Petition for Writ of Certiorari — Lazaros v. Michigan

Supreme Court brief1968

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SUPREME COURT, U. & ie on

ee | JAN 29 .1968

nu 062. |: 29 1968 F

L JOH F. DAVIS, CLERK

| United Staten |

¥ Ss?

January Term, 1968

CHARLES COBIA. and EVELYN COBIA,’

auc and - 7

- Petitioners,

.THE UNITED STATES OF AMERICA :

Respondent. .

PETITION FOR A WRIT OF CERTIORARI

-TO THE UNITED STATES COURT OF -

APPEALS FOR THE TENTH CIRCUIT

- RICHARD RICHARDS

Attorney for Petitioners

200 Kiesel Building

Ogden, Utah $4401

“

INDEX |

Page

Opinions below ............ oan a. FF

Jurisdiction 0... ssiceeanacesantaie : — y

Questions presented ....... | nioccensaiillia 2

Statute involved «...............0:... - decie we

Statement ................- Ritalin : - el 4

Reasons for.granting the Pe LEK BOI Do ler 7

Conclusion: ........ — sgiciisai i cahigathb ince es — oe

Appendix A siishoniied dE Titel Senieladsiebias Al

Appendix B nnn oe ae

CITATIONS

Cases ‘

Johansen v. VJ. S., 343 U.S. 427, 96 L. Ed. 1051,

72S. Ct. 849, (1952) ongeeceeenceen ae 7-9

- United States v. Muniz, 374 U.S. 150, 10 L. Ed. 2d —

805, 83 S..Ct. 1850, (1963) irvenenennosevenoouenineonet 8-9

U. S. v. Udy, 881 F.2d 455, (1967) .ccccssssocssesssee 8

Solomon v. U. S., 276 F.2d 669, (1960) 2... 9

Goldstein v. U.S., 227 F.2d 1, (1955) .......0......... 10

STATUTES _ |

‘98 U-S. C. § 1966 en :

TS GA | aa ane ne ee ne

5 U.S.C. § 8116 ........... = eke

5 U. S. C. § 8128 .. enievasiiolansininaaa 4

in the Sian Court of the

Anited States” elt

January Term, 1968

CE ASLS COBIA and EVELYN COBIA,

~" husband and wife, |

Petitioners,

Vv.

THE UNITED STATES .OF AMERICA

: Respondent.

PETITION FOR A’ WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

- The Petitioner prays'that a Writ of Certiorari be

issued to review the judgment of the United States

Court of Appeals for the Tenth Circuit entered in the -

above-entitled case on the 30th day of October, 1967.

~~ 1 a

OPINIONS BELOW:

‘The opinion of the Tenth Circuit Court of Appeals

- is prinetd in App. A, infra, pp. ‘A1-A8 and is. reported

in 884 F.2d 711 (1967). The opinion of the United”,

States ‘District Court for the District of. Utah is un-

‘reported and printed i in App. B,-infra, pp. B1-B-11. .

- JURISDICTION °

The judgment of the Circuit Court of Appeals

was entered on October 30, 1967, (App. A, infra, pp.

A1-A3). The jurisdiction of this court is invoked

3 under 28 U: S. C. Section 1254 (1).-

QUESTIONS PRESENTED

_ Whether . an award made under the Federal En-

ployees’ Compensation Act to an injured person not

_an empleyee within the meaning of the statute and

not injured while in the performance of his duty, can

thereby deprive the court of jurisdiction in a Federal

Tort Claims Act or deny the injured -persen the. right.

to pursue his remedy under the’ Federal Tort ‘Claims —

Act.

Whether receipt of benefits under the Federal

Employees’ Compensation Act by one not enititled,

constitutes an estoppel or ‘choice of procedure to bar

recovery under FTCA. |

. May: ‘the defendant invoke the d doctrine of sine

or choice of procedure when it was the defendant's

agents, servants, or ) employees that informed the peti- —

tioner of his right to the benefits under the FECA.

ae |. tS. ae

and where they have suffered no detriment. —

STATUTES INVOLVED

28 :U~ S. C. § 1346. (b) ‘“<# * * the district courts,

together with the United States District Court for the

District of the Canal Zone.and the District Court of

the Virgin Islands, shall haye exclusive jurisdiction of

_ civil actions on claims against the United States, for

- money damages, accruing on and after January 1, 1945, .

for injury or loss of property, or personal injury or.

death caysed by the negligent or wrongful act. or

omission of any employee of the Government while ©

acting within the scope of his office or employment,

under circumstances’ where the United States, if a

private person, would be liable to the claimant in accord-.

