David M. WOLLMAN, Appellant, v. Jake GROSS, Jr., Appellee, 637 F.2d 544

STEPHENSON, Circuit Judge. This case arises from an automobile accident between plaintiff-appellant David Wollman and defendant-appellee Jake Gross, Jr. The case was removed to federal district court from South Dakota state court on petition by the United States Attorney contending that the United States was the proper defendant under the Federal Tort Claims Act (FTCA) because Gross was a federal employee acting within the scope of his employment.

After a hearing the district court refused to grant Wollman’s motion for a remand to state court, determining that Gross was a federal employee acting within the scope of his employment at the time of the accident. The district court then dismissed the suit because an administrative claim had not been presented within two years of the date of the accrual of the claim as required by the FTCA. We affirm. The district court opinion presents a good

summary of the facts underlying this case: The case arises out of an automobile accident on June 11, 1976, between the plaintiff, David Wollman, and the named defendant, Jake Gross, Jr. The plaintiff and the defendant are lifelong neighbors who live about one and one-half miles apart near Freeman, South Dakota. On the date of the accident the defendant Gross was employed by the Agriculture Stabilization and Conservation Service (ASCS). He was the District Director for the ASCS State Office in charge of the supervision and review of programs for ten county offices within the state of South Dakota.

It was for the purpose of checking the Davison County ASCS office in Mitchell, South Dakota, that the defendant left his home in his personal car on June 11, 1976. Mr. Gross’ home was his assigned duty station and he received mileage reimbursement from the government for such trips. After finishing his work at the ASCS office in Mitchell he drove toward his home duty station by the most direct route without deviating for any personal business. The accident occurred around 4:00 p. m. on County Road 13 between the farmsteads of the plaintiff and the defendant.

Neither the plaintiff nor the defendant realized that defendant Gross was driving as a federal employee within the scope of his employment. Defendant Gross did not report the accident to his administrative office and his personal insurance company began dealing with the plaintiff. On January 25,1979, more than two years after the accident, the plaintiff filed a complaint in state court naming Jake Gross, Jr., individually, as defendant. The involvement of the United States Government was first recognized by the counsel of the defendant’s personal insuror somewhere in mid-February, 1979.

The case was removed to federal court by the United States Attorney on March 23, 1979. On March 29, 1979, the United States filed a motion to dismiss for lack of jurisdiction due to the untimeliness of any administrative claim. The plaintiff then sent an administrative claim to the United States Department of Agriculture dated July 16, 1979, and on July 18, 1979, filed with this court a motion to remand to state court. Wollman v. Gross, 484 F.Supp. 598 600-01 (D.S.D.1980). On appeal Wollman contends the district court erred in determining that:

(1) Gross was a federal employee;

(2) Gross was acting within the scope of his federal employment at the time of the accident; (3) a Federal Tort Claim was not filed within two years from the time the cause of action accrued; and (4) this case did not fall within the rationale of United States v. LePatourel, 593 F.2d 827 (8th Cir. 1979), requiring a postponement of the accrual date of the claim. We are in agreement with the district court that Gross was a federal employee acting within the scope of his employment at the time of the accident.

After a careful consideration of the record and briefs and arguments of the parties concerning this issue, this court has concluded that the decision of the district court is based on findings that are not clearly erroneous and that no error of law appears. The district court’s decision on these issues is therefore affirmed on the basis of the court’s well-reasoned opinion. See Wollman v. Gross, supra, 484 F.Supp. at 601-03.

It is noted that while the question of scope of employment is one of state law for which there have been no analogous cases cited under South Dakota law, great weight is given to the local district court’s view of state law. See, e. g., Duke v. Hartford Fire Insurance Co., 617 F.2d 509, 510 (8th Cir. 1980); Foremost Insurance Co. v. Sheppard, 610 F.2d 551, 554 (8th Cir. 1979). Wollman has not shown that the district court’s determination that Gross was acting within the scope of his employment to be in any way inconsistent with the law of South Dakota.

We also agree with the district court that the filing of the administrative claim was untimely and therefore the claim was properly dismissed. Because of the harshness of this result to Wollman, however, further comment is appropriate. The district court properly held that because Gross was a federal employee acting within the scope of his employment, plaintiff’s exclusive remedy is against the United States under the FTCA. 28 U.S.C. § 2679(b).

The FTCA waives the sovereignty of the United States, and the courts in construing the statute of limitations, which is a condition of that waiver, should not extend the waiver beyond that which Congress intended. United States v. Kubrick, 444 U.S. 111, 117-19, 100 S.Ct. 352, 356-58, 62 L.Ed.2d 259 (1979). Nor, however, should the courts assume the authority to narrow the waiver. Id. Prior to bringing a suit a claim must be presented in writing to the appropriate administrative agency “within two years after such claim accrues.” 28 U.S.C. §§ 2401(b); 2675(a).

Wollman’s administrative claim was filed more than two years after the accident occurred, but Wollman argues the accrual date should not be the date of the accident, June 11,1976, but instead the date Wollman discovered facts which put him on notice that Gross may have been a federal employee acting within the scope of his employment. Wollman contends this latter date is approximately February 22, 1979, when plaintiff received defendant’s amended answer alleging he was an employee of the federal government.

