Estate of Himsel v. State

36 P.3d 35, 2001 Alas. LEXIS 164, 2001 WL 1518767

• Court: Alaska Supreme Court
• Decided: November 30, 2001
• Docket: S-8640
• Status: Published

Opinions

OPINION

CARPENETI, Justice.

I, INTRODUCTION

In November 1992 an Alaska Army National Guard plane crashed; all aboard perished. Family members of the passengers sued the State of Alaska, alleging pilot negli-genee. The superior court granted summary judgment in favor of the state on the grounds that the claims were related to military service. We reverse and remand this case because the families' claims are not barred merely because they arose incident to military service and because there exist genuine issues of material fact relating to whether the pilot was acting on behalf of the state as a borrowed employee.

II. FACTS AND PROCEEDINGS

On November 12, 1992, an Alaska Army National Guard C-12 airplane carrying eight Army National Guard members crashed into a mountain while approaching the Juneau airport, killing all persons aboard. The plane was piloted by State Aviation Officer Colonel Thomas Clark and co-piloted by Warrant Officer John Pospisil. The passengers were Major General Kenneth Himsel, General Thomas Carroll, Colonel Wilfried Wood, Sergeant Major Llewellyn Kahklen, Sergeant First Class Richard Brink, and Sergeant Michael Schmidt.

General Himsel and the other passengers were flying from Anchorage to Juneau to review facilities, personnel, and training procedures at the Juneau Battalion headquarters.

At the time of the erash, Colonel Clark was employed as a National Guard "technician" and was the "State Aviation Officer." General Himsel was executing orders from the Indiana National Guard and was on "Active Duty Special Work" status. General Thomas Carroll was the Commander of the Alaska Array National Guard. Colonel Wilfried Wood, Sergeant Major Llewellyn Kahklen, Sergeant First Class Richard Brink, and Sergeant Michael Schmidt were on Active Guard Reserve status.

The families of General Himsel, Colonel Wood, Sergeant Major Kahklen, Sergeant Brink, and Sergeant Schmidt (collectively, the families) filed suit against the State of Alaska and Beech Aircraft in state court. The families claimed that the crash was caused by "design induced pilot error." Further, the families contended that the state, as Colonel Clark's employer, was vicariously lia-bie for his negligence under the doctrine of respondeat superior.

Beech Aircraft filed a third-party complaint against the estates of Colonel Clark and Warrant Officer Pospisil seeking equitable apportionment of fault.

The United States intervened to remove the case to United States District Court on the grounds that Colonel Clark was a federal employee and that the Federal Tort Claims Act ¹ (FTCA) was the exclusive remedy for claims against federal employees acting within the seope of their employment. The United States further requested that the claims asserted against Colonel Clark's estate be "deemed an action against the United States." Additionally, the United States Department of Justice certified that Colonel Clark "was acting within the scope of his employment as an employee of the United States at the time of the November 12, 1992, crash of the C-12 aireraft near Juneau, Alaska,"

Concurrent with the removal action, the United States filed motions to dismiss and for summary judgment. In support of its motions, the United States cited the Feres² doctrine, which bars armed service members from suing the United States under the FTCA for injuries that arose out of activities that were incident to service.³ The case was removed to federal court.

The families voluntarily dismissed their claims against Beech Aircraft and the estates of Colonel Clark and Warrant Officer Pospi-gil. The only remaining defendant was the State of Alaska. Since no federal issues remained, the case was remanded to the state superior court.

The state sought summary judgment on the grounds that the Feres doctrine bars all intra-military tort claims, including those between Army National Guard members in Alaska. Alternatively, the state argued that Colonel Clark was a federal employee and thus the state could not be liable under a vicarious lability/respondeat superior theory claim of negligence.

The superior court granted summary judgment and held that the families' claims were indeed "barred by the Feres doctrine." Additionally, the court held that since the families' claims were barred, it need not rule on whether the state could be liable to the families on the vicarious liability/respondeat superior theory.

