U.S. v. Lepatourel

• Decision Date: 12 March 1979
• Docket Number: No. 77-1306,77-1306
• Citation: 593 F.2d 827
• Parties: UNITED STATES of America, Appellant, v. Edward LePATOUREL and Valerie LePatourel, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 827

593 F.2d 827

UNITED STATES of America, Appellant, v. Edward LePATOUREL and Valerie LePatourel, Appellees.

No. 77-1306.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 9, 1979.

Decided March 12, 1979.

Frank A. Rosenfeld and William Kanter, Attys., Appellate Staff, Civil Div., Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., and Edward G. Warin, U. S. Atty., Omaha, Neb, on brief, for appellant.

Thomas J. Culhane, of Erickson, Sederstrom, Leigh, Johnson, Koukol & Fortune, Omaha, Neb., on briefs, for appellees.

Before GIBSON, Chief Judge, and HEANEY, BRIGHT, STEPHENSON, HENLEY and McMILLIAN, Circuit Judges.

HENLEY, Circuit Judge.

This case was originally heard by a panel ¹ of this court which held that the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80, applies to a federal judge performing an official, but nonjudicial, function. Under that decision the appellants, Edward and Valerie LePatourel, were time-barred from suing United States District Judge Robert V. Denney in tort for injuries they received in a three-car accident which involved the Judge. The accident had occurred when the Judge's car was hit from behind and pushed forward into the LePatourel vehicle. Judge Denney was travelling on official business at the time of this accident and was thus covered by the FTCA, but the LePatourels had failed to file an administrative claim as required by the Act's two year statute of limitations. 28 U.S.C. §§ 2401(b), 2675. Consequently, the panel directed that judgment be entered dismissing the LePatourels' claim. United States v. LePatourel, 571 F.2d 405 (8th Cir. 1978).

The LePatourels subsequently filed a petition for rehearing En banc asking that the panel's decision be applied prospectively only so as to allow them to now file a claim against Judge Denney under the FTCA. We declined to consider that request on the record then before us but remanded the cause to the district court with directions to hold a plenary evidentiary hearing concerning all events surrounding the automobile collision forming the premise for the LePatourels' claim for relief. In particular, we asked the district court to determine why the LePatourels had failed to process their claim administratively within the prescribed period of time. Pending further action in the district court, we retained jurisdiction of the appeal. United States v. LePatourel, 571 F.2d 405 (8th Cir. 1978).

The district court ² has complied with our requests by filing a memorandum opinion which includes its findings of fact and conclusions of law. We proceed to a final disposition of this appeal and adopt the district court's reasoning that the LePatourels should be allowed to file an administrative claim.

In May of 1972 Valerie LePatourel was seriously injured in a three-car accident on a Nebraska interstate highway. Ms. LePatourel had reduced the speed of her vehicle in obedience to the directions of a flagman and was struck from behind by Judge Denney, who had himself been hit just seconds before by an individual named Terry Ringling. This chain-reaction collision rendered Ms. LePatourel unconscious for a lengthy period of time and caused head injuries requiring several weeks of intensive care hospitalization. Ms. LePatourel has little memory of the accident and has been slow to recover. Her husband has shouldered the task of seeking recovery for her injuries and for his loss of consortium.

Mr. LePatourel became aware of the nature of Judge Denney's employment on the day of the accident. The Judge was driving between court points in an outlying division when the accident occurred and was accompanied by his secretary and law clerk. And, as the district court concluded, the presence of the Judge's staff should have indicated to LePatourel that Judge Denney was on official business.

Some two weeks after the accident LePatourel retained Joseph Leahy, an Omaha, Nebraska attorney, to represent him and his wife. Leahy obtained a $10,000.00 settlement from Ringling's insurance carrier; but Judge Denney's insurance carrier refused to settle, asserting the Judge was driving under control and at a slow rate of speed at the time of the accident and that he was thus in no way responsible for Ms. LePatourel's injuries. Leahy came to share this assessment after discussing the case with John Miller, another Omaha attorney. Leahy then informed Mr. LePatourel that in his view there was no actionable negligence on Judge Denney's part. It is noteworthy that Leahy was unfamiliar with the FTCA and failed to consider that Judge Denney might be covered by its provisions. His lack of concern about FTCA coverage undoubtedly was caused in part by his conclusion that Judge Denney was simply not liable in tort. In any event, Leahy never mentioned the potential applicability of the FTCA to Mr. LePatourel.

