Suell et al v. United States of America

Filing 125

ORDER denying defendant's 106 Motion to Dismiss or, in the alternative, for summary judgment; denying plaintiff's 108 Motion for Partial Summary Judgment. Signed by Chief Judge William H. Steele on 10/8/2014. copies to parties (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOE GLENN SUELL, et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.

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) CIVIL ACTION 13-0252-WS-B
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ORDER
This matter is before the Court on the defendant’s motion to dismiss or, in
the alternative, for summary judgment and on the plaintiffs’ competing motion for
partial summary judgment. (Docs. 106, 108). The parties have filed briefs and
evidentiary materials in support of their respective positions, (Docs. 100, 103,
106-07, 109, 113-15, 118-19), and the motions are ripe for resolution. After
careful consideration, the Court concludes that both motions are due to be denied.
BACKGROUND
According to the complaint, (Doc. 1), plaintiff Joe Suell was struck by a
motor vehicle driven by Edward Hager, a veterinarian employed by the United
States Department of Agriculture. The complaint sets forth two claims against the
defendant under the Federal Tort Claims Act (“FTCA”): one on behalf of Mr.
Suell for negligence and/or wantonness, and another on behalf of his wife, Tracy
Suell, for loss of consortium and related damages.
As relevant here, a claim under the FTCA is available for “the negligent or
wrongful act or omission of any employee of the Government while acting within
the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). The parties’

