GEICO GENERAL INSURANCE CO. v. UNITED STATES OF AMERICA, et al.
No. 6:20-CV-239-REW
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION LONDON
January 21, 2022
OPINION & ORDER
The United States1 moves to dismiss the complaint filed by Plaintiff Geico General Insurance Company (“GEICO“). DE 7. The United States asserts that under a Federal Tort Claims Act analysis and statutory interpretation of the Kentucky Motor Vehicle Reparations Act (“KMVRA“), it is entitled to immunity from suit in this case and that this Court lacks subject matter jurisdiction. Id.;
I. Factual Background
The facts of this case are simple and, in this context, taken as true. On February 22, 2019, United States Postal Service (“USPS“) employee Casey Payne was operating a vehicle owned by the USPS in the course and scope of employment. DE 1, at 2. Payne failed to yield to oncoming traffic when entering a roadway, colliding with GEICO‘s insured. The insured then sought and received basic reparation benefits (BRB) in the amount of $10,000 from GEICO, under the Kentucky no-fault statutory scheme for motor vehicle accident liability. Id. at 3. GEICO paid BRB to its insured, then sought recovery, via subrogation, from the USPS and the United States. Id. The USPS denied GEICO‘s claim under the Federal Tort Claims Act, and GEICO initiated this suit. The United States then moved to dismiss for lack of subject matter jurisdiction. DE 7. The matter is briefed. DE 8 & 9.
II. Standard
A party may move to dismiss a claim over which the court lacks subject matter jurisdiction.
Although the motion here may be characterized as either a facial or factual attack, because of the interdependent nature of the factual and jurisdictional elements of an FTCA claim, the Court will analyze the motion to dismiss as a facial attack because the thrust of the United States‘s argument is that it has not waived
III. Legal Discussion
“In 1946, Congress passed the FTCA, which waived the sovereign immunity of the United States for certain torts committed by federal employees” when acting within the scope of employment. F.D.I.C. v. Meyer, 114 S. Ct. 996, 1000 (1994). “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” Meyer, 114 S. Ct. at 1000 (citing Loeffler v. Frank, 108 S. Ct. 1965, 1968 (1988)). “It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 103 S. Ct. 2961, 2965 (1983). The FTCA grants federal courts subject matter jurisdiction over state law tort claims against the United States.
[T]he district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
Additionally, a 1988 amendment to the FTCA provides that “[t]he United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.”
“Federal courts have jurisdiction over [state law tort claims] if they are ‘actionable under § 1346(b).‘” Brownback v. King, 141 S. Ct. 740, 746 (2021) (citing Meyer, 114 S. Ct. at 1001). The text of the FTCA makes clear that an actionable claim must be: (1) against the United States; (2) for money damages; (3) for personal injury or death; (4) caused by the negligent or wrongful act or omission of any employee of the Government; (5) while acting within the scope of the office or employment; and (6) under circumstances where the United States, if a private person comparably situated, would be liable to the claimant in accordance with the law of the state where the act occurred. See
Here, the United States cited both
The statutory scheme here also creates the unusual situation where a court may both find that it lacks subject matter jurisdiction and reach the merits of a claim. A finding that a court lacks subject matter jurisdiction will typically bar that court from reaching the merits. See Arbaugh v. Y&H Corp., 126 S. Ct. 1235, 1244 (2006) (“[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety.“). However, because the FTCA melds the merits and jurisdictional requisites, a court may properly find that it lacks jurisdiction and make a merits-based finding. See Brownback, 141 S. Ct. at 749; Meyer, 114 S. Ct. at 1001.
a. Binding precedent requires dismissal.
The Court begins where it must, all arguments aside, end. The Sixth Circuit confronted the same statutes and the precise question in Young v. United States, 71 F.3d 1238 (6th Cir. 1995) and decided the matter. Of course, a published circuit decision binds this Court. See United States v. Roper, 266 F.3d 526, 529 (6th Cir. 2001) (“[A] prior published opinion of this court is binding unless either an intervening decision of the United States Supreme Court requires modification of the prior opinion or it is overruled by this court sitting en banc . . . .“). Young declared, in a postal service case, where a reparation obligor sought to assert subrogation rights against the United States, that the United States would have no FTCA liability: “[t]he United States is immune from the subrogation liability[.]” Young, 71 F.3d at 1246. GEICO cites intervening Kentucky law,2 in distinct contexts, in an effort to weaken Young. Though the Court is not persuaded, even if it were, Young stands until the Circuit says otherwise. Functionally, the matter ends there, but the Court will comment on the merits.
b. The merits of the arguments
The parties do not dispute that the first five elements of an FTCA claim, identified by the Supreme Court, are met here. They sharply disagree as to whether the sixth element is met—that is, whether the United States, to the extent of the liability of a private person under the facts as pleaded, would be liable under Kentucky law.
Because the United States is not and cannot act exactly as a private person, to determine the extent of the waiver of sovereign immunity under the FTCA, federal courts “[analogize] the United States to a private actor in a similar situation under the appropriate state law.” Young, 71 F.3d at 1244 (citing LaBarge v. County of Mariposa, 798 F.2d 364, 366 (9th Cir. 1986)); see also Carter v. United States, 982 F.2d 1141, 1144 (7th Cir. 1992) (stating that “[t]he national government is never situated identically to private parties,” and that the task “is to find a fitting analog under private law.“).