Wollman argues he had been diligent in bringing this law suit within the state three-year statute of limitations. The state suit was filed more than two years but less than three years after the accident. The district court stated the current status of the law concerning the accrual of a federal tort claim.

The general rule under the Act has been that a tort claim for personal injury or property damage resulting from the negligent operation of a motor vehicle by a government employee accrues at the time of the injury “when the injury coincides with the negligent act and some damage is discernible at that time.” Steele v. United States, 599 F.2d 823, 828 (7th Cir. 1979); Mendiola v. United States, 401 F.2d 695, 697 (5th Cir. 1968). However, the courts have recognized that there are circumstances when a claim accrues at a later time.

For example, in medical malpractice actions where the injury and the cause are not immediately known and actions where new law applied retroactively has created a new basis for a claim, the time of accrual, has been postponed. Neely v. United States, 546 F.2d 1059, 1069 (3rd Cir. 1976); United States v. LePatourel, 593 F.2d 827, 830 (8th Cir. 1979); United States v. Kubrick, [444 U.S. 111, 100 S.Ct. 352, 359, 62 L.Ed.2d 259 (1979)]. Wollman v. Gross, supra, 484 F.Supp. at 603-04.

Wollman argues the time for accrual of the claim should be extended on the basis of both (1) the doctrine of “blameless ignorance,” and (2) the rationale of United States v. LePatourel, supra. LePatourel does not control this situation. In that case, this court ruled for the first time that federal judges were federal employees for purposes of the FTCA.

The court en banc then held that this ruling was a “novel question of federal law” which would not be applied retroactively, and therefore the claim did not accrue until this court’s declaration that federal judges were federal employees under the FTCA. 593 F.2d at 831-32. It is our view that the judicial determination that Gross was a federal employee acting within the scope of his employment presents no “novel question of law.” Further, there is no basis for extending LePatourel to “novel questions of fact” as suggested by Wollman.

Wollman also contends the doctrine of “blameless ignorance” should apply in this case. This doctrine was enunciated by the Supreme Court in Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 1024, 93 L.Ed. 1282 (1949) and applied to FTCA cases in Quinton v. United States, 304 F.2d 234 (5th Cir. 1962). Its primary application has been in medical malpractice cases. It is our view that United States v.

Kubrick, supra, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) limits this doctrine and forecloses Wollman’s argument in this case that the accrual date should be extended to the point in time that Wollman became aware of the status of Gross as a federal employee. Kubrick involved a medical malpractice claim where plaintiff had suffered a hearing loss after taking neomycin in 1968. In January 1969, plaintiff was informed by a private physician that neomycin may have caused the hearing loss.

Another physician, in 1971, stated that neomycin was the cause of the injury and such treatment should not have been administered. Suit was brought in 1972. The Supreme Court held that the claim accrued in 1969, when plaintiff knew of the existence and cause of his injury and not in 1971, when he also learned that the acts inflicting the injury may constitute medical malpractice. The Court stated: The District Court, 435 F.Supp., at 185, and apparently the Court of Appeals, thought its ruling justified because of the “technical complexity,” 581 F.2d, at 1097, of the negligence question in this case.

But determining negligence or not is often complicated and hotly disputed, so much so that judge or jury must decide the issue after listening to a barrage of conflicting expert testimony.

And if in this complicated malpractice case, the statute is not to run until the plaintiff is led to suspect negligence, it would be difficult indeed not to apply the same accrual rule to medical and health claims arising under other statutes and to a whole range of other negligence cases arising under the Act and other federal statutes, where the legal implications or complicated facts make it unreasonable to expect the injured plaintiff, who does not seek legal or other appropriate advice, to realize that his legal rights may have been invaded. United States v. Kubrick, supra, 444 U.S. at 124, 100 S.Ct. at 360.

Even if the doctrine of “blameless ignorance” extends beyond the medical malpractice area, a proposition we do not address, Kubrick prohibits the postponement of the accrual date in the instant action. Wollman was aware at the time of the accident that Gross was employed by the ASCS. He was unaware only of the legal significance of this fact. The purpose of the statute of limitations is to require the reasonably diligent presentation of tort claims.

This may require a plaintiff to obtain appropriate legal counsel and together with counsel discover the facts and their possible legal ramifications so as to enable plaintiff to bring the suit within a reasonable time. As stated by the Court in Kubrick, A plaintiff such as Kubrick, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community.

To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government. Id. at 123, 100 S.Ct. at 360. Admittedly this application of the statute of limitations has especially harsh ramifications here where the record indicates little prejudice to the government if it had to defend this lawsuit. However, to accept Wollman’s argument would be in effect rewriting the two-year statute of limitations of 28 U.S.C. § 2401(

b) to allow the state statute of limitations to apply whenever plaintiff is unaware of the status of the defendant as a federal employee acting within the scope of his employment. While this may be desirable, Congress has clearly not chosen to do this and any change is its prerogative and not that of the courts. Wollman also relies heavily on Kelley v. United States, 568 F.2d 259 (2d Cir.), cert. denied, 439 U.S. 830, 99 S.Ct. 106, 58 L.Ed.2d 124 (1978). It is far from clear that Kelley is good law in this circuit, but in any event that case is distinguishable from the case at bar.