‘ ance with the law of the place where the act or omission

occurred.” a

5 U. S.C. § 8182. (a) “The United States shall

pay: compensation as specified by this subchapter for

the disability or death of an employee resulting from

_ personal injury’ sustained while in Ahe performance

of his duty * * *”

$U.S.C.§ 8116. (c) “** * The liability of the

United States or an instrumentality thereof under this °

subchapter or any extension thereof with respect to

the injury or death of ,an ‘employee is exclusive and

instead of all other liability of the United States or

| %

‘a

M . -

— 7

\._ the instrumentality to. the employee, his legal repre-

sentative, spouse, dependents, next of kin, and. any

... other person otherwise entitled to recover r damages

* * * ”

50'S. C. § 8128. (b} “ * ** The action of the -

Suiodinsy or his designee in allowing or denying a

payment under this subchapter is—(1) final and con-

clusive for all purposes. and with respect to all question

of law and fact; and (2) not subject to review by another

official of the United States or by a court by mandamus

or otherwise.”

STATEMENT

“The petitioner, CHARLES COBIA, a married .

man with five minor children, was employed by the .

United States Air Force at Hill Air Base near Ogden,

Utah. He*was an hourly employee obligated by .the

terms of his employment to punch a time clock as he

began hig work or completed his work on any given

day. On the 15th day of January, 1965, at the end |

of his working day he. punched out, left the building

in which he performed his labor, proceeded to a public

parking lot, designated No. 50 which was fenced out

from the military reservation, and boarded an automobile .

then owned: and driven by Mr. Verl Udy, and pro-

ceded, to leave Hill Air Force Base area and journey

to ‘bis home. At that same time, the access highway.. -

between petitioner's home and the air base was under °

construction and the United States Air Force allowed

their employees to re-enter . the military reservation

and travel along a road known as “perimeter: road”

4 we

—_

which emerged from the reservation closer to the town

of Ogden without entailing the inconvenience of travel

ing upon the highway that was then under construction.

Any re-entry to the base was strictly for the Convenience

of: the employee. :

After re-entering the military. reservation,»,the

petitioner and his companions traveled approximately

three miles from the parking lot and the building in .

which the plaintiff worked when an oil tank became’

“ ‘uncoupled from a motor vehicle ‘then owned and .op-

-erated by the defendant, crossed over the center line

of the highway dnd struck the automobile in which

the plaintiff was a passenger, killing the driver, Mr.

Verl Udy ,and inflicting serious injury on the peti-

_tioner. Shortly thereafter, petitioner experienced head-

aches, dizziness, loss of memory and suffered from

hallucinations. He was quite. disorganized, illogical, me F

_ had strange thoughts, would imagine things, would

hear’ voices, and was suffering from a market fear of

dying and hat voices Were telling him that.he was

going to die. (R 243) Within the first. two or three

days after his injury, while confined in a lotal hospital,”

certain employees of the defendant visited him in the

hospital and explained to him his rights and benefits

_ under. the, Federal -Employees’ Compensation Act.

(Xt 375) Petitioner delayed making’a decision relative

to application for benefits but on the 8th day of Feb-

ruary, 1965, he made application and benefits were.

ultimately awarded. Petitioner's mental condition grew * ,

progressively worse and before release from the hos-

' pital he had received a total of 37 electric shock treat-_

ments and 12 insulin shock treatments but did not

ar,

respond favorably. At the time he accepted the benefits,

- he was mentally .confused, irresponsible, and‘ had no

adequate understanding of the law or his rights under

the Compensation Act or under the Federal Tort Claims

Act. (R 146)

In May of 1966,- petitioner's wife secured legal

counsel for her husband, and on June 8, 1966, the peti-

tioner filed a Complaint against the United States of

America .invoking jurisdiction of the Federal Court

under provisions of Title 28, U. S. C., Section 1346 (b).

A substantial portion of the benefits paid’ to. the

petitioner were paid directly to the hospitals and

doctors who rendered medical treatment on his: behalf,

having paid to them the approximate sum of $10,000.00.

