United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge.
years ago, plaintiff Kenneth Lee Hammerlund got into a car
accident with Steven Bader. Hammerlund filed suit in state
court against Bader and the Auto Club Group, Bader's
insurer, and named AIG Property Casualty as an intervenor.
Because Bader was acting within the scope of his federal
employment when the accident occurred, the United States
removed the suit to this court and substituted itself for
Bader on January 30, 2017. Dkt. 1.
United States answered Hammerlund's complaint and filed
an early motion for summary judgment (and a motion to stay
the case, pending a decision on the motion for summary
judgment). The United States contends that Hammerlund failed
to exhaust administrative remedies before filing suit, as
required under the Federal Tort Claims Act. Hammerlund
opposes summary judgment, contending that he did not know
that Bader was a federal employee when he filed suit.
concedes that he did not exhaust administrative remedies
before filing suit. Therefore, the court will grant the
United States' motion for summary judgment. The court
will also grant Auto Club's motion for summary judgment
because Bader's personal policy does not cover
Hammerlund's claim against the United States.
where noted, the following facts are undisputed.
February 18, 2014, Kenneth Lee Hammerlund and Steven Bader
were involved in a car accident. When the accident occurred,
Bader was acting within the scope of his employment with the
Federal Deposit Insurance Corporation (FDIC): Bader was
traveling from the FDIC Eau Claire, Wisconsin office to
conduct a bank examination. The FDIC authorized Bader to
travel in his personal vehicle for this purpose. After the
accident, Bader gave Hammerlund his personal vehicle
insurance information. No one disputes the fact that Bader
was acting within the scope of his federal employment.
December 14, 2016, 34 months after the accident, Hammerlund
filed this suit against Bader and Auto Club, Bader's
personal insurer, and named AIG Property Casualty as an
intervenor. On January 30, 2017, the United States removed
the suit to this court and moved to substitute itself for
Bader. Dkt. 1; Dkt. 2; Dkt. 11. The United States answered
Hammerlund's complaint by asserting, as an affirmative
defense, Hammerlund's failure to exhaust administrative
remedies before filing suit.
judgment is appropriate if the moving party “shows that
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). “Only disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In reviewing defendants' motions for summary
judgment, the court construes all facts and draws all
reasonable inferences in Hammerlund's favor. Id.
at 255. “To survive summary judgment, the nonmovant
must produce sufficient admissible evidence, taken in the
light most favorable to it, to return a jury verdict in its
favor.” Fleishman v. Cont'l Cas. Co., 698
F.3d 598, 603 (7th Cir. 2012).
United States' motion for summary judgment
the Federal Tort Claims Act, an individual may bring a claim
against the United States “for money damages, . . . 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).
Once such a claim accrues, a claimant has two years to
present the claim, in writing, to “the appropriate
federal agency, ” or that claim “shall be forever
barred.” 28 U.S.C. § 2401(b). A claimant
must so present his claim before filing suit against
the United States. 28 U.S.C. § 2675(a).
does not dispute that Bader was acting within the scope of
his federal employment when the accident occurred, so
Hammerlund has no choice but to proceed under the FTCA. 28
U.S.C. § 2679(b)(1); Couch v. United States,
694 F.3d 852, 856 (7th Cir. 2012) (The FTCA “is the
exclusive remedy for any tort claim resulting from the
negligence of a government employee acting within the scope
of employment.”). But Hammerlund has not presented his
claim in writing to the appropriate federal agency; he
concedes as much. So the court must dismiss his claim:
“[a] plaintiff's failure to exhaust administrative
remedies before he brings suit [under the FTCA] mandates
dismissal of the claim.” Palay v. United
States, 349 F.3d 418, 425 (7th Cir. 2003).
court could stop here. But it will briefly address
Hammerlund's attempts to save his suit. Hammerlund
contends that he did not have the chance to present his claim
to the appropriate federal agency because he did not know
that Bader was acting within the scope of his federal
employment when he filed suit. But that does not excuse
Hammerlund from complying with applicable exhaustion
requirements. Hammerlund's suit, though commenced against
Bader and not the United States, is still “subject to
the limitations and exceptions applicable to” actions
filed against the United States. 28 U.S.C. § 2679(d)(4).
Hammerlund offers a strained argument that somehow his claim
did not accrue until he learned that Bader was a federal
employee. But this argument does not help him here.