In Kelley the state suit against the individual had been instituted within the two-year period of 28 U.S.C. § 2401(

b) but after the two-year period expired the government moved for removal, to be substituted as the party in interest,' arid for dismissal for failure to file the administrative claim within two years. The district court found in that case that the government had “lull[ed] plaintiffs into a false sense of security by waiting until plaintiffs’ time to file an administrative claim had expired and thereupon moved to be substituted and to dismiss.” Kelley v. United States, supra 568 F.2d at 262. The Second Circuit affirmed, characterizing the case as one. of “innocent ignorance or ingenuous blunder.” Id.

The party who is claiming the benefit of an exception to the operation of a statute of limitations bears the burden of showing that he is entitled to it. DeWitt v. United States, 593 F.2d 276, 281 (7th Cir. 1979). Here the state action was not commenced until after the two-year statute of limitations of 28 U.S.C. § 2401(

b) had expired. Wollman has not alleged, nor has a careful examination of the record revealed, activities of the defendant or the United States which would lull the plaintiff into a false sense of security. The most that can be said is that Gross turned the matter over to his private insurer and did not file an administrative report with his superior as he should have. Wollman never presented a claim to Gross’ insurer until November 29, 1978, after more than two years had elapsed. The insurance company then denied liability by a letter dated January 4, 1979. Suit was brought in state court on January 29, 1979.

The evidence then indicates that sometime between February 16, 1979, and February 21, 1979, Gross mentioned to his insurer’s attorney that he worked for the ASCS. An amended answer alleging this fact was filed February 21, 1979, and the petition for removal was filed by the United States Attorney on March 23, 1979. Under these circumstances, we cannot say the actions of either Gross or the United States lulled plaintiff into a false sense of security as occurred in Kelley. In addition to United States v.

Kubrick, supra, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259, the cases cited by the district court, 484 F.Supp. at 604, support our conclusion. See West v. United States, 592 F.2d 487 (8th Cir. 1979); Steele v. United States, 599 F.2d 823 (7th Cir. 1979); Lien v. Beehner, 453 F.Supp. 604 (N.D.N.Y.1978); Baker v. United States, 341 F.Supp. 494 (D.Md.), aff’d, (4th Cir. 1972); Driggers v. United States, 309 F.Supp. 1377 (D.S.C. 1970). See also McGowan v. Williams, 481 F.Supp. 681 (N.D.Ill.1979); Reiser v. Di Pietro, 78 F.R.D. 541 (N.D.Ill.1978); Fuller v. Daniel, 438 F.Supp. 928 (N.D.Ala.1977); Miller v.

United States, 418 F.Supp. 373, 377 (D.Minn.1976). Accordingly, the district coürt’s order denying a remand of the case to state court and granting the United States’ motion for dismissal is affirmed. . . The Honorable Fred J. Nichol, Senior District Judge (then Chief Judge) of the United States District Court for the District of South Dakota. . See note 4 and accompanying text infra. . Wollman also argues Neely v. United States, 546 F.2d 1059 (3d Cir. 1976) establishes that the accrual of a cause of action should be postponed if the claim was “inherently unknowable” at accrual.

That case postponed the accrual on the basis of an “inherently unknowable” proposition of law, that being the express overruling of authoritative precedents by the United States Supreme Court. There is no similar “inherently unknowable” question of law involved in the instant action. . This circuit approved of Quinton in Reilly v. United States, 513 F.2d 147 (8th Cir. 1975). Urie and Quinton were relied on by some courts, e. g., DeWitt v. United States, 593 F.2d 276 (7th Cir. 1979); Exnicious v. United States, 563 F.2d 418, 420, 424 (10th Cir. 1977); Bridgford v.

United States, 550 F.2d 978, 981-82 (4th Cir. 1977); and Jordan v. United States, 503 F.2d 620 (6th Cir. 1974), which held or indicated in dictum that a malpractice plaintiff under federal law must be aware of the legal implications of the facts, as well as the facts themselves, before the limitations period began to run. The Supreme Court in United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) disagreed and held the cause of action accrues when plaintiff knows of both the existence and cause of the injury. . Kelley expressly distinguishes and rejects much of the reasoning of Meeker v.

United States, 435 F.2d 1219 (8th Cir. 1970). Meeker, which has never been rejected by this circuit, holds that the FTCA’s requirement of filing an administrative claim before bringing suit against the United States cannot be circumvented or satisfied by filing an action in state court against the governmental employee. In Meeker, this court held the suit had been properly dismissed for the failure to file the administrative claim required by 28 U.S.C. § 2675(a). .

We also have some question as to whether Wollman was in fact “blamelessly ignorant.” It does not seem unreasonable to expect Wollman, who was aware that Gross was an ASCS employee, to so inform his counsel, or for counsel to then research the status of ASCS employees for consideration of an FTCA claim.