The trial court found that the ‘petitioner was not

in the performance of his duty at the time of his injury

and any determination to that effect was without sub-

stantial support in the evidence. (R 145) The petitioner’

had left his duty station, the building in which he per-

formed his labors, the ‘ ‘fenced in’ ” portion of the, military

reservation, checked out through the guard gate,

emerged from the public parking lot, re-entered.the mil-

itary reservation for his own convenience‘and journeyed

some three miles before becoming involved in an acci-:

dent. (R 140 to 143) The fact that petitioner was still on

thé premises was the sole factor that induced the award

of benefits under FECA. (R 280)

The trial court held the petitioner to be estopped

~ from asserting his claim under the Federal Tort Claims

Act upon th grounds that he had accepted the benefits

of FECA. The Court of Appeals for the Tenth Circuit

affirmed the trial court’s determination that the peti- -

tioner had no claim under the FTCA because he*had

exercised a ‘choice of procedure which denied review

by the courts.

REASONS FOR GRANTING THE WRIT

1. The decision of the court below in the instant .

case is in conflict with applicable decisions of this court.

This court has made it abundantly clear in Johansen

v. U.S., 843 U. S. 427, 96 L. Ed. 1051, 72 S. Ct. 849,

(1952) that where an employee is injured in the per-

formance of his duty his exclusive remedy is under the

Federal Employees’ se niaicah Act and the court |

» said at page 1057,

“There is no provision in the Compensation -

Act for an election between compensation and

other remedies.”

: The court. below in the instant case denied the

petitioner a remedy under the Federal Tort Claims

Act on the ground that he had “exercised a choice of

procedure which denies review by the courts”, ‘App.

A, p. 8). The implication of the decision below is that

petitioner had more than one remedy and since he had

made his choice or his election as the case may be he

is now precluded from, pursuing his action. under the

Federal Tort Claims Act.

, Petitioner believes that the J ohanses case, supra,

confers upon employees within the meaning of the act,

_the benefits of that act and they are in effect “fenced

in” but should not be construed to allow persons who

Be ee eens oC aay ee Lee

. es

are not employees within the meaning of the act and

who receive injury while not in: the performance of

their duty to claim the benefits of the act, they are in

effect “fenced out”. Petitioner was not in the perform- .

ance of his duty at the time of the injury (R 145) and

cannot be included. His énly remedy therefore is the

FTCA. — | ,

2. The decision of the court below in the instant

case is directly in conflict with United States v; Muniz,

374 U.S. 150,.10 L. Ed. 2d 805, 83 S. Ct. 1850, (1963)

where the court interpreting the Federal Tort Claims

Act objected ‘to judicial determinations which narrowed

the remedy provided by Congress under’ the, Federal

Tort Claims Act. The court said at page 816,

“The FTCA provides much needed relief to

those. suffering injury from the negligence of

Government employees. We should not, at the

_same time the state courts are striving to miti-

gate the hardships caused by sovereign immu-

nity, narrow the remedies provided by Congress.

As we said in Rayonier Incorporated v, U. S.

Supra (352 U. S. at 320) “There. is no justifi-

cation for this court to read.exemptions into the

act beyond these provided by Congress, if the

act is to be altered that is the function for the

same body that adopted it.’ ”

_ The trial court in the instant case found that any

determination. that the petitioner was injured in the

performance of his duty was without substantial sup-

port in the evidence, (R‘145)” and in the companion

case to the instant case, U. S. v. Udy, 381 F.2d 455,

(1967) the Tenth:Circuit Court of Appeals in an iden-

tical factual situation upheld the lower court’s deter-

mination that there was no basis upon which an award

could be made under the FECA. Clearly then, the

petitioner was not entitled to benefits under FECA —

and his only remedy was under the Federal Tort Claims

- Act. "

3. The questions presented here are of great im-

portance to the administration of the FECA and the

FTCA and will affect literally thousands of em: yees

- of the Federal Government. Johnson vs. U. S., Supra,

reinforces the. principle of exclusive-remedy under

FECA and U. 8.0. Muniz, Supra, denies narrowing

~~ sthe remedies under the Federal Tort Claims Act.

‘In the instant case the petitioner was not entitled to the

_ benefits under the FECA, but they were granted there-

by expanding the coverage of that act to cover persons

not entitled to benefits and in conflict’ with M uniz,

Supra, narrowing coverage under the Federal Tort‘

claims Act which was petitioner's proper and rightful

remedy.

