Acadia Insurance Co. v. United States of America et al
MEMORANDUM OPINION AND ORDER DISMISSING CASE that the government's Rule 52 motion is GRANTED; Judgment is entered in favor of defendant, the United States of America, on all claims asserted by plaintiff and costs are taxed to plaintiff. Signed by Judge C Lynwood Smith, Jr on 1/25/2016. (AHI)
2016 Jan-25 PM 03:10
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
ACADIA INSURANCE CO.,
UNITED STATES OF AMERICA,
Civil Action No. CV-13-S-895-NE
MEMORANDUM OPINION AND FINAL JUDGMENT
This action is based upon the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b),
2671-2680 (“FTCA”). The plaintiff’s claim arose out of a fire that occurred on
September 22, 2010, at the “Country Inn and Suites” in Huntsville, Alabama: a hotel
owned and operated by Yedla Management Company, Inc., and Hospitality
Enterprises of Huntsville, Inc. The plaintiff, Acadia Insurance Company, is the
subrogee of those entities. It contends that the fire was caused by an agent of the
Federal Bureau of Investigation who, while lodged as a guest at the hotel, negligently
discarded smoking materials on the balcony outside his second-floor hotel suite.
This court conducted a bench trial on January 11, 2016. The United States
filed “Motions For Judgment At The Close Of Plaintiff’s Evidence And At The Close
Of All Of The Evidence.”1 See Fed. R. Civ. P. 52(c). The court denied the motion
Doc. no. 89.
at the close of plaintiff’s evidence.2 This opinion addresses the renewed motion at the
close of all of the evidence,3 and is based upon consideration of the pleadings,
evidence, and briefs of counsel.
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 52(c) provides that:
If a party has been fully heard on an issue during a nonjury trial
and the court finds against the party on that issue, the court may enter
judgment against the party on a claim or defense that, under the
controlling law, can be maintained or defeated only with a favorable
finding on that issue. The court may, however, decline to render any
judgment until the close of the evidence. A judgment on partial findings
must be supported by findings of fact and conclusions of law as required
by Rule 52(a).4
Fed. R. Civ. P. 52(c).
“A Rule 52(c) motion may be granted if . . . based on the evidence
before it, the court finds, after resolving the credibility issues and
weighing the evidence, for the defendant.” Denson v. United States, 574
F.3d 1318, 1334 n. 48 (11th Cir. 2009). “In addressing a Rule 52(c)
motion, the court does not view the evidence in the light most favorable
to the nonmoving party, as it would in passing on a Rule 56 motion for
Trial Transcript, at 149.
See id. at 234-35 (stating that the court would take the renewed motion for judgment at the
close of all of the evidence under advisement).
Rule 52(a) states, in pertinent part, that:
In an action tried on the facts without a jury or with an advisory jury, the court
must find the facts specially and state its conclusions of law separately. The findings
and conclusions may be stated on the record after the close of the evidence or may
appear in an opinion or a memorandum of decision filed by the court. Judgment must
be entered under Rule 58.
Fed. R. Civ. P. 52(a)(1).
summary judgment or a Rule 50(a) motion for judgment as a matter of
law; instead, it exercises its role as factfinder.” United States v.
$242,484.00, 389 F.3d 1149, 1172 (11th Cir. 2004). Under Rule 52(c),
“the court must weigh the evidence and may consider the witnesses’
credibility.” Caro–Galvan v. Curtis Richardson, Inc., 993 F.2d 1500,
1504 (11th Cir. 1993).
IberiaBank v. Coconut 41, LLC, 984 F. Supp. 2d 1283, 1295 (M.D. Fla. 2013), aff’d,
589 F. App’x 479 (11th Cir. 2014).
Michael Siegling is a resident of California and a Special Agent for the Federal
Bureau of Investigation (“FBI”).
