Ashworth v. US
| Citation | 772 F. Supp. 1268 |
| Decision Date | 27 August 1991 |
| Docket Number | No. 89-10040-CIV,90-10023-CIV and 91-10006-CIV.,89-10040-CIV |
| Court | U.S. District Court — Southern District of Florida |
| Parties | Donald Wayne ASHWORTH and Cynthia Ashworth, individually and as husband and wife, Plaintiffs, v. UNITED STATES of America, Defendant. U-HAUL CO. OF SOUTHERN FLORIDA, U-Haul Co. of Cleveland, and Republic Western Insurance Company, Plaintiffs, v. UNITED STATES of America, Defendant. The ASSOCIATION OF COMMUNITY MENTAL HEALTH/MENTAL RETARDATION PROGRAMS OF WEST VIRGINIA BENEFIT PLAN TRUST, a foreign trust, Plaintiff, v. UNITED STATES of America, Defendant. |
Preddy, Kutner, Hardy, Rubinoff, Brown & Thompson by Edward G. Rubinoff, Miami, Fla., for plaintiffs.
Dexter W. Lehtinen, U.S. Atty. by Carole M. Fernandez, Asst. U.S. Atty., Miami, Fla., for defendant.
ORDER GRANTING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING GOVERNMENT'S MOTION FOR PARTIAL SUMMARY JUDGMENT; ORDER DENYING GOVERNMENT'S MOTION TO DISMISS COUNTS III AND IV AND DENYING PLAINTIFFS' MOTION TO COMPEL
This cause comes before the court on a number of motions filed by the parties. Included among these motions are the plaintiffs' motion for partial summary judgment, the defendant's motion for partial summary judgment, the defendant's motion to dismiss Counts III and IV of the plaintiffs' complaint, and the plaintiffs' motion to compel. At the pretrial conference held on April 19, 1991, the court conducted a hearing on the pending motions, allowing counsel to present oral argument and submit evidence in connection with the pending motions.
On the evening of August 28, 1987, a tragic automobile accident occurred in the Florida Keys on the stretch of U.S. 1 known as the Seven-Mile Bridge. The accident involved a rented U-Haul vehicle driven by United States Coast Guard Seaman Thomas Nellis and a vehicle driven by Donald Wayne Ashworth. Donald Ashworth and his wife, Cynthia Ashworth, sustained extremely serious injuries as a result of the head-on collision.
The collision occurred on the evening of August 28, 1987, at approximately 8:45 p.m. Seaman Nellis was traveling north at a speed of about 45 mph when his vehicle veered into the southbound lane of traffic. Although Seaman Nellis' vehicle had been weaving a bit within its lane, it appears that the vehicle crossed lanes suddenly, at a relatively sharp 45-degree angle. The oncoming car, driven by Donald Wayne Ashworth and occupied by Cynthia Ashworth, was quickly struck by Seaman Nellis' rented vehicle. The collision occurred entirely within the Ashworths' lane of travel and within the emergency lane to its west. The vehicles came to rest partially within the southbound lane and partially within the emergency lane. The vehicles were just a few scant inches from the guard rail that separates the southbound lane of the Seven-Mile Bridge from a dangerous plummet into the Gulf of Mexico.
On the date of the accident, Seaman Nellis, who had been stationed aboard the Coast Guard Cutter Ute, was travelling from Key West, Florida to Riviera Beach, Florida. Earlier in the day, he had been granted leave from the Ute. He thereafter engaged in various social activities, including attendance at a function sponsored by the Ute Morale Committee, a visit with his friend and travelling companion, Jackie Brown, to a local Key West bar and restaurant, and a stop for a swim at the beach. Seaman Nellis then began his trip to Riviera Beach, Florida in a rented U-Haul vehicle.
Seaman Nellis' trip from Key West to Riviera Beach was occasioned by his transfer from the Ute to U.S. Coast Guard Station Lake Worth Inlet, Riviera Beach, Florida. Nellis had requested and received authorization to conduct a Do-It-Yourself (DITY) move of his personal belongings, and he had also been authorized to effect his change of duty station by privately owned conveyance. Nellis' travel orders provided for one day of travel time and one day of leave.
