Barry v. Stevenson

• Decision Date: 16 May 1997
• Docket Number: No. 96-C-205.,96-C-205.
• Citation: 965 F.Supp. 1220
• Parties: Cornell BARRY, Plaintiff, v. Brian STEVENSON and American Family Mutual Insurance Company, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

965 F.Supp. 1220

Cornell BARRY, Plaintiff, v. Brian STEVENSON and American Family Mutual Insurance Company, Defendants.

No. 96-C-205.

United States District Court, E.D. Wisconsin.

May 16, 1997.

Mark J. Leuck, Adrian P. Schoone, Schoone, Fortune & Leuck, Racine, WI, for Plaintiff.

Penelope C. Fleming, Asst. U.S. Atty., Milwaukee, WI, for Defendants.

DECISION AND ORDER

CURRAN, District Judge.

Cornell Barry is suing Brian Stevenson and American Family Mutual Insurance Company for injuries he sustained on June 15, 1993, while he was a passenger in a HMMWV military truck driven by Stevenson. At the time of the accident, Barry and Stevenson were both members of the Wisconsin Army National Guard and were participating in annual training at Fort McCoy, Wisconsin.

I. SUBSTITUTION

After Barry filed this case in the Circuit Court of Walworth County (Wisconsin), the United States of America removed the action to federal court and moved to substitute itself as the sole defendant pursuant to the Westfall Act.¹ The Westfall Act, which is part of the Federal Tort Claims Act, (FTCA), see 28 U.S.C. §§ 1346(B) & 2671-80(a)-(h), requires that the United States be substituted as the Defendant if the Attorney General certifies that the alleged tortfeasor was a federal employee who was acting in the course of his employment when the injury occurred. See 28 U.S.C. § 2679(d)(2). Barry opposes the substitution on the ground that Stevenson had taken a detour from his employment at the time of the accident.

The United States may not be sued without its consent. See United States v. Testan, 424 U.S. 392, 393, 96 S.Ct. 948, 951, 47 L.Ed.2d 114 (1976). However, the FTCA waives the United States' sovereign immunity in actions arising out of tortious conduct by governmental employees who are acting within the scope of their office or employment, under circumstances in which the United States, if a private person, would be liable to the Plaintiff under the law of the place where the tortious act occurred. See, e.g., 28 U.S.C. §§ 1346(b) & 2674. The scope of this waiver is limited by exceptions contained in the FTCA itself and by judicial interpretation and application of the FTCA. See Shaw v. United States, 854 F.2d 360, 361 (10th Cir.1988).

The Westfall Act provides that "certification of the Attorney General shall conclusively establish scope of employment for purposes of removal." 28 U.S.C. § 2679(d)(2). Nevertheless, the Plaintiff is entitled to challenge the certification because the Attorney General's certification is not conclusive for purposes of substitution. See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, ___, 115 S.Ct. 2227, 2236, 132 L.Ed.2d 375 (1995). When certification has been challenged, the Plaintiff has the burden of proving by a preponderance of the evidence that the Defendant was acting outside the scope of his employment. See Brown v. Armstrong, 949 F.2d 1007, 1012 (8th Cir. 1991); Hamrick v. Franklin, 931 F.2d 1209, 1211 (7th Cir.), cert. denied, 502 U.S. 869, 112 S.Ct. 200, 116 L.Ed.2d 159 (1991). The FTCA requires the court to resolve the "scope of employment" issue, see 28 U.S.C. § 2679(d)(3), by applying the forum state's law governing the doctrine of respondeat superior. See 28 U.S.C. § 2674. See also generally Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam). Because both sides submitted competent evidence supporting their differing positions on the scope of employment issue, the court held an evidentiary hearing to resolve the dispute. See Melo v. Hafer, 13 F.3d 736, 747-48 (3d Cir.1994).

Under Wisconsin law, "[c]onduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master." Wuorinen v. State Farm Mutual Automobile Insurance Company, 56 Wis.2d 44, 54, 201 N.W.2d 521, 526 (1972) (quoting Restatement (Second) of Agency § 228(2) (1957)). The Wisconsin court has emphasized that "in scope of employment cases, consideration must be given to whether the employee was actuated, at least in part, by a purpose to serve the employer." Olson v. Connerly, 156 Wis.2d 488, 500, 457 N.W.2d 479, 484 (1990). The court explained that:

[A]n employee may be found to have acted within the scope of his or her employment as long as the employee was at least partially actuated by a purpose to serve the employer. There is no requirement that serving the employer must be the employee's only purpose or even the employee's primary purpose. Rather, an employee's conduct is not within the scope of his or her employment if it is too little actuated by a purpose to serve the employer or if it is motivated entirely by the employee's own purposes (that is, the employee stepped aside from the prosecution of the employer's business to accomplish an independent purpose of his or her own).

