Stacia Kerns v. United States

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-1350

STACIA LYNN KERNS, Individually, and as Personal
Representative of the Estate of Dennis Gregory Kerns, Jr.
and as mother and next friend of A.K. and D.K.,

Plaintiff - Appellant,

v.

UNITED STATES OF AMERICA,

Defendant - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:07-cv-01006-CCB)

Argued: March 22, 2012 Decided: April 20, 2012

Before MOTZ, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished opinion. Judge Gregory wrote the
opinion, in which Judge Motz and Judge King joined.

ARGUED: Emily Claire Malarkey, Paul David Bekman, SALSBURY,
CLEMENTS, BEKMAN, MARDER & ADKINS, Baltimore, Maryland, for
Appellant. Larry David Adams, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J.
Rosenstein, United States Attorney, Michael L. Schlepp, Second
Year Law Student, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:

The issue presented is whether the United States authorized

Debra Scott to rent an automobile on a business trip for

purposes of traveling from the airport to her hotel. The

district court found that there was no material dispute of fact

that Scott was not authorized to rent an automobile on her

business trip and therefore Scott was not acting within the

scope of her employment at the time of her collision with the

deceased Dennis Kerns, Jr. The district court held that under

Maryland law the United States could not be held vicariously

liable for Scott’s negligence. For the reasons that follow, we

affirm the district court’s ruling.

I.

This case arises out of a motor-vehicle accident on June

24, 2005, in which plaintiff Stacia Lynn Kerns’s now deceased

husband, Dennis Kerns, Jr., was hit by Scott on Maryland Route

175 near the Fort Meade Army Base. Scott was a contract

employee for the 99th Regional Readiness Command Family Program

Office (“RRC”); more specifically, Scott was the secretary and

administrative assistant for the RRC family programs director.

Although Scott’s office was in Pennsylvania, Scott was in Anne

Arundel County, Maryland, at the time of the accident to work at

an RRC conference.

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 On April 27, 2005, Barbara Wilson, RRC director of family

programs, sent an email to RRC staff and volunteers, noting that

a conference would be held at the Annapolis, Maryland Radisson

hotel on June 24-26, 2005. She stated that a few travel

arrangements were possible. One option was to fly into

Baltimore-Washington International Airport. “The hotel

recommends the Super Shuttle . . . for transport from the

airport to the hotel,” the email said. “The cost is $29 per

person. If there are sufficient persons flying, a van may be

rented for all to travel to the hotel. Please advise of your

flight schedules as soon as possible for these arrangements to

be made.” For those who did not wish to fly, they could drive

their own cars, for which they would be reimbursed for mileage,

or they could rent cars. “If you would rather take a rental

car, please fill out the registration form accordingly.” In all

cases, the email said, an employee’s travel plans must be

reflected on her travel orders.

A few days before the trip, Scott had a conversation with

Wilson and Thomas Cannon, a coworker, about whether Scott would

like to rent a car or be listed as a driver on one of their

rental cars. Scott declined both options because she planned to

rent a car for her own personal purposes. Nothing in the record

suggests she ever filled out the registration form indicated in

Wilson’s email.

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 On May 20, 2005, the RRC issued travel orders to Scott, and

it authorized her to travel from McKees Rocks, Pennsylvania, to

Annapolis, Maryland, to attend the conference. Her orders

provided for government lodging and commercial air travel.

Although the orders did not say how she should get from the

airport to the conference center, they specifically stated that

she was not authorized to rent a car. The orders said that

“[i]f traveling by non-government procured commercial

transportation, the maximum reimbursement will be limited to the

least costly service which would have been permitted [for]

satisfactory completion of the mission.” Cannon’s travel orders

were modified on June 24, 2005, authorizing a rental car.

On June 24 Scott traveled in her own vehicle to the

Pittsburgh, Pennsylvania airport and flew to Baltimore-

Washington International Airport on a government-purchased

ticket. Upon arrival, she rented a vehicle from the airport’s

Alamo Car Rental. She rented the car in her name and paid for

it with her personal credit card.

June 24 was set aside on the agenda as a travel day with no

scheduled meetings. Scott traveled to downtown Baltimore to see

the inner harbor and the aquarium. She then drove to Fort Meade

to visit the Post Exchange, where she looked at clothing. At

9:30 p.m., Scott turned into oncoming traffic and directly into

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Dennis Kerns, Jr., who was riding a motorcycle. Kerns died of

the injuries sustained in the crash.

Scott subsequently sought reimbursement for roundtrip

mileage for her personal vehicle used to travel to the

Pittsburgh airport, two taxi fares, and her per diem. She was

reimbursed. She did not request reimbursement for her rental

car.

Stacia Kerns brought suit against the United States on

April 19, 2007, alleging the United States should be held

vicariously liable for the negligence of its employee, Scott.

On February 2, 2008, the district court granted the United

States’ motion to dismiss for lack of jurisdiction on the

grounds that Kerns had not shown that Scott was acting within

the scope of her employment, as required by 28 U.S.C. § 1346(b).

