Fischer, Elizabeth et al v. United States of America et al

Filing 102

ORDER denying as unnecessary 49 Motion for Partial Summary Judgment; denying as unnecessary 79 Motion for Partial Summary Judgment; granting 83 Motion for Partial Summary Judgment; granting 86 Motion for Summary Judgment; denying 93 Request for Evidentiary Hearing. Defendants Clauss and Government Employees Insurance Company dismissed from case. Signed by District Judge Barbara B. Crabb on 1/27/14. (krj)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ELIZABETH E. FISCHER, STEVE M. FISCHER,
and ANNETTE L. FISCHER,
OPINION AND ORDER
Plaintiffs,
12-cv-876-bbc
v.
UNITED STATES OF AMERICA, BRIAN A. CLAUSS,
GOVERNMENT EMPLOYEES INSURANCE COMPANY
and WISCONSIN MUTUAL INSURANCE COMPANY,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In this case brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 26712680, plaintiffs Elizabeth Fischer, Steve Fischer and Annette Fischer contend that defendant
Brian Clauss acted negligently when he hit a car driven by Elizabeth Fischer while he was
driving to a Kwick Trip store for groceries in a vehicle owned by the federal government. At
the time of the accident, Clauss was an employee of the United States Department of the
Interior on temporary assignment from his home office in Maryland to the Necedah
National Wildlife Refuge in Wisconsin.
The case is before the court on the question whether Clauss was acting within the
scope of his employment at the time of the accident. Unless the answer to this question is
yes, defendant United States of America cannot be held liable under the FTCA. 28 U.S.C.
§ 2679(b).

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Three matters related to the scope of employment are before the court: (1) plaintiffs’
motion for partial summary judgment, dkt. #83; (2) a motion for partial summary judgment
and petition for certification under 28 U.S.C. § 2679(d)(3) (allowing court to certify scope
of employment where Attorney General has refused to do so), filed by defendant Clauss and
his insurer, defendant Government Employees Insurance Company (GEICO), dkt. #86; and
(3) the government’s request for an evidentiary hearing, dkt. #93. Also before the court are
cross motions for partial summary judgment filed by plaintiffs and their insurance company,
defendant Wisconsin Mutual Insurance Company, on plaintiffs’ underinsured motorist
claim. Dkt. ##49 and 79. Plaintiffs have indicated that they are asserting their entitlement
to underinsured motorist coverage only if the court determines that Clauss was not acting
within the scope of his employment at the time of the accident. Dkt. #76 at 1-2.
I conclude that the undisputed facts establish that Clauss was acting within the scope
of his employment at the time of the accident. Accordingly, I am granting the motions for
summary judgment filed by plaintiffs, Clauss and GEICO on scope of employment and
denying the cross motions for summary judgment filed by plaintiffs and Wisconsin Mutual
on the underinsured motorist claim.

Although plaintiffs will not be pursuing their

underinsured motorist claim, defendant Wisconsin Mutual will remain in the case because
it may have a subrogation claim for medical payments made on behalf of Elizabeth Fischer.
The government’s request for an evidentiary hearing will be denied as unnecessary
because there are no material facts in dispute. For the same reason, it is unnecessary to
resolve the parties’ dispute over whether the court or a jury should resolve genuine issues of

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material fact related to the scope of employment. (I previously asked the parties to address
this issue in any future summary judgment motions.

Dkt. #66.

Plaintiffs and the

government contend that any action against the federal government shall be tried to the
court. 28 U.S.C. § 2402. Defendants Clauss and GEICO requested that a jury decide any
disputed issues of fact, arguing that the government had not yet been substituted as the sole
defendant.)
From the parties’ proposed findings of fact, I find the following facts to be material
and undisputed.

UNDISPUTED FACTS
A. Clauss’s Work Assignment
Defendant Brian Clauss is a resident of Maryland and has been employed by the
United States Department of the Interior for approximately 21 years. At all times relevant
to this case, he worked as a biological science technician for the United States Geological
Survey (a subdivision of the Department of Interior) on the whooping crane migration
project.

