Love v. United States Dept. of Agriculture, CV-85-146-GF.

Decision Date17 November 1986
Docket NumberNo. CV-85-146-GF.,CV-85-146-GF.
Citation647 F. Supp. 141
PartiesClinton W. LOVE, Sr., and Rose Mary Love, husband and wife, Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Farmers Home Administration, Defendants.
CourtU.S. District Court — District of Montana

COPYRIGHT MATERIAL OMITTED

Theodore K. Thompson, Thompson & Swenson, Havre, Mont., for plaintiffs.

Byron H. Dunbar, U.S. Atty., George F. Darragh, Jr., Asst. U.S. Atty., Great Falls, Mont., for defendants.

MEMORANDUM AND ORDER

HATFIELD, District Judge.

FACTUAL BACKGROUND

At the times pertinent to this action, Clinton and Rose Mary Love operated a farm near Harlem, Montana. The Loves obtained water for irrigation purposes from the Harlem Irrigation District. As of May 25, 1983, the Loves were two years' delinquent in the payment of their annual water assessments. As of that date, the Harlem Irrigation District terminated delivery of water to the Loves' farming property. Consequently, the Loves were without water for irrigation throughout the 1983 growing season.

The Loves bring this action against the United States of America, acting through the Farmers Home Administration ("FmHA"), to recover monetary compensation from that entity for damages the Loves allegedly sustained as a result of the termination, by the Harlem Irrigation District, of water flow to the Loves' property. The Loves predicate their claim upon their assertion that the FmHA had an obligation, imposed by administrative regulation, to pay the Loves' delinquent water assessments. Accordingly, the Loves prosecute their claim for relief under the Federal Tort Claims Act ("FTCA") (28 U.S.C. §§ 1346(b) and 2671-2680), which vests jurisdiction of actions under the FTCA exclusively in the federal district courts.1

This action was tried before the court, sitting without a jury, on July 8, 1986. Pending at the time of trial was the FmHA's motion to dismiss, or in the alternative, motion for summary judgment, which the court took under advisement. The FmHA seeks dismissal upon the ground the Loves' complaint fails to state a claim upon which relief can be granted. Specifically, the FmHA contends it owed no actionable duty to the Loves with respect to the payment of the Loves' delinquent water assessments. Consequently, the Government submits the Loves' claim for negligence must fail as a matter of law.

Having considered the merits of the arguments advanced by the parties in support of their respective positions, the court is compelled to conclude that the Loves' complaint fails to state a claim for relief under the Federal Tort Claims Act.

DISCUSSION:

I.

This controversy has its genesis in an administrative regulation, promulgated by the Secretary of Agriculture under authority of Section 339 of The Consolidated Farmers Home Administration Act of 1961 (7 U.S.C. § 1989), in conjunction with Section 510(g) of The Housing Act of 1949 (42 U.S.C. § 1480(g)). The regulation at issue, Title 7, Code of Federal Regulations, § 1863.4, relates to the "servicing" of delinquent taxes due on real estate upon which the FmHA has a security interest arising from an FmHA loan.2

The Loves' claim against the FmHA is premised on their conclusion that 7 C.F.R. § 1863.4(a) imposes an obligation upon the FmHA, a breach of which is compensable in tort.3 Because the FmHA held a security interest in the Loves' farm property that entity was obligated, the Loves submit, to pay the delinquent water assessments which the Loves owed the Harlem Irrigation District. The failure of FmHA to make the necessary payment, the Loves contend, constitutes negligence on the part of the FmHA, cognizable under the FTCA. The court disagrees.

II.

The court begins its analysis by taking proper cognizance of the well established principle that the violation of a federal statute or administrative regulation by a government agency does not, standing alone, create a cause of action under the FTCA. See, Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980); United Scottish Insurance Co. v. United States, 614 F.2d 188, 194 n. 4 (9th Cir.1979), aff'd after remand, 692 F.2d 1209 (9th Cir.1982), rev'd on other grounds, 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984); Younger v. United States, 662 F.2d 580, 582 (9th Cir.1981). This principle is, of course, premised upon the fact that the FTCA, being procedural as opposed to substantive in nature, does not create new causes of action, but serves to make the United States liable in accordance with local tort law. 28 U.S.C. § 1346(b); see, Art-Metal-U.S.A., Inc. v. United States, 753 F.2d 1151 (D.C.Cir.1985). Consequently, any finding of negligence must be based upon state law. United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963); Brock v. United States, 601 F.2d 976, 979 (9th Cir.1979).

