GEICO Gen. Ins. Co. v. United States

• Decision Date: 21 January 2022
• Docket Number: 6:20-CV-239-REW
• Citation: 581 F.Supp.3d 847
• Parties: GEICO GENERAL INSURANCE CO., Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

581 F.Supp.3d 847

GEICO GENERAL INSURANCE CO., Plaintiff,

v.UNITED STATES of America, et al., Defendants.

No. 6:20-CV-239-REW

United States District Court, E.D. Kentucky, Southern Division. at London.

Signed January 21, 2022

Daran P. Kiefer, Kreiner & Peters, Cleveland, OH, Gregory Gerald Beck, Kreiner & Peters Co., LPA, Dublin, OH, for Plaintiff.

Kyle M. Melloan, AUSA, Tiffany Konwiczka Fleming, AUSA, U.S. Attorney's Office, Lexington, KY, for Defendants.

OPINION & ORDER

Robert E. Wier, United States District Judge The United States¹ moves to dismiss the complaint filed by Plaintiff Geico General Insurance Company ("GEICO"). DE 7. The United States asserts that under a Federal Tort Claims Act analysis and statutory interpretation of the Kentucky Motor Vehicle Reparations Act ("KMVRA"), it is entitled to immunity from suit in this case and that this Court lacks subject matter jurisdiction. Id. ; FED. R. CIV. P. 12(b)(1), (6). Under binding Sixth Circuit precedent, the Court agrees. The Motion to Dismiss is GRANTED .

I. Factual Background

The facts of this case are simple and, in this context, taken as true. On February 22, 2019, United States Postal Service ("USPS") employee Casey Payne was operating a vehicle owned by the USPS in the course and scope of employment. DE 1, at 2. Payne failed to yield to oncoming traffic when entering a roadway, colliding with GEICO's insured. The insured then sought and received basic reparation benefits (BRB) in the amount of $10,000 from GEICO, under the Kentucky no-fault statutory scheme for motor vehicle accident liability. Id. at 3. GEICO paid BRB to its insured, then sought recovery, via subrogation, from the USPS and the United States. Id. The USPS denied GEICO's claim under the Federal Tort Claims Act, and GEICO initiated this suit. The United States then moved to dismiss for lack of subject matter jurisdiction. DE 7. The matter is briefed. DE 8 & 9.

II. Standard

A party may move to dismiss a claim over which the court lacks subject matter jurisdiction. FED. R. CIV. P. 12(b)(1). A motion alleging lack of subject matter jurisdiction "can challenge the sufficiency of the pleading itself (facial attack) or the factual existence of subject matter jurisdiction (factual attack)." Cartwright v. Garner , 751 F.3d 752, 759 (6th Cir. 2014) (citing United States v. Ritchie , 15 F.3d 592, 598 (6th Cir. 1994) ). A facial attack questions whether the plaintiff has alleged a basis for subject matter jurisdiction, challenging the sufficiency of the pleading itself. Id. The Court must take the allegations of the complaint as true. Id. "A factual attack challenges the factual existence of subject matter jurisdiction." Id. In a factual attack, the "court has broad discretion with respect to what evidence to consider in deciding whether subject matter jurisdiction exists, including evidence outside of the pleadings, and has the power to weigh the evidence and determine the effect of that evidence on the court's authority to hear the case." Id. at 760.

Although the motion here may be characterized as either a facial or factual attack, because of the interdependent nature of the factual and jurisdictional elements of an FTCA claim, the Court will analyze the motion to dismiss as a facial attack because the thrust of the United States's argument is that it has not waived sovereign immunity under the FTCA, and the facts are largely undisputed. See In re Flint Water Cases , 482 F.Supp.3d 601, 615 (E.D. Mich. 2020) ("The United States brings a facial attack on the sufficiency of Plaintiffs’ complaint by arguing that under the facts set forth above, there would be no liability under state law—a necessary prerequisite to bring a claim under the Federal Tort Claims Act."). "To survive a Rule 12(b)(1) motion, the burden is on the plaintiff to prove that the court has subject matter jurisdiction." See Moir v. Greater Cleveland Regional Transit Authority , 895 F.2d 266, 269 (6th Cir. 1990) (citing Rogers v. Stratton Industries, Inc. , 798 F.2d 913, 915 (6th Cir. 1986) ).

