.

Page 828

Frank A. Rosenfeld and William Kanter, Attys., Appellate Staff, Civil Div., Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., and Edward G. Warin, U. S. Atty., Omaha, Neb, on brief, for appellant.

Thomas J. Culhane, of Erickson, Sederstrom, Leigh, Johnson, Koukol & Fortune, Omaha, Neb., on briefs, for appellees.

Before GIBSON, Chief Judge, and HEANEY, BRIGHT, STEPHENSON, HENLEY and McMILLIAN, Circuit Judges.

HENLEY, Circuit Judge.

This case was originally heard by a panel 1 of this court which held that the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80, applies to a federal judge performing an official, but nonjudicial, function. Under that decision the appellants, Edward and Valerie LePatourel, were time-barred from suing United States District Judge Robert V. Denney in tort for injuries they received in a three-car accident which involved the Judge. The accident had occurred when the Judge's car was hit from behind and pushed forward into the LePatourel vehicle. Judge Denney was travelling on official business at the time of this accident and was thus covered by the FTCA, but the LePatourels had failed to file an administrative claim as required by the Act's two year statute of limitations. 28 U.S.C. §§ 2401(b), 2675. Consequently, the panel directed that judgment be entered dismissing the LePatourels' claim. United States v. LePatourel, 571 F.2d 405 (8th Cir. 1978).

The LePatourels subsequently filed a petition for rehearing En banc asking that the panel's decision be applied prospectively only so as to allow them to now file a claim against Judge Denney under the FTCA. We declined to consider that request on the record then before us but remanded the cause to the district court with directions to hold a plenary evidentiary hearing concerning all events surrounding the automobile collision forming the premise for the LePatourels' claim for relief. In particular, we asked the district court to determine why the LePatourels had failed to process their claim administratively within the prescribed period of time. Pending further action in the district court, we retained jurisdiction of the appeal. United States v. LePatourel, 571 F.2d 405 (8th Cir. 1978).

Page 829

The district court 2 has complied with our requests by filing a memorandum opinion which includes its findings of fact and conclusions of law. We proceed to a final disposition of this appeal and adopt the district court's reasoning that the LePatourels should be allowed to file an administrative claim.

In May of 1972 Valerie LePatourel was seriously injured in a three-car accident on a Nebraska interstate highway. Ms. LePatourel had reduced the speed of her vehicle in obedience to the directions of a flagman and was struck from behind by Judge Denney, who had himself been hit just seconds before by an individual named Terry Ringling. This chain-reaction collision rendered Ms. LePatourel unconscious for a lengthy period of time and caused head injuries requiring several weeks of intensive care hospitalization. Ms. LePatourel has little memory of the accident and has been slow to recover. Her husband has shouldered the task of seeking recovery for her injuries and for his loss of consortium.

Mr. LePatourel became aware of the nature of Judge Denney's employment on the day of the accident. The Judge was driving between court points in an outlying division when the accident occurred and was accompanied by his secretary and law clerk. And, as the district court concluded, the presence of the Judge's staff should have indicated to LePatourel that Judge Denney was on official business.

Some two weeks after the accident LePatourel retained Joseph Leahy, an Omaha, Nebraska attorney, to represent him and his wife. Leahy obtained a $10,000.00 settlement from Ringling's insurance carrier; but Judge Denney's insurance carrier refused to settle, asserting the Judge was driving under control and at a slow rate of speed at the time of the accident and that he was thus in no way responsible for Ms. LePatourel's injuries. Leahy came to share this assessment after discussing the case with John Miller, another Omaha...

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