motions seek a favorable ruling on the issue whether Dr. Hager was acting within
the scope of his office or employment.
DISCUSSION
Summary judgment should be granted only if “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The party seeking summary judgment bears “the initial
burden to show the district court, by reference to materials on file, that there are no
genuine issues of material fact that should be decided at trial.” Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its
burden in either of two ways: (1) by “negating an element of the non-moving
party’s claim”; or (2) by “point[ing] to materials on file that demonstrate that the
party bearing the burden of proof at trial will not be able to meet that burden.” Id.
“Even after Celotex it is never enough simply to state that the non-moving party
cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305,
1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).
“When the moving party has the burden of proof at trial, that party must
show affirmatively the absence of a genuine issue of material fact: it must support
its motion with credible evidence ... that would entitle it to a directed verdict if not
controverted at trial. [citation omitted] In other words, the moving party must
show that, on all the essential elements of its case on which it bears the burden of
proof, no reasonable jury could find for the nonmoving party.” United States v.
Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc)
(emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115
(11th Cir. 1993).
“If the party moving for summary judgment fails to discharge the initial
burden, then the motion must be denied and the court need not consider what, if
any, showing the non-movant has made.” Fitzpatrick, 2 F.3d at 1116; accord
Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.
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“If, however, the movant carries the initial summary judgment burden ...,
the responsibility then devolves upon the non-movant to show the existence of a
genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving
party fails to make ‘a sufficient showing on an essential element of her case with
respect to which she has the burden of proof,’ the moving party is entitled to
summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett,
477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a
party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may …
consider the fact undisputed for purposes of the motion ….”).
In deciding a motion for summary judgment, “[t]he evidence, and all
reasonable inferences, must be viewed in the light most favorable to the
nonmovant ….” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243
(11th Cir. 2003).
There is no burden on the Court to identify unreferenced evidence
supporting a party’s position.1 Accordingly, the Court limits its review to the
exhibits, and to the specific portions of the exhibits, to which the parties have
expressly cited. Likewise, “[t]here is no burden upon the district court to distill
every potential argument that could be made based upon the materials before it on
summary judgment,” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599
(11th Cir. 1995), and the Court accordingly limits its review to those arguments the
parties have expressly advanced.
The parties agree that the question whether Dr. Hager was acting within the
scope of his office or employment under Section 1346(b)(1) is governed by the
law of Alabama, where the alleged wrong occurred. In particular, Alabama’s law
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Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it
may consider other materials in the record.”); accord Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 672 (10th Cir. 1998) (“The district court has discretion to go beyond the
referenced portions of these [summary judgment] materials, but is not required to do
so.”).
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of respondeat superior, as applied to employees involved in motor vehicle
accidents, applies. (Doc. 106 at 3-4; Doc. 109 at 16).
Dr. Hager lives in Prentiss, Mississippi and ordinarily works in that state.
However, he is subject to being temporarily assigned, and he was assigned to a
Dothan facility in August 2011 to cover for a resident veterinarian who was
attending training. His last services as a veterinarian on this assignment were
provided on Friday, August 26. Before dawn on August 27, Dr. Hager left Dothan
in his personal vehicle and headed to Prentiss. While traveling through Mobile,
Dr. Hager’s vehicle struck Mr. Suell’s motorcycle.
“The general rule is that an employee using an automobile, whether
belonging to his master or to himself, in going to and from his place of work, is
not at such times regarded as engaged in work for his master but is acting solely
for his own purposes.” Smith v. Brown-Service Insurance Co., 35 So. 2d 490, 493
(Ala. 1948). It is uncontroverted that, at the time of the accident, Dr. Hager was
driving from his place of work (Dothan) to his home (Prentiss). The general rule
is thus in play and, unless an exception applies, the general rule precludes the
plaintiffs’ suit against the defendant.
The plaintiffs focus on the following exception: “[W]here a master bears a
part of the expense of an automobile used by his servant in going to and from his
work and in and about his employment, and such transportation arrangement is
beneficial to both, the relation of master and servant continues while the
automobile is used for such purposes.” Atlanta Life Insurance Co. v. Stanley, 165
So. 2d 731, 735 (Ala. 1964). The Alabama Supreme Court in Shaw v. C.B. & E.,
Inc., 630 So. 2d 401 (Ala. 1993), borrowing from worker’s compensation cases,
phrased the exception as “aris[ing] when the driver/worker’s transportation
expenses constitute a part of the consideration paid for his services.” Id. at 404.
The Supreme Court recently applied Shaw’s formulation in Chesire v. Putman, 54
So. 3d 336, 340-41 (Ala. 2010).
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There is evidence that the defendant reimbursed Dr. Hager for his travel
expenses at the rate of $0.51 per mile, with the number of miles based on the most
direct route from Dothan to Prentiss. The defendant denies that these payments
are “part of the consideration paid for [Dr. Hager’s] services,” on the grounds that
he did not receive “actual fuel expenses” but a “standardized mileage subsidy.”
(Doc. 106 at 23). This cannot make a difference any more than it did in Stanley,
where the employer did not pay the employee’s actual expenses but “paid him
$5.00 per week toward” his vehicle operating expenses. 165 So. 2d at 734.
Citing Chesire, the defendant argues that the exception applies “only where
an employee substantially adhered to a predetermined route,” (Doc. 119 at 7), and
the defendant suggests that Dr. Hager did not do so because he took the longer
(but faster) Interstate route home rather than the more direct (but slower) route on
which his mileage reimbursement was based. Chesire, however, does not stand
for the proposition for which the defendant contends. The Court there merely
concluded that the driver was not “on a personal errand” because, although he
made two personal stops, he was not “traveling a substantially different route
home” than his “norma[l]” (not “predetermined”) route. 54 So. 3d at 341. At
most, Chesire may suggest that a driver paid for his travel expenses home is not
subject to the exception if he is not traveling home but has wandered off on some
other, personal mission. Here, there is evidence that Dr. Hager was at all times
traveling home, and by an efficient route.
Along similar lines, and citing Smith, the defendant argues that the
exception applies “only … where the accident occurred in the area covered by the
transportation expenses or along a route authorized by the employer.” (Doc. 119
at 4 & n.2). Smith may support the proposition that, when the employer furnishes
funds to defray the cost of operating a vehicle used in traveling the employee’s
territory, the provision of such funds does not support employer liability when the
employee is traveling outside his territory, see 35 So. 2d at 491, 493-94, but
neither Smith nor the other case on which the defendant relies (which did not
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involve the exception at all) suggests that an employee traveling home must be
driving “a route authorized by the employer.” As previously noted, Dr. Hager was
traveling home along an efficient route, and that is sufficient – perhaps more than
sufficient – for purposes of the exception.
As the defendant notes, (Doc. 119 at 5-6), application of the exception also
requires that the “transportation arrangement is beneficial to both” the employer
and the employee. 165 So. 2d at 735.2 The plaintiffs assert that the defendant
benefited from Dr. Hager’s travel because it “allowed the important inspection
station in Dothan to remain open while the FSIS veterinarian regularly assigned
there was on leave.” (Doc. 115 at 7). There is evidence that Dr. Hager was
assigned to cover the first shift at the Dothan station in place of another
veterinarian and that he was the only veterinarian assigned to cover that shift in the
resident veterinarian’s absence. (Docs. 100-5, -6, -7).
In Stanley, the employee – a traveling insurance salesman who worked out
of his home – had policy premiums in his car as he traveled home after completing
his work for the day. 165 So. 2d at 646. The Supreme Court held that “[i]t was
beneficial to his master that [the employee] returned the premium collections to
his home and headquarters.” Id. at 647. There was at least equal benefit imparted
by Dr. Hager’s travel, since it allowed the inspection station to be staffed and thus
properly operated. The defendant’s unexplained assertion that the effect of Dr.

