Hensley v. U.S.

• Decision Date: 09 July 2008
• Docket Number: No. 06-35619.,06-35619.
• Citation: 531 F.3d 1052
• Parties: Pamela S. HENSLEY; Michael M. Hensley, husband and wife each of them and their marital community thereof, Plaintiffs-Appellees, v. UNITED STATES of America, as substituted party for Edward and Jane Doe Eich, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

531 F.3d 1052

Pamela S. HENSLEY; Michael M. Hensley, husband and wife each of them and their marital community thereof, Plaintiffs-Appellees, v. UNITED STATES of America, as substituted party for Edward and Jane Doe Eich, Defendant-Appellant.

No. 06-35619.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 8, 2008.

Filed July 9, 2008.

William G. Cole, Attorney, Civil Division, U.S. Department of Justice, Washington, D.C., for the defendant-appellant.

Howard M. Goodfriend, Edwards, Sieh, Smith & Goodfriend, P.S., Seattle, WA; Lincoln D. Sieler, Mosler, Schermer, Wallstrom, Jacobs & Sieler, Seattle, WA, for the plaintiffs-appellees.

Appeal from the United States District Court for the Western District of Washington; Marsha J. Pechman, District Judge, Presiding. D.C. No. CV-04-00302-MJP.

Before: SUSAN P. GRABER and JOHNNIE B. RAWLINSON, Circuit Judges, and OTIS D. WRIGHT II,^* District Judge.

GRABER, Circuit Judge:

In this negligence action arising from a car accident, we are called upon to decide when the plaintiffs' claim accrued for purposes of measuring the two-year statute of limitations under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2401, 2671-2680. As required by binding precedent, we hold that the claim accrued at the time of the collision and not later when the Attorney General certified that the driver of the other vehicle was acting within the scope of his federal employment at the time of the collision. Accordingly, we reverse the judgment in favor of the plaintiffs and remand with instructions to dismiss the action.

FACTUAL AND PROCEDURAL HISTORY

On November 6, 2000, a car driven by Ensign Edward C. Eich, an active duty commissioned officer in the United States Navy Reserve, struck from behind a car driven by Pamela Hensley, the wife of an active duty Chief Petty Officer in the United States Navy. Mrs. Hensley suffered serious injuries as a result of the collision.

The collision occurred on the grounds of the Whidbey Island Naval Air Station. Although Eich was driving his personal vehicle, he was wearing his Navy uniform at the time of the crash. Mrs. Hensley saw that Eich was in uniform and testified that she knew from seeing the uniform that he was a Navy officer. Military police were called to the scene. An ambulance took Mrs. Hensley to a Navy hospital, where she received treatment.

The military police promptly prepared an incident report. It included the information that Eich was employed as a Navy officer. Mrs. Hensley did not receive a copy of that report. Instead, while at the hospital, she received a "Vehicle Information Exchange Sheet" containing Eich's name and address, along with information about his personal insurance carrier, United Services Automobile Association ("USAA"). That sheet did not identify Eich as a member of the military. A military police officer who visited Mrs. Hensley at the hospital advised her to follow up with Eich's insurance company.

During the next two years, Mrs. Hensley contacted USAA many times. According to her declaration, USAA told her that she had three years under Washington law to file suit if settlement negotiations proved unproductive.

Mrs. Hensley did not hire a lawyer until August 2003, nearly three years after the accident. Counsel pursued further discussions with USAA. When negotiations failed, the Hensleys filed suit against Eich and his wife in Washington state court on October 24, 2003—less than three years, but more than two years, after the accident.

That action was removed to federal court in early 2004. Following certification that Eich was acting within the scope of his federal employment at the time of the accident, the United States substituted itself for the Eichs pursuant to 28 U.S.C. § 2679(d)(1). The United States also moved to dismiss the Hensleys' complaint for lack of subject matter jurisdiction.¹ Among other reasons,² the government cited the FTCA's two-year statute of limitations, 28 U.S.C. § 2401(b). In response, the Hensleys argued that the statute of limitations should be equitably tolled because Mrs. Hensley had no reason to think that Eich was acting within the scope of his employment, a military police officer suggested that she contact Eich's private insurance carrier, and USAA representatives assured her that her claim would be settled after she provided more information.

The district court ruled that the Hensleys' suit was timely: "[I]f a civil action is instituted within the applicable state limitations period, an FTCA claim does not accrue for limitations purposes until the plaintiff knows or should have known that the alleged tortfeasor was acting within the scope of federal employment...." With respect to the Hensleys' alternative equitable tolling argument, the district court observed that this "is not an equitable tolling case."

