Liability and Insurance Coverage for Government Employees Who Use Automobiles in Connection With the Official Travel of the President and Vice President ( 1978 )


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  •                                                                  June 2 3 , 1978
    78-36     MEMORANDUM OPINION FOR THE COUNSEL
    TO THE VICE PRESIDENT
    Officers and Employees— Volunteers— Federal Tort
    Claims Act (
    28 U.S.C. § 2679
    (b))— Operation of
    Motor Vehicles— Liability
    This is in response to your request for our answers to seven questions
    concerning liability and insurance coverage for Government employees and
    other persons who use automobiles in connection with the official travel of the
    President and Vice President. The vehicles involved may be Government-
    owned, leased for the occasion, or privately owned. The persons involved
    include:
    — Regular full-time Government employees.
    — Individuals who work on an irregular basis and receive compensa­
    tion as consultants and travel and subsistence expense reimbursement.
    — Individuals who volunteer their time but receive travel and
    subsistence expense reimbursement.
    — Individuals who volunteer their time and receive no reimbursement
    for their expenses.
    Vehicles may be rented in the name of the United States or in the name of the
    individual involved.
    The seven questions you presented are as follows:
    1. What liability coverage is provided by the Government for its employees?
    2. Which of the above-described “ staff” are covered by such protection?
    3. Is the coverage the same regardless of the nature of the vehicle involved,
    i.e., Govemment-owned, leased, or privately owned?
    4. In the event that not all of the “ staff” described are covered by the
    protection provided for regular Government employees, what are the minimum
    employment-related steps that must be taken to insure that an individual will be
    covered?
    5. When renting a car, an option is provided to purchase insurance covering
    the deductible under the policy carried by the rental agency. Can and should
    this option be exercised affirmatively when the rental will be paid for with
    Government funds?
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    6. What is the Government’s responsibility if a person for whom liability
    coverage is provided by the Government uses the vehicle for a personal frolic
    and an accident occurs?
    7. On those occasions when the trip is a mixed official/political trip, what
    effect is there on the coverage that is provided by the Government?
    I. General Principles
    The liability of the Government and the individuals involved is governed
    primarily by the Federal Tort Claims Act, 
    28 U.S.C. § 2679
    (b), which provides
    as follows:
    The remedy against the United States provided by sections 1346(b)
    and 2672 of this chapter for injury or loss of property or personal
    injury or death, resulting from the operation by an employee of the
    Government of any motor vehicle while acting within the scope of his
    office or employment, shall hereafter be exclusive of any other civil
    action or proceeding by reason of the same subject matter against the
    employee or his estate whose act or omission gave rise to the claim.
    The cited sections provide, with exceptions not relevant here, that the
    Government is liable for the negligence of its employees in the same manner as
    a private person. Thus, the effect of § 2679(b) is to make a suit against the
    United States under the Federal Tort Claims Act the sole remedy for damages
    arising from an automobile accident involving a Government employee acting
    in the course of his employment. See, e.g ., Thompson v. Sanchez, 539 F. (2d)
    955, 958 (3d Cir. 1976); Carr v. United States, 422 F. (2d) 1007, 1009-10 (4th
    Cir. 1970). Under the Act, it is the employee’s duty to provide the Department
    of Justice with copies of any pleadings or process in a suit against him and the
    Department defends such suits. See 
    28 U.S.C. § 2679
    (c); 
    28 CFR § 15.1
    (a).
    The protection provided employees by the Act is in lieu of any liability
    insurance furnished by the United States. The Comptroller General has held
    that appropriated funds are not available to pay for liability insurance for the
    Government or its employees unless a statute expressly so provides. 
    19 Comp. Gen. 798
     (1940); cf. 
    42 Comp. Gen. 392
     (1963); 
    22 Comp. Gen. 740
     (1943).
    This holding is based on the view that it is ordinarily cheaper for the United
    States to self-insure than to purchase insurance. See 
    19 Comp. Gen. 798
    (1940). The legislative history of § 2679(b) points out that suit against the
    United States was made the exclusive remedy because it is less expensive than
    having the Government either carry liability insurance for its drivers or
    reimburse them for their own insurance. See S. Rept. 736, 87th Cong., 1st
    sess., at 2-4 (1961); 107 Cong. Rec. 18499-500 (1961). In the light of the
    legislative history, we believe that the purchase of liability insurance for
    persons covered by the Act is unnecessary.
    For the purpose of the Federal Tort Claims Act, an “ employee of the
    government” is defined, 
    28 U.S.C. § 2671
    , as:
    [0]fficers and employees of any federal agency. . . and persons
    acting on behalf of a federal agency in an official capacity, temporar­
    146
    ily or permanently in the service of the United States, whether with or
    without compensation.