2

Neither Shaw nor Chesire cited Stanley or acknowledged a “benefit”
requirement, but the Court does not believe that the Alabama Supreme Court thereby
overruled this portion of Stanley sub silentio. See, e.g., Ex parte Norfolk Southern
Railway Co., 897 So. 2d 290, 293 (Ala. 2004) (the Supreme Court may “sufficiently
disregar[d] [a precedent] over the years so as to lead to the conclusion that it has been
overruled sub silentio”). Because Shaw noted but did not apply the exception, its failure
to mention the “benefit” requirement of the exception does not contribute to a sub silentio
overruling of Stanley. A single, recent decision (Chesire) applying the travel-expenses
exception without consideration of a “benefit” requirement seems too slender a reed on
which to rest a conclusion that Stanley has been overruled sub silentio.
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Hager’s presence or absence on station operations is “speculative,” (Doc. 119 at
13), ignores the evidence cited in the preceding paragraph.
The defendant falls back to an interesting split-the-baby argument: while it
may have benefited from Dr. Hager’s travel to Dothan, it did not benefit from his
travel from Dothan, since Dr. Hager had by then concluded his provision of
veterinary services in Dothan. (Doc. 119 at 13). The defendant does not explain
how it could receive the benefit of Dr. Hager’s travel to Dothan and rendition of
services there without Dr. Hager returning home afterwards; his travel home thus
benefited the defendant as much as did his travel to Dothan.
The defendant also argues that, where the employee’s subjective motivation
in traveling home is wholly personal, as a matter of law his travel does not benefit
the employer, even when the employer reimburses his travel expenses. (Doc. 106
at 13). Nothing in the travel-expenses cases supports this proposition, and the
single case on which the defendant relies did not involve payment of the
employee’s travel expenses at all but rather payment of mileage taxes by the
employer, on its own vehicle, directly to the taxing authority. Hays v. Deaton
Truck Line, Inc., 87 So. 2d 825, 828 (Ala. 1956).
The Court need not and does not rule that all employee travel between
home and worksite benefits the employer for purposes of the travel-expenses
exception. But when, as the evidence here indicates, that travel is to or from a
remote location where the employee has been temporarily assigned, and where the
employer could not continue its normal operations absent the employee’s
assignment, the Court has no difficulty concluding that the benefit requirement is
satisfied.
Stanley requires that the travel arrangements be beneficial to the employee
as well as to the employer. Such a benefit appears to be found in the mere fact
that the employee’s travel expenses are paid or reimbursed. See Stanley, 165 So.
2d at 647 (finding the exception satisfied without addressing any benefit to the
employee); International Brotherhood of Teamsters, Chauffeurs, Warehousemen
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& Helpers of America v. Hatas, 252 So. 2d 7, 19-20 (Ala. 1971) (the employee’s
paid return home to Louisiana was beneficial to him) (citing Stanley). The
defendant makes no argument that this side of the “benefit” element is unsatisfied.
The defendant next insists that the travel-expenses exception applies only
“where the employer has reserved a right of control over the employee’s conduct
at the time the accident occurred.” (Doc. 119 at 4). The travel-expenses cases do
not support this proposition, and the only case on which the defendant relies was
not applying the travel-expenses exception. The employer in Smith did help
defray the employee’s vehicle expenses, but only for the vehicle’s use in servicing
the employee’s rural territory. 35 So. 2d at 492. Thus, when the employee was
involved in an accident in the city, the Court declined to utilize the exception and
instead evaluated the employer’s liability using traditional right-of-control
analysis. Id. at 493-95.
Finally, the defendant points to Justice Murdock’s concurrence in Chesire,
in which he appears to express skepticism at importing a travel-expenses
exception from worker’s compensation law into respondeat superior law and
cautions that any such exception should apply “only under narrow circumstances.”
54 So. 3d at 346 (Murdock, J., concurring in the result). (Doc. 119 at 8). While
Chesire and Shaw cited cases from the worker’s compensation context, Stanley
represents the earliest known Alabama Supreme Court decision recognizing the
exception in the respondeat superior context, and in doing so the Stanley Court did
not rely on any worker’s compensation cases. See 165 So. 2d at 646-47 (citing
General Foods Corp. v. Coney, 48 So. 2d 781 (Ala. App. 1950)). Whether or not
the exception should be given the narrow reading Justice Murdock somewhat
vaguely favors, the circumstances of this case do not test the outer limits of the
exception.
For the reasons set forth above, the Court concludes that the travelexpenses exception applies under the plaintiffs’ version of the evidence. When the
exception applies, it provides “substantial evidence indicating that [the employee]
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was operating within the course and scope of his employment.” Chesire, 54 So.
3d at 341. “Substantial evidence” is evidence from which the jury “can reasonably
infer the existence of the fact to be proved.” Id. at 340; accord Stanley, 165 So. 2d
at 647 (when the exception applies, “the question as to whether [the employee]
was in and about the business of the [employer] at the time of the accident [is] for
the jury”). The applicability of the exception thus requires the denial of the
defendant’s motion to dismiss or for summary judgment, as the defendant
concedes. (Doc. 113 at 21). Since the defendant’s other evidence and arguments
cannot alter this result, the Court need not consider them.
The plaintiffs appear to argue that the applicability of the exception
compels the Court to rule that Dr. Hager was acting in the line and scope of his
employment. (Doc. 109 at 23; Doc. 115 at 17, 20). As the quotes in the
immediately preceding paragraph reflect, this is incorrect; satisfying the exception
merely creates a jury issue as to whether the employee was so acting. The
question thus becomes whether the plaintiffs have presented other evidence and
argument which, taken together with their evidence concerning the travel-expenses
exception, eliminates any jury issue and entitles them to judgment as a matter of
law on the line-and-scope issue.
The plaintiffs first urge the Court to recognize a “traveling employee”
theory of respondeat superior liability. (Doc. 109 at 25-27). There is such an
animal under Alabama worker’s compensation law3 but, as the plaintiffs
acknowledge, (Doc. 115 at 24), not under respondeat superior jurisprudence. The
plaintiffs say the Court should import the theory into the latter context because,
after all, Shaw and Chesire cited worker’s compensation cases in addressing the
traveling-expenses exception. (Id.). As the Court has noted, however, the
traveling-expenses exception actually stems from Stanley and earlier respondeat
superior cases. Moreover, and as the defendant notes, (Doc. 113 at 19-20), there is
3