Following a bench trial, the district court found that Eich had operated his car negligently. The court thus ruled in favor of the Hensleys and awarded them more than $1.5 million. The government timely appealed from the resulting judgment.

STANDARDS OF REVIEW

We review de novo a district court's interpretation of the statute of limitations under the FTCA, Lehman v. United States, 154 F.3d 1010, 1013 (9th Cir. 1998), and its decision as to whether a statute of limitations bars a claim, Santa Maria v. Pac. Bell, 202 F.3d 1170, 1175 (9th Cir.2000). The district court's decision regarding equitable tolling is "generally reviewed for an abuse of discretion, unless the facts are undisputed, in which event the legal question is reviewed de novo." Id.

DISCUSSION

A. The Hensleys' Claim Accrued at the Time of the Car Accident.

The FTCA waives sovereign immunity for claims against the federal government arising from torts committed by federal employees who are acting within the scope of their employment. 28 U.S.C. §§ 1346(b)(1), 2679(d)(1). But the statute provides that a tort claim "shall be forever barred" unless it is presented "within two years after such claim accrues." Id. § 2401(b). As a general rule, a claim accrues "when a plaintiff knows or has reason to know of the injury which is the basis of his action." Gibson v. United States, 781 F.2d 1334, 1344 (9th Cir.1986) (internal quotation marks omitted). In addition, as a general rule, ignorance of the involvement of government employees is irrelevant to accrual of a federal tort claim. Dyniewicz v. United States, 742 F.2d 484, 487 (9th Cir.1984).

In certain circumstances, such as claims involving medical malpractice, accrual does not occur until a plaintiff knows of both the existence of an injury and its cause. United States v. Kubrick, 444 U.S. 111, 122-23, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). But accrual does not await a plaintiff's awareness, whether actual or constructive, of the government's negligence. Id. at 125, 100 S.Ct. 352. As the Court explained:

A plaintiff ..., armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government.

Id. at 123, 100 S.Ct. 352.

In Gibson, we expressly refused to expand the Supreme Court's holding in Kubrick "to delay accrual of a federal tort claim until plaintiff knows or has reason to know of the culpability of federal agents." 781 F.2d at 1344. There, the plaintiffs alleged that government agents were responsible for burning down their garage. They argued that their claim did not accrue for the purpose of the statute of limitations until more than three years after the fire, when they finally learned of the government's alleged complicity in the arson. Id. at 1343-44. Although we recognized that the plaintiffs could find some support in the "[l]anguage in Kubrick [] emphasizing the strategic importance to the litigant of knowing whom to sue," Dyniewicz required us to hold that the claim accrued when the plaintiffs learned of the property damage itself. Id. at 1344.

Dyniewicz, on which we relied in Gibson, is factually similar to the present case. The plaintiffs filed a wrongful death claim against the State of Hawaii for the deaths of a husband and wife who had died in a flood. Dyniewicz, 742 F.2d at 485. While that timely state court action was ongoing, but approximately two years and three months after the deaths, the plaintiffs learned that National Park Service rangers might have played a part in causing the deaths. Id. The plaintiffs promptly filed an administrative claim, asserting a cause of action under the FTCA. We held that the claim was time-barred because it was not submitted within two years of the date of its accrual. Id. at 486.

We reiterated the rule that the claim accrued when the plaintiffs "knew both the fact of injury and its immediate physical cause." Id. at 487. The plaintiffs' "ignorance of the involvement of United States employees is irrelevant" to determining when their claim accrues. Id.; accord Gould v. U.S. Dep't of Health & Human Servs., 905 F.2d 738, 743 n. 2, 745 (4th Cir.1990) (en banc) (discussing Dyniewicz and holding that the FTCA statute of limitations "does not wait until a plaintiff is aware that an alleged tort-feasor is a federal employee"); Zeleznik v. United States, 770 F.2d 20, 23 (3rd Cir. 1985) (following Dyniewicz and holding that accrual of an FTCA claim is not delayed until the injured party learns of possible government liability); Steele v. United States, 599 F.2d 823, 827-28 (7th Cir.1979) (holding that the plaintiff's assertion that "he neither knew, nor in the exercise of reasonable diligence could have known" about the government's possible liability for his injury was irrelevant to accrual of his FTCA claim). Moreover, we held that even the government's silence concerning the possible...