Stewart v. United States, C-2-75-383.

• Decision Date: 03 April 1978
• Docket Number: No. C-2-75-383.,C-2-75-383.
• Citation: 458 F. Supp. 871
• Parties: Henry E. STEWART et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Ohio

458 F. Supp. 871

Henry E. STEWART et al., Plaintiffs, v. UNITED STATES of America, Defendant.

No. C-2-75-383.

United States District Court, S. D. Ohio, E. D.

April 3, 1978.

Daniel J. Igoe, Columbus, Ohio, for plaintiffs.

Albert R. Ritcher, Asst. U. S. Atty., Columbus, Ohio, for defendant.

MEMORANDUM AND ORDER

DUNCAN, District Judge.

This is an action under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., arising out of an automobile accident involving James Malone, a member of the United States Air Force. The accident occurred near Greenfield, Indiana, at approximately 7:00 a.m. on November 9, 1971. The matter is before the Court on the parties' motions for summary judgment.

I

Under the Federal Tort Claims Act, no action can be instituted upon a claim against the United States unless the claimant has first presented his claim to the appropriate federal agency. 28 U.S.C. § 2675(a). As provided by 28 U.S.C. § 2401, the plaintiff must present the claim within two years after the cause of action accrues. The accident in this case occurred on November 9, 1971.

Plaintiff Henry Stewart filed his administrative claim with the United States Army on November 2, 1973. On March 11, 1974, more than two years after the accident, the claim was forwarded to the appropriate United States agency, the United States Air Force, which denied the claim on December 5, 1974.

Since the plaintiff did not file his claim with the appropriate governmental agency within two years after the cause of action accrued, defendant argues that plaintiff's claim is barred by the statute of limitations.

Under 28 U.S.C. § 2672, administrative claims under the Federal Tort Claims Act are governed by regulations prescribed by the Attorney General. 28 C.F.R. § 14.2(a) reads:

For the purposes of the provisions of § 2672 Title 28, United States Code, a claim shall be deemed to have been presented when a federal agency receives from a claimant, his duly authorized agent or legal representative, an executed standard form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident. If a claim is presented to the wrong federal agency, that agency shall transfer it forthwith to the appropriate agency.

Although the United States Air Force did not receive plaintiff's claim within the time afforded by 28 U.S.C. § 2401, plaintiff did present his claim to a federal agency within the two-year period. Under the Tort Claims Act procedure, a claim is "deemed" presented when a federal agency receives written notification of the claim. The Court finds that this plaintiff's claim is not barred by the statute of limitations.

II

Plaintiff Helen Stewart claims damages for loss of consortium. The United States contends that her claim is barred because she has not filed an administrative claim with the appropriate governmental agency as required by 28 U.S.C. § 2675(a). Plaintiff argues that the government had notice of her claim because her husband's claim indicated his marital status, and because she filed a previous civil action against Malone in which she also sought damages for loss of consortium.

The prerequisites necessary to file suit against the government under the Tort Claims Act are strictly construed since the conditions are considered to be jurisdictional. Molinar v. United States, 515 F.2d 246 (5th Cir. 1975); Melo v. United States, 505 F.2d 1026 (8th Cir. 1974); Bialowas v. United States, 443 F.2d 1047 (3rd Cir. 1971).

The Court finds that plaintiff Helen Stewart did not file an administrative claim as required by 28 U.S.C. § 2675(a), and thus her claim is barred by the two-year statute of limitations. 28 U.S.C. § 2401. Heaton v. United States, 383 F.Supp. 589 (S.D.N.Y. 1974). Her action, while derivative in nature, is an independent action, separate and distinct from the personal injury claim of her husband. The standard form 95, submitted by her husband, does not mention, on her behalf, any injuries due to loss of consortium. Furthermore, only Mr. Stewart signed the form as claimant. The mere fact that Mrs. Stewart's name appears on the form as Mr. Stewart's wife does not put the government on notice that she claims loss of support and services. Nor can the mere filing of a suit meet the requirement of § 2675(a). Meeker v. United States, 435 F.2d 1219, 1221 (8th Cir. 1970).

Plaintiffs cite Executive Jet Aviation, Inc. v. United States, 507 F.2d 508 (6th Cir. 1974), as authority to the contrary. In that case, Executive Jet Aviation, Inc. presented a claim well within the statutory period but did not join their insurers as claimants. In the peculiar circumstances of the case, the Court found that the government was neither surprised nor prejudiced by the insurers' late entry into the case. Relying upon the purposes of the Federal Tort Claims Act to ease court congestion and to avoid unnecessary litigation, while making it possible to expedite the fair settlement of tort claims against the United States, the Court found the statute of limitations was tolled to allow the insurers to present their dilatory administrative claims. In so holding, however, the Court stated:

Our decision rests to a large extent upon the particular facts of this case. Thus we intimate no opinion about the proper result in generally similar situations not involving subrogation, nor in cases in which the subrogor has not filed a timely and complete administrative claim. 507 F.2d at 517.

In light of the factual dissimilarities and the caveat quoted above, the Court does not find Executive Jet to be persuasive authority for plaintiffs' position.

III

The remaining issue before the Court is whether James Malone was acting within the scope of his employment under 28 U.S.C. § 1346(b). In the case of a member of the military or naval forces of the United States, "acting within the scope of his office or employment" means "acting in line of duty." 28 U.S.C. § 2671. The resolution of this issue is controlled by the law of agency of the place where the accident occurred. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955); 28 U.S.C. § 1346(b).

The facts material to determining Malone's status at the time of the accident are not in dispute. In November 1971, the United States Air Force ordered James Malone, then stationed at Whiteman Air Force Base in Missouri, to travel to Travis Air Force Base, California, and from there to depart for the Republic of Viet Nam. Malone's orders authorized delay en route not to exceed ten days for the purpose of leave. Malone left Whiteman by private automobile on November 8, 1971. Malone travelled to Muncie, Indiana, for the purpose of taking authorized leave. The accident occurred near Greenfield, Indiana, while Malone was en route from Whiteman to Muncie. Malone was not paid per diem or mileage for his trip to Muncie on November 8 and 9, 1971. Mileage was paid only for the direct travel distance between Whiteman and Travis. Malone began to receive a per diem on November 10, 1971, after his arrival in California.

Under Indiana law a two-prong test is applied in deciding questions of liability under the doctrine of respondeat superior. The first question is whether a master and servant relationship existed between the parties. If it is determined such a relationship exists, the second question is whether the servant was acting within the scope of his employment at the time of the accident. Great American Tea Co. v. Van Buren, 218 Ind. 462, 33 N.E.2d 580 (1941). In Gibbs v. Miller, 152 Ind.App. 327, 330, 283 N.E.2d 592, 595 (Ct.App.1972), the Court discussed each of these...