Watkins v. United States, Civ. A. No. 176-91.

Decision Date03 January 1977
Docket NumberCiv. A. No. 176-91.
Citation462 F. Supp. 980
PartiesEffie Lee WATKINS v. UNITED STATES of America and Joseph L. Williams.
CourtU.S. District Court — Southern District of Georgia

Thomas R. Burnside, Jr., Augusta, Ga., J. Cecil Davis, E. Purnell Davis, Warrenton, Ga., Robert A. Dempster, Dempster, Yokley, Fuchs & Barkett, Sikeston, Mo., for plaintiff.

R. Jackson B. Smith, Jr., U. S. Atty., Edmund A. Booth, Jr., Asst. U. S. Atty., Augusta, Ga., for United States.

Stanley G. Jackson, Augusta, Ga., for Joseph L. Williams.

Leonard O. Fletcher, Augusta, Ga., for Government Employees Ins. Co.

ALAIMO, District Judge.

ORDER

The plaintiff's husband, a serviceman stationed at Fort Gordon, Georgia, was killed on base when his motorcycle collided with a shuttle bus driven by a civilian government employee. After the denial of her administrative claim, plaintiff, Effie Lee Watkins, a Missouri resident, brought this action against the United States under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., and its jurisdictional arm, 28 U.S.C. § 1346(b). The Georgia driver, Joseph L. Williams, was also named as a defendant.

Williams moved to dismiss on the basis of the Federal Drivers Act, 28 U.S.C. § 2679(b), contending he was within the scope of his employment. The United States, moved to dismiss pursuant to Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), which precludes government tort liability for injuries arising from activities incident to military service.

Alleging that Williams was an uninsured motorist, plaintiff also claimed the right to recover against Government Employees Insurance Company GEICO, the decedent's uninsured motorist insurance carrier. GEICO was served as though named a defendant, pursuant to Ga.Code Ann. § 56-407.1(d). GEICO answered and counterclaimed for a judgment declaring that Williams was "within the scope." Such a finding, in GEICO's view, would insulate it from liability because of Georgia cases requiring an insured to procure a judgment against a known uninsured motorist as a condition precedent to suit on an uninsured motorist policy.

Also before the Court for consideration is a motion to intervene as plaintiff by Joyce Ann Aquino, decedent's former wife, the mother and guardian of decedent's two surviving minor children.

I. Was Williams Acting "Within the Scope?"

Under the Federal Tort Claims Act, the United States is only liable for negligence of government employees "acting within the scope of their office or employment," in circumstances such that a private person "would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). Thus, if Williams was not "within the scope," the United States would have no liability under this statute.

On the other hand, if Williams was "within the scope," he would be insulated from personal liability by the Federal Drivers Act, which makes the Tort Claims Act remedy "exclusive of any other civil action or proceeding by reason of the same subject matter against the employee ... whose act ... gave rise to the claim." 28 U.S.C. § 2679(b).

The original complaint herein alleged that Williams was "acting within the course and scope of his employment" while driving the government's shuttle bus. Williams moved to dismiss, relying on the Federal Drivers Act. The complaint was amended to state a diversity claim against Williams individually and to allege in the alternative that he was not acting "within the scope."

The Federal Tort Claims Act makes the liability of the United States depend on the law of the place where the negligence occurred. See generally Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). Thus, the Court must resolve the "scope" issue1 under the Georgia law of respondeat superior. See Johnson v. Franklin, 312 F.Supp. 310 (S.D. Ga. 1970).

Ga. Code Ann. § 105-108 provides that "every person shall be liable for torts committed by his ... servant .. within the scope of his business . . .." The test is not whether the servant's act was done during the existence of the employment. The test is "whether it was done in the prosecution of the master's business; whether the servant was ... engaged in serving his master." West Point Pepperell v. Knowles, 132 Ga.App. 253, 256, 208 S.E.2d 17, 20 (1974), quoting Jones v. Dixie Ohio Express, Inc., 116 Ga.App. 155, 156, 156 S.E.2d 388 (1967). This is ordinarily an issue for the trier of fact, "except in plain and indisputable cases." See West Point Pepperell v. Knowles, supra, 132 Ga. App. at 256, 208 S.E.2d at 20.

A special rule applies to vehicular collisions: "When an automobile is in a collision and the operator is an employee of the owner, a presumption exists that the operator was in the scope of his employment and the burden is then on the employer to show to the contrary."