4. The decision of the court below is believed to be

erroneous and in conflict with decisions of the Sixth

Circuit Court of Appeals in Solomon v. U. S., 276 F.2d

669, (1960) in which the court said at page 675,

_ “Kilection of remedies is a wal recognized

' principle of law, but, in order to be applicable,

certain facts must exist, one of which is that there

must be a choice, knowingly made? between two

inconsistent rights, either of which may be assert-

ed at the will of the chooser. If through a mistake

of material fact or of law, alternative remedies

- are not known to be available, the ‘selection of

‘” what later develops to be an improper remedy

or . 9

does not constitute an election which will bar _

CONTE I TONNE Na re

4 < dsbleaaanhadanbisa bat icsein

the party. fren later asserting the correct remedy

which is available to him.” - v8

. The court cited Goldstein v. U. S., 227 F.2d 1,

(1955) decided-by the Eighth Circuit Court of ———

+ where the court there said, |

“The fact that one, , through mistake, attempts —

to exercise a right to which he is .not entitled, .

does’ not prevent him from exercising one which

he has.” —

5. The Court of as in the-instant case below

has sanctioned a departure. from the usual course of

judicial proceedings where the lower court held that

although the petitioner was not entitled to benefits

under the FECA. by virtue of the fact that he had

accepted benefits he was now estopped from asserting

his remedy under the Federal Tort Claims Act. Peti-

tioner bélieves this decision is erroneous and in conflict

with decisions of other court of appeals. The Govern-

ment here seeks the benefit of a determination made

under mistake of law arid fact. This is in conflict with

Goldstein v. U. S.,Supra, where the taxpayers attempt-

ed to take advantage of a mistake of law and fact

determined by the commissioners relative to the amount

of. taxes to be paid. The court refused to invoke the

doctrine of estoppel for acts or mistakes of its agents

or officers which the law does not authorize or permit

and refused to allow the taxpayers to seek a profit from

the mistake. of the commissioner in. their favor. The

same principle should apply in the instant case. The

mistake of law and fact in granting an award under

FECA was made by the Government and they peels

not be able to profit from said ‘mistake.

10— |

CONCLUSION | |

os For the foregoing reasons, this petition for 2 writ

of certiorari should be granted.

; Respectfully submitted,

RICHARD RICHARDS”) -

Counsel for Petitioner --

J anuary 24, 1968.

to COBIA, husband and wife,

. THE UNITED STATES OF

APPENDIX A

- UNITED STATES COURT OF APPEALS

TENTH CIRCUIT _

SEPTEMBER TERM - 1967

CHARLES COBIA and EVELYN.

A ppellants, No

v. | ,

AMERICA, Appellee...

APPEAL FROM THE UNITED STAT

DISTRICT COURT FOR THE ‘. ~-

DISTRICT OF jUTAH

Richard Richards, Ogden, Utah (Firm’ of Froerer,

Horowitz, Parker, Richards, Thornley & Critchlow,

Ogden, Utah with him on brief ) for appellants.

Robert E. Kopp (Barefoot Sanders, Assistant Attor-

ney General, William T. Thurman, United States

Attorney, Morton Hollander and J.-F. Bishop, Attor-

neys, Department of Justice, Washington, D. C. with

him on brief) for appellee. |

Before PICKETT, HILL and HICKEY, Circuit

Judges | é

HICKEY, Circuit Judge

~ .

= Bh hn

— a 4

é.

eo RE SE Neat MIPS Sy

Charles and Evelyn Cobia, husband and wife, ap-

peal from a judgment in which the Ufiited States was

_ given a. non-suit in‘'a Federal Tort Claims action.

Recovery is sought under 28 U-S.C. §§1346(b),

2671 et seq. for injuries sustained by appellant Charles

Cobia -in a motor vehicle collision at Hill Ajr Force

Base in which. the United States confessed, negligence

as the proximate cause of the collision. Mr. Cobia made

- application for and continués to receive compensation

for injuries under the Federal Employees Compensa-

tion Act, 5 U.S.C. $8101, et seq. bs

The court ried that application’ for and the con-

tinued acceptance of compensation under the FECA

foreclosed the appellants from recovering under the

Federal i ea Act. We agree.

Appell: ts argue that U. S.-v. Udy, No. 9156 July

Term, 381. F.2d 455 (10th Cir. 1967) determined ‘that

the collision out of which this claim arose was actionable |

under the Fedefal Tort. Claims Act. It is true the.

