B-192088.OM, MAY 28, 1980

B-192088.OM: May 28, 1980

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JUDY CZARSTY: WE HAVE CONSIDERED THE SUBJECT CLAIM BY MR. WAS DRIVING A VEHICLE OWNED BY ANOTHER GAO EMPLOYEE. PASSENGERS IN THE DORRIS VEHICLE WERE MR. DORRIS WAS IN THE LEFT LANE TRAVELING EAST BEHIND A MERCEDES WHEN BOTH VEHICLES BEGAN TO PASS A TRUCK. THE MERCEDES BRAKED IMMEDIATELY BUT WAS UNABLE TO AVOID HITTING THE WHEEL. MR DORRIS ALSO BRAKED IMMEDIATELY BUT WAS UNABLE TO AVOID HITTING THE MERCEDES. THERE WERE NO APPARENT PERSONAL INJURIES. DORRIS THAT HE WAS AT FAULT BECAUSE. DORRIS TO SIGN A STATEMENT ADMITTING THAT HE WAS AT FAULT. THE SF 95 WAS SIGNED JOINTLY BY DORRIS AND MCLAUGHLIN. WE DEFERRED ACTION PENDING THE OUTCOME OF ANOTHER CASE IN WHICH WE WERE CONSIDERING THE EXTENT TO WHICH GAO COULD SETTLE VEHICLE DAMAGE CLAIMS UNDER THE ACT.

B-192088.OM, MAY 28, 1980

SUBJECT: CLAIM OF JERRY W. DORRIS; B-192088-O.M.

CHIEF, ADMINISTRATIVE FINANCE SECTION, OBFM - MS. JUDY CZARSTY:

WE HAVE CONSIDERED THE SUBJECT CLAIM BY MR. JERRY W. DORRIS, ASSISTANT MANAGER, LOS ANGELES REGIONAL OFFICE, AND FOR THE REASONS THAT FOLLOW, CONCLUDE THAT THE CLAIM MAY BE ALLOWED EXCEPT FOR THE PORTION REPRESENTING THE TRAFFIC FINE.

BACKGROUND

THE CLAIM RESULTED FROM AN AUTOMOBILE ACCIDENT WHICH OCCURRED IN GERMANY ON DECEMBER 16, 1977. MR. DORRIS, THEN STATIONED IN OUR EUROPEAN BRANCH, WAS DRIVING A VEHICLE OWNED BY ANOTHER GAO EMPLOYEE, MR. EDWARD J. MCLAUGHLIN, FROM FRANKFURT TO STUTTGART ON OFFICIAL BUSINESS. PASSENGERS IN THE DORRIS VEHICLE WERE MR. JOSEPH EDER, DIRECTOR OF THE EUROPEAN BRANCH, AND MR. J. K. FASICK, DIRECTOR OF THE INTERNATIONAL DIVISION.

THE ACCIDENT OCCURRED ON THE AUTOBAHN BETWEEN KARLSRUHE AND STUTTGART, APPROXIMATELY 60 KILOMETERS WEST OF STUTTGART. MR. DORRIS WAS IN THE LEFT LANE TRAVELING EAST BEHIND A MERCEDES WHEN BOTH VEHICLES BEGAN TO PASS A TRUCK. A WHEEL SUDDENLY CAME OFF THE TRUCK AND ROLLED INTO THE LEFT LANE IN FRONT OF THE MERCEDES. THE MERCEDES BRAKED IMMEDIATELY BUT WAS UNABLE TO AVOID HITTING THE WHEEL. MR DORRIS ALSO BRAKED IMMEDIATELY BUT WAS UNABLE TO AVOID HITTING THE MERCEDES. THERE WERE NO APPARENT PERSONAL INJURIES, BUT DAMAGE TO BOTH VEHICLES RESULTED.

GERMAN POLICE ARRIVED ON THE SCENE AND ADVISED MR. DORRIS THAT HE WAS AT FAULT BECAUSE, UNDER GERMAN LAW, THE DRIVER IN THE REAR MUST ALWAYS BE ABLE TO COME TO A STOP IN TIME TO AVOID A COLLISION. THE POLICE ASKED MR. DORRIS TO SIGN A STATEMENT ADMITTING THAT HE WAS AT FAULT, BUT HE REFUSED. HE RECEIVED A TRAFFIC CITATION AND PAID A FINE IN THE AMOUNT OF DEUTSCHMARKS 161.90, U.S. $80.95.

MR. DORRIS FILED THE ACCIDENT REPORTS REQUIRED BY GAO ORDER 1162.1, AND SUBMITTED A CLAIM ON STANDARD FORM 95 FOR $451.55, THE COST OF THE REPAIRS TO MR. MCLAUGHLIN'S VEHICLE. THE SF 95 WAS SIGNED JOINTLY BY DORRIS AND MCLAUGHLIN, BUT INDICATED DORRIS AS THE CLAIMANT. (WE PRESUME, ALTHOUGH NOT EXPLICITLY STATED IN THE RECORD, THAT MR. DORRIS PAID FOR THE REPAIRS.) HE SUBSEQUENTLY AMENDED HIS CLAIM BY LETTER TO ADD THE AMOUNT OF THE FINE, $80.95.