III STANDARD OF REVIEW

We review summary judgments de movo to determine whether any genuine issues of material fact exist and whether the moving party is entitled to a judgment as a matter of law.⁴ On questions of law, we apply our independent judgment and adopt the rule of law "most persuasive in light of precedent, reason, and policy." ⁵

IV. DISCUSSION

A. The Fomulies' Claims Against the State Are Not Barred by the Feres Doctrine.

1. The Feres Doctrine

In Feres v. United States, the United States Supreme Court held that service members cannot bring tort suits against the federal government for injuries that "arise out of or are in the course of activity incident to service." ⁶ The Court reached this conclusion in spite of the fact that under the FTCA the federal government had generally waived its sovereign immunity. The FTCA rendered the federal government Hable for "the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." ⁷

The Court has explained that the Feres doctrine is premised upon the concern for the "peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty." ⁸

While thus limited at its inception, the Feres doctrine has been expanded to preclude a great variety of suits in federal court over the years. (1) It has been held to bar a negligence suit against the United States brought by the mother of a soldier who was murdered by another soldier while the victim was off-base and off-duty;⁹ (2) an indemnification suit against the United States brought by a military subcontractor regarding a negligently manufactured aircraft ejection seat;¹⁰ and (8) a suit against the United States brought by the widow of a Coast Guard helicopter pilot, which alleged that civilian Federal Aviation Administration employees negligently caused the pilot's helicopter crash.¹¹

And while it has expanded in application, the Feres doctrine has been supported by a dwindling number of the members of the Supreme Court. Justice Scalia, dissenting in Johnson and speaking for a four-member minority, noted that the FTCA does not, on its face, generally preclude suits by military personnel.¹² Moreover, he argued that the plain language of the FTCA rendered the United States "liable to all persons, including servicemen, injured by the negligence of Government employees.¹³ Addressing the government's argument that the Feres doctrine was needed to maintain military discipline and morale, Justice Sealia ironically noted that barring recovery in tort by military personnel "might adversely affect military discipline. After all, the morale of [Johnson's] comrades-in-arms will not likely be boosted by news that his widow and children will receive only a fraction of the amount they might have recovered had he been piloting a commercial helicopter at the time of his death.¹⁴ The Feres doctrine has also been heavily criticized ¹⁵ and only relue-tantly applied ¹⁶ in the federal cireuit courts.

2. Alaska law

We have never directly ruled on the applicability of the Feres doctrine in Alaska.¹⁷ With regard to tort liability, the basic policy of law in Alaska is that "when there is negligence, the rule is liability, immunity is the exception." ¹⁸ Since the families' claims are brought in state court pursuant to the Alaska Tort Claims Act,¹⁹ and the Feres doctrine is, strictly speaking, a federal doctrine, we are not bound by its holding.

The question before us, then, is whether based on Alaska law we should apply the Feres doctrine to the families' claims simply because the claims arose "incident to military service." Before we judicially create law that limits the civil remedies of military personnel in this state, we must determine if the existing law is inadequate to deal with this particular factual situation. Since existing law is adequate for this case, we decline to adopt the Feres doctrine at this time.²⁰

We are not alone in choosing this path. While some states have adopted Feres outright,²¹ others have chosen not to apply it. The Montana Supreme Court concluded that the Feres doctrine conflicted with the Montana Constitution,²² which states that "Courts of justice shall be open to every person.... No person shall be deprived of ... full legal redress for injury incurred in employment...." ²³

Similarly, the Washington Supreme Court held that Washington has, by statute, waived its blanket sovereign immunity from suit.²⁴ While there is a narrow exception to that waiver for discretionary government acts,²⁵ the court held that not all of the acts at issue by the Washington National Guard fell within that exception.²⁶ As such, the State of Washington was not immune from being sued in tort by soldiers for the acts of fellow soldiers.²⁷