‘claims grew out of the same collision and this court

: determined the remedy under the Federal Tort Claims

Act, was available to Udy; however, Udy did not elect. -

’ to proceed under the FECA and proceeded only under

the Tort Claims Act, thereby givirig the court an oppor-

tunity to exercise its’ judgment, regarding the remedy.

- When application is made for FECA benefits, the

determination of coverage is made by the Secretary of:

‘Labor or his designee and his finding is final and not

subject to judicial review. 5.U.S.C. §§8145, 8128(b).

_. Acceptance of benefits under the FECA is an injured

employee's exclusive remedy. 5 U.S.C.: §8116(c) ;

| on ane

ée

. i v. United States, 207 F.2d 862 (10th ¢ Cir’

1953); United States v. Browning, 359 F.2d 937 (10th -

- Cir. 1966).

3S 3

_ Therefore, | we affirm the trial court’s determina-

tion that the appellants have no claim under the Federal

_ Tort Claims Act because they have exercised a choice

of procedure which denies review by the courts.

“AFFIRMED.

Re rea wer

. .

rs ’, - APPENDIX B

IN THE, UNITED STATES DISTRICT

COURT FOR THE DISTRICT

OF UTAH

CENTRAL DIVISION ,

CHARLES COBIA and EVELYN:

; COBIA, husband and wife, ,

| . CO ppellants, No.

rs €'111-65

THE UNITED STATES OF

AMERICA,

Appellee.

CONCLUSIONS OF LAW .

Pa This matter having come before this Court on the

; 3rd day of August, 1966, for trial before the Honorable

A. Sherman Christensen, United States District J udge, |

and. Richard Richards having appeared as counsel for

the plaintiff and H. Ralph Klemm as Assistant United

“ . States Attorney having appeared as counsel for the

defendant, and both sides having called their witnesses

and the Court having heard all of the‘evidence presented

by. the parties hereto, the Court now makes the following

Boe FINDINGS OF FACT

i ; it Gad anuary 15, 1965, on the military reserva-

4 ; tion known as Hill Air Force Base, near Ogden, Utah,

Bl.

the plaintiff Charles Cobia was a passenger in an auto-

mobile that collided with) an oil bowser that. became

disconnected from a truck driven -by an employee of

the defendant while he was in performance of his duty.

Upon stipulation of counsel for the defendant, the

Court finds that the defendant was negligent and the

negligence referred to herein was the proximate cause

tiffs.

2. The plaintiff Charles Cobia received the follow-

ing injuries-in said accident:

“

a. Very extensive contusion and ragged laceration

of left forehead and left cheek.

b. Multiple small lacerations of left face.

c. Moderately severe concussion of brain.

d. Fractured ribs — left chest.

e. Contusions and sprain of left shoulder.

f. Laceration of superior branch left facial nerve .

with resultant inability to wrinkle forehead or raise left

_ eyebrown:

g. Shock. -

3. .The Court finds that the plaintiff Charles

- Cobia was not in the performance of his duty at the

time he sustained his injuries. Said finding is based

upon the following: )

a. Plaintiff Charles. Cobia was employed as an

airplane landing gear repairman. Substantially all -of

his work was to be performed in Building S 264. Land-

ing gears upon “a he works are generally contamed

B-2

of said collision and the resulting injuriés to the plain-

, |

LE MELT

in that building. All of the tools necessary for the per-

formance of his duties are contained and maintained

in said building. * ‘“

b. Plaintiff is an hourly sagloyes and required

by his employment contiact to punch a time clock as he

begiiis his working day and at the end of his ‘working

day again punches a time clock as he leaves his duty

station. On the date of his i injury he had in fact punched

the time clock in and his supervisor had signed him out

indicating that he nea completed his regular Satins for

that day. '

c. Following completion of his duties for the day

and punching out, he left. the building in which. he is

normally employed and proceeded to the parking lot to

be transported to his home. As he proceeded to the

parking lot he checked ‘out through the guard*gate in ,

Building T 500 and as he left the building and the

guard station he entered upon Parking Lot 50.

d. Parking Lot 50 is a parking facility available

to the public generally and it is completely fenced out -

from the rest of the military reservation and all persons |

can drive upon said parking lot at will without authori-

zation and without going through a guard or checking

station. :

e. The driver of the automobile, Mr. Verl Udy,

then proceeded to drive the automobile from the -public

parking lot back onto the military reservation as a

matter of convenience for himself, Mr. Cobia, and the

other passengers. They were allowed to re-enter the

. fenced portion of the reservation because they could

display a sticker indicating that they were employed .

