Walsh v. U.S.

• Decision Date: 08 August 1994
• Docket Number: No. 93-2501,93-2501
• Citation: 31 F.3d 696
• Parties: Anna M. WALSH, as Administrator of the Estate of Thomas J. Walsh, Deceased, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 696

31 F.3d 696

Anna M. WALSH, as Administrator of the Estate of Thomas J Walsh, Deceased, Appellant, v. UNITED STATES of America, Appellee.

No. 93-2501.

United States Court of Appeals Eighth Circuit.

Submitted April 12, 1994.

Decided Aug. 8, 1994.

Claus H. Bunz, Manning, IA, argued (Claus H. Bunz, Manning, IA, and Jeffrey R. Minnich, Carroll, IA, on the brief), for appellant.

Lawrence Donald Kudej, Cedar Rapids, IA, argued, for appellee.

Before McMILLIAN and WOLLMAN, Circuit Judges, and NANGLE, ^* Senior District Judge.

McMILLIAN, Circuit Judge.

Anna M. Walsh (plaintiff), administrator of the estate of Thomas J. Walsh, appeals from a final order entered in the United States District Court ¹ for the Northern District of Iowa granting summary judgment in favor of the United States of America (government). Walsh v. United States, No. C92-3015, 1993 WL 729629 (N.D.Iowa Apr. 15, 1993) (order). Plaintiff brought this action in federal district court pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2671 et seq., seeking damages resulting from a fatal car accident involving her son, Thomas Walsh, and Sergeant Leo Gerard Koster, who was traveling to an Iowa National Guard training session when the accident occurred. For reversal, plaintiff argues that the district court erred in holding that Koster was not acting within the scope of his employment with the National Guard when the accident occurred and therefore the government could not be held liable under the FTCA. For the reasons discussed below, we affirm the order of the district court.

I. Background

The accident occurred at approximately 7:30 a.m. on August 4, 1990, on Highway 30 in Carroll County, Iowa. Walsh was driving to his place of work in Ames, Iowa. Koster was driving from his home in Ames, Iowa, to a two-day Iowa National Guard training session in Denison, Iowa, scheduled to begin at 8:00 a.m. Each was driving his own vehicle. Walsh died as a result of the accident. Koster survived but sustained injuries.

On November 18, 1991, more than a year later, plaintiff submitted a claim, on Standard Form 95, to the Iowa National Guard and the Office of the Adjutant General, at the Iowa National Guard Headquarters, for property damage, personal injury, and wrongful death, in the amount of $1,334,447.95. The Department of the Army denied her claim on January 22, 1992.

Plaintiff then brought this action in federal district court under the FTCA. The government moved for summary judgment seeking dismissal on grounds that Koster was not acting within the scope of his employment with the National Guard at the time of the accident, and thus the FTCA does not apply. The district court granted the government's motion. The district court reasoned that, in order for Koster to have been acting within the scope of his employment at the time of the accident, as required under 28 U.S.C. Sec. 1346(b), ² he would have had to have been acting "in line of duty." Id. Sec. 2671. ³ The district court noted that the term, "in line of duty," is defined by applicable state law of respondeat superior. Piper v. United States, 887 F.2d 861, 863 (8th Cir.1989) (citing Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam)); Farmer v. United States, 261 F.Supp. 750, 751 (S.D.Iowa 1966) (Farmer), aff'd, 400 F.2d 107 (8th Cir.1968). The district court then considered Iowa's law of respondeat superior, as stated in Jones v. Blair, 387 N.W.2d 349, 355 (Iowa 1986) (Jones ), and concluded that, under Jones, Koster was not acting within the scope of his employment with the National Guard when the accident occurred; the government therefore could not be held liable under the FTCA. Slip op. at 14. Plaintiff appealed.

II. Discussion

We review a grant of summary judgment de novo. The question before the district court, and this court on appeal, is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c), Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). In the present case, the material facts are not genuinely disputed. The district court disposed of the case based upon a legal determination of whether, in light of the undisputed facts, Koster was acting "within the scope of his employment" with the National Guard at the time of the accident. Where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate. Crain v. Board of Police Comm'rs, 920 F.2d 1402, 1405-06 (8th Cir.1990).

