David M. WOLLMAN, Appellant, v. Jake GROSS, Jr., Appellee.
No. 80-1204.
United States Court of Appeals, Eighth Circuit.
Decided Dec. 31, 1980.
Submitted Oct. 15, 1980.
637 F.2d 544
In view of the facts, the trial court certainly was well within its discretion in denying Pearce‘s motion. General American showed that it had “good reason” to not admit the matters requested. The request appears to simply have asked for information that was not available to General American. It is difficult to justify extensive and expensive discovery when the defendant agreed to stipulate to the truth of the matters, and when the issue apparently could have been settled by correspondence. See Bateman v. Standard Brands, Inc., 9 F.R.D. 555 (W.D.Mo.1949).
Accordingly, the district court is affirmed in its holdings on Counts I, II and III of the petition. Counts IV and V are remanded for further proceedings.
N. Dean Nasser, Jr., Sioux Falls, S. D., for appellant.
Pamela L. Wood, Civil Division, Dept. of Justice, Washington, D. C., for appellee.
Before HEANEY, ADAMS,* and STEPHENSON, Circuit Judges.
This case arises from an automobile accident between plaintiff-appellant David Wollman and defendant-appellee Jake
The district court opinion presents a good summary of the facts underlying this case:
The case arises out of an automobile accident on June 11, 1976, between the plaintiff, David Wollman, and the named defendant, Jake Gross, Jr. The plaintiff and the defendant are lifelong neighbors who live about one and one-half miles apart near Freeman, South Dakota. On the date of the accident the defendant Gross was employed by the Agriculture Stabilization and Conservation Service (ASCS). He was the District Director for the ASCS State Office in charge of the supervision and review of programs for ten county offices within the state of South Dakota. It was for the purpose of checking the Davison County ASCS office in Mitchell, South Dаkota, that the defendant left his home in his personal car on June 11, 1976. Mr. Gross’ home was his assigned duty station and he received mileage reimbursement from the government for such trips. After finishing his work at the ASCS office in Mitchell he drove toward his home duty station by the most direct route without deviating for any personal business. The accident occurred around 4:00 p. m. on County Road 13 between the farmsteads of the plaintiff and the defendant.
Neither the plaintiff nor the defendant realized that defendant Gross was driving as a federal employee within the scope of his employment. Defendant Gross did not report the accident to his administrative office and his personal insurance company began dealing with the plaintiff. On January 25, 1979, more than two years after the accident, the рlaintiff filed a complaint in state court naming Jake Gross, Jr., individually, as defendant. The involvement of the United States Government was first recognized by the counsel of the defendant‘s personal insuror somewhere in mid-February, 1979. The case was removed to federal court by the United States Attorney on March 23, 1979. On March 29, 1979, the United States filed a motion to dismiss for lack of jurisdiction due to the untimeliness of any administrative claim. The plaintiff then sent an administrative claim to the United States Department of Agriculture dated July 16, 1979, and on July 18, 1979, filed with this court a motion to remand to state court.
Wollman v. Gross, 484 F.Supp. 598, 600-01 (D.S.D.1980).
On appeal Wollman contends the district court erred in determining that: (1) Gross was a federal employee; (2) Gross was acting within the scope of his federal employment at the time of the accident; (3) a Federal Tort Claim was not filed within two years from the time the cause of action accrued; and (4) this case did not fall within the rationale of United States v. LePatourel, 593 F.2d 827 (8th Cir. 1979), requiring a postponement of the accrual date of the claim.
We are in agreement with the district court that Gross was a federal employee acting within the scope of his employment at the time of the accident. After a careful consideration of the record and briefs and arguments of the parties concerning this issue, this court has concluded
We also agree with the district court that the filing of the administrative claim was untimely and therefore the claim was properly dismissed. Because of the harshness of this result to Wollman, however, further comment is appropriate.
The district court properly held that because Gross was a federal employee acting within the scope of his employment, plaintiff‘s exclusive remedy is against the United States under the FTCA.
Wollman‘s administrative claim was filed more than two years after the accident occurred, but Wollman argues the accrual date should not be the date of the accident, June 11, 1976, but instead the date Wollman discovered facts which put him on notice that Gross may have been a federal employee acting within the scope of his employment. Wollman contends this latter date is approximately February 22, 1979, when plaintiff received defendant‘s amended answer alleging he was an employee of the federal government. Wollman argues he had been diligent in bringing this law suit within the state three-year statute of limitations. The state suit was filed more than two years but less than three years after the accident.
The district court stated the current status of the law concerning the accrual of a federal tort claim.