B-3

by the United’States Government. They then passed

‘through a gate on the east end of Parking Lot 50, re-

entered the military reservation and proceeded toward

their home on perimeter road.

f. Supervision exercised over the plaintiff while

' he was on perimeter road was authorized by virtue of

the fact that he was on the military reservation and_the

government exercised no greater control over him than

they would over any other visitor or guest, the sole:

reason he was upon the military reservation was for his

own convenience. No purpose was served forthe em-

ployer, the military police in charge of trdffic on the

reservation or any other person or authority.

g. After the plaintiff had journeyed some three _

miles from the parking lot into the reservation, he was

_ struck by the government vehicle.

-h. Upon examination of the circumstances sur-

rounding’ the accident, the plaintiff Cobia’s immediate

_ supervisor “was requested to submit an official report

_ of injury in which he indicated that the plantiff Charles

' Cobia was not doing his regular work at the time of

his injury and was not in the performance of his duty.

4. The injuries heretofore mentioned received by

the.plaintiff were suffered as a direct result of the colli-

sion between the government vehicle and the automo-

- bile in which plaintiff was a passenger.

Immediately following the collision plaintiff was

transported to the medical dispensary at Hill Air Force

Base and later transferred to the Dee Hospital in Og-

den, Utah. Within a period of 2 or 3 days Mr. Cobia

showed signs of severe mental injury. He was having

B-4

wes

a Bi i all ol

ll a a

hallucinations, imagined voices were talking to him and

told him that he was going to die, and was generally .

very confused. Plaintiff Charles Cobia remained in the

hospital for a period of five days, after which he was

returned to his home for a short period of time, on

the 20th day of January, 1965. Two days thereafter

he was again seen by his doctor Wendell J. Thompson

and complained of headaches, dizziness, loss of memory,

and was. transferred to the St. Benedict's Hospital. On:

the Sth day ‘of March, 1965, Dr. Richard Iverson, a-

qualified psychiatrist practicing his profession in Ogden,

_ Utah, was. assigned to his case and rendered extensive

care and treatment. He was confined from the 5th day

of March, 1965, to the 28th day of April, 1965, and

received extensive psychiatrid® treatment..

_ Thereafter he was released to his home where he

remained for a period of two days but because of his

illness he was. returned to the hospital for further care.

He remained in the psychiatric ward at the St. Bene-

dict’s Hospital for several months. During the period

of his confinement, he received a total of 37 electric

shock treatments and 12 insulin shock treatments but

the response was not as favorable as the doctor had

hoped. Plaintiff suffered a schizophrenic reaction, un- .

diffetentiated type, and while his condition has im-

- proved since he has resumed work, there is-no assurance

-that there will not be a worsening of his condition or

that his condition so proximately caused by the colli-

sion will not require him to interrupt or discontinue his

. work. He is now working full time and there appears

no immediate prospect of him being unable to continue

his present work. :

on . parr pte i cuit nts tna ES id Aedes Dante Matt waite ena

5. Subsequent to: Mr. Cobia’s injury, while he was

still confined in the hospital within two or three days

after the injury, he was visited by certain employees

of the federal government-to explain to his his assumed

right to benefits under the Workmen’s Compensation —

. Act. At that time he indicated that he would make a

decision relative to his benefits at a later date. On the *

8th day of February, 1965, Mr. Cobia did make appli-

cation for benefits under the Federal Employees’ Com-

pensation Act. His application was favorably acted

upon pursuant to the Federal Employees’ Compensa-

tion Act. The Board, having found that he sustained

‘. his injuries in the performance of his duties as an em-

ployee of. the federal government, paid to him the sum.

of $342.96 per month during the period of time he was

unable to work and in addition to such compensation

the federal government paid all of his medical expenses -

growing out of the accident. The total plaintiff re-

ceived pursuant to the award of compensation has been

io date in excess of $1300.00. There was no evidence

presented at the trial to indicate that the plaintiff Cobia

was in the performance of his duty at the time of his

injury and the award was apparently made solely upon

the basis that the injury occurred on the military reser-

vation. In.view, of the surrounding circumstances of the

‘case it is clear that this particular circumstance did not .

furnish substantial evidence to support a determination —

by the Bureau of Employees’ Compensation, and that

any finding that the plaintiff Cobia was injured in the

performance of his duties was without any sybetantial

support in the evidence. .

