Hines v. U.S.

Decision Date27 July 1995
Docket NumberNo. 94-15225,94-15225
Citation60 F.3d 1442
Parties95 Cal. Daily Op. Serv. 5866, 95 Daily Journal D.A.R. 10,024 Kevin HINES; Cathy Zampa, as guardian ad litem for Stephanie Hines, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Fred Dawson, Tennant, Dawson & DeHart, Gold River, CA, for plaintiffs-appellants.

E. Roy Hawkens, U.S. Dept. of Justice, Washington, DC, for defendant-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before: SCHROEDER, BEEZER and THOMPSON, Circuit Judges.

BEEZER, Circuit Judge:

In this Federal Tort Claims Act action, we must decide whether the United States can be held liable for its alleged negligence in issuing a permit to a bulk mail delivery driver who, while driving a mail truck under the influence of drugs and alcohol, ran a stop light and crashed into a car resulting in the deaths of two passengers, Lesley Hines and her daughter Alexis.

Lesley Hines' husband, Kevin Hines, and Cathy Zampa, guardian ad litem for Hines' surviving daughter Stephanie Hines (collectively "Hines") appeal the district court's grant of summary judgment in favor of the United States. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. Sec. 1291. Because we conclude that after trial the United States may be subject to liability, we reverse.

I

Kevin and Lesley Hines along with their two daughters Stephanie and Alexis were involved in a deadly automobile accident on the morning of April 13, 1992. While driving through an intersection in Sacramento, California, their car was struck by a truck and trailer transporting bulk mail under contract for the United States Postal Service ("Postal Service"). The truck had run a stop light. Tragically, Lesley Hines and Alexis Hines died as a result of the collision; Kevin Hines and Stephanie Hines suffered serious injuries, but survived.

The driver of the truck, William Smith, was arrested at the accident scene. Subsequent investigation revealed that Smith had been drinking alcohol and had recently used cocaine. Investigators determined that Smith had been at fault for the collision. 1

Smith was employed as a driver for a company known as A.C. Wright ("Wright"), a government contractor transporting mail in bulk between various California cities and Sacramento under contract with the Postal Service. Wright had hauled bulk mail for the Postal Service pursuant to government contracts for over a decade.

Smith had been hired by Wright in early 1992. Pursuant to Management Instruction Number PO-530-89-03, the Postal Service was "require[d]" to screen all employees of transportation contractors to determine their fitness to be drivers of bulk mail trucks. If a driver had a specific number of convictions for listed violations, he or she was disqualified from obtaining the necessary permit. One such disqualifying item was "[a]ny driving conviction involving the use of drugs alcohol, or any other controlled substances" within the past three years.

On March 19, 1992, the Postal Service issued a temporary permit allowing Smith to drive bulk mail trucks. The "require[d]" screening was not conducted. At the time, the Postal Service did not know that Smith's driving record contained a conviction for reckless driving within the past three years or that the offense was alcohol related.

Hines brought an action against the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 2671-2680. 2 He presented several different theories of recovery, including that Wright should be considered a government employee rather than an independent contractor; that the Postal Service had breached the duty it undertook to Hines to screen drivers operating trucks hauling mail; and that the Postal Service negligently entrusted the vehicle to Smith. The United States moved for summary judgment on all claims, which the district court granted.

Hines then moved for reconsideration pursuant to Federal Rule of Civil Procedure 60(b), arguing that recent California court decisions had raised a triable question regarding the United States' vicarious liability as a common carrier for the actions of Smith. The district court denied the motion. Although Hines did not appeal the denial of his motion for reconsideration in his notice of appeal, he argues the vicarious liability theory of recovery in his brief on appeal.

II

We review de novo a district court's grant of summary judgment. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994).

III

Hines first argues that the district court erred in determining that the United States was not liable as an employer for the alleged negligence of Wright (and its employee Smith). The district court concluded instead that Wright was an independent contractor and thus the United States was not liable for its actions under the FTCA. Hines contends that because the Postal Service reserved the power to screen driving records to determine driver eligibility, and because the Postal Service controlled and supervised "[w]hen, where, why and how the mail is transported," Wright was not an independent contractor. We agree with the district court that Wright was an independent contractor.

