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Hammerlund v. The Auto Club Group

United States District Court, W.D. Wisconsin

July 24, 2017

KENNETH LEE HAMMERLUND, Plaintiff,
v.
THE AUTO CLUB GROUP and UNITED STATES OF AMERICA, Defendants, and AIG PROPERTY CASUALTY, Intervenor.

          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         A few 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.

         The 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.

         Hammerlund 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.

         UNDISPUTED FACTS

         Except where noted, the following facts are undisputed.

         On 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.

         On 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.

         ANALYSIS

         Summary 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).

         A. United States' motion for summary judgment

         Under 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).

         Hammerlund 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).

         The 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. ...


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