TerKeurst v. United States

• Decision Date: 07 July 1982
• Docket Number: No. G80-853 CA1.,G80-853 CA1.
• Citation: 549 F. Supp. 455
• Parties: Marilyn TerKEURST, Temporary Personal Representative of the Estate of Thomas J. TerKeurst, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Michigan

549 F. Supp. 455

Marilyn TerKEURST, Temporary Personal Representative of the Estate of Thomas J. TerKeurst, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.

No. G80-853 CA1.

United States District Court, W.D. Michigan, S.D.

February 16, 1982.

On Motion for Reconsideration July 7, 1982.

Donald C. Exelby, Cholette, Perkins & Buchanan, Grand Rapids, Mich., for plaintiff.

Phillip J. Kolczynski by Lee J. Ross, Jr., Torts Branch, Civ.Div., U.S. Dept. of Justice, Washington, D.C., John A. Smietanka, U.S. Atty., Grand Rapids, Mich., for defendant.

OPINION

HILLMAN, District Judge.

Thomas J. TerKeurst was killed in an airplane crash on June 11, 1979, when a DC-3 aircraft owned and operated by the United States Forest Service crashed into the Selway River in Northeastern Idaho. On the basis of a fact-finding operation conducted by the Forest Service, it appears that both engines of the DC-3 aircraft failed to operate at the time of the crash. This action was instituted by the temporary personal representative of the Estate of Thomas J. TerKeurst. Jurisdiction is invoked under 28 U.S.C. §§ 1346(b) and 2674 (1976).

Defendant moves the court to dismiss this action pursuant to Fed.R.Civ.P. 12(b)(3) and 12(b)(6) for improper venue and for failure to state a claim upon which relief can be granted. Alternatively, defendant moves for summary judgment under Rule 56(c) of the Federal Rules on the ground that there is no genuine issue as to any material fact and that defendant is entitled to judgment as a matter of law. In both instances, the court must regard the pleadings and matters outside the pleadings in the light most favorable to the non-moving party.

On the same date on which the airplane crash occurred, the decedent had signed an "Agreement for Voluntary Services" with the United States Forest Service. The Agreement provided the following:

"1. Description of work to be performed: Will serve on a wilderness cleanup crew. Duties will include sacking up garbage, hauling garbage to pick up locations, rolling up phone line, naturalizing campsites, clearing trails, and performing other duties as assigned.

2. All of the above-described work will be noncompensable. Except as otherwise provided, I understand this service will not confer on me the status of a federal employee.

3. I understand that either the Forest Service or I may cancel this agreement at any time by notifying the other party.

I hereby volunteer my services as described above to assist the Forest Service in its authorized work.

signed Thomas J. TerKeurst Signature of Volunteer 6-11-79"

Following the decedent's signature, the Agreement continued in part:

"ACCEPTANCE FOR THE FOREST SERVICE

The Forest Service agrees while this arrangement is in effect to:

1. Finance your necessary incidental expenses, to the extent funds are available.

2. Consider you as a federal employee for the purpose of tort claims and compensation for work injuries."

This portion of the Agreement was signed by the personnel officer of the Forest Service, but not by the decedent.

In an affidavit dated January 23, 1981, attached to defendant's motion, Thomas Markey, the Deputy Associate Director for Federal Employees' Compensation in the United States Department of Labor, stated that the decedent "was killed while in the performance of his duties as a volunteer with the National Forest Service." In accordance with the Federal Employees' Compensation Act, 5 U.S.C. § 8134(a) (1980), the sum of $792.00 was paid to plaintiff, TerKeurst's mother, for funeral and burial expenses. Plaintiff was also paid the sum of $200.00 as reimbursement of the costs of termination of the decedent's status as an "employee" of the United States. 5 U.S.C. § 8133(f) (1980).

In its motion to dismiss or for summary judgment, defendant contends that (1) the decedent was a federal employee for the purpose of the Federal Employees Compensation Act, 16 U.S.C. § 558a-558d (1974); (2) the Compensation Act represents the exclusive remedy for federal employees injured or killed while in the scope of their employment; and (3) any determination by the Secretary of Labor as to the applicability of the Compensation Act is final and non-reviewable. Defendant also requests that in the event its motion to dismiss or for summary judgment is denied, the action be transferred to the District of Idaho.