The FTCA contains a limited waiver of sovereign immunity, making the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment. United States v. Orleans, 425 U.S. 807, 813, 96 S.Ct. 1971, 1975, 48 L.Ed.2d 390 (1976); 28 U.S.C. Sec. 1346(b); 28 U.S.C. Sec. 2674. The FTCA includes officers and employees of "any federal agency" but expressly excludes "any contractor with the United States." 28 U.S.C. Sec. 2671.

We have held that "[t]he critical test for distinguishing an agent from a contractor is the existence of federal authority to control and supervise the 'detailed physical performance' and 'day to day operations' of the contractor." Carrillo v. United States, 5 F.3d 1302, 1304 (9th Cir.1993) (quoting Ducey v. United States, 713 F.2d 504, 516 (9th Cir.1983)); Orleans, 425 U.S. at 814-15, 96 S.Ct. at 1976.

Although we have not addressed the situation presented here, whether a business that provides transportation of bulk mail for the Postal Service is an employee or contractor, other circuits have determined that such entities are independent contractors. See Norton v. Murphy, 661 F.2d 882, 883-85 (10th Cir.1981) (person under contract to deliver mail for United States was independent contractor and not an employee of the United States); Fisher v. United States, 356 F.2d 706, 707-09 (6th Cir.) (same), cert. denied, 385 U.S. 819, 87 S.Ct. 41, 17 L.Ed.2d 57 (1966).

Here, undisputed evidence in the record supports the United States' position that Wright is a contractor, not an employee. Wright owned and maintained the trucks used to transport mail; hired, fired and supervised its own employees; purchased fuel and arranged for insurance; determined the route for delivery of mail; and regulated the schedules of pick-up and delivery (although the Postal Service established a timetable for arriving and departing postal facilities). Postal Service employees do not accompany those who deliver bulk mail, and much of the actual hauling of mail is done outside postal facilities. The day-to-day details of mail delivery were in the hands of Wright, not the Postal Service, and the control of physical performance was similarly entrusted to Wright.

Hines responds that Wright was forced to comply with various Postal Service regulations regarding the transporting of mail such as minimum labor standards, protection of the mail, and upkeep of the trucks. Compliance with these contractual obligations does not establish employee status. As we have noted, the critical question is whether the government supervises and controls the day-to-day operations, not whether the agent must comply with federal standards. Cameron v. Janssen Bros. Nurseries, Ltd., 7 F.3d 821, 825 (9th Cir.1993); see Orleans, 425 U.S. at 816, 96 S.Ct. at 1976 ("the Government may fix specific and precise conditions to implement federal objectives ...[;] [such] regulations do not convert the acts of entrepreneurs ... into federal governmental acts."). Neither do standards that are designed to secure federal safety objectives convert the agent into an employee. 3 Ducey v. United States, 713 F.2d 504, 516 (9th Cir.1983). None of the Postal Service regulations governing Wright's conduct establish the requisite day-to-day control to qualify Wright's drivers for employee status.

Hines relies on our recent decision in Sugimoto v. Exportadora De Sal, S.A., 19 F.3d 1309 (9th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 581, 130 L.Ed.2d 496 (1994). In that case, we examined the general rule in California that a person is not liable for acts of independent contractors. We noted that the rule was so "riddled" with exceptions that there were any number of good reasons for ignoring the general rule. Id. at 1312. Sugimoto is distinguishable. That case did not involve an FTCA claim. Under the FTCA, federal courts must apply federal law in determining whether an individual is a federal employee. Brandes v. United States, 783 F.2d 895, 896 (9th Cir.1986). Courts are not free to "abrogate the exemption" for the negligent acts of contractors regardless of whether there is a good reason for so doing. Logue v. United States, 412 U.S. 521, 528, 93 S.Ct. 2215, 2219, 37 L.Ed.2d 121 (1973).

IV

Hines next contends that the Postal Service had a duty, based on the Postal Service's own "Management Instruction," to screen drivers for contract mail carriers, and it failed to screen Smith; thus, the United States acted negligently by breaching its duty. 4 The United States responds that it did not owe a duty to Hines under the Instruction to screen Wright's...

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