E.g., McDaniel v. Helmerich & Payne International Drilling Co., 112 So. 3d 41
(Ala. Civ. App. 2012).
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an inherent bias in the worker’s compensation context towards finding that an
accident arose out of and in the course of employment, and the plaintiffs have not
shown that Alabama’s respondeat superior analysis harbors a similar leaning in
favor of finding that an employee acted within the line and scope of his
employment. On the contrary, “[w]e have … expressly rejected any one-to-one
correspondence between compensation cases and the common law in the
application of the law of master and servant ….” Ex parte Stewart, 518 So. 2d
118, 120 n.2 (Ala. 1987). Just as “compensation cases require a broader
conception of the employer-employee relationship” than do respondeat superior
cases, id., so they appear to set a lower bar in terms of assessing the relationship
between an accident and the employment. In short, no “traveling employee”
theory is or will be part of this case.
The plaintiffs offer the following as additional evidence that Dr. Hager was
acting within the line and scope of his employment at the time of the accident: (1)
he had been “ordered” to return home on August 27; (2) he received 5.75 hours of
comp time representing his travel time home; (3) he was reimbursed for meals on
the trip home; (4) Dr. Hager and two other government representatives testified he
was acting within the line and scope of his employment at the time of the accident;
and (5) he received federal worker’s compensation benefits as a result of the
accident. (Doc. 109 at 18-22; Doc. 115 at 4-17). The defendant questions the
significance and even the admissibility of much of this evidence, but the Court
need not wade into such waters, because the plaintiffs have failed to demonstrate,
by resort to analysis and legal authority, that the circumstances on which they rely
would, even if fully credited, eliminate any jury issue on the line-and-scope issue.4

4

The plaintiffs instead offer only repeated bald assurances that their evidence
eliminates any triable issue. (Doc. 109 at 20-22; Doc. 115 at 4, 7, 12, 13, 29).
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CONCLUSION
For the reasons set forth above, the defendant’s motion to dismiss or, in the
alternative, for summary judgment, and the plaintiffs’ competing motion for
partial summary judgment, are denied.
DONE and ORDERED this 8th day of October, 2014.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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