The state law at issue here is the KMVRA. Thus, the resolution of this case rests, in part, on interpretation of that statute to determine the proper private analogue to the United States in these circumstances. If a private individual standing in the United States‘s position would be liable under the KMVRA, then the United States itself may be liable. If not, then the case must be dismissed for lack of subject matter jurisdiction.
The KMVRA was enacted in 1974 in response to the high volume of automobile accidents experienced by citizens in Kentucky, and to provide relief from the great expense and burden occasioned by such accidents. See
The United States is not an insurer. The statute does not define “insurer,” so the Court looks to the plain and ordinary meaning of the statutory language. See FCC v. AT&T, Inc., 131 S. Ct. 1177, 1182 (2011) (“When a statute does not define a term, we typically ‘give the phrase its ordinary meaning‘.“) (citing Johnson v. United States, 130 S. Ct. 1265, 1267 (2010)). “Insurer” in the context of a motor vehicle law, indicates that it is meant to cover commercial suppliers of insurance where the relationship of the insured/insurer exists through a contract and/or payment of premiums. See Black‘s Law Dictionary (11th ed. 2019) (defining “insurer” as “someone who agrees, by contract, to assume the risk of another‘s loss and to compensate for that loss“); see also Young, 71 F.3d at 1243 (finding that “the term ‘insurer’ in the statute speaks clearly to mean commercial insurance companies providing no-fault benefits under the Kentucky no-fault statute.“).
The United States is not a self-insurer. To be a “self-insurer,” an individual must apply for such status and gain approval from the Kentucky commissioner of insurance. See
GEICO paid the required basic reparations benefits to its insured. Under the statute, a reparation obligor can seek reimbursement for BRB paid only from an unsecured person or the reparation obligor (insurer, etc.) of a secured person.
A “secured person” is “the owner, operator or occupant of a secured motor vehicle, and any other person or organization legally responsible for the acts or omissions of such owner, operator or occupant.”
The KMVRA does not define “secured motor vehicle” but it does define “security covering the vehicle” as “the insurance or other security so provided.”
Plaintiff GEICO takes issue with Young‘s finding that the United States meets the definition of a “secured person” under the statute. DE 8, at 8 (Pl‘s Opp. to Mot. to Dismiss). The criticism oversimplifies the Sixth Circuit‘s careful analysis.
Young tested first and textually applied the governing statutory “reparation obligor” definitions. After faithfully applying those, it then moved to evaluate how the United States, with its actual coverages in place considered, would fair by analogy to a putative private party in the “secured person” analysis. There, the Court viewed the Government has having protections and obligations beyond what the Kentucky scheme otherwise would require. As such, the “secured motor vehicle” finding, and resultant immunity, easily followed. GEICO focuses on the lack of an explicit BRB obligation, but the Circuit tested the economic realities and found a functional equivalency: “The United States has thus provided the functional equivalent of basic reparation benefits[.]” Id.
Plaintiff relies heavily on City of Louisville v. State Farm to assert that a vehicle cannot be “secured” under the statute unless the owner or responsible entity provides statutory BRB benefits specifically. This argument misses the subtle distinctions between Young and City of Louisville. The Kentucky Supreme Court in City of Louisville found, as the City readily conceded, that Louisville did not provide BRB benefits at all; the City instead relied on an annual appropriation of funds to cover tort liability incurred by its employees. City of Louisville, 194 S.W.3d at 306-07. Unlike in Young, the City did not argue that it operated under a system that featured or was equivalent to BRB. This allowed the Supreme Court an easy, binary analysis. Louisville was not, by virtue of its failure to obligate itself to BRB, a reparation obligor, so it likewise could not have the status of a secured person. True enough there. The federal government is, relative to its liability and employee compensation schema, in a very different place, as Young found.
Finally, a few additional points. GEICO bridles against the thought experiment the FTCA demands. It insists on identification of the “private person” that serves as comparator to the federal government. This facile approach misses the mark because the Government is unique. That does not prevent a court, like Young, from assessing the Government‘s status and attributing key characteristics to a putative, though hypothetical, private person and then weighing liability. That is what Young, which properly worked by fitting analogy, did.3
Further, is the Government comparatively better off? By not holding reparation obligor status, the United States does not face a subrogation claim, but it also may
Because the United States is neither a reparation obligor nor an unsecured party, there is no statutory basis for GEICO to seek recoupment of the BRB it paid. A private individual standing in the shoes of the United States would not be liable in Kentucky, so the United States is not liable in Kentucky. Because the jurisdictional elements necessary to make out an FTCA claim are not present, this Court lacks subject matter jurisdiction. In addition, and for the same reason, the Plaintiff has failed to plead facts sufficient to state a plausible claim for relief; the United States is immune. The Court GRANTS the United States‘s motion to dismiss.
This the 21st day of January, 2022.
Signed By:
Robert E. Wier
United States District Judge