    The courts have consistently held that the test of employment under this statute
    is the common law principle of respondeat superior, particularly the “ power to
    control the detailed physical performance of the individual.” Logue v. United
    States, 
    412 U.S. 521
    , 527-28 (1973); see also, United States v. Becker, 378 F.
    (2d) 319, 321-23 (9th Cir. 1967); Prater v. United States, 
    357 F. Supp. 1044
    ,
    1045 (N.D. Tex. 1973); Delgado v. Akins, 
    236 F. Supp. 202
     (D. Ariz. 1964);
    Martarano v. United States, 
    231 F. Supp. 805
    , 807 (D. Nev. 1964); cf., United
    States v. Orleans, 
    425 U.S. 807
    , 814-15 (.1976). The question of control turns
    on the facts of the particular case, and the courts are guided by the criteria set
    forth in Restatement, Agency 2d, §§ 2(l)-(2), 212. See, e.g., Logue v. United
    States, supra; Becker v. United States, supra. If the power of detailed
    supervision over the person exists, he is an employee even though unpaid or
    paid by a third person. See, e.g., Provancial v. United States, 454 F. (2d) 72,
    75 (8th Cir. 1972); Delgado v. Akins, supra; Martarano v. United States,
    supra. As stated by the court in Martarano, at p. 807:
    This does not mean, however, that only a person officially on a
    federal payroll may come within the definition of federal employee.
    The usual rules of respondeat superior are to be applied. This is quite
    plainly recognized in the statutory definition of employee of the
    Government by apt words encompassing persons “ acting on behalf
    of a federal agency, temporarily or permanently,” whether with or
    without compensation.
    II. Specific Questions
    Applying these principles to your questions, our conclusions are as follows:
    1. The United States assumes liability for the negligence of an employee
    operating any motor vehicle in the course of his official duties. Any other
    action against the employee arising out of an automobile accident occurring in
    the course of his employment is barred.
    2. The status of an individual as full time, part time, paid, or unpaid, does
    not determine whether he is an “ employee” of the Government. The
    significant fact is whether the Government agency involved has the power to
    exercise detailed supervision and control over the individual’s performance of
    his duties. Indicia of this power are: setting personal qualifications for the
    individual; that he is required to perform the services himself; and that he may
    be discharged by the agency. See, e.g ., Becker v. United States, 378 F. (2d)
    319, 322-23 (9th Cir. 1967); Prater v. United States, 
    357 F. Supp. 1044
    , 1045
    (N.D. Tex. 1973); Delgado v. Akins, 
    236 F. Supp. 202
    , 203 (D. Ariz. 1964).
    See generally. Restatement, Agency, 2d § 220. Under these criteria, we believe
    that all of the individuals involved here would fall within the Federal Tort
    Claims Act when their official functions on behalf of the Vice President require
    them to operate a motor vehicle.
    3. Section 2679(b) applies to “ any” motor vehicle. It has been held to
    147
    include privately owned vehicles driven on official business. See, e.g., Levin v.
    Taylor, 446 F. (2d) 770 (D.C. Cir. 1972); Nistendisk v. United States, 
    225 F. Supp. 884
     (W.D. Mo. 1964). While we are not aware of any case involving
    rented vehicles, we see no reason why the statute would not apply to them as
    well.
    4. All of the enumerated individuals are “ employees” as long as the Office
    of the Vice President has the power of detailed supervision over the perform­
    ance of their official duties.
    5. The Act makes the Government liable for both personal injury and
    property damage. As noted above, its legislative history indicates that this was
    intended to substitute for the procurement of liability insurance. In view of this
    legislative history and the Comptroller General’s opinion that specific statutory
    authority is needed to procure insurance, optional insurance for rented vehicles
    may not be procured with Government funds.1
    6. The Act makes the Government liable only for accidents that occur when
    an employee is “ acting within the scope of his office or employment.” The
    scope of employment and the extent to which the Government remains liable
    where the employee deviates therefrom is determined by the law of respondeat
    superior at the place of the accident. See 
    28 U.S.C. § 2674
    ; and, e.g ., Williams
    v. United States, 
    350 U.S. 857
     (1955); Platis v. United States, 409 F. (2d)
    1009 (10th Cir. 1969); Guthrie v. United States, 392 F. (2d) 858 (7th Cir.
    1968). As a general rule, driving would appear to be within the scope of
    employment “ if the Government’s interest was a substantial factor in the trip.”
