UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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.
2
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.
3
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
6
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
7
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.
8
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
9
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
10
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.
11
(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
12
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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