Plaintiff argues that the district court erred in its application of 28 U.S.C. Sec. 2671, which provides that, in the case of a member of the National Guard, acting "within the scope of employment" for FTCA purposes means acting "in line of duty." Plaintiff urges this court to rely upon the finding by the Army National Guard Personnel Center that Koster was acting "in the line of duty" at the time of the accident for purposes of Koster's entitlement to certain benefits to reimburse losses arising out of the accident. However, the district court held, and we agree, that this finding, made for purposes of determining Koster's right to receive benefits, is not relevant to a determination of whether Koster was acting "in line of duty" for purposes of ascertaining plaintiff's right to recover tort damages from the government under the FTCA. See Farmer, 261 F.Supp. at 751 (the term "acting in line of duty" has a different meaning in connection with benefit claims of military personnel against the government from the meaning used for FTCA purposes, which is based upon a "scope of employment" determination under applicable state law of respondeat superior).

Plaintiff also argues that the district court should have interpreted "in line of duty" according to the definition of "on duty" in Iowa Code Ann. Sec. 29A.1(9) (emphasis added) (West Supp.1994):

"[o]n duty" means unit training assemblies, all other training, and service which may be required under state or federal law, regulations, or orders, and the necessary travel of an officer or enlisted person to the place of performance and return home after performance of that duty, but does not include federal service under 10 U.S.C. ⁴

In support of the contention that Iowa Code Sec. 29A.1(9) is relevant to the FTCA "line of duty" issue, plaintiff maintains that (1) nothing in Iowa law prohibits the use of statutory law in defining "in line of duty" under the FTCA, (2) Iowa Code Sec. 29A.1(9) is "applicable State law of respondeat superior," rather than Jones, and (3) Iowa Code Sec. 29A.1(9) is persuasive authority that travel to and from work is within the "direction" and "control" of the employer under Jones. Plaintiff also notes that a separate Iowa Code provision states generally that the Iowa statutes should be liberally construed to promote their objectives and serve the ends of justice.

The district court declined to apply Iowa Code Sec. 29A.1(9) as the applicable state law of respondeat superior. The district court noted that to do so would be inconsistent with the FTCA's provision that "[t]he United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. Sec. 2674. The district court reasoned that relying upon Iowa Code Sec. 29A.1(9), as urged by plaintiff, would expose the government to greater liability than a private individual under like circumstances. We agree. ⁵

In Jones, the Iowa Supreme Court held that an employee acts within the scope of employment when the employer (1) has the right to direct the means and manner of doing work and (2) has the right of control over the employee. 387 N.W.2d at 355. The Iowa Supreme Court also commented in Jones that an employee generally is not acting within the scope of employment when driving to or from work. Id. Under the holding in Jones, therefore, a private employer would not be liable under the facts of the present case because Koster was traveling to National Guard training and, at that time, the government did not have the right to direct the means and manner of Koster's travel or to control Koster. Id. at 355-56 (despite employee's receipt of travel reimbursement, employee was not acting within scope of employment while returning home from job site following completion of work).

Plaintiff also urges us to follow our decision on appeal in Farmer, 400 F.2d 107, which interpreted Iowa case law preceding Jones. In Farmer, the government was sued under the FTCA following a car accident involving the plaintiff and an active duty member of the Army National Guard. The Guard member had just completed six months of training at Fort Leonard Wood, Missouri. He was traveling in his own car under orders to report within twenty-four hours of departure to his home station at Storm Lake, Iowa, and return all items of clothing which had been issued to him. He was given a travel allowance for mileage and was still on active duty in a travel status. The district court held, and this court affirmed, that the government was liable under the FTCA for the Guard member's negligence. 400 F.2d at 110-12. This court relied on pre-Jones Iowa cases which held that an employee acts within the scope of his or her employment, under the law of respondeat superior, when the acts are "done by the servant in furtherance [of the master's business], and [are] such as may fairly be said to have been authorized...