He attended a six-week training course on
hazardous devices conducted at Redstone Arsenal near Huntsville, Alabama, from
August 10 through September 24, 2010.5 The FBI did not require Siegling to attend
the training course, but the instruction furthered Siegling’s employment with the FBI
by providing him with specialized skills.6
The FBI paid for the course, paid
Siegling’s salary during his weeks of training, and reimbursed the costs of his travel,
lodging, and food.7
Siegling occupied Suite 2207 on the second floor of one wing to the Country
Inn and Suites from the date of his arrival in Huntsville through the date of the fire
Trial Transcript, at 137; doc. no. 79 (Amended Statement of Agreed and Disputed Facts),
at 35, Fact No. 72. The United States disputed part of Fact No. 72, but not the portion relied upon
Trial Transcript, at 138-39; doc. no. 79 (Amended Statement of Agreed and Disputed
Facts), at 4, Fact Nos. 21-22.
Trial Transcript, at 138.
that rendered that wing of the hotel uninhabitable.8 Siegling and the other students
in the training course were not required to stay at the Country Inn and Suites, but
chose to do so for convenience, because a bus transported the students between the
hotel and their training classes on Redstone Arsenal each day.9
Siegling sometimes smoked cigarettes on the balcony outside Suite 2207 in the
evenings, after the end of classes, either alone or joined by other students in the
training course. He did not recall whether anyone else was present on the balcony or
smoked cigarettes with him on September 22, the night of the fire.10 He also did not
state, nor was he specifically asked during trial, whether he smoked a cigarette on the
balcony on the night of the fire. Siegling maintained a practice of extinguishing his
cigarettes in a Styrofoam cup half-filled with water when he smoked on the balcony.11
Siegling testified that he considered himself to be “off-duty” in the evening
hours, after each day of training classes was completed, with the exception that he
sometimes studied for examinations on course materials in his hotel room during the
evening hours.12 Siegling possessed a government-issued credit card to pay for his
Id. at 137; doc. no. 79 (Amended Statement of Agreed and Disputed Facts), at 4, Fact No.
Trial Transcript, at 148.
Id. at 139-40, 143.
Id. at 144.
Id. at 147.
lodging, but he was not authorized to use that card to purchase cigarettes.13
The government’s Rule 52 motion is primarily based upon two arguments.
First, the government asserts that the United States should not be held liable for any
damages caused by Agent Siegling because he was not acting within the line and
scope of his employment when he discarded cigarettes on the balcony of his hotel
suite in the evenings after class. Second, the government argues that, even if it could
be held liable for Siegling’s negligent acts, those acts did not cause the fire.14
The causation evidence presented at trial was a classic “battle of the experts.”
The Huntsville Fire Department officer and plaintiff’s expert witness who
investigated the scene both opined that the fire was caused by smoking materials
negligently discarded on the balcony of Suite 2207.15 Defendant’s expert witness, in
contrast, presented evidence that the methodology employed by plaintiff’s witnesses
was unreliable, and the investigation conducted by each witness was incomplete.16
The United States divided this argument into three parts: i.e., (1) plaintiff’s expert
evidence about the cause and origin of the fire is speculative and unreliable under Federal Rule of
Evidence 702; (2) plaintiff failed to establish negligence under Alabama law; and (3) plaintiff’s
spoliation of evidence unfairly prejudiced the government. See doc. no. 89 (Defendant’s Motions
For Judgment At The Close Of Plaintiff’s Evidence And At The Close Of All Of The Evidence), at
8-19. The essence of each argument is that there is not sufficient evidence of causation.
See Trial Transcript, at 14-87 (Testimony of Daniel Wilkerson), 88-136 (Testimony of
See id. at 149-234 (Testimony of David Icove).
According to defendant’s expert, neither the Fire Department investigator nor
plaintiff’s expert witness possessed sufficient information to determine the cause of
the fire, so they both should have characterized the cause as “undetermined.”17 Even
so, defendant’s expert personally believed that the fire originated on the third-floor
balcony above Suite 2207 and “dropped down” to the balcony outside Siegling’s
Despite alarming deficiencies in the investigations conducted by both the
Huntsville Fire Department Investigator and plaintiff’s expert witness, this court is
inclined to conclude that plaintiff established by a preponderance of the evidence that
the fire, more likely than not, was caused by the negligent manner in which Agent
Siegling discarded his cigarette butts.
