Crow v. US
| Citation | 659 F. Supp. 556 |
| Decision Date | 14 April 1987 |
| Docket Number | Civ. A. No. 83-2453. |
| Parties | Donald L. CROW, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Kansas |
COPYRIGHT MATERIAL OMITTED
Mark S. Gunnison, R. Pete Smith, McDowell, Rice & Smith, Kansas City, Kan., for plaintiff.
Benjamin L. Burgess, Jr., U.S. Atty., Robert A. Olsen, Asst. U.S. Atty., Kansas City, Kan., for defendant.
This case arises out of an undercover investigation by the Postal Inspection Department of the United States Postal Service, which led to the prosecution of plaintiff for mail fraud. At plaintiff's criminal trial, the court entered a judgment of acquittal at the close of the government's evidence. Plaintiff now brings this action against the United States of America under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq., for malicious prosecution and outrage. Trial to the court was held on January 6-8, 1987, on the issue of liability only. After carefully reviewing the evidence and the memoranda of the parties, the court makes the following findings of fact and conclusions of law.
1. The plaintiff, along with other lawyers and doctors, was targeted for investigation by the Postal Inspection Service as part of an undercover investigation involving fraudulent insurance claims. This investigation was entitled "Medical And Insurance Liability (MAIL) Fraud Investigation" hereinafter MAIL fraud investigation by the Postal Inspection Service.
2. As part of their investigation, the Postal Inspectors staged and created the appearance of automobile accidents in which they were allegedly involved.
3. With respect to the investigation of plaintiff, the inspectors assumed the following identities: Robert Schick assumed the identity of Robert Thomas; L.A. Armstrong assumed the identity of Darren Gregory; Robert Bush assumed the identity of Robert Ward; I.L. Gillis assumed the identity of Loretta Ward; and P.A. Glick assumed the identity of Priscilla McCally.
4. The inspectors procured false driver's licenses from the State of Missouri under their fictitious names.
5. The inspectors, through the help of Officer John Hamilton of the Kansas City, Missouri, Police Department, prepared a fictitious accident report stating that a car driven by Robert Thomas rear-ended a vehicle driven by Robert Ward. According to the report, Thomas' car was traveling at a speed of twenty-five to thirty miles per hour. The report stated that "all claimed no apparent injuries at this time."
6. Officer Hamilton issued a fictitious citation to Robert Thomas for careless driving. Thomas appeared before a judge of the Kansas City, Missouri, Municipal Court, pleaded guilty and was fined by the judge. The judge and prosecutor were never advised that the accident or citation was fictitious.
7. A fictitious liability insurance policy had previously been procured from the Travelers Insurance Company of Overland Park, Kansas, in the name of Robert Thomas.
8. The Postal Inspectors created two fictitious automobile damage estimates using what appeared to be authentic forms from an automobile dealer and a body repair shop in the Kansas City area.
9. The Postal Inspectors, posing as the driver and passengers of the car supposedly rear-ended by Thomas, sought to engage plaintiff to represent them in their legal claims arising out of the automobile accident. The Postal Inspectors met personally with plaintiff in his Kansas City, Missouri, office and talked to him over the telephone a number of times from July 1980 through February of 1981. All telephone conversations and meetings between plaintiff and the inspectors were surreptitiously tape recorded.
10. The first telephone call to plaintiff was made by Gregory on July 8, 1980, to schedule an appointment. That afternoon, Inspectors Armstrong and Glick (posing as Gregory and McCally) met with plaintiff to see if he would represent them. The recording equipment used by the inspectors failed to function. According to the memorandum prepared by Inspector Armstrong, with Inspector Glick's assistance, the following took place: Gregory informed plaintiff that their car had been rear-ended. When plaintiff asked whether they were hurt, Gregory informed him that "the other car wasn't going that fast, but that we had been sort of shook up." Gregory informed plaintiff that the trunk and bumper were bent a little but that there wasn't too much damage. When plaintiff asked Gregory if they had a family doctor, he responded that they didn't have a family doctor, but were thinking about seeing a Dr. Wells. When plaintiff specifically asked if McCally was going to see a doctor, Gregory replied that McCally was going to go with him to see whichever doctor he saw. Plaintiff then asked the inspectors where they were sitting in the car. Gregory informed plaintiff that he was sitting in the center on the back seat and that McCally was sitting next to the right rear door in the back seat to Gregory's right side. According to the inspectors' memorandum, Crow then suggested Plaintiff told the inspectors that he would take their case and that they should go ahead and see their doctor.
11. Later on that same day, Gregory phoned plaintiff and informed him that they had contacted Dr. Wells. Gregory told him that the doctor's $65.00 fee was too high and wondered if plaintiff could find them another doctor. Plaintiff suggested that they should try and find another M.D., but if they could not do so they could go to a Chiropractor. Gregory suggested that plaintiff contact a Dr. Barquist and gave Gregory his phone number.
12. The next contact occurred on July 23, 1980, when Gregory telephoned plaintiff and informed him that he and McCally had seen a physician and were both receiving heat treatments twice a week. Gregory also set up an appointment for plaintiff to meet with the other two passengers in the car, Robert and Loretta Ward.
13. On the following day, July 24, 1980, plaintiff met with Inspectors Bush and Gillis (posing as Robert and Loretta Ward) and Inspector Armstrong (posing as Gregory). Plaintiff asked the Wards if they had been to a doctor. Robert Ward answered that they had not. The following conversation then took place.
Plaintiff then informed the Wards that in order to recover from an insurance carrier they had to suffer some kind of an injury and because of that injury, they had to expend some money, generally in medical expenses. He also told them that in order to recover more than their actual out-of-pocket expenses, they had to incur some permanent injury or experience a continuing aggravation of the injury. Plaintiff informed them that because they obviously had no permanent injuries and had received no treatment since the accident, they were not entitled to recover anything. He told them, "just because you are in an accident, doesn't mean you are entitled to some money. ..." He then told Robert Ward that he could possibly recover if his injuries or the pain that he suffered reoccurred and he went to a doctor for treatment.
Plaintiff then turned his attention to Darren Gregory and asked him if the doctor had indicated that his injury was of a permanent nature. Gregory replied that the doctor was still treating himself and McCally. Loretta Ward asked plaintiff if it was not too late to see a doctor. Plaintiff responded that it was not too late, "particularly, if you had pain." He told Ward that if she did go to a doctor, she should "be sure and tell them that two or three days after the accident that you had quite a little bit of pain."
Plaintiff and Robert Ward then discussed Ward's job. The following conversation ensued:
Next, Robert Ward asked plaintiff if he knew of a doctor that they could go to. Plaintiff responded that he did not know any M.D.'s but that he knew of a Chiropractor. Plaintiff noted, however, that a Chiropractor is "not worth the same in a, in a settlement negotiation and of course something like this really isn't something you try, isn't worth as much as a doctor, an M.D." He then stated:
Now, you add that with the fact that it's 30 days down the line and you know, you're building a pretty good road block for me is what you...
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