Florida Auto Auction of Orlando, Inc. v. United States

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FLORIDA AUTO AUCTION OF ORLANDO,
INCORPORATED, d/b/a Lakeland Auto
Auction, as successor in interest to
the claims of Lakeland Auto
Auction, Incorporated; FLORIDA
AUTO AUCTION OF ORLANDO,
INCORPORATED, d/b/a Imperial Auto
Auction of Orlando, Incorporated,
as successor in interest to the claims
of Florida Auction Services
Corporation, d/b/a Imperial Auto
Auction of Orlando; CENTENNIAL
CASUALTY COMPANY, as subrogee of
claims of ADT Automotive,
Incorporated, formerly doing
No. 95-1271
business as West Palm Beach Auto
Auction, Incorporated; FLORIDA
AUTO AUCTION OF ORLANDO,
INCORPORATED; CENTENNIAL
CASUALTY COMPANY, as subrogee of
the claims of ADT Automotive,
Incorporated, formerly doing
business as Orange County Auto
Auction, Incorporated, now known
as Greater Orlando Auto Auction,
Plaintiffs-Appellees,
v.
UNITED STATES OF AMERICA,
Defendant-Appellant.
FLORIDA AUTO AUCTION OF ORLANDO,
INCORPORATED, d/b/a Lakeland Auto
Auction, as successor in interest to
the claims of Lakeland Auto
Auction, Incorporated; FLORIDA
AUTO AUCTION OF ORLANDO,
INCORPORATED, d/b/a Imperial Auto
Auction of Orlando, Incorporated,
as successor in interest to the claims
of Florida Auction Services
Corporation, d/b/a Imperial Auto
Auction of Orlando; CENTENNIAL
CASUALTY COMPANY, as subrogee of
claims of ADT Automotive,
Incorporated, formerly doing
No. 95-1347
business as West Palm Beach Auto
Auction, Incorporated; FLORIDA
AUTO AUCTION OF ORLANDO,
INCORPORATED; CENTENNIAL
CASUALTY COMPANY, as subrogee of
claims of ADT Automotive,
Incorporated, formerly doing
business as Orange County Auto
Auction, Incorporated, now known
as Greater Orlando Auto Auction,
Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeals from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CA-92-2537-2-18, CA-92-2535-2-18, CA-92-2536-2-18,
CA-92-2538-2-18, CA-92-2539-2-18)
2
Argued: November 1, 1995
Decided: January 31, 1996
Before MURNAGHAN and MOTZ, Circuit Judges, and YOUNG,
Senior United States District Judge for the District of Maryland,
sitting by designation.
_________________________________________________________________
Reversed in part and affirmed in part by published opinion. Judge
Murnaghan wrote the opinion, in which Judge Motz and Senior Judge
Young joined.
_________________________________________________________________
COUNSEL
ARGUED: Deborah Ruth Kant, Appellate Staff, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellant. Donald William Tyler, Sr., TYLER, CASSELL,
JACKSON, PEACE & SILVER, L.L.P., Columbia, South Carolina,
for Appellee. ON BRIEF: Frank W. Hunger, Assistant Attorney Gen-
eral, J. Preston Strom, Jr., United States Attorney, Robert S. Green-
span, Appellate Staff, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. M.
Alan Peace, TYLER, CASSELL, JACKSON, PEACE & SILVER,
L.L.P., Columbia, South Carolina; Charles R. Stepter, Jr., FISH-
BACK, DOMINICK, BENNETT, STEPTER, ARDAMAN &
BONUS, Orlando, Florida, for Appellee.
_________________________________________________________________
OPINION
MURNAGHAN, Circuit Judge:
Appellees, automobile auctioneers, sued Appellant, the Federal
Government, claiming that United States Customs officials committed
the torts of negligence and conversion when they allowed automo-
biles to be exported without requiring presentation of the certificates
3
of title. The district court granted the Government's motion for sum-
mary judgment on Appellees' conversion claim, but held that the Fed-
eral Tort Claims Act permitted Appellees to sue the Government for
breach of a duty seemingly imposed on it by Customs regulations.
Following a bench trial, the court held that Customs officials had
behaved negligently, and awarded Appellees damages exceeding
$400,000. We reverse in part and affirm in part.
