Frankel v. United States

An employee of the U.S. Navy cannot proceed on claims arising from another employee allegedly striking him with her car.

Another judge of this court, in dismissing the plaintiff’s prior suit arising out of the same incident, held that the driver was acting within the scope of her federal employment at the time of the accident. Issue preclusion prevents the plaintiff from re-litigating the scope-of-employment question. Thus, in this case the United States must be substituted as the proper defendant, and Davis has absolute immunity from suit. And sovereign immunity bars the plaintiff’s suit against the United States.

The plaintiff’s separate uninsured-motorist claim also fails, because such a claim under Virginia law cannot proceed until the plaintiff first secures entry of judgment against a tortfeasor. While the Virginia legislature has the power to modify the immunity enjoyed by state actors named in a lawsuit in order to eliminate the resulting remedy gap, the Supremacy Clause prevents Virginia from modifying the scope of the federal government’s sovereign immunity.

This result may seem inequitable. However, unless and until the Virginia legislature modifies the statutory procedure set forth in Va. Code § 38.2-2206(F) to allow a plaintiff to proceed directly against an insurer in similar circumstances, such perceived unfairness cannot be avoided.

Motion to dismiss granted.

Frankel v. United States, No. 2:18cv107, Jan. 8, 2019. EDVA at Norfolk (Davis).



Categories: Opinions, U.S. District Court - Eastern District of Virginia

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