His primary place of employment or “duty station” is the Patuxent Wildlife

Resource Center located outside Laurel, Maryland. His immediate supervisor is Jonathan
Male, a supervisory biological science technician, who reports to Dr. John French, Jr., the
branch chief at Patuxent.
Because the whooping cranes spend their summers at the Necedah National Wildlife
Refuge near Necedah, Wisconsin, Clauss often travels to the refuge in the fall to assist in the

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flock’s migration to Florida. His assignments to the refuge last from three to four days to
six to eight weeks. When Male asked for assistance with the fall 2010 migration in Necedah,
Clauss volunteered. He expected his assignment to last three to four weeks. Clauss’s sole
purpose in working at the refuge was to serve the interests of his employer.
In preparation for the fall 2010 assignment, the government issued Clauss a “Travel
Authorization,” which authorized him to travel to “[a]ll points foreign and domestic when
necessary to conduct official business of the Patuxent Wildlife Research Center, when
directed to do so by your supervisor.” French signed the authorization, which approved the
use of a “government-owned conveyance” as a “Mode of Travel” and explained the travel as
follows:
10. PURPOSE AND REMARKS:
Performance of official duties of the Patuxent Wildlife Research Center
(EXCLUDING) (1) Travel to attend training, (2) Foreign Travel still requires
a DI-1175 . . . , (3) Travel funded by a non-federal source when authorized
under 31 USC 1350 and the Ethics Office requires a DI-2000 and (4)
Conference travel as described in FAM2001-011 and FAN 2001-012.
Clauss was assigned and issued a 2007 Ford Ranger pickup truck to drive from
Maryland to Wisconsin and use at his discretion while living and working on the refuge.
When Clauss left Maryland in September 2010 and headed to the Necedah Refuge, it was
Male’s understanding that Clauss was on official government travel.
Clauss did not have a supervisor or boss on the refuge and was authorized to exercise
his own discretion regarding the performance of his duties. His official position description
reads in relevant part as follows:
Factor 2 – Supervisory controls

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The supervisor provides direction and priorities, objectives and
deadlines for work previously performed and cover by
precedent. The supervisor provides more detailed information
on new or unusual assignments. The employee exercises
initiative in resolving routine problems, but seeks assistance in
resolving significant technical or procedural problems, usually
in a group decision making context. . .
Factor 4 – Complexity
The work requires the performance of various technical duties
that involve different and unrelated processes and methods. The
employee exercises discretion and judgment in selecting from
various approaches to planning, and conducting the work and
in applying conventional methods, approaches, and techniques
to new situations. Independently resolves precedent technical
and procedural problems encountered in planning, executing,
and finalizing assignment.
Factor 9 – Work environment
The work environment varies from laboratory setting to field
sites and offices. The work involves moderate risks and
discomforts (such as high noise levels and exposure to aggressive
cranes), chemicals, and adverse weather conditions that may
require special safety procedures to be followed. Because the
work involves the care and propagation of live animals, unusual
schedules or extended hours may be necessary, including
weekends and holidays.
Clauss did not have set work hours on the refuge and did not punch a clock or record
his hours in any way. He had the discretion and flexibility to determine when he performed
his work duties during the day. Clauss had to be ready to work and respond to any problems
that arose, 24 hours a day, seven days a week. Although he performed most of his work
during daylight hours, he had to deal with matters that came up at any time during the day
or night. On most days, Clauss met with other staff at 6:30 or 7:00 am to discuss the work
day.

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Clauss was assigned government-owned housing consisting of a Federal Emergency
Management Act (FEMA) trailer that had several bedrooms and a common area. The
common area included a kitchen with a refrigerator, stove, microwave, sink and cupboards.
Although his living arrangements did not include food, the government paid him a per diem
rate of $46 as reimbursement for his food expenses. On some occasions, Clauss would eat
at a restaurant, but on most occasions he purchased groceries that he stored, prepared and
ate in the kitchen of his FEMA trailer. He usually chose to travel into Necedah for groceries
during the early morning or evening when other work was not being performed at the refuge.
Male expected and intended Clauss to use the government-owned truck to go off the refuge
to get food. French also understood that Clauss was authorized to use the truck to get food
in Necedah, but he expected his employees doing field work to eat at times when it did not
interfere with their work.