I.
Appellees conduct automobile auctions in the State of Florida, sell-
ing used cars to wholesale dealers. Appellees review the credit histo-
ries of all dealers participating in a given auction, then determine the
method of payment that each will be permitted to use. While some
dealers are required to pay cash to Appellees immediately upon mak-
ing a purchase, many others are allowed to submit"sight drafts." A
sight draft is a check-like method of payment commonly used by
automobile auctioneers nationwide. When a sight draft is used,
Appellees deliver a bill of sale and the purchased automobiles to the
purchaser, then forward a copy of the sight draft and the certificates
of title to the purchaser's bank. Once the bank receives the sight draft,
the purchaser is expected to authorize the bank to make payment on
its behalf. If such payment is indeed authorized, the purchaser's bank
delivers the certificates of title to the purchaser; if payment is refused,
the certificates are returned to Appellees.
In January 1990, Appellees sold numerous cars to Preowned Cars,
Inc., a company with which Appellees had been dealing for more than
three years. Preowned was permitted to submit sight drafts to Appel-
lees promising payment of approximately $600,000. Soon thereafter,
Preowned shipped the cars to Charleston, South Carolina, in order to
export the vehicles to Saudi Arabia. Despite the provisions of 19
C.F.R. § 192.2(b)--a federal regulation which states that exporters
must present original or certified copies of certificates of title to Cus-
toms officials before automobiles may be transported out of the
United States1--Customs officials permitted the exportation after
_________________________________________________________________
1 An exception to this requirement is made if compliance with a state
statutory requirement makes the certificates of title unavailable. 19
C.F.R. § 192.2(b). The Government has not contended that such a statute
applies in the instant case.
4
receiving only a copy of the bill of sale. At about that same time,
Appellees learned that Preowned had refused to authorize its bank to
make payment against the sight drafts.
After proving unable to secure payment from Preowned, Appellees
filed suit in federal district court, claiming entitlement to damages
under theories of conversion and negligence. The district court
granted the Government's motion for summary judgment on Appel-
lees' conversion claim, finding that, under South Carolina law, con-
version is the "unauthorized assumption and exercise of the right of
ownership over goods or personal chattels belonging to another, to the
alteration of their condition or the exclusion of the owner's rights,"
see Powell v. A.K. Brown Motor Co., 20 S.E.2d 636, 637 (S.C. 1942),
and that Customs officials never possessed the automobiles or exer-
cised "any of the rights of ownership over the automobiles in ques-
tion." Even if Customs officials had taken possession of the cars, the
district court reasoned, the Federal Tort Claims Act's waiver of sover-
eign immunity would have been deemed rescinded by 28 U.S.C.
§ 2680(c), which provides that the Act is inapplicable to claims "aris-
ing in respect of . . . the detention of any goods or merchandise by
any officer of customs."
With respect to Appellees' negligence claim, however, the district
court denied the Government's motion for summary judgment. Find-
ing that Customs officials have a regulatory obligation to require pre-
sentation of certificates of title before allowing automobiles to be
exported and that Customs officials did not demand such certificates
in the instant case, the court held that the Government's failure to
require presentation of the certificates was actionable under a state-
law negligence theory of liability, and that jurisdiction under the Fed-
eral Tort Claims Act was therefore proper. The district court subse-
quently found the Government liable for negligence and awarded
Appellees damages exceeding $400,000.
The Government has appealed the district court's denial of its
motion for summary judgment on Appellees' negligence claim.
Appellees have cross-appealed the district court's grant of summary
judgment to the Government on their conversion claim.
5
Grants and denials of motions for summary judgment are reviewed
de novo. Henson v. Liggett Group, Inc. , 61 F.3d 270, 274 (4th Cir.
1995).
II.
"The basic rule of federal sovereign immunity is that the United
States cannot be sued at all without the consent of Congress." Block
v. North Dakota, 461 U.S. 273, 287 (1983). Through the Federal Tort
Claims Act (FTCA), Congress has provided that the Federal Govern-
ment may be sued in federal district courts
for injury or loss of property . . . caused by the negligent or
wrongful act or omission of any employee of the Govern-
ment while acting within the scope of his office or employ-
ment, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance
with the law of the place where the act or omission
occurred.
