National Carriers, Inc. v. U.S., 84-1617

Citation755 F.2d 675
Decision Date14 June 1985
Docket NumberNo. 84-1617,84-1617
PartiesNATIONAL CARRIERS, INCORPORATED, Appellant, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

John R. Phillips, Kansas City, Mo., for appellant.

Christopher D. Hagen, Des Moines, Iowa, for appellee.

Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BRIGHT, Circuit Judge.

BRIGHT, Circuit Judge.

National Carriers, Inc. (National) appeals from an adverse judgment in its claim against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 2671-80 (1982). National brought this action alleging that the negligence of a government meat inspector caused the contamination of more than 200 quarters of National's beef. The trial court 1 ruled that the inspector's acts came within the misrepresentation exception to the FTCA, 28 U.S.C. Sec. 2680(h) (1982), and thus did not expose the Government to tort liability. For reversal, National argues that the inspector committed other negligent acts, separable from any misrepresentation, which are actionable under the FTCA. We reverse and remand for a determination of damages and entry of judgment for National.

I. BACKGROUND.

On the morning of August 28, 1979, a tractor-trailer type truck owned by National, carrying 236 quarters of hanging beef, overturned on U.S. Highway 61 near Wapello, Iowa. The trailer came to rest at the bottom of a ditch, with its left side partially submerged in muddy water. National immediately flew an experienced salvage crew (known in the industry as "luggers") to the scene of the accident and procured a second trailer so the beef could be transferred from the overturned vehicle and taken to its intended destination.

Sometime after the accident, Kenneth R. Noble, a meat inspector employed by the United States Department of Agriculture, arrived at the scene. The rear doors of the trailer were then opened and those present observed sixteen to twenty beef quarters lying in ditch water. Noble, the luggers, and Melvin Davis, an insurance adjuster, agreed to separate the beef that had been exposed to ditch water from the rest of the beef by hanging it in a separate area of the transfer trailer, separated from the unexposed beef by plastic sheets hung between the two areas. Noble also agreed to identify each quarter that had been exposed to ditch water.

The luggers purchased some plastic sheeting from a nearby lumberyard and began moving beef to the transfer trailer. The work proceeded as planned until one-third to one-half of the beef had been moved. Noble then told the luggers that they could stop separating the exposed and unexposed beef. In response to the lugger foreman's inquiry, Noble stated that the quarters were "all the same." The foreman asked if Noble would tag the exposed quarters, and Noble responded that he had not brought any tags with him. The luggers completed the transfer, commingling the exposed and unexposed beef.

The entire truckload of beef was ultimately condemned by USDA inspectors other than Noble because of the possibility that exposed beef had come in contact with unexposed beef and contaminated it. National sold the beef for dog food and sustained a substantial loss.

National sued the Government to recover its loss. Upon conclusion of the trial, the magistrate determined that National's loss resulted directly from inspector Noble's statement to the salvage crew that the exposed and unexposed beef did not have to be separated. He concluded that the statement constituted a "misrepresentation" and thus fell within an exception to the FTCA, codified at 28 U.S.C. Sec. 2680(h):

Exceptions

The provisions of this chapter and section 1346(b) of this title shall not apply to--

* * *

* * *

Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights * * *.

The magistrate entered judgment for the United States and National brought this appeal.

II. DISCUSSION.

National contends that its claim against the Government was not based solely on inspector Noble's misrepresentation. In addition to the misrepresentation, National argues that Noble acted negligently by failing to condemn the exposed beef quarters or tag them for future identification. Accordingly, National argues that the misrepresentation exception does not bar its entire claim.

National's argument is supported by the recent Supreme Court case of Block v. Neal, 460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983). In Block, the Court recognized that a claim based on negligence may have elements in common with a misrepresentation claim. However, the fact that there are common elements does not cause the misrepresentation exception to bar the entire claim. The Court stated:

Common to both the misrepresentation and the negligence claim would be certain factual and legal questions * * *. But the partial overlap between these two tort actions does not support the conclusion that if one is excepted under the Tort Claims Act, the other must be as well. Neither the language nor history of the Act suggest that when one aspect of the Government's conduct is not actionable under the "misrepresentation" exception, ...

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  • Moyer Packing Co. v. U.S.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • July 8, 2008
    ...same transaction or occurrence." See JM Mech. Corp., 716 F.2d at 196. Defendant also attempts to distinguish National Carriers, Inc. v. United States, 755 F.2d 675 (8th Cir.1985). In that case, the plaintiff's truck that was transporting its beef overturned, causing part of its cargo to be ......
  • Dorking Genetics v. U.S.
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    ...prove that the FmHA undertook to supervise the construction of her home and did so negligently. Id.; see also National Carriers, Inc. v. United States, 755 F.2d 675 (8th Cir.1985) (holding that USDA agent's negligent failure to identify and tag beef exposed to ditchwater after trucking acci......
  • Myers v. U.S.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 25, 1994
    ...of the Act).15 An example of conduct which could prompt liability under this section is found in National Carriers, Inc. v. United States, 755 F.2d 675, 676 (8th Cir.1985) (FDA meat inspector, at the scene of a truck wreck, told workers not to bother separating meat contaminated by ditch wa......
  • Jopson v. Feather River Air Quality, C041927.
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    • May 2, 2003
    ...In Block, supra, 460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67; Guild, supra, 685 F.2d 324; National Carriers, Inc. v. United States (8th Cir.1985) 755 F.2d 675 (National Carriers); and Neal v. Bergland (6th Cir.1981) 646 F.2d 1178 (Neal), various public entities became actively involved in e......
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