In her brief in opposition to defendant's motion, plaintiff contends that (1) the decedent never agreed to be considered an employee of the Forest Service for the purpose of the exclusivity provision of the Compensation Act; (2) there is a question of fact whether the decedent was a volunteer for the Forest Service at the time of his death that precludes granting defendant's motion; (3) the decedent was not injured in the course of his employment; and (4) the determination of the Secretary of Labor does not preclude recovery under the Federal Tort Claims Act. Plaintiff opposes defendant's request to transfer the case to the District of Idaho.

Under 16 U.S.C. § 558a, the Secretary of Agriculture

"is authorized to recruit, train, and accept... the services of individuals without compensation as volunteers for or in aid of interpretive functions, visitor services, conservation measures and development, or other activities in and related to areas administered by the Secretary through the Forest Service."

With respect to the employment status of volunteers in the Forest Service, 16 U.S.C. § 558c(b) and (c) provide the following:

"(b) For the purpose of the tort claim provisions of 28 U.S.C. § 2671-80, a volunteer under sections 558a to 558d of this title shall be considered a Federal employee.

(c) For the purposes of subchapter I of Chapter 81 of Title 5, relating to compensation to Federal employees for work injuries, volunteers under sections 558a to 558d of this title shall be deemed civil employees of the United States within the meaning of the term `employee' as defined in section 8101 of Title 5, and the provisions of that subchapter shall apply."

Under 5 U.S.C. § 8101(1)(B), an "employee" includes:

"an individual rendering personal service to the United States similar to the service of a civil officer or employee of the United States, without pay or for nominal pay, when a statute authorizes the acceptance or use of the service, or authorizes payment of travel or other expenses of the individual..."

By the terms of the contract to which the decedent clearly assented, he agreed that "this service will not confer on me the status of a federal employee." In the bottom half of the Agreement entitled "Acceptance For The Forest Service," it states that the "Forest Service agrees while this arrangement is in effect to ... consider you as a federal employee for the purpose of tort claims and compensation for work injuries." The signature of the Personnel Officer appears below this language; however, there is no indication that Thomas J. TerKeurst had signed or otherwise agreed to this clause.

As a general rule, contracts of the United States are governed by federal law. Bituminous Casualty Corp. v. Lynn, 503 F.2d 636, 641 (6th Cir.1974). Where Congress has not adopted a different standard, however, it is customary to apply the principles of general contract law. Priebe & Sons, Inc. v. United States, 332 U.S. 407, 411, 68 S.Ct. 123, 125, 92 L.Ed. 32 (1947). It is a fundamental rule of contract law that the offer and acceptance must express assent to one and the same thing and that there must be no substantial or material variance between them. Iselin v. United States, 271 U.S. 136, 46 S.Ct. 458, 70 L.Ed. 872 (1926). In the present case the portion of the contract entitled "Acceptance For The Forest Service," substantially and materially varied the terms of that portion of the contract that Thomas J. TerKeurst had signed, offering his services to the Forest Service. These contradictory provisions raise a genuine issue of material fact that cannot be resolved by means of the lean record now before the court.

Plaintiff contends that the decedent was not injured in the course of his work with the Forest Service; therefore, regardless of his status as a volunteer or an employee, a claim would not arise under the Compensation Act. The Affidavit of Thomas Markey states that "Mr. TerKeurst was killed while in the performance of his duties as a volunteer with the National Forest Service."

Plaintiff alleges that the decedent was simply a passenger on defendant's airplane and not in the course of his duties as a volunteer with the Forest Service. An employee who is injured outside the scope of his employment is not covered under 5 U.S.C. § 8116(c) and accordingly can sue under the Federal Tort Claims Act, 28 U.S.C. § 2674. Vantrease v. United States, 400 F.2d 853, 855 (6th Cir. 1968). Mr. Markey's affidavit did not detail any underlying facts in concluding that Thomas TerKeurst was killed while performing his duties as a volunteer.

Rule 56(e) of the Federal Rules of Civil Procedure states in part that "supporting ... affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Legal conclusions and ultimate facts may not properly be set forth in an affidavit. Bryant v. Kentucky, 490 F.2d 1273, 1275 (6th Cir.1974); 6 Moore's Federal Practice ¶ 56.221 at p. 1316. Accordingly, the court finds that there is a genuine issue of material fact whether the decedent was performing his duties as a volunteer while aboard the Forest Service plane.

The Compensation Act assigns to the Secretary of Labor the responsibility of administering and deciding all questions arising under the Act. 5 U.S.C. § 8145 (1980). The Act further empowers the Secretary to delegate to his subordinates any of the powers conferred on him by the Act. Id. Acting in his role as the Deputy Associate Director for...