It is not necessary to actually reach that conclusion, however. Even if Agent
Siegling was smoking on his balcony on the evening of September 22, 2010, and even
if his negligent use of smoking materials did cause the fire, there is no basis in
Alabama law for holding the United States liable for Agent Siegling’s negligence.
The Federal Tort Claims Act waives the sovereign immunity of the United
States for certain torts committed by federal employees who act within the line and
scope of their employment. E.g., Federal Deposit Insurance Corp. v. Meyer, 510
Id. at 195.
Id. at 185, 188, 195.
U.S. 471, 475 (1994) (citing 28 U.S.C. § 1346(b)). “The question of whether an
employee’s conduct was within the scope of his employment ‘is governed by the law
of the state where the incident occurred.’” Flohr v. Mackovjak, 84 F.3d 386, 390
(11th Cir. 1996) (quoting S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538, 1541
(11th Cir. 1990)) (alteration supplied). Here, the fire occurred in Alabama and, thus,
the law of that State applies.
The Alabama Supreme Court has repeatedly held that:
The rule which has been approved for determining whether certain
conduct of an employee is within the line and scope of his employment
is substantially that if an employee is engaged to perform a certain
service, whatever he does to that end, or in furtherance of the
employment, is deemed by law to be an act done within the scope of the
Nelson v. Johnson, 88 So. 2d 358, 361 (Ala. 1956) (citing Railway Express Agency
v. Burns, 225 Ala. 557, 52 So. 2d 177 (1950), and Rochester-Hall Drug Co. v.
Bowden, 218 Ala. 242, 118 So. 674 (1928)); see also, e.g., Doe v. Swift, 570 So. 2d
1209, 1211 (Ala. 1990) (same); Solmica of Gulf Coast, Inc. v. Braggs, 232 So. 2d
638, 642 (Ala. 1970) (same). “Such conduct, to come within the rule, must not be
impelled by motives that are wholly personal, or to gratify his own feelings or
resentment, but should be in promotion of the business of his employment.”
Rochester-Hall Drug Co. v. Bowden, 118 So. 674 (Ala. 1928); see also Solmica, 232
So. 2d at 642 (same).
Moreover, the fact that “an alleged wrong is committed by the employee during
his regular working hours is not dispositive of the question [of] whether the employee
was acting within the scope of his employment. . . . Instead, the dispositive question
is whether the employee was engaged in an act that he was hired to perform or in
conduct that conferred a benefit on his employer.” Hulbert v. State Farm Mutual
Automobile Insurance Co., 723 So. 2d 22, 24 (Ala. 1998) (alteration and emphasis
supplied, internal citations omitted).
As this court observed in the memorandum opinion and order denying
defendant’s motion for summary judgment, “[n]either Alabama courts nor federal
courts applying Alabama law have directly addressed whether smoking cigarettes
falls within an employee’s scope of employment.”1 9 Rather, the relevant caselaw
seemed to be best summarized by the opinion in Land v. Shaffer Trucking, Inc., 275
So. 2d 671 (Ala. 1973), stating that:
In cases where the deviation [from the employer’s business] is slight and
not unusual, the court may, and often will, as a matter of law, determine
that the servant was still executing his master’s business. So, too, where
the deviation is very marked and unusual, the court in like manner may
determine that the servant was not on the master’s business at all, but on
his own. Cases falling between these extremes will be regarded as
involving merely a question of fact, to be left to the jury or other trier of
Id. at 674-75 (quoting Engel v. Davis, 256 Ala. 661, 57 So. 2d 76 (1952)) (alteration
Doc. no. 70 (Memorandum Opinion and Order on Motion for Summary Judgment), at 5
supplied, citations omitted). Thus, absent any case law specifically on point, this
court found that the present case — the facts of which fall between the “extremes”
sketched in Land — presented genuine issues of material fact that prevented the entry
of summary judgment.