The analytical framework adopted by Washington is sound. Alaska also has generally waived its sovereign immunity but has reserved it for discretionary governmental acts.²⁸ To determine if a governmental act is "discretionary" we employ the planning/ operational test.²⁹ A planning act is one that involves a basic policy decision, whereas an operational act involves the execution or implementation of a policy decision; only a planning act is entitled to immunity as a discretionary function.³⁰

We have made this distinction because we recognize that "[mJuch of what is done by officers and employees of the government must remain beyond the range of judicial inquiry; obviously it is not a tort for the government to govern." ³¹

We now apply this framework to the instant case. It was obviously a planning act to decide to bring General Himsel to Alaska to review the Army National Guard's training procedures. The decision to fly to Juneau from Anchorage aboard an Army National Guard C-12, flown by Colonel Clark, might also be considered a planning act. But if, as alleged, Colonel Clark flew the plane negligently, that negligence was not in the planning of the trip, but rather in the implementation of that plan. Therefore it is properly described as "operational." As such, the state is not immunized from liability.

The state argues that we must adopt the Feres doctrine lest the court inappropriately intrude upon military matters. But, as we noted in State, Department of Military and Veterans Affairs v. Bowen, not all questions that involve the military require "military expertise" or are so uniquely military that judicial inquiry into them would cause undue interference with the military mission.³² There is nothing "uniquely military" about a flight from Anchorage to Juneau, and evaluating whether Colonel Clark was negligent does not require special "military expertise." Simply put, the C-12 was being used to transport passengers between Anchorage and Juneau. It was not being used in combat or in training, nor were there exigent cireumstances that prevented the members of the Himsel group from flying either on a chartered civilian plane or on a regularly scheduled commercial flight. If they had flown on either a chartered civilian plane or a commercial plane, it is unquestioned that the families could pursue a tort action against the employer of the pilot. Likewise, a civilian on board the C-12 would have a tort claim against Colonel Clark's employer. The only military aspect of the event causing the loss in this case was the objective of reviewing the National Guard facilities in Juneau; the nature of the flight during which the losses occurred is indistinguishable from an ordinary commercial flight. No reason appears why the military status of the passengers alone should limit their civil remedies. Accordingly, we hold that in this case the Feres doctrine does not preclude a tort action under Alaska law.

B. There Exist Genuine Issues of Material Fact Regarding the State's Liability for Colonel Clark's Alleged Negligence.³³

We have generally adopted the view that vicarious lability or respondeat superior claims only arise "within the scope of employment.³⁴ Under this doctrine, two requirements must be met in order for an employer to be liable for an actor's negli-genee: (1) that the actor was an employee of the employer; and (2) that the alleged negligent act occurred within the scope of the employee's employment. However, as we first recognized in Reader v. Ghemm Co.,³⁵ there is an exception to the general rule of respondeat superior: An employer who borrows the employee of another can, in certain circumstances, be held liable for the negligent acts of the borrowed employee.³⁶

We later modified the doctrine of the borrowed employee ³⁷ in Kastner v. Toombs in a manner that left both the lending employer and the borrowing employer potentially liable for the negligent acts of the employee under a system that apportioned fault between the two employers.³⁸ Under the statutory system in place at that time, fault and liability were apportioned according to contribution and indemnity.³⁹ Alaska has since moved to a system of comparative negligence for apportioning liability according to fault.⁴⁰ Thus, liability under the doctrine of the borrowed employee is apportioned between the two employers according to comparative negligence. But we need not reach that issue here; it suffices to note that the state could be found liable to the families under the doctrine of the borrowed employee. Therefore, in order for the court to grant summary judgment on this issue, there must exist no genuine question as to whether Colonel Clark was either an employee of the state or a borrowed employee acting on behalf of the state.

1. Colonel Clark was not acting as an official State of Alaska employee at the time of the crash.

a. An Army National Guard technician is a federal employee.