28 U.S.C. § 1346(b) (1988); see also 28 U.S.C. § 2674 (1988) ("The
United States shall be liable, respecting the provisions of this title
relating to tort claims, in the same manner and to the same extent as
a private individual under like circumstances . . . ."). The Act does not
create new causes of action; "the mere allegation of a breach of duty
under Federal law does not, by itself, state a valid tort claim against
the Government." Goldstar (Panama) S.A. v. United States, 967 F.2d
965, 969 (4th Cir. 1992). Instead, the Act "only serves to convey
jurisdiction when the alleged breach of duty is tortious under state
law, or when the Government has breached a duty under federal law
that is analogous to a duty of care recognized by state law." Id.; see
also Rayonier, Inc. v. United States, 352 U.S. 315, 319 (1957) (stating
that, as in all other cases in which the Federal Government claims
immunity from suit in tort, when the performance of a uniquely gov-
ernmental function gave rise to the claimed harm, the court must sim-
ply determine "whether a private person would be responsible for
similar negligence under the laws of the State where the acts
occurred").
Under Goldstar and like cases, there are therefore two instances in
which the FTCA would permit Appellees to sue the Government for
6
negligence as a result of Customs officials' failure to enforce federal
regulations. First, the suit would be permitted if Appellees showed
that "the alleged breach of duty is tortious under state law." See
Goldstar, 967 F.2d at 969. Second, the suit would be permitted if
Appellees demonstrated that the Government had breached a duty
imposed by federal law that is similar or analogous to a duty imposed
by state law. See id.A. TORTIOUS BREACH OF DUTY UNDER STATE LAW
1. Violation of a Duty Imposed by Federal Regulations
To make out a claim of negligence under South Carolina law, a
plaintiff "must show (1) a duty of care owed by the defendant to the
plaintiff; (2) a breach of that duty by a negligent act or omission; and
(3) damage proximately resulting from the breach." Andrews v. Pied-
mont Air Lines, 377 S.E.2d 127, 128 (S.C. Ct. App. 1989). Ordinarily,
under the State's "public-duty doctrine," public officials are "not lia-
ble to individuals for their negligence in discharging public duties as
the duty is owed to the public at large rather than[to] anyone individ-
ually." Jensen v. Anderson County Dep't of Social Services, 403
S.E.2d 615, 617 (S.C. 1991). In the case at bar, the district court nev-
ertheless held that Appellees' negligence claim should go to the trier
of fact. The district judge reviewed Summers v. Harrison
Construction, 381 S.E.2d 493 (S.C. Ct. App. 1989), to determine
under what circumstances South Carolina courts find that a statute or
regulation establishes a special duty of care by which government
officials must abide in their dealings with the general public, and may
violate only upon pain of being found liable for negligence. The court
concluded that the various requirements had been met.2
_________________________________________________________________
2 In its brief to this court, the Government insisted that breach of any
duty imposed by 19 C.F.R. § 192.2(b) could not give rise to a state-law
claim of negligence. "[B]ecause federal regulations owe their force and
effect to federal and not state law," the Government contended, "they
cannot serve as the basis for liability under the FTCA." Appellant's Brief
at 9-10. The Government's argument (an argument from which it
attempted to distance itself during oral arguments) is wholly without
merit. In In re Sabin Oral Polio Vaccine Prods. Litig., 984 F.2d 124,
127-28 (4th Cir. 1993) (per curiam), for example, we affirmed the district
7
In Summers, the South Carolina Court of Appeals stated that "stat-
utes which create or define the duties of a public office have the
essential purpose of providing for the structure and operation of gov-
ernment or for securing the general welfare and safety of the public,"
and that "[s]uch statutes create no duty of care towards individual
members of the general public." 381 S.E.2d at 496. The court went
on to say, though, that a "special duty" to particular individuals may
be created by such a statute when
(1) an essential purpose of the statute is to protect against a
particular kind of harm; (2) the statute, either directly or
indirectly, imposes on a specific public officer a duty to
guard against or not cause that harm; (3) the class of persons
the statute intends to protect is identifiable before the fact;
(4) the plaintiff is a person within the protected class; (5) the
public officer knows or has reason to know of the likelihood
of harm to members of the class if he fails to do his duty;
and (6) the officer is given sufficient authority to act in the
circumstances or he undertakes to act in the exercise of his
office.