The general rule under the Act has been that a tort claim for personal injury or property damage resulting from the negligent operation of a motor vehicle by a government employee accrues at the time of the injury “when the injury coincides with the negligent act and some damage is discernible at that time.” Steele v. United States, 599 F.2d 823, 828 (7th Cir. 1979); Mendiola v. United States, 401 F.2d 695, 697 (5th Cir. 1968). However, the courts have recognized that there are circumstances when a claim accrues at a later time. For example, in medical malpractice actions where the injury and the cause are not immediately known and actions where new law applied retroactively has created a new basis for a claim, the time of accrual has been postponed. Neely v. United States, 546 F.2d 1059, 1069 (3rd Cir. 1976); United States v. LePatourel, 593 F.2d 827, 830 (8th Cir. 1979); United States v. Kubrick, [444 U.S. 111, 100 S.Ct. 352, 359, 62 L.Ed.2d 259 (1979)].
Wollman v. Gross, supra, 484 F.Supp. at 603-04.
Wollman argues the time for accrual of the claim should be extended on the basis of both (1) the doctrine of “blameless ignorance,”2 and (2) the rationale of United States v. LePatourel, supra.
Wollman also contends the doctrine of “blameless ignorance” should apply in this case. This doctrine was enunciated by the Supreme Court in Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 1024, 93 L.Ed. 1282 (1949) and applied to FTCA cases in Quinton v. United States, 304 F.2d 234 (5th Cir. 1962). Its primary application has been in medical malpractice cases.4
It is our view that United States v. Kubrick, supra, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) limits this doctrine and forecloses Wollman‘s argument in this case that the accrual date should be extended to the point in time that Wollman became aware of the status of Gross as a federal employee.
Kubrick involved a medical malpractice claim where plaintiff had suffered a hearing loss after taking neomycin in 1968. In January 1969, plaintiff was informed by a private physician that neomycin may have caused the hearing loss. Another physician, in 1971, stated that neomycin was the cause of the injury and such treatment should not have been administered. Suit was brought in 1972. The Supreme Court held that the claim accrued in 1969, when plaintiff knew of the existence and cause of his injury and not in 1971, when he also learned that the acts inflicting the injury may constitute medical malpractice. The Court stated:
The District Court, 435 F.Supp., at 185, and apparently the Court of Aрpeals, thought its ruling justified because of the “technical complexity,” 581 F.2d, at 1097, of the negligence question in this case. But determining negligence or not is often complicated and hotly disputed, so much so that judge or jury must decide the issue after listening to a barrage of conflicting expert testimony. And if in this complicated malpractice case, the statute is not to run until the plaintiff is led to suspect negligence, it would be difficult indeed not to apply the same accrual rule to medical and health claims arising under other statutes and to a whole range of other negligence cases arising under the Act and other federal statutes, where the legal implications or complicated facts make it unreasonable to expect the injured plaintiff, who does not seek legal or other appropriate advice, to realize that his legal rights may have been invaded.
United States v. Kubrick, supra, 444 U.S. at 124, 100 S.Ct. at 360.
Even if the doctrine of “blameless ignorance” extends beyond the medical mal-
A plaintiff such as Kubrick, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government.
Admittedly this application of the statute of limitations has especially harsh ramifications here where the record indicates little prejudice to the government if it had to defend this lawsuit. However, to accept Wollman‘s argument would be in effect rewriting the two-year statute of limitations of
Wollman also relies heavily on Kelley v. United States, 568 F.2d 259 (2d Cir.), cert. denied, 439 U.S. 830, 99 S.Ct. 106, 58 L.Ed.2d 124 (1978). It is far from clear that Kelley is good law in this circuit,5 but in any event that case is distinguishable from the case at bar.
In Kelley the state suit against the individual had been instituted within the two-year period of
The party who is claiming the benefit of an exception to the operation of a statute of limitations bears the burden of showing that he is entitled to it. DeWitt v. United States, 593 F.2d 276, 281 (7th Cir. 1979). Here the state action was not commenced until after the two-year statute of limitations of
In addition to United States v. Kubrick, supra, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259, the cases cited by the district court, 484 F.Supp. at 604, support our conclusion. See West v. United States, 592 F.2d 487 (8th Cir. 1979); Steele v. United States, 599 F.2d 823 (7th Cir. 1979); Lien v. Beehner, 453 F.Supp. 604 (N.D.N.Y.1978); Baker v. United States, 341 F.Supp. 494 (D.Md.), aff‘d, (4th Cir. 1972); Driggers v. United States, 309 F.Supp. 1377 (D.S.C. 1970). See also McGowan v. Williams, 481 F.Supp. 681 (N.D.Ill.1979); Reiser v. Di Pietro, 78 F.R.D. 541 (N.D.Ill.1978); Fuller v. Daniel, 438 F.Supp. 928 (N.D.Ala.1977); Miller v. United States, 418 F.Supp. 373, 377 (D.Minn.1976).
Accordingly, the district court‘s order denying a remand of the case to state court and granting the United States’ motion for dismissal is affirmed.