An Army National Guard technician such as Colonel Clark is "an employee of the United States."⁴¹ As a technician, Colonel Clark was required to (1) "be a member of the National Guard;" ⁴² (2) hold the military rank appropriate for the position; ⁴³ and (8) wear the appropriate uniform.⁴⁴

Colonel Clark's "position" as a technician was that of Supervisory Aircraft Pilot/State Aviation Officer. The Alaska Army National Guard stated that at the time of the erash:

Col. Clark was a Federal Excepted Military Technician. He was a federal employee which required him to hold a position in the Alaska Army National guard and wear the military uniform. He was not on active duty orders to fly because it was part of his position description as the SAO [State Aviation Officer]. Col. Clark was acting in his official capacity as the pilot and the SAO.

The families argue that Colonel Clark's status as the State Aviation Officer/State Supervisory Pilot made him a state employee. As discussed above, these duties were his "position" as a technician, not separate as the families infer. Even assuming for the sake of argument that the families' inference was correct, it is clear that State Aviation Officer/State Supervisory Pilot position is a federal one. In the federal "Position Desecription" for this position, Colonel Clark was assigned a federal pay and responsibility grade of GM-14.

b. Colonel Clark was not acting as an Alaska Army National Guard member at the time of the crash.

If, at the time of the crash, Colonel Clark was acting only as an Alaska Army National Guard member who had been placed on Active Guard Reserve (AGR) status, then he would have been a state employee at the time of the crash.⁴⁵

The families argue that Colonel Clark was in AGR status because he was a member of the Alaska Army National Guard. This is incorrect. Merely being in the National Guard does not mean the Guard member is in AGR status. To be in AGR status, the Guard member must be ordered into it.⁴⁶ While there is a record of Colonel Wood, Sergeant Major Kahklen, Sergeant First Class Brink, and Sergeant Schmidt being so ordered, there is no such record for Colonel Clark.

Additionally, as previously discussed, both the Alaska Army National Guard and the United States Department of Justice stated that Colonel Clark was acting as a federal employee in his role as a technician serving as the State Aviation Officer at the time of the crash.⁴⁷

In sum, since Colonel Clark was indisputably a federal and not a state employee at the time of the crash, the state cannot be vicariously liable as his employer for his alleged negligence.

2. A reasonable jury could find that Colonel Clark was a borrowed employee acting on behalf of the State of Alaska,.

As previously noted, Alaska has reconciled the doctrine of respondeat superior with the doctrine of the borrowed employee so that when one employer borrows the employee of another employer, both may be held responsible for the negligent acts of that employee.⁴⁸ Accordingly, the State of Alaska may be liable for the acts of Colonel Clark if he was a borrowed employee acting for the state at the time of the accident.

In announcing the original doctrine of the borrowed employee, we stated: "A[n employee] directed or permitted by his [employer] to perform services for another may become the [employee] of such other in performing the services. He may become the other's [employee] as to some acts and not as to others." ⁴⁹ The decisive question is whether the employee was loaned as to the particular acts at issue.⁵⁰ And the test turns on the question of control, or the transfer of control.⁵¹ We have previously stated that "[the control which the borrowing [employer] must acquire for the servant to become loaned is not merely control over the [employee's] specific acts, but rather control in a broader sense."⁵²

Evidence in the record suggests that the state may have exerted control over Colonel Clark regarding the acts in question. For example, the "Position Description" for Colonel Clark's job states that the State Army Aviation Officer and Safety Officer for a State Army National Guard (ARNG) "[mJan-ages the ARNG aviation program of the state which includes planning, coordinating, implementing and directing all aviation assets within the State ... [and acts] as a laison with all organizations concerning matters relevant to aviation support." (Emphasis added.) Further, this position "[clontrols the aviation program for the state ..." and the provisions of the U.S. Army Airerew Training program must be complied with when acting as "a pilot in an Army aircraft assigned to the State" (Emphasis added.) And, several of the passengers on the flight had been called into AGR status and were thus considered state employees. There is at least some evidence in the record that acts of Colonel Clark, in his capacity as the State Aviation/Safety Officer, may have been controlled by the state both specifically and generally. Whether the state exerted such control is therefore a disputed material fact. Upon remand, the plaintiffs are entitled to trial on this issue.