Consistent with the foregoing principle, any duty the FmHA owed the Loves cannot be founded upon 7 C.F.R. § 1863.4. Rather, the source of the duty must be Montana law. See, Lutz v. United States, 685 F.2d 1178, 1184 (9th Cir.1982) (citing Younger v. United States, supra, and United Scottish Insurance Co. v. United States, supra). As stated by the Ninth Circuit in Lutz:

The federal statute or regulation under which an employee acted only becomes pertinent when a state law duty is found to exist. The federal statute or regulation may then provide the standard for reasonable care in exercising the state law duty. (citations omitted.)

685 F.2d at 1184.

Proper analysis, then, requires the court to proceed with a determination of whether a cause of action exists under the laws of the State of Montana for the injuries allegedly sustained by the Loves. See, Carlson v. Green, 446 U.S. 14, 23, 100 S.Ct. 1468, 1474, 64 L.Ed.2d 15 (1980). The FmHA argues, in essence, that no duty exists under Montana law analogous to the obligation imposed upon the FmHA by 7 C.F.R. § 1863.4. Consequently, the FmHA submits the "private person" liability required by Section 1346(b) is lacking.

Relying upon the rationale of Indian Towing Co. v. United States, 350 U.S. 61, 64-65, 76 S.Ct. 122, 124, 100 L.Ed. 48 (1955), the Loves correctly note that the FmHA may not escape liability in the present case by simply contending that because the payment of delinquent taxes, pursuant to 7 C.F.R. § 1863.4, is a uniquely governmental function, liability may not be predicated upon nonfeasance in paying the delinquent assessment. See, United Scottish Insurance Company v. United States, 614 F.2d at 192. Albeit, the issue remains as to whether a duty, corresponding to the duty imposed upon the FmHA by 7 C.F.R. § 1863.4, exists under Montana law.

The Loves fail to point to the existence of a specific duty under Montana law analogous to the obligation imposed upon the FmHA by 7 C.F.R. § 1863.4. In fact, the glaring absence of any discussion by the Loves with respect to the statutory or decisional Montana law upon which the requisite duty is predicated, presents a rather tell-tale indication that such a duty is nonexistent.4

The Loves allude to the fact that under Montana law a duty of "good faith" is recognized as attending commercial contracts.5 For purposes of analysis, the court accepts that the duty of "good faith" recognized by Montana law attended the relationship between the FmHA and the Loves. Nonetheless, the court is compelled to conclude that the Loves' claim regarding the purported duty of the FmHA to pay the delinquent water assessments, seeks to extend the duty of "good faith" beyond its recognized bounds. The decisional law of Montana regarding the duty of "good faith" in the area of commercial contracts does not support the Loves' proposition, i.e., that a lender has a duty to pay a borrower's delinquent taxes, assessments, etc.

Assuming the Loves' limited argument is viewed as sufficiently raising the proposition that violation of its own regulation renders the FmHA liable since it undertook a so-called "good-samaritan" activity, the court finds the attempt to impose liability under this theory to be ill fated.

As previously noted, where the Government undertakes a particular activity pursuant to the directive of a federal statute or regulation, liability under the FTCA for the negligent performance of that activity is not automatic. See, United Scottish Insurance Co. v. United States, supra, 614 F.2d at 193. In Indian Towing Co. v. United States, supra, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48, the Supreme Court ruled, however, that liability could be imposed upon the Government in accordance with the "good samaritan" doctrine. Indian Towing establishes that the Government may be liable under the FTCA for the negligent provision of services upon which the public has come to rely. Id. at 64-65, 76 S.Ct. at 124.

Consistent with the FTCA's requirement that governmental liability may not be determined without considering the liability of a private person in "like circumstances" pursuant to relevant state law, liability may be imposed under the "good samaritan" doctrine only if the applicable state law requirements of the doctrine are satisfied. United Scottish Insurance Co. v. United States, supra, 614 F.2d at 195-196. Consequently, when a claimant seeks to impose liability upon the Government via the "good samaritan" doctrine, the court must determine whether the pertinent state has adopted the doctrine, and whether the requirements of the doctrine are satisfied in the particular case.

Montana has long recognized the common law tort embodied in the "good samaritan" doctrine as currently set forth in Section 323 of the Restatement (Second) of Torts (1965). See, Vesel v. Jardine Mining Co., 110 Mont. 82, 100 P.2d 75 (1945); Jeffries v. United States, 477 F.2d 52 (9th Cir.1973); Trombetta v. United States, 613 F.Supp. 169 (D.Mont.1985). Section 323 provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary
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    • July 10, 1987
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  • Love v. US
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    • U.S. District Court — District of Montana
    • February 2, 1994
    ...cannot be founded upon 7 U.S.C. § 1981a. Rather, the source of the duty must be Montana law. Love v. United States Department of Agriculture, 647 F.Supp. 141, 144 (D.Mont. 1986), aff'd 848 F.2d 198 (9th Cir.1987). See also, Lutz v. United States, 685 F.2d 1178, 1184 (9th Cir.1982), citing, ......
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    • February 12, 1988
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