MR. DORRIS ORIGINALLY FILED HIS CLAIM WITH THE (THEN) OFFICE OF THE CONTROLLER, WHICH ADVISED HIM OF THE INFORMATION REQUIRED TO CONSIDER A CLAIM UNDER COMPTROLLER GENERAL ORDER (CGO) 1.39. CGO 1.39 (IN THE PROCESS OF BEING REPLACED BY GAO ORDER 0267.1) COVERS CLAIMS BY GAO EMPLOYEES UNDER THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964. MR. DORRIS APPARENTLY DECLINED TO FURNISH THE ADDITIONAL INFORMATION, AND REQUESTED THAT THE OFFICE OF GENERAL COUNSEL CONSIDER HIS CLAIM. WE DEFERRED ACTION PENDING THE OUTCOME OF ANOTHER CASE IN WHICH WE WERE CONSIDERING THE EXTENT TO WHICH GAO COULD SETTLE VEHICLE DAMAGE CLAIMS UNDER THE ACT.

IN ORDER TO DETERMINE IF THERE WAS ANY LEGAL BASIS TO ALLOW THE CLAIM, WE EXAMINED THE TWO POTENTIALLY RELEVANT STATUTES, DISCUSSED SEPARATELY BELOW.

FEDERAL TORT CLAIMS ACT

THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. SECS. 1346(B), 2671-2680, PROVIDES A REMEDY FOR DAMAGE OR INJURY RESULTING FROM THE NEGLIGENT OR WRONGFUL ACT OR OMISSION OF A GOVERNMENT EMPLOYEE ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT. THE CIRCUMSTANCES UNDER WHICH THIS COVERAGE EXTENDS TO A CLAIM BY A GOVERNMENT EMPLOYEE FOR PROPERTY DAMAGE INCURRED INCIDENT TO HIS EMPLOYMENT ARE NOT ENTIRELY CLEAR. IN ANY EVENT, THERE ARE TWO REASONS WHY MR. DORRIS' CLAIM CANNOT BE CONSIDERED UNDER THE FEDERAL TORT CLAIMS ACT. FIRST, THE LOSS INCURRED BY MR. DORRIS DID NOT RESULT FROM THE NEGLIGENT ACT OR OMISSION OF ANY OTHER GOVERNMENT EMPLOYEE. SECOND, 28 U.S.C. SEC. 2680(K) PROVIDES THAT THE FEDERAL TORT CLAIMS ACT SHALL NOT APPLY TO "ANY CLAIM ARISING IN A FOREIGN COUNTRY." SINCE THE ACCIDENT OCCURRED IN GERMANY, THE FEDERAL TORT CLAIMS ACT IS NOT APPLICABLE.

MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964

THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964, 31 U.S.C. SECS. 240-243, AUTHORIZES THE HEAD OF EACH AGENCY TO SETTLE AND PAY CLAIMS FOR NOT MORE THAN $15,000 BY AN EMPLOYEE OF THAT AGENCY "FOR DAMAGE TO OR LOSS OF, PERSONAL PROPERTY INCIDENT TO HIS SERVICE." THE ACT DOES NOT REQUIRE THAT CLAIMS BE FILED ONLY BY THE OWNER OF THE PROPERTY. THUS, GAO IS AUTHORIZED TO CONSIDER A CLAIM BY A BORROWER UNDER APPROPRIATE CIRCUMSTANCES, PRESUMABLY WHERE THE BORROWER HAS REIMBURSED THE OWNER FOR THE LOSS. IN B-190853-O.M., NOVEMBER 6, 1979, WE ADVISED THAT THE ACT AUTHORIZES GAO TO CONSIDER VEHICLE DAMAGE CLAIMS IN THEIR ENTIRETY WHERE THE CLAIMANT-EMPLOYEE WAS RECEIVING A MILEAGE ALLOWANCE FOR THE TRAVEL, ASSUMING THE OTHER CRITERIA OF THE ACT ARE MET. MR. DORRIS HAD INFORMALLY ADVISED US THAT HE WAS RECEIVING A MILEAGE ALLOWANCE FOR THE TRIP IN QUESTION.

THE ACT CONTAINS A NUMBER OF REQUIREMENTS WHICH MUST BE MET IN ORDER FOR A CLAIM TO BE PAID. THUS, THE LOSS OR DAMAGE MUST OCCUR "INCIDENT TO SERVICE," POSSESSION OF THE PROPERTY MUST BE "REASONABLE, USEFUL, OR PROPER UNDER THE CIRCUMSTANCES," AND THE CLAIM MUST BE PRESENTED IN WRITING WITHIN TWO YEARS AFTER IT ACCRUES. 31 U.S.C. SECS. 241(B)(1), 241(C)(1). FROM OUR REVIEW OF THE RECORD, IT APPEARS THAT THESE REQUIREMENTS HAVE BEEN MET. FINALLY, A CLAIM MAY BE ALLOWED ONLY IF THE LOSS OR DAMAGE "WAS NOT CAUSED WHOLLY OR PARTLY BY THE NEGLIGENT OR WRONGFUL ACT OF THE CLAIMANT, HIS AGENT, OR HIS EMPLOYEE." 31 U.S.C. SEC. 241(C)(3).

