637 F.2d 544 (8th Cir. 1980), 80-1204, Wollman v. Gross

Docket Nº:80-1204.
Citation:637 F.2d 544
Party Name:David M. WOLLMAN, Appellant, v. Jake GROSS, Jr., Appellee.
Case Date:December 31, 1980
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 544

637 F.2d 544 (8th Cir. 1980)

David M. WOLLMAN, Appellant,

v.

Jake GROSS, Jr., Appellee.

No. 80-1204.

United States Court of Appeals, Eighth Circuit

December 31, 1980

Submitted Oct. 15, 1980.

Page 545

N. Dean Nasser, Jr., Sioux Falls, S. D., for appellant.

Pamela L. Wood, Civil Division, Dept. of Justice, Washington, D. C., for appellee.

Before HEANEY, ADAMS, [*] and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

This case arises from an automobile accident between plaintiff-appellant David Wollman and defendant-appellee Jake

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Gross, Jr. The case was removed to federal district court 1 from South Dakota state court on petition by the United States Attorney contending that the United States was the proper defendant under the Federal Tort Claims Act (FTCA) because Gross was a federal employee acting within the scope of his employment. After a hearing the district court refused to grant Wollman's motion for a remand to state court, determining that Gross was a federal employee acting within the scope of his employment at the time of the accident. The district court then dismissed the suit because an administrative claim had not been presented within two years of the date of the accrual of the claim as required by the FTCA. We affirm.

The district court opinion presents a good summary of the facts underlying this case:

The case arises out of an automobile accident on June 11, 1976, between the plaintiff, David Wollman, and the named defendant, Jake Gross, Jr. The plaintiff and the defendant are lifelong neighbors who live about one and one-half miles apart near Freeman, South Dakota. On the date of the accident the defendant Gross was employed by the Agriculture Stabilization and Conservation Service (ASCS). He was the District Director for the ASCS State Office in charge of the supervision and review of programs for ten county offices within the state of South Dakota. It was for the purpose of checking the Davison County ASCS office in Mitchell, South Dakota, that the defendant left his home in his personal car on June 11, 1976. Mr. Gross' home was his assigned duty station and he received mileage reimbursement from the government for such trips. After finishing his work at the ASCS office in Mitchell he drove toward his home duty station by the most direct route without deviating for any personal business. The accident occurred around 4:00 p. m. on County Road 13 between the farmsteads of the plaintiff and the defendant.

Neither the plaintiff nor the defendant realized that defendant Gross was driving as a federal employee within the scope of his employment. Defendant Gross did not report the accident to his administrative office and his personal insurance company began dealing with the plaintiff. On January 25, 1979, more than two years after the accident, the plaintiff filed a complaint in state court naming Jake Gross, Jr., individually, as defendant. The involvement of the United States Government was first recognized by the counsel of the defendant's personal insuror somewhere in mid-February, 1979. The case was removed to federal court by the United States Attorney on March 23, 1979. On March 29, 1979, the United States filed a motion to dismiss for lack of jurisdiction due to the untimeliness of any administrative claim. The plaintiff then sent an administrative claim to the United States Department of Agriculture dated July 16, 1979, and on July 18, 1979, filed with this court a motion to remand to state court.

Wollman v. Gross, 484 F.Supp. 598, 600-01 (D.S.D.1980).

On appeal Wollman contends the district court erred in determining that: (1) Gross was a federal employee; (2) Gross was acting within the scope of his federal employment at the time of the accident; (3) a Federal Tort Claim was not filed within two years from the time the cause of action accrued; and (4) this case did not fall within the rationale of United States v. LePatourel, 593 F.2d 827 (8th Cir. 1979), requiring a postponement of the accrual date of the claim.

We are in agreement with the district court that Gross was a federal employee acting within the scope of his employment at the time of the accident. After a careful consideration of the record and briefs and arguments of the parties concerning this issue, this court has concluded

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that the decision of the district court is based on findings that are not clearly erroneous and that no error of law appears. The district court's decision on these issues is therefore affirmed on the basis of the court's well-reasoned opinion. See Wollman v. Gross, supra, 484 F.Supp. at 601-03. It is noted that while the question of scope of employment is one of state law for which there have been no analogous cases cited under South Dakota law, great weight is given to the local district court's view of state law. See, e. g., Duke v. Hartford Fire Insurance Co., 617 F.2d 509, 510 (8th Cir. 1980); Foremost Insurance Co. v. Sheppard, 610 F.2d 551, 554 (8th Cir. 1979). Wollman has not shown that the district court's determination that Gross was acting within the scope of his employment to be in any way inconsistent with the law of South Dakota.