V. CONCLUSION

Because we decline to hold that the state is immune under the doctrine of Feres v. United States in the cireumstances of this case, and because genuine issues of fact exist as to whether Colonel Clark was acting on behalf of the State of Alaska as a borrowed employee, we REVERSE and REMAND to the superior court for further proceedings consistent with this opinion.

1 . 28 U.S.CA. §§ 1346(b)(1), 2671-2680 (West 1994 & Supp.1999).

2 . Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950).

3 . See id. at 146, 71 S.Ct. 153.

4 . See T.P.D.v. A.C.D., 981 P.2d 116, 118 (Alaska 1999) (citing Beilgard v. State, 896 P.2d 230, 233 (Alaska 1995)).

5 . Id. at 119 (citing Great Am. Ins. Co. v. Bar Club, Inc., 921 P.2d 626, 627 (Alaska 1996)).

6 . 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950).

7 . 28 U.S.C.A. § 1346(b)(1) (West Supp.1999).

8 . United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 99 L.Ed. 139 (1954).

9 . See United States v. Shearer, 473 U.S. 52, 57-59, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985).

10 . See Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 673-74, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977).

11 . See United States v. Johnson, 481 U.S. 681, 683, 691-92, 107 S.Ct. 2063, 95 LEd.2d 648 (1987).

12 . See id. at 692-93, 107 S.Ct. 2063 (Scalia, J., dissenting). Justices Brennan, Marshall, and Stevens joined Justice Scalia in this dissent.

13 . Id. at 693, 107 S.Ct. 2063.

14 . Id. at 700, 107 S.Ct. 2063.

15 . See Costo v. United States, 248 F.3d 863, 869-76 (9th Cir.2001) (Ferguson, J., dissenting, arguing that Feres doctrine "violates the equal protection rights of military service men and women," "violates our constitutional separation of powers," and constitutes "a judicial re-writing of an unambiguous and constitutional statute"). see also Estate of McAllister v. United States, 942 F.2d 1473, 1480 (9th Cir.1991) ("In [affirming the district court], we follow a long tradition of reluctantly acknowledging the enormous breadth of a troubled doctrine.").

16 . See id. at 864-69 "reluctantly" concluding that the case "falls within the [Feres] doctrine's ever-expanding reach" and therefore applying the Feres doctrine "without relish"). See also Estate of McAllister, 942 F.2d at 1480 ("reluctantly" applying Feres ).

17 . However, we have implicitly rejected the Chappell extension of the Feres doctrine that precluded all constitutional claims by soldiers against their superiors. See Chappell v. Wallace, 462 U.S. 296, 304, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). We held in State, Dep't of Military and Vet. Affairs v. Bowen, 953 P.2d 888 (Alaska 1998), that a guard member could bring a constitutional claim against a superior if the question was "not one of military expertise or one which causes interference with the military mission." 1d. at 896 (footnote omitted).

18 . State v. Abbott, 498 P.2d 712, 720 (Alaska 1972) (citation and internal quotation marks omitted).

19 . Alaska Statute 09.50.250 is entitled "ACTIONABLE CLAIMS AGAINST THE STATE." It provides:

A person or corporation having a contract, quasi-contract, or tort claim against the state may bring an action against the state in a state court that has jurisdiction over the claim. A person who may present the claim under AS 44.77 may not bring an action under this section except as set out in AS 44.77.040(c). A person who may bring an action under AS 36.30.560-36.30.695 may not bring gn action under this section except as set out in AS 36.30.685. However, an action may not be brought under this section if the claim (1) is an action for tort, and is based upon an

act or omission of an employee of the state, exercising due care, in the execution of a statute or regulation, whether or not the statute or regulation is valid; or is an action for tort, and based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state agency or an employee of the state, whether or not the discretion involved is abused;

(2) is for damages caused by the imposition or establishment of a quarantine by the state;

(3) arises out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights; or

(4) arises out of the use of an ignition interlock device certified under AS 33.05.020(c).

