Kerns v. U.S.

• Decision Date: 29 October 2009
• Docket Number: No. 08-1287.,08-1287.
• Parties: Stacia Lynn KERNS, Individually, and as Personal Representative of the Estate of Dennis Gregory Kerns, Jr., and as mother and next friend of A.K. and D.K., III, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

585 F.3d 187

Stacia Lynn KERNS, Individually, and as Personal Representative of the Estate of Dennis Gregory Kerns, Jr., and as mother and next friend of A.K. and D.K., III, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 08-1287.

United States Court of Appeals, Fourth Circuit.

Argued: September 22, 2009.

Decided: October 29, 2009.

ARGUED: Paul David Bekman, Salsbury, Clements, Bekman, Marder & Adkins, Baltimore, Maryland, for Appellant. Ariana Wright Arnold, Office Of The United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Emily C. Malarkey, Salsbury, Clements, Bekman, Marder & Adkins, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United

States Attorney, Baltimore, Maryland for Appellee.

Before MOTZ and KING, Circuit Judges, and MARK S. DAVIS, United States District Judge for the Eastern District of Virginia, sitting by designation.

Vacated and remanded by published opinion. Judge KING wrote the opinion, in which Judge MOTZ and Judge DAVIS joined.

OPINION

KING, Circuit Judge:

In April 2007, Stacia Kerns instituted this lawsuit against the United States under the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, based on the alleged negligence of Government employee Debra Scott. In her complaint, Kerns alleged that Scott, acting within the scope of her employment, had negligently caused an automobile accident in Maryland that resulted in the death of Kerns's husband, Dennis Gregory Kerns, Jr. (the "decedent"). On February 7, 2008, the district court dismissed the complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. See Kerns v. United States, 534 F.Supp.2d 633 (D.Md.2008) (the "Opinion"). By way of this appeal, Kerns challenges the dismissal of her FTCA claim. As explained below, we vacate and remand.

I.

A.

At the time of the accident, Scott was a contract employee of the Army Reserve's 99th Regional Readiness Command, working for the office of the Family Readiness Program Director in Coraopolis, Pennsylvania.¹ On May 20, 2005, Scott was ordered to provide a briefing during a three-day volunteer training conference concerning aid and assistance to military families. The conference was to be held at a Radisson Hotel in Annapolis, Maryland, beginning at 8:00 a.m. on Saturday, June 25, 2005. That Friday, June 24, Scott drove her personal car to the Pittsburgh airport and flew to Baltimore-Washington International Thurgood Marshall Airport ("BWI") at the Government's expense. At approximately 1:06 p.m., Scott landed at BWI and rented a vehicle at the airport. Using her personal credit card, she paid a "Government Weekend" rate for a three-day rental. J.A. 43.² Shortly after 1:30 p.m., she departed BWI; the Radisson Hotel's check-in time was 4:00 p.m.

Scott first drove from BWI to the nearby Army Post at Fort Meade, Maryland, to shop at the Fort Meade PX.³ At approximately 9:30 p.m., Scott left Fort Meade and headed eastbound on Annapolis Road/Maryland Route 175 toward Annapolis. While making a left-hand turn, Scott struck the decedent, who was riding a motorcycle westbound on the same road. The decedent was thrown to the highway and seriously injured; he was promptly transported to a hospital trauma unit, but later died. It is undisputed, for our purposes, that Scott was at fault. Scott returned to Pennsylvania the next day without completing the conference.

B.

On April 19, 2007, Kerns, as the personal representative of her husband's estate and next friend of her children, filed her complaint in the District of Maryland. On August 2, 2007, the Government moved to dismiss under Rule 12(b)(1), contending that there was no basis for subject matter jurisdiction under the FTCA because Scott was not acting within the scope of her employment with the Government at the time of the accident. Rather, according to the Government, "[t]he evidence [was] clear ... that [Scott] rented the car on her own to visit personal friends." J.A. 11.

The Government submitted eight exhibits, including two affidavits, in support of its Rule 12(b)(1) motion to dismiss. The exhibits included the following:

• Scott's May 20, 2005 travel orders, which provided that she was to travel between Pennsylvania and Maryland by commercial plane and that "rental car is not authorized." J.A. 32. The orders were silent on how Scott was to proceed from the airport to the hotel in Annapolis.