    Guthrie v. United States, supra, 392 F. (2d) at 860; see, Levin v. Taylor, 464
    F. (2d) 770 (D.C. Cir. 1972); United States v. Romiti, 363 F. (2d) 662 (9th Cir.
    1966). See generally, Restatement, Agency 2d, § 236 and comments, 523.
    However, the decisions emphasize that the facts of each particular case are
    controlling. E .g., Guthrie v. United States, supra; United States v. Romiti,
    supra. While we can say as a general rule that the Government would not be
    liable for an accident during a “ frolic” or “ diversion” for the personal benefit
    of the driver,2 the application of this rule to any particular incident depends
    both on the specific facts and the law of the State where the accident may occur.
    7. The liability of the United States is determined not by the nature of the
    President’s or Vice President’s travels but rather by the purpose for which the
    employee in question is driving. In a previous memorandum, we pointed out
    that even on political trips the President and Vice President require staff and
    assistance to perform their official functions. This, we stated, “ would
    ordinarily include full provision for comfort and safety of the party; communi­
    cations facilities for control and administration of the Armed Forces and other
    'W e note that the C om ptroller G eneral perm its the purchase o f casualty or liability insurance on
    leased private property if the ow ner requires it as a condition o f the lease. See 42 Comp. G en. 392
    (1963). T hus, there is no restriction on paying any part o f the rental fee attributable to mandatory
    insurance.
    2See, e.g.. Van Houten v. Ralls, 411 F. (2d) 940 (9th Cir. 1969); Binn v. United States. 
    389 F. Supp. 988
     (E .D . W is. 1975); Tavolieri v. Allain, 
    222 F. Supp. 756
     (D. M ass. 1963). See also H.
    Rept. 297, 87th C o n g ., 1st sess., at 4 , 8-9 (1961).
    148
    agencies of the Government; clerical, logistical, and other administrative
    support; staff assistance in the management of paperwork and the records of
    decisions; and those staff members, advisers, and other persons who may
    reasonably be required for consultation or advice during the period of travel.”
    We believe that driving in relation to these functions is for the benefit of the
    official functions of the Vice President, regardless of the reason he is
    traveling,3 and thus within the scope of a driver’s official duties. However,
    there has never been any litigation on this point. In view of the case-by-case
    approach the courts take to scope-of-employment questions, we cannot predict
    where they would draw the line between official and political functions of
    employees traveling with the Vice President.
    III. Additional Comments
    Your memorandum also requested any additional comments we considered
    appropriate. We therefore call your attention to the procedures by which
    employees receive the protection of the Federal Tort Claims Act. Under 
    28 CFR § 15.1
    (a), any employee sued for personal injury or property damage on
    account of his driving a motor vehicle in the scope of his employment must
    promptly deliver all papers and pleadings to his immediate superior or a person
    designated by the agency. He must also immediately notify this person by
    telephone or telegraph. The agency in turn must notify and provide copies of
    the litigation papers to the United States Attorney for the judicial district in
    which the accident occurred and to the Chief, Torts Section, Civil Division, of
    the Department of Justice.
    Under 
    28 CFR § 15.2
    (a), the agency must provide the U.S. Attorney and the
    Torts Section with a report “ containing all data bearing on the question whether
    the employee was acting within the scope of his office or employment” at the
    time of the accident.
    The U.S. Attorney may have a State court suit against an employee removed
    to the Federal district court by certifying that the employee was acting within
    the scope of his employment, 
    28 U.S.C. § 2679
    (c); 
    28 CFR § 15.3
    (a). If the
    district court determines that the driver was not an employee acting within the
    scope of his employment, the case will be remanded to the State court. See,
    e.g., Binn v. United States, 
    289 F. Supp. 988
     (E.D. Wis. 1975); Tavolieri v.
    Allain, 
    222 F. Supp. 756
     (D. Mass. 1963).
    3T he cited m em orandum also states that travel by the Vice President is "p o litic a l” if its prim ary
    purpose involves his status as a party leader, e.g., fund-raising, cam paigning for particular
    candidates, and appearing at party functions. T ravel to obtain public confidence and support for the
    m easures o f the A dm inistration, on the other hand, is part o f the official functions o f the Vice
    President.
    149
    We suggest that you inform part-time or volunteer drivers of their duty to
    report suits and to forward the papers in order to obtain the protection of the
    Federal Tort Claims Act. We further suggest that you consult the Torts Section
    about the form and content of the report required by 
    28 CFR § 15.2
    (a).
    L eo n U   lm an
    Deputy Assistant Attorney General
    Office o f Legal Counsel
    150