We also agree with the district court that the filing of the administrative claim was untimely and therefore the claim was properly dismissed. Because of the harshness of this result to Wollman, however, further comment is appropriate.

The district court properly held that because Gross was a federal employee acting within the scope of his employment, plaintiff's exclusive remedy is against the United States under the FTCA. 28 U.S.C. § 2679(b). The FTCA waives the sovereignty of the United States, and the courts in construing the statute of limitations, which is a condition of that waiver, should not extend the waiver beyond that which Congress intended. United States v. Kubrick, 444 U.S. 111, 117-19, 100 S.Ct. 352, 356-58, 62 L.Ed.2d 259 (1979). Nor, however, should the courts assume the authority to narrow the waiver. Id. Prior to bringing a suit a claim must be presented in writing to the appropriate administrative agency "within two years after such claim accrues." 28 U.S.C. §§ 2401(b); 2675(a).

Wollman's administrative claim was filed more than two years after the accident occurred, but Wollman argues the accrual date should not be the date of the accident, June 11, 1976, but instead the date Wollman discovered facts which put him on notice that Gross may have been a federal employee acting within the scope of his employment. Wollman contends this latter date is approximately February 22, 1979, when plaintiff received defendant's amended answer alleging he was an employee of the federal government. Wollman argues he had been diligent in bringing this law suit within the state three-year statute of limitations. The state suit was filed more than two years but less than three years after the accident.

The district court stated the current status of the law concerning the accrual of a federal tort claim.

The general rule under the Act has been that a tort claim for personal injury or property damage resulting from the negligent operation of a motor vehicle by a government employee accrues at the time of the injury "when the injury coincides with the negligent act and some damage is discernible at that time." Steele v. United States, 599 F.2d 823, 828 (7th Cir. 1979); Mendiola v. United States, 401 F.2d 695, 697 (5th Cir. 1968). However, the courts have recognized that there are circumstances when a claim accrues at a later time. For example, in medical malpractice actions where the injury and the cause are not immediately known and actions where new law applied retroactively has created a new basis for a claim, the time of accrual has been postponed. Neely v. United States, 546 F.2d 1059, 1069 (3rd Cir. 1976); United States v. LePatourel, 593 F.2d 827, 830 (8th Cir. 1979); United States v. Kubrick, (444 U.S. 111, 100 S.Ct. 352, 359, 62 L.Ed.2d 259 (1979)).

Wollman v. Gross, supra, 484 F.Supp. at 603-04.

Wollman argues the time for accrual of the claim should be extended on the basis of both (1) the doctrine of "blameless ignorance," 2 and (2) the rationale of United States v. LePatourel, supra.

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LePatourel does not control this situation. In that case, this court ruled for the first time that federal judges were federal employees for purposes of the FTCA. The court en banc then held that this ruling was a "novel question of federal law" which would not be applied retroactively, and therefore the claim did not accrue until this court's declaration that federal judges were federal employees under the FTCA. 593 F.2d at 831-32. It is our view that the judicial determination that Gross was a federal employee acting within the scope of his employment presents no "novel question of law." Further, there is no basis for extending LePatourel to "novel questions of fact" as suggested by Wollman. 3

Wollman also contends the doctrine of "blameless ignorance" should apply in this case. This doctrine was enunciated by the Supreme Court in Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 1024, 93 L.Ed. 1282 (1949) and applied to FTCA cases in Quinton v. United States, 304 F.2d 234 (5th Cir. 1962). Its primary application has been in medical malpractice cases. 4

It is our view that United States v. Kubrick, supra, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) limits this doctrine and forecloses Wollman's argument in this case that the accrual date should be extended to the point in time that Wollman became aware of the status of Gross as a federal employee.

Kubrick involved a medical malpractice claim where plaintiff had suffered a hearing loss after taking neomycin in 1968. In January 1969...

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