B. The Accident
The accident at issue in this case occurred at about 5:30 a.m. on October 3, 2010 in
Juneau County, Wisconsin.

At the time of the accident, Clauss was driving his

government-owned truck on a direct route from his living quarters on the refuge to the Kwik
Trip store in Necedah. He intended to purchase groceries and transport them back to his
living quarters on the refuge. (The parties dispute whether Clauss also intended to get gas
for his truck and call his wife, a fellow USGS employee, to talk about the whooping crane

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migration.) Because Necedah did not have a grocery store, the Kwik Trip was the only place
in Necedah to purchase groceries.
A few days after the accident, Clauss’s employer required him to fill out a form titled
“Motor Vehicle Accident Report.” On Section X, line 74, of the report, Clauss identified the
“exact purpose of trip” to be “to get groceries while on travel.” As Clauss’s supervisor, Male
was required to fill out part of the report, and he provided the following information:
81. COMPLETED BY DRIVER’S SUPERVISOR
a. DID THIS ACCIDENT OCCUR WITHIN THE EMPLOYEE’S
SCOPE OF DUTY • YES ‘ NO
b. COMMENTS: Employee was on gov. time at time of accident.

C. Vehicle Management Handbook
The United States Department of the Interior Motor Vehicle Management Handbook
provides “uniform guidelines for the acquisition, management, maintenance and disposal of
owned, commercially-leased, and General Services Administration (GSA)-provided vehicles
by bureaus and offices of the Department of the Interior” and “implements laws and
regulations mandated by Congress, Executive Order, the Office of Management and Budget,
and internal Departmental policy and procedures.” The handbook states the following
regarding the use of government-owned vehicles:
2. Official Use. Government owned, leased, or otherwise managed motor
vehicles shall be obtained and utilized only to the extent required for the
efficient and effective transaction of official Government business.
Government motor vehicles are not provided for the convenience of DOI
employees.

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A. It is official business when a Government motor vehicle is used:
(3)

While on official temporary duty (TDY) travel
assignments as documented and approved on DOI
Form 1020 (Travel Authorization). Secretary
approval is not required for home-to-work
transportation during official travel. This includes
using a Government motor vehicle for transportation
for the following purposes:
*
(g)

*

*

From place of lodging at a temporary duty
station, where other reasonable means of
transportation are not available, to obtain
goods or services necessary to the health and
well-being of the employee. This includes
travel in a Government vehicle to obtain
medical services, attend religious services, and
to obtain goods and services at restaurants,
barbershops, beauty shops, drugstores,
laundries, and dry-cleaning establishments.

OPINION
The Federal Tort Claims Act (FTCA) provides a limited waiver of the federal
government's sovereign immunity, giving federal courts jurisdiction over claims against the
United States “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.” 28 U.S.C. § 1346(b)(1). Because a claim
brought under the FTCA is governed by “the law of the place where the act or omission
occurred,” id., Wisconsin law governs whether Clauss was acting within the scope of his

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employment at the time of the accident, Taboas v. Mlynczak, 149 F.3d 576, 582 (7th Cir.
1998).
Wisconsin requires courts to consider the employee’s intent in determining whether
the employee’s conduct falls within the scope of his employment. Olson v. Connerly, 156
Wis. 2d 488, 499-500, 457 N.W.2d 479, 483-84 (1990) (citing cases); Block v. Gomez, 201
Wis. 2d 795, 806, 549 N.W.2d 783, 788 (Ct. App. 1996). Employees act within the scope
of their employment as long as they are, “at a minimum, ‘partially actuated by a purpose to
serve the employer.’” Block, 201 Wis. 2d at 806 (quoting Olson, 156 Wis. 2d at 499).
“Serving the employer need not be the sole purpose of the employee’s conduct, nor need it
be even the primary purpose.” Id. An employee’s conduct falls outside of the scope of his
or her employment “if it is too little actuated by a purpose to serve the employer or if it is
motivated entirely by the employee’s own purpose,” or “if the employee fully steps aside
from conducting the employer’s business to procure a predominantly personal benefit.” Id.
The test is similar to that set forth in the Restatement (Third) of Agency § 7.07(2) (2006):
An employee acts within the scope of employment when performing work
assigned by the employer or engaging in a course of conduct subject to the
employer's control. An employee's act is not within the scope of employment
when it occurs within an independent course of conduct not intended by the
employee to serve any purpose of the employer.
As a general rule, an employee in Wisconsin is not acting within the scope of his
employment when commuting from his home to or from his given place of employment
unless the employer exercises control over the “method or route” of the employee’s travel to
or from work. Geldnich v. Burg, 202 Wis. 209, 210, 231 N.W. 624, 624 (1930); DeRuyter