Id. In the instant case, the district court concluded that an essential
purpose of the regulation is to protect against a particular kind of
harm (unlawful exportation of vehicles), the regulation imposed on
_________________________________________________________________
court's finding that violation of federal oral polio vaccine regulations
could give rise to negligence per se liability under state law. See In re
Sabin, 774 F. Supp. 952, 956 (D. Md. 1991). Other circuits have simi-
larly held. See, e.g., Cecile Indus., Inc. v. United States, 793 F.2d 97, 99
(3d Cir. 1986) (stating that "[t]he failure to follow a federal regulation
may be negligence per se if, under state law criteria, it may be consid-
ered the kind of . . . regulation violation of which is negligence per se")
(quotation omitted); Art Metal-U.S.A. v. United States, 753 F.2d 1151,
1158-59 (D.C. Cir. 1985) (stating that, "depending on the jurisdiction
and the law violated," a violation of a federal regulation may constitute
negligence per se under state law and thereby subject the Federal Gov-
ernment to liability under the FTCA); Gill v. United States, 429 F.2d
1072, 1075 (5th Cir. 1970) (stating that, "[w]hile principles of [state] law
control, federal regulations may impose duties and standards of conduct
upon the actors").
8
specific Government officers a duty to guard against that harm
(exporters must present certificates of title to Customs officials), the
regulation is intended to protect an identifiable class of persons (law-
ful owners of vehicles that are in the possession of third parties), the
plaintiffs are within that protected class (Appellees held the certifi-
cates of title), public officials had reason to know of the harm that
could be caused if they failed to fulfill their duty (Customs officials
should have known of the losses Appellees could sustain if they did
not demand certificates of title), and the officers had been given suffi-
cient authority to carry out the given duty (Customs officials had the
power to block exportation pending submission of the certificates).
The district court concluded that "[t]he violation by Defendant of its
own Regulation only serves to establish Defendant's actions in per-
mitting the vehicles to be exported without certificates of title as neg-
ligence per se."
We believe that the district court erred. South Carolina courts con-
sistently have been reluctant to find special duties statutorily imposed.
In Summers, the Court of Appeals held that a state statute requiring
officers who issue building permits to secure evidence that the build-
ers and renovators of residences are licensed did not create a special,
actionable duty to protect homeowners. 381 S.E.2d at 495-96. The
court reasoned that the statute was intended simply to protect the gen-
eral public "by insuring that only licensed builders perform residential
building," and that the duty to secure particular documentation did not
impose on government officials a duty to guard against poor work-
manship. Id. at 496. Similar reluctance is evident in other cases as
well. See, e.g., Brady Development Co. v. Town of Hilton Head
Island, 439 S.E.2d 266, 268 (S.C. 1993) (holding that the town's
Development Standards Ordinance was intended to protect the public
from overdevelopment, not to protect homeowners from deprivation
of water and other services); Bellamy v. Brown , 408 S.E.2d 219, 220-
21 (S.C. 1991) (holding that statutorily prescribed exceptions to the
disclosure requirements of the state's Freedom of Information Act did
not establish a duty to maintain confidentiality); Jensen v. South Car-
olina Dep't of Social Services, 377 S.E.2d 102, 105-07 (S.C. Ct. App.
1988) (holding that the state's Child Protection Act, which required
state and local officials to carry out various training, monitoring,
reporting, and investigative responsibilities, did impose on local offi-
cials to whom instances of alleged child abuse had been reported a
9
special duty to investigate and intervene, but did not impose on state
officials a special duty to protect particular children), aff'd, 403
S.E.2d 615 (S.C. 1991); Rayfield v. South Carolina Dep't of
Corrections, 374 S.E.2d 910, 916-17 (S.C. Ct. App. 1988) (holding
that a state statute requiring prison and parole officials to keep records
of prisoners' habits and deportment and to prepare adequate reports
concerning parole candidates did not create a special duty to protect
particular members of the public against crimes committed by
released prisoners), cert. denied, 379 S.E.2d 133 (S.C. 1989).