After weighing all the evidence presented at trial and reviewing the additional
briefs submitted by the parties, the court concludes that Michael Siegling’s act of
smoking cigarettes on the balcony outside his second-floor hotel suite during the
evening hours, after the conclusion of his daily training classes, was not within the
line and scope of his employment as an FBI agent, even though the costs of the
training course and his hotel accommodations were paid for by the FBI, and even
though the training course gave Siegling skills that furthered his employment with the
FBI. Moreover, despite the lack of any Alabama cases directly on point, courts in
other jurisdictions have held, under similar circumstances, that smoking-related
negligent acts were not performed within the line and scope of an employee’s
For example, the District of Minnesota confronted somewhat similar facts in
Mosby v. McGee, No. CIV 07-3905 JRT/RLE, 2009 WL 2171104 (D. Minn. July 20,
2009). In that case, the pastor of a Connecticut church lodged in the private home of
a friend while attending a religious conference held in Minnesota. The costs of that
conference were paid for by his church. Id. at *1. Like Agent Siegling, the pastor
regularly smoked on the deck of the home in the evenings, at the end of each
conference day. While doing so one evening, the pastor accidentally kindled a fire
by discarding the ashes of his pipe in a planter on the deck. Id. The homeowners
sued the pastor and his church for negligence, seeking to recover damages they
incurred as a result of the fire. Id. The district court, applying Minnesota law, held
that the church could not be held vicariously liable for its pastor’s negligence,
because he “was smoking after the conference events were over for the day, at a time
when he was not doing anything traceable to his work responsibilities, in a place that
had no formal connection to his employment for [the church].” Id. at *4 (alteration
The court expressed concern that a contrary finding would “hold
employers responsible for any and all actions taken by traveling employees,” and
would constitute an “expansive view of vicarious liability” for which there was “no
basis in the law.” Id.
In Minamayor Corp. v. Paper Mill Suppliers, Inc., 297 F. Supp. 524 (E.D. Pa.
1969), a salesman employed by the defendant, a Michigan company, lodged in the
room of a hotel owned by the plaintiff company while he was in Pennsylvania “for
the purpose of soliciting orders and contacting customers or prospective customers
Id. at 525. The salesman’s travel expenses were paid by his
employer. The salesman “had no fixed working hours but was subject to call at any
time” while traveling on his employer’s business. Id. A fire in the salesman’s hotel
room caused substantial property damage and killed the salesman, whose body was
discovered in the bathroom of the hotel room. Id. There was little evidence regarding
the cause of the fire, but the court seemed to presume that the fire was related to
cigarettes. Operating under that assumption, and applying Pennsylvania law, the
district court held that the employer could not be held vicariously liable because the
salesman’s “conduct in rising, shaving and apparently lighting a cigarette were
neither acts within the scope of his employment or negligent conduct during the
course thereof.” Id. at 526. Like the District of Minnesota in Mosby, the Eastern
District of Pennsylvania in Minamayor expressed concern over expanding the
doctrine of vicarious liability so broadly that “employers are responsible for all acts
of their salesmen while on the road without regard to whether such acts are related
in any way to the employer’s business.” Id.