Mr. LePatourel was unsatisfied with Leahy's representation and began to seek opinions from other Omaha attorneys. He first contacted Marvin Schmid, the attorney for the hotel at which he worked. Schmid opined that Leahy's conclusion concerning Judge Denney's potential liability was premature in the absence of witness statements. But Schmid did not mention the FTCA or its administrative claim requirements and did not agree to represent the LePatourels. Shortly thereafter LePatourel contacted Robert O'Connor, the attorney for his wife's doctor. O'Connor refused to handle the case because he frequently practiced before Judge Denney. He also made no mention of the FTCA issue. But he did refer LePatourel to James Pratt, an Iowa attorney, who agreed to represent the LePatourels. LePatourel then discharged Leahy and employed Pratt.

Pratt began work on the case in February of 1973 but proceeded at a slow pace. He apparently had some difficulty in conducting his investigation and in finding local Nebraska counsel willing to assist in a suit against a Nebraska federal district judge. In addition, he was operating under the assumption that the Nebraska four year statute of limitations on tort actions was applicable. By June of 1974 Pratt was ready to file suit in Nebraska state court and notified Judge Denney by letter of the impending suit against him. This brought a response from Mr. Schaphorst, the United States Attorney for the District of Nebraska, who stated his opinion that the LePatourels' claims were covered by the FTCA and were time-barred by the Act's two year statute of limitations.

Pratt knew of the FTCA but had never considered the Act's applicability to the LePatourels' claims. He was unaware that Judge Denney was travelling on official business at the time of the accident. He did not know the Judge's specific destination or that the Judge was receiving per diem and mileage allowances for the trip. And while Pratt knew of the presence of Judge Denney's secretary in the car, he was unaware that the Judge's law clerk was also a passenger. More importantly, Pratt assumed that a federal judge was not a "government employee" within the meaning of the Act and later testified, in retrospect, that he would have been unsure of the proper place to file the administrative claim had he known of the Act's applicability. ³

In light of his conversation with Schaphorst Pratt researched the FTCA issue but concluded that the Act did not apply to a federal judge. He did not notify the LePatourels of Schaphorst's assertion but instead continued to consider prospective litigation in state court. After a dispute over fees arose with Mr. LePatourel, Pratt eventually withdrew from the case without having filed suit. The LePatourels then retained their present counsel, Mr. Culhane, who was the first person to discuss with them the potential applicability of the FTCA to their claims. Culhane filed the LePatourels' suit in Nebraska state court in April of 1976, shortly before the four year state statute of limitations had run. The case was removed to federal district court shortly thereafter.

Based upon this evidence the district court found the LePatourels "were completely unaware of the potential applicability of the FTCA, much less the administrative claim requirement, until advised by present counsel long after the two year period had run." This lack of awareness was partly caused by the threshold factual conclusions drawn by the LePatourels' two principal attorneys, Leahy and Pratt. Leahy concluded Judge Denney was not negligent, and Pratt believed the Judge was not acting within the scope of his employment. Yet the district court found that the primary reason the LePatourels failed to timely file an administrative claim was because "neither they, nor their attorneys, were aware that the FTCA and its mandated administrative procedure afforded the only avenue of relief." Further, the court stressed that the LePatourels were diligent in pursuing their claims, seeking counsel from at least five different attorneys over a four year period. We believe the district court's findings are supported by the record of the evidentiary hearing held on remand. And with the benefit of these findings, we now turn to the issue of whether our determination that the FTCA applies to federal judges should be applied prospectively only.

The FTCA provides that tort claims against the United States shall be barred unless "presented in writing to the appropriate Federal Agency within two years after such claim Accrues." 28 U.S.C. § 2401(b). The LePatourels do not argue they should be exempt from this limitations period but rather that the precedent setting nature of our panel decision was such that their claims did not accrue until the date of that decision. W...