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by Jacquart v. Wisconsin Electric Power Co., 200 Wis. 2d 349, 360-61, 546 N.W.2d 534,
539-40 (Wis. Ct. App. 1996). In DeRuyter, 200 Wis. 2d at 355–56, the employee was
involved in a car accident while driving from his home to a vocational training session at his
employer’s central training center. The court focused on the employer’s control and found
that “without such control, the employee is not actuated by a purpose to serve the employer
. . . but is solely promoting the employee's ‘own convenience.’” Id. at 361-62 (citing Strack
v. Strack, 12 Wis. 2d 537, 542, 107 N.W.2d 632, 634 (1961)). Where the employee does
not have a fixed place of employment, however, courts have held that the DeRuyter
employer-control analysis does not apply, and the inquiry focuses solely on whether the
employee is “actuated by a purpose to serve his employer.” Brown v. Acuity, 2013 WI 60,
¶32, 348 Wis. 2d 603, 619, 833 N.W.2d 96, 104 (volunteer firefighter traveled to different
locations at request of his employer); Murray v. Travelers Insurance Co., 229 Wis. 2d 819,
828, 601 N.W.2d 661, 664-65 (Ct. App. 1999) (physical therapist traveled to and from
homes of her patients to perform her work).
Plaintiffs, Clauss and GEICO go to great lengths to distinguish between “commuting”
cases and “traveling” cases, arguing that Clauss better fits the definition of a “traveling”
employee. They contend that Clauss acted with at least a partial intent to serve his employer
at the time of the accident because he was using a government vehicle while on assignment
away from home to purchase food for which the government gave him a per diem. (Clauss
alleges that at the time of the accident, he also planned to get gas for his government-owned
truck and to call his wife, a fellow co-worker, to discuss the whooping cranes. However,

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because I agree with the government that these facts are in dispute, I have not considered
them in deciding the motions.) The government argues that even though Clauss was on
temporary assignment at the refuge and had no set work hours, his employer did not control
every activity that he engaged in. It contends that Clauss’s grocery shopping was merely a
personal errand that he was performing during his free time.
I agree that Clauss is not the typical “commuting” employee. He was on temporary
assignment away from his home and not driving between his home and regular place of
employment. Given the nature of Clauss’s work, he was constantly subject to the demands
of his job. The government controlled where he lived, his method of travel and his time. As
a result, he is more akin to the volunteer firefighter in Brown or the physical therapist in
Murray, who traveled to sites determined by the location of their clients. However, even if
Clauss is a traveling employee, he still must have been actuated at least in part by a purpose
to serve his employer at the time of the accident. Restatement (Third) of Agency § 7.06,
Cmt. b (“If an employee commits a tort . . . while acting within a course of conduct subject
to the employer’s control, the employee’s conduct is within the scope of employment unless
the employee was engaged in an independent course of conduct not intended to further any
purpose of the employer.”); WI JI-Civ 4045, “Servant: Scope of Employment While
Traveling” (where “it is the employer’s trip and the employee makes any detours for purely
personal objectives, such detours must be separated from the main trip and the employee
held to be outside the scope of his employment”); Dan B. Dobbs, Paul T. Hayden and Ellen
M. Bublick, The Law of Torts § 428 (2d ed.) (employee who is working out of town and on