20 . The state cites Stauber v. Cline, 837 F.2d 395, 397-99 (9th Cir.1988), for the proposition that the Ninth Circuit has held that Feres bars claims against the State of Alaska, and that this is therefore settled law. We disagree. This assertion is in conflict with Article IV Section 2(a) of the Alaska Constitution that states: "The supreme court shall be the highest court of the state, with final appellate jurisdiction."

21 . See Mangan v. Cline, 411 NW.2d 9, 11-12 (Minn.App.1987); Zaccaro v. Parker, 169 Misc.2d 266, 645 N.Y.S.2d 985, 990-91 (Sup.Ct.1996), aff'd mem., 249 A.D.2d 1003, 671 N.Y.S.2d 362 (App.Div.1998); Wade v. Gill, 889 S.W.2d 208, 209-10, 214-15 (Tenn.1994); Newth v. Adjutant General's Dep't of Tex., 883 S.W.2d 356, 357 (Tex.App.1994).

22 . See Trankel v. State, Dep't of Military Affairs, 282 Mont. 348, 938 P.2d 614, 621 (1997).

23 . See id. (emphasis omitted) (quoting Mont. Const. Art. II, § 16).

24 . See Emsley v. Army Nat'l Guard, 106 Wash.2d 474, 722 P.2d 1299, 1302 (1986) (citing Wash. Rev.Code § 4.92.090 (1963)).

25 . See id.

26 . See id. at 1303.

27 . See id. at 1303-04.

28 . See AS 09.50.250(1).

29 . See State v. Abbott, 498 P.2d 712, 721-22 (Alaska 1972).

³⁰

31 . Id. at 721 (brackets in original) (internal citations and quotation marks omitted) (quoting Johnson v. State, 447 P.2d 352, 360 (Cal.1968)).

32 . 953 P.2d 888, 896 (Alaska 1998).

33 . The superior court did not reach this issue because it granted summary judgment based on the Feres doctrine. In order to provide guidance to the superior court on remand, we discuss it now.

34 . Taranto v. North Slope Borough, 909 P.2d 354, 358 (Alaska 1996) (internal quotation marks omitted) (quoting Luth v. Rogers and Babler Constr. Co., 507 P.2d 761, 764-65 n. 14 (Alaska 1973)).

35 . 490 P.2d 1200, 1203-04 (Alaska 1971).

36 . See Kastner v. Toombs, 611 P.2d 62, 64 (Alaska 1980).

37 . We use the phrase "the borrowed employee doctrine" here in place of the former term "the borrowed servant doctrine."

38 . See 611 P.2d at 65-66.

39 . See id. at 65 & n. 4.

40 . See AS 09.17.060.

41 . 32 U.S.C.A. § 709(d) (West Supp.1999).

42 . Id., § 709(b)(1).

43 . See id., § 709(b)(2).

44 . See id., § 709(b)(3).

45 . See State, Dep't of Military and Vet. Affairs v. Bowen, 953 P.2d 888, 894 (Alaska 1998).

46 . See 32 U.S.C.A. § 502(f) (West Supp.1999); Bowen, 953 P.2d at 891.

47 . See supra Parts II, IV.B.1.a.

48 . See Kastner v. Toombs, 611 P.2d 62, 65-66 (Alaska 1980).

49 . Reader v. Ghemm Co., 490 P.2d 1200, 1203 (Alaska 1971) (quoting 1 Restatement (Second) of Agency § 227 (1957)).

50 . See id. (citing 1 Restatement (Second) of Agency § 227 cmt. a at 501).

51 . See id. (citations omitted).

52 . Id.