III. Legal Discussion

"In 1946, Congress passed the FTCA, which waived the sovereign immunity of the United States for certain torts committed by federal employees" when acting within the scope of employment. F.D.I.C. v. Meyer , 510 U.S. 471, 114 S. Ct. 996, 1000, 127 L.Ed.2d 308 (1994). "Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." Meyer , 114 S. Ct. at 1000 (citing Loeffler v. Frank , 486 U.S. 549, 108 S. Ct. 1965, 1968, 100 L.Ed.2d 549 (1988) ). "It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell , 463 U.S. 206, 103 S. Ct. 2961, 2965, 77 L.Ed.2d 580 (1983). The FTCA grants federal courts subject matter jurisdiction over state law tort claims against the United States. 28 U.S.C. § 1346(b)(1). The statute states that:

[T]he district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, 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, 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.

Id.

Additionally, a 1988 amendment to the FTCA provides that "[t]he United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages." 28 U.S.C. § 2674.

"Federal courts have jurisdiction over [state law tort claims] if they are ‘actionable under § 1346(b).’ " Brownback v. King , ––– U.S. ––––, 141 S. Ct. 740, 746, 209 L.Ed.2d 33 (2021) (citing Meyer , 114 S. Ct. at 1001 ). The text of the FTCA makes clear that an actionable claim must be: (1) against the United States; (2) for money damages; (3) for personal injury or death; (4) caused by the negligent or wrongful act or omission of any employee of the Government; (5) while acting within the scope of the office or employment; and (6) under circumstances where the United States, if a private person comparably situated, would be liable to the claimant in accordance with the law of the state where the act occurred. See 28 U.S.C. § 1346(b)(1) ; Brownback , 141 S. Ct. at 746.

Here, the United States cited both Rule 12(b)(1) (lack of subject matter jurisdiction) and Rule 12(b)(6) (failure to state a claim upon which relief may be granted) as grounds for its motion to dismiss. DE 7. In the typical case, a plaintiff's failure to plausibly allege a claim for relief under Rule 12(b)(6) will not deprive a federal court of subject matter jurisdiction. See Brownback , 141 S. Ct. at 749 (citing Steel Co. v. Citizens for Better Environment , 523 U.S. 83, 118 S. Ct. 1003, 140 L.Ed.2d 210 (1998) ). Claims under the FTCA are unique, however, in that the factual elements necessary to establish a claim under the FTCA are also jurisdictional. See Brownback , 141 S. Ct. at 749. A plaintiff is not required to prove a jurisdictional element under the FTCA to establish subject matter jurisdiction, but "a plaintiff must plausibly allege all six FTCA elements not only to state a claim upon which relief may be granted but also for a court to have subject matter jurisdiction." Id. This means that a failure to state a claim upon which relief may be granted will also be a corresponding failure to properly allege subject matter jurisdiction in FTCA cases. Id.

The statutory scheme here also creates the unusual situation where a court may both find that it lacks subject matter jurisdiction and reach the merits of a claim. A finding that a court lacks subject matter jurisdiction will typically bar that court from reaching the merits. See Arbaugh v. Y&H Corp. , 546 U.S. 500, 126 S. Ct. 1235, 1244, 163 L.Ed.2d 1097 (2006) ("[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety."). However, because the FTCA melds the merits and jurisdictional requisites, a court may properly find that it lacks jurisdiction and make a merits-based finding. See Brownback , 141 S. Ct. at 749 ; Meyer , 114 S. Ct. at 1001.

a. Binding precedent requires dismissal.

The Court begins where it must, all arguments aside, end. The Sixth Circuit confronted the same statutes and the precise question in Young v. United States , 71 F.3d 1238 (6th Cir. 1995) and decided the matter. Of course, a published circuit decision binds this Court. See United States v. Roper , 266 F.3d 526, 529 (6th Cir. 2001) ("[A] prior published opinion of this court is binding unless either an intervening decision of the United States Supreme Court requires modification of the prior opinion or it is overruled by this court sitting en banc ...."). Young declared, in a postal service case, where a reparation obligor sought to assert subrogation rights against the United States, that the United States would have no FTCA liability: "[t]he United States is immune from the subrogation liability[.]" Young , 71 F.3d at 1246. GEICO cites intervening Kentucky law,² in distinct contexts, in an effort to weaken Young. Though the Court is not persuaded, even if it were, Young stands until the Circuit says otherwise. Functionally, the matter ends there, but the Court will comment on the merits.

b. The merits of the arguments

The parties do not dispute that the first five elements of an FTCA claim, identified by the Supreme Court, are met here. They sharply disagree as to whether the sixth element is met—that is, whether the United States, to the extent of the liability of a private person under the facts...