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call or on duty at all times may remain in course of employment even during travel, but
vicarious liability will follow only where employee not engaged in purely personal activity).
For example, in Brown and Murray, the employees were both en route to a job at the time
of their accidents. In this case, Clauss was on his way to buy food. Therefore, the question
is whether Clauss was acting at least in part with a purpose to serve his employer at the time
of the accident.
As the government notes, it is generally true that “where an employer permitted an
employee the use of a car in going to his meals, the employee was not facilitating the master's
business, and the master was not responsible for damages resulting from his negligence while
on such trips.” Geldnich, 202 Wis. at 209 (citing Steffen v. McNaughton, 142 Wis. 49, 124
N.W. 1016 (1922); Gewanski v. Ellsworth, 166 Wis. 250, 164 N.W. 996 (1917); Bloom
v. Krueger, 182 Wis. 29, 195 N.W. 851). In Gewanski, 166 Wis. 250, the court explained
that
In order to create a liability for the use of the automobile of the master by the
servant two things must appear: First, the use must be with the knowledge
and consent of the master; and, second, it must be used within the scope of
the employment and to facilitate the master's business. While it is true that
fair and generous treatment on the part of the master is likely to produce a
corresponding sense of loyalty on the part of the servant, it cannot be said that
such treatment of a servant by a master in any way promotes or facilitates the
master's business in a legal sense.
Thus, even if an employer gives the employee permission to use a vehicle to get his
lunch, that fact alone is not sufficient to bring the employee within the scope of his
employment. As the supreme court has explained, the scope of employment determination
“involves an inquiry into the contract of . . . employment and the relation of [the

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employee’s] acts at the time of the accident to the service he actually performed pursuant
to his employment.” Steffen, 124 N.W. at 1017. For example, in Steffen, the court found
the relevant question to be whether the use of the employer’s car was “a permissive privilege
granted to (him), of which he availed himself, to facilitate his labor and service, and . . .
equally connected with it and the relation of master and servant.” Steffen, 124 N.W. at
1017-18. See also Wis JI-CIV 4035 (employee acting within scope of employment when “in
obedience to the express orders or direction of his or her master, or doing that which is
warranted within the terms of his or her express or implied authority, considering the nature
of the services required, the instructions which he or she has received, and the circumstances
under which his or her work is being done or the services are being rendered”).
In this case, it is undisputed that the government not only authorized Clauss to use
the truck to get his meals but actually considered it official government business to do so.
His supervisors expected him to travel to get food as part of his work on the refuge because
the assignment placed him in an isolated location with an “unusual schedule” and extended
hours. In addition, the Department of Interior’s vehicle management handbook states that
an employee who travels “from a place of lodging at a temporary duty station, where other
reasonable means of transportation are not available, to obtain goods or services necessary
to the health and well-being of the employee” is on “official business.” The handbook
further states that the vehicle is not provided for the convenience of the employee. It is clear
from this language that the government viewed such trips as facilitating the work of an
employee temporarily assigned to a remote location. Restatement (Third) of Agency § 7.06,

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Cmt. d (purely personal acts such as eating may be within scope of employment because they
are incidental to employee’s performance of assigned work).
The government has requested an evidentiary hearing to resolve the scope of
employment issue. However, because the undisputed facts in this case point to only one
reasonable conclusion, a hearing is unnecessary. For the reasons explained above, the partial
motions for summary judgment filed by plaintiffs and defendants Clauss and GEICO will
be granted and I will certify under 28 U.S.C. § 2679(d)(3) that Clauss was acting within the
scope of his employment at the time of the accident. As a result, defendants Clauss and
GEICO will be dismissed from this lawsuit.

ORDER
IT IS ORDERED that
1. The motion for partial summary judgment filed by plaintiffs Elizabeth Fischer,
Steve Fischer and Annette Fischer, dkt. #83, is GRANTED;
2. The petition for certification under 28 U.S.C. § 2679(d)(3) and motion for partial
summary judgment filed by defendants Brian Clauss and Government Employees Insurance
Company, dkt. #86, is GRANTED;
3. The cross motions for partial summary judgment filed by plaintiffs and defendant
Wisconsin Mutual Insurance Company, dkt. ##49 and 79, are DENIED as unnecessary and
the underinsured motorist claim against Wisconsin Mutual is DISMISSED;

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4.

Defendants Clauss and Government Employees Insurance Company are

DISMISSED from the case; and
5. Defendant United States’ request for an evidentiary hearing, dkt. #93, is DENIED
as unnecessary.
Entered this 27th day of January, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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