In Merritt v. United States, 332 F.2d 397 (1st Cir. 1964), the plaintiff leased a
dwelling “to the government for use as off-post family housing for military personnel
and their dependents.” Id. at 398. “A sergeant, quartered therein, after finishing his
duties for the day, negligently set fire to the house by smoking in bed.” Id. The First
Circuit applied Massachusetts law, and found “nothing in the Massachusetts cases
suggesting that an employee smoking in bed during his off hours is in the course of
his employment,” despite the fact that the federal government had paid the rent for
the dwelling. Id. at 398-99. The court rejected the plaintiff’s argument that “the fact
that the government supplied [the sergeant] with a residence meant that anything he
was doing in the residence was in the scope of his employment.” Id. at 399 (alteration
supplied). Other cases cited by the government’s attorneys in their pre-trial brief that
this court finds persuasive include Meredith v. Ringling Brothers Barnum & Bailey
Combined Shows, 321 F.2d 107 (6th Cir. 1963) (holding that the circus employer
could not be held vicariously liable for an employee who negligently kindled a fire
by smoking in the plaintiff’s barn, which he presumably had entered for the purpose
of urinating); HPT IHG Properties Trust v. Shaw Group, Inc., 744 S.E.2d 496 (N.C.
Ct. App. 2013) (finding that an employer could not be held vicariously liable for
damages caused by a fire that was started when an employee left a pan of grease
unattended on a stove in his hotel room); Dobson v. Don January Roofing Co., 392
S.W.2d 153 (Tex. Civ. App.), writ refused, 392 S.W.2d 790 (Tex. 1965) (finding that
an employer could not be held vicariously liable for damages caused by an employee
who, while replacing shingles on the roof of plaintiff’s home, permitted hot cigarette
ashes to fall upon the roof and kindle a fire); Herr v. Simplex Paper Box Corp., 330
Pa. 129, 133-34, 198 A. 309, 311 (1938); Kelly v. Louisiana Oil Refining Co., 167
Tenn. 101, 66 S.W.2d 997, 998 (1934). See also Restatement (Second) of Agency §
This court finds the rationale of the foregoing opinions to be persuasive. As
in those cases, even if this court were to find, as plaintiff contends, that Agent
Siegling negligently discarded smoking materials on the balcony outside his second
floor hotel suite, and, that such negligence was the proximate cause of the loss
sustained by plaintiff’s insureds, Agent Siegling’s negligence, nevertheless, occurred
after the conclusion of his training classes for the day, and there is no indication that
he was performing any services for the government while smoking. There simply is
no connection between Agent Siegling’s smoking activities and his employment,
apart from the fact that he smoked on the balcony of a hotel suite paid for by his
employer. Under the reasoning of the persuasive authorities previously discussed,
that is not enough to impose vicarious liability. Moreover, this court shares the
concern expressed in some of the persuasive opinions cited above: that is, allowing
plaintiff to recover from the United States under the circumstances of this case would
unreasonably broaden the doctrine of vicarious liability. Expanding the doctrine in
such a manner would essentially result in an employer being held responsible for
anything its employee does while on travel, a result that cannot be the intent of
The cases relied upon by plaintiff, while handed-down by Alabama courts, are
distinguishable from the present case and have not persuaded this court to reach a
different conclusion. In Singleton v. Burchfield, 362 F. Supp. 2d 1291 (M.D. Ala.
2005), the defendant, an employee of the United States Air Force, traveled from his
home in North Carolina to Alabama in a government-owned vehicle for a five-week
training course. Id. at 1293. After training one evening, he drove the governmentowned vehicle from his on-base lodging to an off-base restaurant to have dinner with
fellow classmates. Id. at 1294. While en route to the restaurant, the defendant’s
vehicle collided with the plaintiff’s, causing injuries to both parties. Id. The district
court, applying Alabama law, held that the United States could be held vicariously
liable for any damages awarded against the defendant, because he was acting within
the line and scope of his employment at the time of the accident. Id. at 1295-96. The
primary factor affecting that decision was the defendant’s use of a government-owned
vehicle, because, “[u]nder Alabama law, the ‘[u]se of a vehicle owned by an employer
creates an “administrative presumption” that the employee was acting within the
scope of his employment.’” Id. at 1295 (quoting Pryor v. Brown & Root USA, Inc.,
674 So. 2d 45, 48 (Ala. 1995)) (first alteration supplied, second alteration in original).
The defendant was allowed to use that vehicle only for limited purposes, one of which
was traveling to “reputable eating establishments in reasonable proximity to the
installation.” Singleton, 362 F. Supp. 2d at 1293-94. Because the defendant was
“[o]perating his government vehicle within the constraints set out by his employer,”
his actions were “in furtherance of his military duty [and] were of benefit to his
employer.” Id. at 1295 (alterations supplied).