This Court, on appeal, held the question was sufficiently

intertwined with the merits that the plaintiff should be

permitted to conduct discovery. See Kerns v. United States, 585

F.3d 187 (4th Cir. 2009). Both parties moved for summary

judgment at the close of discovery. On March 28, 2011, the

district court handed down its memorandum opinion, awarding

summary judgment to the United States.

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 II.

The district court ruled that there was not a triable

dispute of fact and that the government had not authorized Scott

to use a rental car during the conference. The court went on to

find that even if the government authorized the rental of a car,

Scott was not engaged in job-related duties at the time of the

accident. We affirm the district court on the former grounds

without reaching the latter.

We review de novo the district court’s grant of summary

judgment. Roe v. Doe, 28 F.3d 404, 406 (4th Cir. 1994).

Summary judgment is appropriate when there is no genuine dispute

of material fact and the moving party is entitled to judgment as

a matter of law. FED. R. CIV. P. 56(a). In reviewing the

disputed facts, this Court must draw all inferences in favor of

the non-moving party. Scott v. Harris, 550 U.S. 372, 378

(2007).

The United States is liable under the Federal Tort Claims

Act (“FTCA”) to the extent a private person would be liable

under state law when a plaintiff has been injured because of the

tort of an employee acting within the scope of her employment.

28 U.S.C. § 1346(b)(1). Under Maryland law, an employer may be

held vicariously liable for the tortious act of its employee

when the employee was acting in the scope of the employment

relationship at the time of the tort. Oaks v. Connors, 660 A.2d

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423, 426 (Md. 1995). An employee’s tortious acts will be

considered within the scope of her employment if “they were in

furtherance of the employer’s business and were ‘authorized’ by

the employer.” Sawyer v. Humphries, 587 A.2d 467, 470 (Md.

1991). This general rule, however, is refined in the context of

negligent operation of the employee’s automobile; in such cases,

a master will not be held responsible for negligent
operation of a servant’s automobile, even though
engaged at the time in furthering the master’s
business unless the master expressly or impliedly
consents to the use of the automobile, and . . . had
the right to control the servant in its operation, or
else the use of the automobile was of such vital
importance in furthering the master’s business that
his control over it might reasonably [be] inferred.

Oaks, 660 A.2d at 426 (quoting Dhanraj v. Potomac Elec. Power

Co., 506 A.2d 224, 226 (1986)) (alterations in original). The

right-to-control concept is critical to the respondeat superior

analysis with respect to motor vehicles. “The doctrine may only

be successfully invoked when an employer has either ‘expressly

or impliedly, authorized the [servant] to use his personal

vehicle in the execution of his duties, and the employee is in

fact engaged in such endeavors at the time of the accident.’”

Id. at 427 (quoting Dhanraj, 506 A.2d at 226). In other words,

the test has two prongs: (1) employer authorization of the

transportation method or employer control over the employee’s

operation of that transportation (or that transportation is a

“vital necessity” to the employer’s business) (2) while the

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employee is engaged in employment duties. We deal with the

first prong, not reaching the second.

A.

Kerns argues that there is at least a triable issue of fact

as to whether the government expressly or impliedly consented to

the use of a rental car on the trip. We disagree.

As Barbara Wilson noted in her April 25, 2005 email

regarding transportation, travel plans must be reflected on each

employee’s travel orders. Scott’s travel orders specifically

precluded the use of a rental car. The email discussing the

travel orders notes that “[i]f there are sufficient persons

flying, a van may be rented for all to travel to the hotel.”

This phrase does not indicate that anyone could rent a van to

travel from the airport to the hotel; only enough vans

sufficient to carry those flying would be rented.

Nevertheless, there is some evidence in the record that

reimbursement was sometimes given to employees for travel not

initially authorized on their travel orders. Scott testified

that after-the-fact approval of rental cars was a “regular

occurrence” and she had “no doubt” that she would have been paid

if she had submitted a rental car reimbursement. But Scott did

not in fact seek a rental car reimbursement, suggesting that she

knew it was not authorized either explicitly or implicitly.

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 Before the trip, Wilson told Scott she could travel with

Wilson or Cannon in their authorized rental cars from the

airport to the hotel. Wilson also offered to authorize Scott to

rent a car, presumably so Scott could transport other RRC

employees from the airport to the hotel. Scott declined the

offers. The facts show that Scott rented her own car so that

she could explore and sightsee before the conference. She did

not seek authorization for the car before the trip despite the

fact that she made a reservation for the car before the trip

began. It is telling that the RRC altered Cannon’s travel

orders prior to the trip to include the use of a rental car but

it did not modify Scott’s.

The facts here are arguably weaker for the plaintiff than

those in the relevant Maryland state court cases in which the

plaintiffs could not establish respondeat superior liability.