THE DAMAGE IN QUESTION OCCURRED WHEN THE VEHICLE DRIVEN BY MR. DORRIS STRUCK ANOTHER VEHICLE (THE MERCEDES) FROM THE REAR. ACCORDING TO THE ACCIDENT REPORTS, BOTH VEHICLES - THE DORRIS VEHICLE AND THE MERCEDES - WERE TRAVELING AT APPROXIMATELY 55-60 MILES PER HOUR WHEN THE ACCIDENT OCCURRED. THE PAVEMENT WAS WET ALTHOUGH IT WAS NOT RAINING AT THE TIME. THE RECORD DOES NOT ESTABLISH THE DISTANCE BETWEEN THE DORRIS VEHICLE AND THE MERCEDES.

AS A GENERAL PROPOSITION, A VEHICLE STRIKING ANOTHER VEHICLE FROM THE REAR IS PRESUMED TO BE AT FAULT, THE THEORY BEING THAT A DRIVER IS RESPONSIBLE FOR MAINTAINING AN ADEQUATE SAFETY DISTANCE. HOWEVER, THE PRESUMPTION MAY BE REBUTTED IF THE ATTENDING FACTS AND CIRCUMSTANCES SHOW THAT THE FOLLOWING DRIVER WAS EXERCISING DUE CARE. THE STANDARD FOR DETERMINING NEGLIGENCE (ABSENT STATUTORY PROVISION TO THE CONTRARY) IS ONE OF REASONABLENESS AND DOES NOT REQUIRE A DRIVER TO ANTICIPATE EVERY POSSIBLE OCCURRENCE. THUS, IN AKERS V. TOMLINSON, 222 A.2D 644 (D.C. APP. 1966), THE LEAD DRIVER STOPPED ABRUPTLY WHEN HE SAW A TRUCK BACKING TOWARD HIM, APPARENTLY TO PARK. THE FOLLOWING VEHICLE WAS UNABLE TO STOP AND COLLIDED WITH THE LEAD VEHICLE. AFFIRMING A JUDGMENT IN FAVOR OF THE FOLLOWING VEHICLE, THE COURT OF APPEALS SAID:

"IF THE TRIAL COURT DETERMINED THAT APPELLEE HAD NO OPPORTUNITY TO OBSERVE THE TRUCK BEFORE HE SAW APPELLANT STOP, IT COULD HAVE FOUND THAT HIS SPEED AND DISTANCE WERE REASONABLE AND THAT THE EMERGENCY SITUATION WAS NOT CREATED BY HIS OWN NEGLIGENCE." 222 A.2D AT 645.

SEE ALSO FIGONE V. STATTER, 56 CAL. RPTR. 762 (1967); BREITKREUTZ V. BAKER, 514 P.2D 17 (ALASKA 1973); BUT SEE MAROULIS V. ELLIOTT, 151 S.E. 2D 339 (VA. 1966).

HERE, THE PRIMARY CAUSE OF THE ACCIDENT WAS THE WHEEL SUDDENLY ROLLING OFF THE TRUCK INTO THE PATH OF THE MERCEDES. THIS, IN OUR OPINION, IS SIMILAR TO THE AKERS CASE DISCUSSED ABOVE, AND IS NOT WITHIN THE SPHERE OF OCCURRENCES WHICH THE DRIVER IN THE EXERCISE OF DUE CARE IS BOUND TO FORESEE, NOTWITHSTANDING THE APPARENT STRICTNESS OF GERMAN LAW. IN THESE CIRCUMSTANCES, WE DO NOT BELIEVE MR. DORRIS WAS NEGLIGENT. ACCORDINGLY, THE PORTION OF MR. DORRIS' CLAIM REPRESENTING DAMAGE TO THE VEHICLE, $451.55, MAY BE ALLOWED.

THE FINE

THE PRINCIPLE INVOLVED HERE IS THAT APPROPRIATED FUNDS MAY NOT BE USED TO REIMBURSE AN EMPLOYEE FOR A FINE OR FORFEITURE IMPOSED UPON HIM FOR AN OFFENSE COMMITTED WHILE IN THE PERFORMANCE OF, BUT NOT AS A NECESSARY PART OF, HIS OFFICIAL DUTIES. 31 COMP.GEN. 246 (1952); B-173660, NOVEMBER 18, 1971; B-186680, OCTOBER 4, 1976. FOR PURPOSES OF APPLYING THIS PRINCIPLE, WHETHER WE AGREE OR DISAGREE WITH THE GERMAN TRAFFIC LAW IS NOT THE CONTROLLING FACTOR. THERE IS NO BASIS TO REIMBURSE MR. DORRIS FOR THE AMOUNT OF THE FINE, AND THIS PORTION OF THE CLAIM MUST BE DISALLOWED.