Georgia Power Co. v. Mozingo, 132 Ga.App. 666, 668, 209 S.E.2d 66, 69 (1974), citing Dawson Motor Co. v. Petty, 53 Ga.App. 746, 749, 186 S.E. 877 (1936). The inference "is overcome when there is uncontradicted positive evidence that the employee was .. on a purely personal mission ...." Price v. Star Service & Petroleum Corp., 119 Ga.App. 171, 174, 166 S.E.2d 593, 596 (1969).

In the present case, plaintiff first alleged Williams was within the scope of his employment, then alleged in the alternative a deviation therefrom. Williams testified by affidavit (filed June 24, 1976) that he was driving his regular route as a civilian bus driver for the United States at Fort Gordon when the collision occurred. Plaintiff filed a brief (August 16, 1976) attacking the final part of the affidavit as conclusory, and relying on the Government's refusal to certify "scope" under the statute. The Government has since made the statutory certification pursuant to 28 U.S.C. § 2679(d).

The plaintiff then took Williams' deposition. Counsel thoroughly investigated Williams' activities on the day in question. The deposition clearly establishes that Williams was driving his regular bus route, without deviation, when the collision occurred. Plaintiff did elicit testimony that Williams had consumed "a beer" with his lunch, approximately four hours before the collision. Williams was positive he did not drink anything on duty. There is no evidence that he was intoxicated. The facts testified to in this deposition are absolutely uncontroverted in the record.2

Williams was clearly prosecuting his master's business, meeting the test of West Point Pepperell v. Knowles, supra. Moreover, the special presumption that an employee-driver is "within the scope" applies here. In such a situation, absent "clear, positive and uncontradicted" evidence that the employee had deviated from his employment, the employee is within the scope as a matter of law. See Georgia Power Co. v. Mozingo, supra, 132 Ga.App. at 668, 209 S.E.2d 66.

Plaintiff's bare alternative allegation that Williams had deviated from his employment was pierced by the uncontradicted testimony of Williams' deposition. Williams' motion to dismiss, supported by his affidavit and deposition, must be construed as a motion for summary judgment. Rule 12(b), Fed.R.Civ.P. The burden thus devolved upon plaintiff under Rule 56(e) to "set forth specific facts showing that there is a genuine issue for trial." This plaintiff failed to do. A summary judgment that Williams was within the scope of his employment is therefore demanded. Cf. Price v. Star Service & Petroleum Corp., supra (summary judgment that employee was outside scope); Marketing Sales Industries of Georgia, Inc. v. Roberts, 118 Ga.App. 718, 165 S.E.2d 319 (1968) (same).

II. Williams' Motion to Dismiss (Federal Drivers Act).

Because Williams was "within the scope," he can claim the protection of the Federal Drivers Act, 28 U.S.C. § 2679(b). This statute provides, in substance, that when a federal employee causes injury while driving a vehicle within the scope of his employment, a claim against the United States under the Federal Tort Claims Act is the exclusive civil remedy.3 The United States thus assumes full responsibility for damages in such situations "to the exclusion of any action against such employees personally." United States v. Myers, 363 F.2d 615, 619-20 (5th Cir. 1966). This exclusivity implements the statutory purposes of immunizing government drivers from personal liability for covered accidents and relieving them from having to provide liability insurance for driving on the job. See, e. g., Vantrease v. United States, 400 F.2d 853, 854 (6th Cir. 1968).

In the present case, Williams is protected by the Federal Drivers Act, and must be dismissed. See, e. g., Binn v. United States, 389 F.Supp. 988 (E.D. Wis. 1975); accord, Johnson v. United States, 404 F.2d 22 (5th Cir. 1968) (removal of state action against federal driver to federal court and substitution of United States as defendant). Williams' motion to dismiss, construed as a motion for summary judgment, must be granted.

III. The United States' Motion for Summary Judgment (Feres Doctrine).

The Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., does not expressly exclude the military serviceman as a plaintiff. In Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 919, 93 L.Ed. 1200 (1949), the Supreme Court held that members of the armed forces can recover under the FTCA "for injuries not incident to their service." There, two servicemen (brothers) were driving in the family automobile with their father on a public highway when their vehicle was struck by an Army truck. The soldiers were on furlough. The injuries were held to have "nothing to do with the Brooks' army careers ...." Id. at, 52, 69 S.Ct. at 920. The Court found no causal nexus with the plaintiffs' military service.

By contrast, in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Court held:

"The Government is not liable under the Federal
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