See Oaks v. Connors, 660 A.2d 423 (Md. 1995); Dhanraj v. Potomac

Elec. Power Co., 506 A.2d 224 (Md. 1986); Henderson v. AT&T

Info. Sys., Inc., 552 A.2d 935 (Md. Ct. Spec. App. 1989). Here,

the government neither promised nor gave travel reimbursements

to Scott, whereas in Henderson the plaintiff was reimbursed for

mileage and travel expenses by his employer. Henderson, 552

A.2d at 939. Furthermore, Scott traveled by an expressly

unauthorized form of travel prohibited by her travel orders. In

contrast, the Dhanraj employer did not specifically authorize

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any particular mode of travel, suggesting that it implicitly

approved of any reasonable method of transportation -- again, a

much stronger case for the plaintiff than the instant case. See

Dhanraj, 506 A.2d at 227.

There may still be vicarious liability in the automobile

context when “the use of the automobile was [ ] of such vital

importance in furthering [the employer’s] business that the

control over it might reasonably be inferred.” Id. at 228. The

closest Maryland case to the instant facts is Regal Laundry Co.,

Inc. v. A.S. Abell Co., 163 A. 845 (Md. 1933). There, a

Baltimore Sun reporter was returning to the office from a

meeting that he was assigned to cover when he got into an

accident. The Court of Appeals held that the Baltimore Sun had

implicitly authorized the use of the reporter’s own car because

the editor knew that would be how the reporter would get to and

from the meeting and because the reporter was reimbursed for his

mileage. Id. at 847. Furthermore, the reporter was never

diverted from his route. Id. at 848. Here, however, the use of

a rental car was explicitly not authorized for Scott, and Scott

was never reimbursed for her rental car expenses. Even

accounting for the fact that Scott would not have rented a car

were it not for the Maryland conference, Scott did not need to

rent a car to arrive there. See Oaks, 660 A.2d at 427 (finding

that the fact that employee used his car at work for the

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employer’s benefit did not render the drive to work “special

circumstances” warranting respondeat superior liability);

Barclay v. Ports Am. Baltimore, Inc., 18 A.3d 932, 938 (Md. Ct.

Spec. App. 2011) (“[T]he requisite ‘special circumstances’ must

admit some express or implied control over the vehicle or

consent to its use in performing work duties.”). Regal Laundry

is therefore distinguishable.

We affirm the district court’s finding that there is no

material dispute of fact that Scott was not authorized to rent a

car to travel from the Baltimore airport to the hotel. Because

we hold that a rental car was not authorized for Scott, we need

not reach the issue of whether she was within the scope of her

employment at the time of the accident. *

B.

Kerns has another argument: that the district court should

have certified to the Maryland Court of Appeals the question of

whether to import the traveling-employee doctrine into the tort

context. The district court found that the “available state

law” was not so “insufficient” that certification was

appropriate. J.A. 467 n.2 (quoting Roe v. Doe, 28 F.3d 404, 407

*
Nor need we analyze whether Maryland’s scope-of-employment
prong of the respondeat superior test is coextensive with the
FTCA requirement for governmental liability that the tortfeasor
acted within the scope of her employment.

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(4th Cir. 1994)); see also Buckingham v. United States, 124 F.

Supp. 2d 943, 944-45 (D. Md. 2000) (declining to certify to the

Maryland Court of Appeals a question on the applicability of the

traveling-employee doctrine in the respondeat superior context).

Under Maryland law, the Court of Appeals may answer

questions certified to it only “if the answer may be

determinative of an issue in pending litigation in the

certifying court and there is no controlling appellate decision,

constitutional provision, or statute of this State.” MD. CODE

ANN., CTS. & JUD. PROC. § 12-603. The Court of Appeals has noted

that the purpose of the certification procedure is “to promote

the widest possible use of the certification process . . . [and

to] address questions of Maryland law that are unsettled,

uncertain, or otherwise controversial in light of cases decided

by other courts.” Proctor v. Wash. Metro. Area Transit Auth.,

990 A.2d 1048, 1056 (Md. 2010). Here, as the district court

correctly found, there is clear appellate court precedent.

The language of Dhanraj may be amenable to two readings.

The Maryland Court of Appeals either decided that importation of

the traveling-employee doctrine is inappropriate or it refused

to determinatively resolve the question beyond its own facts.

“We see no need to resort, in the circumstances here,” the court

said, “to cases under the Workmen’s Compensation Act and

comparable employee compensation statutes to determine the

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applicability of the doctrine of respondeat superior in this

tort action.” Dhanraj, 506 A.2d at 227-28. A subsequent court

of special appeals case interpreted Dhanraj to mean that

Maryland courts may not import the traveling-employee doctrine

into the tort context. See Sheets v. Chepko, 573 A.2d 413, 418

(Md. Ct. Spec. App. 1990) (“[I]n Dhanraj, the Court of Appeals

specifically rejected the application of principles of Worker’s

Compensation to a determination of whether a particular activity

was within the scope of employment for purposes of establishing

vicarious liability of an employer.”). There is no conflicting

authority in the appellate cases of Maryland, and it was

therefore not error for the district court to refuse to certify

the issue to the Maryland Court of Appeals.

III.

For the foregoing reasons, the judgment of the district

court is affirmed.

AFFIRMED

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