ADAMS, Circuit Judge, dissenting.
With full deference to my distinguished colleagues, I respectfully dissent. I do so because I am concerned that once again the law, in hewing rigorously to the written word, may have destroyed its larger spirit and left a harmed and innocent citizen completely remediless.1
I.
In most respects, I agree with the opinion of the court. The district court‘s findings that Gross (1) was a federal employee and (2) was acting within the scope of his federal employment were not clearly erroneous. And it cannot be denied that Wollman‘s filing of an administrative claim was more than two years after the occurrence of the accident. Nevertheless, in focusing literally on the two-year statute of limitations, the majority appears to have sacrificed two central purposes of the Federal Tort Claims Act (FTCA)—protecting federal employees from the burden of tort claims, and providing the injured public with some recompense. I do not believe the FTCA should be subjected to such a unidimensional reading in which its varying objectives are subordinated to the assertedly paramount goal of preserving the sovereign from stale claims.
What we have before us is an injured plaintiff who for two years diligently sought to settle his claims with defendant‘s private insurer. Wollman was immediately reimbursed by the insurer for damages to his car. Gross and his insurer fully acquiesced in the avenue of recovery that plaintiff had pursued. At no point did they indicate in any way that Wollman should be dealing with someone other than themselves. The defendant never reported the accident to his employer and never treated the mаtter as though it were a job-related casualty. Because the defendant willingly participated in a private resolution of the claims, it appears anomalous that he should benefit from belatedly placing the matter in a governmental perspective. Surely, if the legislative history to the 1966 amendment of sections 2675 and 2401 governing
II.
I fully realize that Wollman filed his administrative claim more than two years after the discovery of his injury. But “when a particular claim accrues within the meaning of the FTCA is a questiоn of federal law which must be determined by the court in light of the surrounding circumstances.” United States v. LePatourel, 593 F.2d 827, 830 (8th Cir. 1979); Steele v. United States, 599 F.2d 823, 826 (7th Cir. 1979) (noting unanimity among all courts of appeals except for the First Circuit on this issue). As the Kubrick decision itself declares, while the 1966 amendments to the Act indicated that the time of filing the administrative claim was the critical date for limitations purposes, the legislative reports do not further explicate when a tort claim “accrues” within the meaning of
Prior to Kubrick, several circuits had held, generally in a malpractice context, that a plaintiff‘s claim does not accrue until he has a reasonable opportunity to discovеr all of the essential elements of a possible cause of action—duty, breach, causation and damages. Stoleson v. United States, 629 F.2d 1265 (7th Cir. 1980); United States v. Kubrick, supra, 444 U.S. at 120 n.7, 100 S.Ct. at 358 n.7 (citing cases). Kubrick, however, carefully sought to limit this range of elements to the essential facts of “injury” and “cause” which, once known, would trigger accrual of a claim. Yet precisely because there is a discrepancy between the facts known to Kubrick and those available to Wollman, I find that Kubrick is not controlling here.
In Kubrick the issue was “whether the claim ‘accrues’ within the meaning of the Act when the plaintiff knows both the existence and the cause of his injury or at a later time when he also knows that the acts inflicting the injury may constitute medical malpractice.” 444 U.S. at 113, 100 S.Ct. at 355. To put it another way, the Supreme Court appears to have proceeded on the assumption that Kubrick knew the facts and cause of his injury. What Kubrick did not know were the legal implications of his injury—thаt it had been negligently inflicted and that a legal duty to him had been breached by the Veterans Administration. In holding that “a plaintiff‘s ignorance of his legal rights” and “his ignorance of the fact of his injury or its cause” are not identical for statute of limitations purposes, the Supreme Court was in essence penalizing Kubrick for his failure to seek professional advice, and encouraging future litigants to consult with competent counsel. As the Court explained, “A plaintiff such as Kubrick, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentаtion of tort claims against the Government.” 444 U.S. at 123, 100 S.Ct. at 360.3
Wollman, quite significantly, did not know a critical fact of his injury. He knew of course that he had been hurt, but he did not know the status of Gross at the time of
As the district court found, Gross did not report the accident to his supervisor and did not, when he was finally sued, deliver the process served upon him to whomever his head of department had designatеd to receive such papers, as
The factual context present here, in which neither the plaintiff nor the defendant regarded the defendant as a federal employee at the time of the accident, is analogous to the situation in Kelley v. United States, 568 F.2d 259 (2d Cir. 1978). There the Second Circuit found that mutual ignorance of the fact that the defendant was a federal driver operating within the scope of his employment was no basis for visiting harsh statute of limitations consequences on a plaintiff. As that court noted,
[t]he case exemplifies a sub-class of Federal Tort Claims Act cases, a sub-class which draws to it no reprobation and invites no special rigor of treatment. It is, simply, one of the not uncommon cases in which a driver of a motor vehicle who is a federal employee is sued individually because the plaintiff did not know that defendant was a federal employee, or did not understand that the employee was on federal business at the time of the accident. The instances in this sub-class of
cases are characterized by innocent ignorance or ingenuous blunder. There is nothing here to be discouraged or visited with disaster.