As in Summers, Jensen, and Rayfield, there is clearly a link in the
case at bar between the documentation requirements and the harm
eventually suffered: just as requiring a builder's license makes shoddy
construction of residences less likely, just as reporting and monitoring
requirements decrease the likelihood that children will be abused, and
just as documenting and reporting prisoners' habits and dispositions
decreases the likelihood that dangerous prisoners will be released,
requiring certificates of title decreases the likelihood that cars will be
removed from the United States without the consent of their owners.
Yet, as in Jensen, "[n]o language in the [regulation] charges the spe-
cific officers with a duty to prevent such crimes." See 374 S.E.2d at
917. Indeed, the evident purpose of the regulation is not to impose on
Customs officials a duty to protect Appellees and certain other identi-
fiable parties from non-payment of debts,3 but is instead to deter
exportation of stolen autos by establishing procedures that must be
followed when exporting used cars and by imposing varying levels of
liability on importers and exporters that do not follow those procedures.4
We therefore conclude that the district court erred when it held that
the federal regulation imposed on Customs agents a special duty, vio-
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3 The language of the regulation is in fact framed to impose a duty on
exporters, not Customs officials: rather than stating that Customs agents
must secure certificates of title, the regulation requires exporters to pres-
ent such certificates.
4 For example, 19 C.F.R. § 192.3 imposes a $500 penalty on exporters
who fail to comply with the requirements of § 192.2 and a $10,000 pen-
alty on importers and exporters who knowingly attempt to import or
export stolen vehicles or vehicles whose identification numbers have
been removed or altered.
10
lation of which could subject the Government to liability for negli-
gence under South Carolina law.
2. Violation of a "Good Samaritan" Duty
Appellees contend that, even if the federal regulation did not create
a special duty to protect them from the harm that they suffered, the
Government is nevertheless liable for negligence under South Caro-
lina law. As the Government points out, South Carolina courts have
adopted the "Good Samaritan" provision of the Second Restatement
of Torts, which states:
One who undertakes, gratuitously or for consideration, to
render services to another which he should recognize as nec-
essary for the protection of the other's person or things, is
subject to liability to the other for physical harm resulting
from his failure to exercise reasonable care to perform his
undertaking if . . . the harm is suffered because of the
other's reliance upon the undertaking.
Restatement (Second) of Torts § 323 (1993); see Sherer v. James, 351
S.E.2d 148, 150 n.3 (S.C. 1986). Appellees contend that the Govern-
ment undertook to render services to them by enacting a regulation
requiring presentation of certificates of title; that Customs agents
failed to enforce that regulation with reasonable care; and that Appel-
lees were harmed due to their reliance upon Customs agents to use
such care.
We find Appellees' argument unpersuasive. First, the Customs reg-
ulations do not represent an effort specifically to"render services" to
Appellees; instead, the regulations and authorizing legislation5 were
intended to deter the removal of stolen autos from the United States.
See S. Rep. No. 98-308, 98th Cong., 2d Sess. 3-4, reprinted in 1984
U.S.C.C.A.N. 4910, 4912-13 (stating that the legislation was intended
"to prevent the exportation of certain stolen vehicles" by imposing
civil penalties on exporters and importers that violate the applicable
statutes and regulations). Second, while there is evidence in the record
_________________________________________________________________
5 19 C.F.R. § 192.2(b) was enacted pursuant to 19 U.S.C. §§ 1624,
1627a (1988 & Supp. 1995).
11
suggesting that Appellees' employees believed that the cars could not
be exported so long as they held the certificates of title, there is no
evidence that demonstrates that they genuinely relied upon Customs
officials to enforce the regulation: nothing in the record makes clear
that Appellees would not have agreed to follow the industry practice
of using sight drafts--particularly with Preowned, a company that had
been a customer for more than three years--had the Customs regula-
tions not required presentation of certificates of title. We reject
Appellees' argument accordingly.
B. BREACH OF A FEDERAL DUTY THAT IS ANALOGOUS
TO A DUTY RECOGNIZED BY STATE LAW
Regardless of whether South Carolina law would impose tort liabil-
ity for violation of 19 C.F.R. § 192.2(b), Goldstar describes a second
means by which the FTCA might permit Appellees' negligence
action: the action would be permitted if "the Government has
breached a duty under federal law that is analogous to a duty of care
recognized by state law." Goldstar, 967 F.2d at 969; see also
Rayonier, 352 U.S. at 319 (stating that a court must determine
"whether a private person would be responsible for similar negligence
under the laws of the State where the acts occurred") (emphasis
added).
