The opinion of the court was delivered by: DEBEVOISE
This is an action by Richard J. Kozel and his wife Karen E. Kozel against Leonard P. Dunne, the United States, and several unnamed defendants for damages suffered by Mr. Kozel as a result of a car accident in which an automobile driven by Dunne collided with Kozel's automobile, at the time of the accident, Dunne was a federal employee. Plaintiffs allege that this court has diversity jurisdiction over the claims against defendant Dunne, and jurisdiction pursuant to 28 U.S.C. sec. 1346(b) over the claims against the federal government.
The matter is before the court on the motion of defendant United States to dismiss the claims against it for lack of subject matter jurisdiction, and plaintiffs' motion for an order (1) scheduling a hearing regarding whether Dunne was acting in the scope of his employment at the time of the accident, and (2) ordering the Internal Revenue Service ("IRS") to "provide full information and discovery concerning this incident to include disclosure of any internal Rules or Regulations regarding notice to potential Claimants."
In a related case in this court, the Government Employees Insurance Company ("GEICO"), the insurer of Dunne's automobile, seeks a declaratory judgment declaring that (1) at the time of the accident, Dunne was acting within the scope of his employment, and (2) the United States is therefore required by the Federal Driver's Act, 28 U.S.C. sec. 2679(b), to defend and indemnify Dunne in this action and the state court action. GEICO also seeks injunctive relief enjoining the Kozels from proceeding in their federal and state actions and staying the state court action "until the issue herein is resolved." Government Employees Insurance Company v. United States, Civ. No. 87-4026 (D.N.J. filed Oct. 2, 1987). The government and the Kozels, defendants in that case, moved for a summary judgment of dismissal.
I am (1) consolidating the GEICO action with this case, and (2) granting summary judgment dismissing the complaint in GEICO because the undisputed facts establish that Dunne was not acting within the scope of his employment at the time of the accident.
Because I have determined in the GEICO action that Dunne was not acting in the scope of his employment at the time of the accident, no hearing on this issue is necessary in the instant case, and plaintiffs' motion to set a date for a hearing on that issue will be denied.
A. The United States' Motion to Dismiss
Defendant United States contends that this action against it is not allowed under the Federal Tort Claims Act, 28 U.S.C. sections 1346(b) and 2671, et seq., because plaintiff did not submit a claim form to the IRS within two years of the date of his injury.
The following facts have been alleged by plaintiffs in their complaint and in an affidavit, and are therefore assumed to be true for the purposes of the present motions. On April 15, 1985, plaintiff Richard J. Kozel was driving his automobile toward an exit ramp in a public parking garage in Paterson, New Jersey. As he approached the ramp, defendant Dunne drove up the ramp and collided with plaintiff's car. Plaintiffs allege that Dunne caused the accident by driving with excessive speed and failing to properly negotiate the ramp. Plaintiffs also allege that as a result of the accident, Richard Kozel suffered several injuries, including a herniated lumbar disc and injuries to his left knee.
At the time of the accident, Dunne was employed by the United States Internal Revenue Service. Plaintiff alleges, and for the purposes of the present motions it is assumed, that Dunne filed with the IRS an "internal report" on the accident. However, until May 5, 1987, neither Dunne nor the IRS informed plaintiff that Dunne was a federal employee. Plaintiff alleges that the IRS's failure to so notify him was a violation of IRS procedures. Dunne's federal employment was not evident in the papers concerning the accident Dunne furnished to plaintiff ...