According to the testimony of Jackie Brown, Seaman Nellis had planned on reaching his new duty station on the night of August 28, 1987. There is also evidence that Nellis was expected to stop at his mother's home on that same evening. The new duty station was just 45 minutes beyond the home of Seaman Nellis' mother, where it appears that Seaman Nellis had considered temporarily storing the belongings he was moving on his DITY move.
Rule 56(c) of the Federal Rules of Civil Procedure provides in pertinent part that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is mandated against a party who has failed to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, all reasonable doubts as to the facts are to be resolved in favor of the party opposing summary judgment. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Mercantile Bank & Trust Co. v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir.1985).
Under the Federal Tort Claims Act, the United States' liability for the acts of its employees is limited to those instances where a government employee is "acting within the scope of his or her employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). As applied to members of the United States military, "acting within the scope of his or her employment" is defined as "acting in the line of duty." 28 U.S.C. § 2671. Yet, for purposes of the Federal Tort Claims Act, "acting in the line of duty" means no more than acting within the scope of employment under the law of the place where the act or omission occurred. See Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955). In the context of the plaintiffs' motion for summary judgment, it is therefore crucial to determine whether, under Florida law, Seaman Thomas Nellis was acting within the scope of his employment when the subject accident occurred.
Under Florida law, scope of employment is determined by the following three part test:
An employee's conduct is within the scope of his employment only if it is the kind he is employed to perform, it occurs substantially within the time and space limits of the employment and it was activated at least in part by a purpose to serve the master.
Lawrence v. Dunbar, 919 F.2d 1525, 1528 (11th Cir.1990) (citing Rabideau v. State, 391 So.2d 283 (Fla. 1st DCA 1980), aff'd, 409 So.2d 1045 (Fla.1982)).
In determining scope of employment, the first issue which this court must address is whether Seaman Nellis' conduct on the night of August 28, 1987 was of the kind he was employed to perform. The government contends that Seaman Nellis was not engaged in such conduct because he was not employed to move furniture, drive trucks, or possess a valid driver's license. Moreover, the government has heatedly argued that Florida cases on workmen's compensation should not be followed by this court in determining whether Seaman Nellis was engaged in conduct of the kind he was employed to perform.
While it is true that the policies attendant to workmen's compensation cases may sometimes require a more expansive interpretation of scope of employment than is called for in a respondeat superior situation, this court finds that no such expansive interpretation is needed to determine that Seaman Nellis was in fact engaged in the type of conduct he was employed to perform.1 The government admits that "Coast Guard seamen are occasionally required to change their duty station." Moreover, the government admits that Seaman Nellis was authorized to move himself and his belongings to the new duty station — tasks which the government was otherwise required to perform. As a government employee, Seaman Nellis was required to make an election from among a limited number of options that the government provides to employees who are given permanent change of station orders. He chose a DITY move and travel by privately owned conveyance. He was given a limited period of time in which to complete the authorized DITY move and change duty stations; one of the days he was allowed was not even considered leave or liberty. Nellis was required to follow certain procedures, and pursuant to the Joint Federal Travel Regulations, the Coast Guard Comptroller Manual, and Nellis' various travel-related orders, he was to be compensated for his travel and moving expenses and to be given a variety of allowances that included a $50.00 per diem allowance and a mileage allowance. The Coast Guard's own literature even informs its members that they may be "immune from individual suit when on a direct route ... from one duty station to the next" because "a member engaged in a DITY move is presumed to be performing official duties."
Although Seaman Nellis' day-to-day job activities do not require that he drive a truck, move his belongings, or hold a valid driver's license, as a member of the United States Coast Guard he has been hired to follow orders and travel to duty stations where his superiors order him to report and serve. While fulfilling such orders under the circumstances existing in this case, Seaman Nellis was engaged in conduct of the kind he was hired to perform.
Having determined that Seaman Nellis was engaged in conduct of the kind he was hired to perform, ...
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