Id. at 262. The same sort of blameless ignorance of the identity aspect of the causal element, which should postpone accrual of a claim, is present in the case at hand.5 And it is more appropriate to characterize such a state of affairs as reflecting ignorance of a crucial fact, rather than doubt about whether a legal duty to one had been breached. Because Wollman was unaware of a critical factual predicate of his claim, and not simply unaware that the defendant‘s actions might constitute actionable negligence, the case would appear to be distinguishable from Kubrick. See 444 U.S. at 121 n.8, 100 S.Ct. at 359 n.8.
III.
Further, and perhaps more important for purposes of differentiating this case from Kubrick, Wollman diligently pursued his claims. While the reasoning in the Kubrick opinion is justified insofar as it is invoked against those who sleep on their rights, the very opposite behavior occurred here. Wollman was not oblivious to the legal implications of his complaints. He believed he had suffered a legal wrong, he sought legal advice, and his counsel and Gross’ insurer continuously strove to resolve outstanding issues of negligence and liability. Wollman eventually filed suit well within what he understood to be the applicable limitations period—the three years designated by the state. Therefore, a postponement of the accrual date of Wollman‘s claim would not frustrate the purpose of the federal statute: requiring a reasonably diligent presentation of tort claims.6
Nor is the spectre raised in Kubrick—that a plaintiff could bring a claim at any conceivable future date so long as it was “within two years from the time he receives or perhaps forms for himself a reasonable
The ruling by the majority produces an even more paradoxical result: plaintiffs in states with two-year statutes of limitations who are ignorant of the status of the tortfeasor will generally have occasion to repair the deficiency and file a timely administrative claim; in states with three-year statutes of limitations a diligent plaintiff like Wollman, who brings suit after two years but well within three yеars, will be absolutely barred from redirecting his claim to the appropriate federal agency. Yet as the Report to the 1949 amendment of the original one-year limitations period of the Act indicates, one of the reasons for extending the limitations period to two years was to bring the Act more in line with limitations periods for state tort actions. See Kubrick, 444 U.S. at 119 n.6, 100 S.Ct. at 358 n.6, citing H.R.Rep. No. 276, 81st Cong., 1st Sess., 1 (1949).9 Jurisdictions like South Dakota, which sought to provide added protection to their citizens with three-year statutes of limitations may have instead created a system which leaves injured persons remediless, if the majority‘s view of the FTCA is adopted.
Precisely because the judgment which the Supreme Court sought to impose on Kubrick—namely, the determination whether to sue or not within the period of limitations—would оccur in any event within three years in the present context, the underlying rationale in Kubrick of protecting the government from stale claims is dissipated. Kubrick understandably was concerned with guarding “defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise.” 444 U.S. at 111, 100 S.Ct. at 352. But this purpose would not be subverted by permitting Wollman‘s claim to proceed, on the basis that it did not accrue until he was apprised of the governmental identity of the person who caused the injuries, and yet was, as a private action, properly filed within the state statute of limitations. The evidence remains intact, the record is complete with doctors’ reports and insurance claims, the witnesses are available, and there is no indication that the diminution in memory between the second and third year after the event is likely to be significant.
Moreover, as this court reasoned in LePatourel, in attempting to balance the equities of permitting a unique plaintiff subgroup to proceed on claims that accrued more than two years after the event against the right of the government to be free of stale claims: “We * * * agree * * * that the class of claimants similarly situated * * * cannot be so large as to threaten the interests protected by
The only defensible basis for shortcircuiting Wollman‘s dogged pursuit of a remedy would appear to be the formal value of a uniform federal rule.10 Under the principles articulated above, the interaction of the FTCA with the limitation laws of the various states would affect whether claims accrued within two or three years. This would undercut the policy of simple repose for the United States—the undeniable purpose of a two-year limitation—insofar as the government would be subject to slight divergencies resulting from local rules. Cf. Steele v. United States, 599 F.2d 823, 826 (7th Cir. 1979). Yet this vaulting of form over substance contravenes the central compensatory and protective purposes of the Federal Tort Claims Act. As this court has indicated, the dominant purpose of the Act was to end the ancient injustice of tort immunity. “Congress, in waiving the sovereign immunity of the United States, intended that tort victims be compensаted for injuries caused by the negligence of governmental employees.” United States v. LePatourel, supra, 593 F.2d at 831. And the specific purpose of the
IV.
In sum, I cannot agree that the result reached by the majority today accords with the congressional intent embodied in the Federal Tort Clаims Act. Accordingly, I dissent.