Plaintiff appeals as of right the trial court’s grant of defendant’s motion for summary disposition and dismissal of his personal injury action on the ground of intramilitary immunity. We vacate and remand.
On August 25, 1985, plaintiff was a member of the Ohio National Guard and defendant was a member of the Michigan National Guard. Both were participating in annual training exercises at Camp Grayling, Michigan. Plaintiff had just returned to camp from a twenty-four-hour leave, apparently driving his own vehicle. Defendant, who was driving a tanker truck owned by the federal government, allegedly made an improper lane change and struck plaintiff. Plaintiff apparently received benefits from the federal government for his injuries.
Plaintiff sued defendant, the State of Michigan, and the Michigan National Guard. Upon the governmental defendants’ motion to dismiss, plaintiff stipulated the dismissal and refiled the claims in the Michigan Court of Claims. Eventually, the Court of Claims dismissed those claims, holding that because the tanker truck was owned by the federal government, the state and the National Guard were not liable for injuries caused by it.
Defendant Swarthout then successfully moved the circuit court to dismiss the claim remaining against him. Defendant argued that the action was barred by the doctrine of intramilitary immunity because, at the time of the accident, both parties were federal employees acting in the line of duty. Plaintiff argues on appeal that the trial court erred in dismissing the case because there was no
As acknowledged by both parties, "members of the National Guard while engaged in training or duty” are considered federal employees. See 28 USC 2671. In general, the federal government has consented to be sued for the negligent acts of its employees committed within the scope of their office or employment. See 28 USC 2674; see also 28 USC 2680 (exceptions). In the context of national guardsmen, " '[a]cting within the scope of his office or employment’ . . . means acting in [the] line of duty.” 28 USC 2671.
On the date of the accident in this case, the ftca was the sole substantive remedy "for injury or loss of property or personal injury or death, resulting from the operation by any employee of the [federal] Government of any motor vehicle while acting within the scope of his office or employment”; the ftca was explicitly "exclusive of any other civil action or proceeding by reason of the same subject matter against the employee . . . whose act or omission gave rise to the claim.” 28 USC 2679(b) (1966 ed); 80 Stat 307. Additionally, federal courts were the only forums available for such actions; state courts do not have jurisdiction to entertain ftca claims. See 28 USC 1346(b).
The ftca provides that a federal employee who is sued for negligence committed during the course of employment should give notice to the United States Attorney General, who may then certify that the employee was in fact acting within the scope of employment, have the United States substituted as the defendant, and have the action
In this case, defendant requested certification from the United States Attorney General, but had not received it on the date of dismissal. He did not request that the trial court certify that he was acting within the scope of his employment. Instead, he moved to dismiss on the basis of intramilitary immunity.
In deciding defendant’s motion below, the trial court correctly found that both parties were federal employees, that the ftca was plaintiff’s exclusive remedy, and that it lacked jurisdiction to hear ftca claims. Nevertheless, the court went on to decide the merits of the case under Feres v United States,
In Harris, a national guardsman who was injured during a football game while attending annual training at Camp Grayling successfully sued the camp’s doctors for medical malpractice.
Harris, however, is not controlling in this case for several reasons. First, when suit was brought in Harris, and until November 18, 1988, the ftca was the exclusive remedy only for injuries "resulting from the operation ... of any motor vehicle.” See 28 USC 2679(b) (1966 ed); 80 Stat 307. That is, when Harris was decided, a state-law claim such as malpractice was in fact available against the negligent federal employee unless the injury resulted from the operation of a motor vehicle. The Harris Court applied the Feres doctrine of intramilitary immunity to that state-law claim.
Additionally, when Harris was decided and again until November 18, 1988, the ftca had no provision for certification of cases where the United States Attorney General had failed or refused to certify that the federal employee was acting during the course of employment. See 28 USC 2679(d) (1988 ed); 102 Stat 4564. Defendant therefore improperly relies on the Harris Court’s failure to discuss certification. Now, as noted before, the state court may, on defendant employee’s motion, issue the certification and substitute the
In the present case, the injury arose out of the alleged negligent operation of a motor vehicle by a federal employee and therefore the ftca, even before the 1988 amendment, provided plaintiffs exclusive substantive remedy. There is no state tort remedy available to plaintiff unless he can show that the ftca does not apply because defendant was not acting within the scope of his employment at the time of the accident. The trial court had no jurisdiction to resolve the merits of the ftca claim.
Further, because defendant attempted to obtain certification of his status and had received no response, the trial court was bound to follow the procedures set forth in 28 USC 2679(d)(3), which had already gone into effect. Defendant’s motion to dismiss should have been treated as a motion for certification. Defendant’s failure to request that the trial court issue this certification, though erroneous, is not fatal and certainly does not confer jurisdiction to resolve the merits.
On remand, the trial court is to decide whether defendant was acting within the scope of his employment, that is, in the line of duty, at the time of the accident. Parenthetically, we note that an examination of the facts is necessary and that defendant’s affidavit merely stating that he was acting within the scope of his employment is insufficient. Whether plaintiff was engaged in an activity "incident to service”—and, therefore, whether suit is barred by the Feres doctrine—is a thorny substantive question to be decided by the federal court upon removal in light of the abundant, and often contradictory, federal case law on that point.
The order of dismissal is vacated and the case is remanded for proceedings consistent with this opinion. We do not retain jurisdiction.