The Government contended that "there is no authority holding a
private party liable under South Carolina law for anything remotely
resembling the alleged conduct at issue: permitting exportation on the
basis of improper documents." Appellant's Brief at 12. Conceding
that perhaps such a close analogy need not be found, the Government
further argued that "there is no duty under South Carolina [law] to
protect persons from the criminal actions of third parties, such as
absconding with stolen goods." Appellant's Brief at 12.
Neither the district court nor Appellees attempted to identify appro-
priate analogies. Having reviewed the matter, we conclude that South
Carolina law would not impose liability for breach of a duty that is
sufficiently analogous to the duty purportedly imposed on Customs
officials by 19 C.F.R. § 192.2(b) to render the Government liable to
Appellees for the Customs agents' actions.
12
We therefore hold that the district court erred when it denied the
Government's motion for summary judgment on the issue of negli-
gence, and vacate the judgment entered against the Government
accordingly.
III.
Appellees believe that the district court erred when it granted the
Government's motion for summary judgment on Appellees' conver-
sion claim. Rather than argue on appeal that the Government commit-
ted the tort of conversion, however, Appellees contend that Preowned
is the party that committed the acts constituting conversion, but that
the Government should be held liable in tort for aiding and abetting
that conversion.6
In support of their contention that a party may be held liable for
aiding and abetting a conversion, Appellees cite cases from the Sec-
ond Circuit, Maine, Nebraska, and Washington. See Aeroglide Corp.
v. Zeh, 301 F.2d 420, 422 (2d Cir.) (applying New York law), cert.
denied, 371 U.S. 822 (1962); Lewiston Trust Co. v. Deveno, 74 A.2d
457, 458-59 (Me. 1950); State Securities Co. v. Svoboda, 110 N.W.2d
109, 112 (Neb. 1961); Davin v. Dowling, 262 P. 123, 124 (Wash.
1927). One commentary states, however, that "there are some cases
in which persons who aid and abet others in committing a conversion
are not regarded as liable therefor." See 18 Am. Jur. 2d Conversion
§ 70 (1985). Appellees do not cite, and we are unable to locate, any
reported decision of a South Carolina court that suggests that South
Carolina recognizes the tort of aiding and abetting a conversion.
The FTCA requires Appellees to show that "the United States, if
a private person, would be liable to [Appellees] in accordance with
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6 The Government contends that Appellees did not advance an aiding-
and-abetting argument in their complaint, and that Appellees raise that
argument for the first time in the instant appeal. Appellant's Reply Brief
at 7. The Government is incorrect. In paragraph sixteen of the First
Cause of Action described in their September 11, 1992, complaint,
Appellees stated: "As a direct and proximate result of the conversion
which Defendant aided and abetted and in which Defendant participated,
Plaintiff . . . has been damaged . . . ."
13
the law of the place where the act or omission occurred." See 28
U.S.C. § 1346(b); see also Block v. Neal , 460 U.S. 289, 294 & n.3
(1983) (noting that the court of appeals had failed to find that state
law (a) recognized the doctrine under which the district court had
found the Government liable for negligence and (b) would apply that
doctrine "to a private person responsible for similar negligence," and
suggesting that the Government could have invoked that failure as
grounds for appeal). We are unable to say, with the requisite degree
of certainty, that South Carolina law permits an action for aiding and
abetting a conversion, or that, if such an action were permitted, the
Government would be found liable for its agents' conduct under
whatever principles the South Carolina courts would recognize as
controlling in such actions. We therefore refuse to disturb the district
court's ruling on Appellees' conversion claim.
IV.
For the foregoing reasons, we hold that the district court erred
when it denied the United States's motion for summary judgment on
the issue of negligence, but did not err when it granted the Govern-
ment's motion for summary judgment on Appellees' conversion
claim. The decision of the district court is accordingly
REVERSED IN PART AND AFFIRMED IN PART.
14