Similarly, in Flohr v. Mackovjak, 84 F.3d 386 (11th Cir. 1996), the defendant,
a civilian employee of the United States Army and an Alabama resident, traveled to
California for a week-long training course. Id. at 388. The Army paid for his travel
expenses, including meals and a rental car, which the defendant was allowed to use
without any restrictions. Id. The defendant used the rental car to drive himself and
a passenger to a local restaurant for dinner at the conclusion of the training course one
evening. During the return drive to the hotel, the defendant caused an automobile
accident, which resulted in injuries to his passenger, who brought suit. Id. The
Eleventh Circuit, applying California law,20 held that the Army could be held
vicariously liable for the defendant’s negligence in causing the accident. Id. at 392.
The Court reasoned:
The men were in California at the instruction of the United States Army
to attend a conference related to their work. The Army paid for all of
their expenses while they were away, including their meals and the cost
of renting an automobile. The men appear to have received no
instructions to drive or not to drive to any particular location for their
Even though the Flohr court applied California law, and not Alabama law, the district court
noted in Singleton that “the [Flohr] court’s analysis of the policies behind the decision are equally
applicable in this case.” Singleton, 362 F. Supp. 2d at 1295 (alteration supplied).
meals. It is reasonable to assume that the Army expected the men to use
the automobile it provided to drive not only to and from the conference
but also to a place where they could purchase meals, which were also
paid for by the Army. The men’s conduct was not “so unusual or
startling that it would seem unfair to include the loss resulting from it
among other costs of the employer’s business.” [Mary M. v. City of Los
Angeles, 814 P.2d 1341, 1344 (Cal. 1991)]. Rather, the activity “may
fairly be regarded as typical of or broadly incidental” to the enterprise
undertaken by the Army. Id. The enterprise in this case was the sending
of Army personnel to California for several days to attend meetings
related to the Army’s business.
Flohr, 84 F.3d at 391-92 (emphasis and alterations supplied).
Driving a government-provided car to purchase dinner while on work-related
travel does not carry the same significance as smoking or discarding cigarettes during
a time of day that has absolutely no connection with the employee’s duties. There is
no “administrative presumption” of employment-relatedness associated with cigarette
smoking, as there is with driving a vehicle owned or rented by the government.
Moreover, it is much more reasonable for an employer to expect its employee who is
on work-related travel to drive to a restaurant to purchase a meal than it is to expect
the same employee to smoke cigarettes. Meals are a necessity; cigarettes are not.
Finally, and importantly, the United States did not pay for Agent Siegling’s cigarettes.
In contrast, the government employers paid for the cars and meals in the Singleton
and Flohr cases. Agent Siegling was in fact prohibited from using his governmentissued credit card to purchase items like cigarettes.
For all of the foregoing reasons, this court concludes that the Alabama Supreme
Court would follow the reasoning of cases from those jurisdictions discussed above,
and hold that Agent Siegling was not acting within the line and scope of his
employment with the FBI when he smoked and discarded a cigarette on the balcony
of his hotel room in the evening after his training course was completed for the day.
As such, the United States cannot be held vicariously liable for Agent Siegling’s
negligence, and plaintiff’s Federal Tort Claims Act must be dismissed.
IV. CONCLUSION AND ORDER
In accordance with the foregoing, the government’s Rule 52 motion is
GRANTED. Judgment is entered in favor of defendant, the United States of America,
on all claims asserted by plaintiff. Costs are taxed to plaintiff, and the Clerk is
directed to close this file.
DONE and ORDERED this 25th day of January, 2016.
United States District Judge
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