Id. at 499-500, 457 N.W.2d 479.

Having reviewed the record and heard the testimony at the evidentiary hearing, the court finds that Stevenson was engaged in annual Army National Guard training at the time of the accident. He was driving a government vehicle on a tank trail on government property. On the day in question, he had transported machine guns to a location on the base and was returning to headquarters when he hit a dip in the tank trail and Barry, who was a passenger in the HMMWV, was injured.

Despite these circumstances, the Plaintiff contends that Stevenson was enjoying a "frolic" and "detour," as those terms are used in the law of agency, when the injury occurred. Barry says that Stevenson left the main road for an unimproved tank trail and that he began driving in the wrong direction and had to go back over the trail, including the dip where the accident occurred. The Plaintiff characterizes the ride as a diversionary "joy ride" rather than a military mission and points out that the occupants of the HMMWV were yelling and laughing as they passed over the rough places on the trail.

In Wisconsin, "to constitute a deviation from the employer-serving purpose of a trip, the detour ... must be so substantial as to amount to a departure therefrom and for purposes entirely personal to the servant." Finsland v. Phillips Petroleum Company, 57 Wis.2d 267, 276, 204 N.W.2d 1, 5-6 (1973) (quoting Thomas v. Lockwood Oil Company, 174 Wis. 486, 492, 182 N.W. 841, 843 (1921)). Here, Barry has not met his burden of proving that Stevenson was acting entirely for personal purposes. The testimony showed that Stevenson and his companions were driving back to headquarters from a work assignment on base. The main road was under construction, so taking the tank trail did not constitute a detour. Driving over dips and hollering and laughing when hitting the bumps are not significant events showing a complete departure from Stevenson's service to the Army. These factors lead the court to the firm conclusion that Stevenson was acting within the course of his employment when the injury occurred. Consequently, the court will grant the government's motion to substitute the United States as the sole Defendant in this action.

II. MOTION TO DISMISS

The United States has renewed its motion to dismiss on the ground that the Plaintiff has failed to exhaust his administrative remedies under the Federal Tort Claims Act. Section 2675(a) of the Act provides that:

An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have been finally denied by the agency in writing and sent by certified or registered mail.

28 U.S.C. § 2675(a).

In this case it is undisputed that the Plaintiff failed to file an administrative claim with the appropriate agency prior to filing suit in state court. The filing of an administrative claim is jurisdictional. See Wollman v. Gross, 637 F.2d 544, 546 (8th Cir.1980), cert. denied, 454 U.S. 893, 102 S.Ct. 389, 70 L.Ed.2d 207 (1981). The claim must be filed within two years of the date upon which the claim accrues. See 28 U.S.C. §§ 2401(b) & 2675(a). In this case the injury to Cornell Barry occurred on June 16, 1993. The Plaintiff argues that accrual of his cause of action should be tolled until the Attorney General certified that Brian Stevenson was acting within the scope of his employment by the federal government, because, until that time, he did not know that Stevenson was serving as a federal employee. The Seventh Circuit, however, has rejected a "discovery rule" in a case in which a plaintiff knew he was injured, but did not know that the party who injured him was an employee of the federal government. See Steele v. United States, 599 F.2d 823 (7th Cir.1979). Moreover, Barry's "Notice of Claim" filed with the Attorney General of the State of Wisconsin on September 3, 1993, acknowledges that all three occupants of the vehicle in which Barry was injured "were engaged in the performance of military duty and in the pursuance of military duty." Brief in Support of Defendants' Motion for Substitution and Dismissal" at Exhibit B. Consequently, Barry should have known that Stevenson was an employee of the United States Army at that time. The Notice of Claim also shows that Barry had retained an attorney shortly after the accident. Other circuits have explored a "diligence discovery"² rule or "blameless ignorance"³ exception to the FTCA limitation period — mainly in medical malpractice actions. This is a harsh rule but Congress has left the court with no alternative. See Wollman v. Gross, 637 F.2d at 549 & n. 6 (FTCA statute of limitations requires diligence and requires a plaintiff to obtain appropriate legal counsel and, together with counsel, to discover the facts and their possible legal...