• Post-conference travel voucher records, dated July 21, 2005, and August 3, 2005, showing that Scott sought and received reimbursement for-round-trip vehicle mileage between Coraopolis and the Pittsburgh airport, as well as per diem and other expenses. The records suggest that Scott neither requested nor received reimbursement for the rental car involved in the accident.

• An affidavit from Barbara Wilson, Scott's supervisor at the time of the accident. Wilson attested that she too had travelled to Annapolis, although not with Scott. Wilson stated that she was "not certain what [Scott] was doing at the time of the accident," but that the conference "had not yet begun, and [Scott] was not performing any duties related to the conference or Army business at the time of the accident." J.A. 35. According to the affidavit, Wilson was informed by Scott, prior to the conference, "that she planned to rent a car and visit friends at Fort Meade during the conference weekend." Id.

• An affidavit from Thomas Cannon, a colleague who flew to Baltimore with Scott. Cannon attested that "Scott rented a vehicle when we left BWI Airport, and she told me she was going to use the car to visit some friends in the area that evening." J.A. 37. Like Wilson, however, Cannon was "not certain what [Scott] was doing at the time of the accident." Id.

On August 20, 2007, Kerns submitted a memorandum in opposition to the Government's motion to dismiss, requesting the district court to authorize relevant discovery proceedings. Kerns maintained that the record had not been sufficiently developed because the exhibits submitted by the Government failed to "disprove that Ms. Scott was acting within the scope of her employment at the time of the collison," in that the exhibits did "not provide any specific information about what Ms. Scott was doing at [that] time" — including any statement from Scott herself. J.A. 75. Kerns pointed out, for example, that although the Wilson and Cannon affidavits "provide[d] hearsay accounts of conversations these individuals had with Ms. Scott about a possible visit with a friend while in Maryland to attend the conference, both specifically state that [the affiants did] not know what Ms. Scott was doing or where she was going at the time of the collision." Id. at 76. Furthermore, Kerns asserted, "[m]erely because Ms. Scott was not reimbursed for her expenses related to the rental car [did] not conclusively establish that Ms. Scott ... did not use the rental car for some portion of her work-related responsibilities or even that Ms. Scott's duties did not require the rental car." Id. at 77. Indeed, the Government "provided no information about how the out-of-town [conference] attendees ... got to the location of the conference from the airport." Id. In these circumstances, Kerns maintained, discovery was necessary to fully develop the record before the district court could properly issue any ruling on the Government's motion to dismiss.

On September 6, 2007, the Government filed its reply memorandum on the Rule 12(b)(1) request. This submission included an August 23, 2007 affidavit from Scott, prepared by the Government in the wake of Kerns's opposition memorandum. Scott attested that "[e]mail instructions regarding travel to the [conference] stated that we could fly into BWI, drive our personal automobiles or take a rental car." J.A. 94. Scott further attested that, on June 24, 2005, while she "was in the Annapolis/FT Meade area on government orders," she "went shopping at the FT Meade PX." Id. at 95. According to Scott, if she had not been on government orders to provide a briefing at the conference, she "would not have been at FT Meade at the time of the collision, and this collision would not have occurred." Id. The affidavit did not specify whether Scott was shopping at the Fort Meade PX for herself or her employer, and it did not address whether Scott had also been visiting friends in the Fort Meade area.

In its reply memorandum, the Government failed to acknowledge or address the contradiction between the notation in Scott's May 20, 2005 travel orders specifying that "rental car is not authorized," J.A. 32, and Scott's averment that "[e]mail instructions" identified a rental car as a permissible mode of travel, id. at 94. Instead, the Government asserted that Kerns could "point to no set of facts that would demonstrate that the United States authorized Ms. Scott to use the rental car to travel to Ft. Meade the evening before the conference in Annapolis was to begin." Id. at 89-90. The Government did acknowledge Scott's apparent attempt — by stating in her affidavit that she would not have been at Fort Meade but for the conference — to establish that she was acting within the scope of her employment at the time of the accident. The Government insisted, however, that "whether Ms. Scott was visiting friends at Fort Meade or shopping at the [PX] prior to the accident, she was performing no duties related to her employment or with her attendance at the conference." Id. at 91.⁴

On February 7, 2008, without any discovery having occurred, the district court granted the Rule 12(b)(1) motion to dismiss. In its Opinion, the court concluded that, under Maryland law, Scott was not acting within the scope of her employment with the Government at the time of the tragic accident. See Kerns, 534 F.Supp.2d at 637-38. The court gave two reasons for its conclusion. First, it posited that Scott was running personal errands at the time of the accident. The...