The evidence before the court does not clearly

BS6

ae ne ne en

i MDs 5.06

reveal the circumstances under which the plaintiff sub-

» circumstances under which compensation paymenis . ~

were actually received and utilized after the approval

- of his claim. ‘There is no evidence to indicate with winom

he and his wife consulted with reference to the filing

of the claim or with reference to the acceptance of bene-

fits, nor is there any evidence to indicate that at any

stage either he or his advisors undertook or attempted

to terminate the receipt of compensation of refused to

accept funds because the claim-was not properly allowed

by the Bureau, or for any other reason. On the con-

trary, the record: indicates that notwithstanding the

commencement of this suit on June 8, 1965, claiming

damages under the Federal Tort Claims Act the plain-

_ tiff has received and accepted compensation pursuant.

to the award of the Bureau without protest or objection

and has utilized said funds for his own and his family’s

purposes and that there has never been any attempt to

_ withdraw or abandon his application except that im-

plicit in the fact that he has claimed in the present law-

suit damages under the Federal Tort Claims Act and

has maintained during the course of these proceedings

that neither his application for compensation, the award.

of the commission, nor his acceptance of benefits has

barred him from recovery herein, the plaintiff indicat-

ing a‘ willingness to credit against any amount awarded

as damages in this suit the compensation payynente and

medical expenses heretofore received.

There is ssiiinie to indicate, aad the court finds, |

that at the time the-plaintiff Cobia executed his claim

for compensation under the Federal Employees’ Com-

B-7

pensation Aét he was mentally confused and irrespon-

_ sible and had no adequate understanding or comprehen-

sion oi the law with regard to coverage or concerning

possible rights underthe Federal Tort Claims Act.

that this condition continued during all of the period

in which he was being paid and receivéd compensation

and, on the contrary, the preponderance of the evidence

indicates that during a substantial part of said period

he was reasonably advised and understood that he could

not lawfully obtain both employees’ compensation under

the Federal Employees’ Compensation Act and dam-

ages under the Tort Claims Act, and that he deter-

mined with reasonable awareness of possibilities that he

should accept benefits under the Federal Employees’.

Compensation Act. During the time this determination

was being made, the law applicable in this district con-

cerning possibilities and probabilities was not settled,

nor were.the prospects concerning the plaintiff's ulti-

mate recovery in pursuit of either remedy anything but

uncertain. Moreover, what the situation of plaintiff ~

Cobia might be with regard to his health, his ability to

regain and maintain employment if the application for

compensation should be withdrawn or further payments

refused and reliance placed solely upon the Federal

Tort Claims Act was a difficult one. At the time the .

application for compensation was filed the certificate

of the attending physician did not necessarily indicate

any permanent injuries except with respect to control

of facial nerves and definitely did not indicate. any per-

manent impairment of earning ability. Subsequently

the psychatrist realized that there were serious mental

» B-8

hacen Sete wiht RS he a ip RED Net Se om

implications but the realization they they might result

in permagent impairment of earning ability, if indeed

they do, came progressively over a period of time.

Under conditions as they probably existéd at -the

time a knowing and considered determination was made

* to accept benefits under the Federal. Employees’ Com-

pensation Act, it was a difficult and close question of

judgment as to whether the plaintiff should attempt

to renounce benefits under the Compensation Act and: :

rely exclusively upon the Tort Claims Act, or whether.

he should continue to accept benefits under the Com-

pensation Act. The continued acceptance of benefits

having been established and no reason being suggested

_ in the evidence whereby the plaintiffs could be excused

from the consequence of such acceptance, the plaintiffs

must be deemed to be estopped in equity and good con-

science from now relying upon the Federal Tort Claims

Act. v4

"In view of the last mentioned holding, it is unneces-

sary at this time for the court to determine or speculaice

upon..the damages that might ultimately be suffered

by the plaintiffs or either of them, were'an award to be

made under the Federal Tort Claims Act; except to note

that a substantial part of the damages now claimed in.

this action may never accrue, particularly as they relate .

to the failure of employment in thesimmediate or fore-

seeable future; and that the relationship between the

benefits that ultimately may be realized under the

award of compensation and the damages that could be

awarded at this time, should this have been held a pro-

_ per. action under the Federal Tort Claims Act, does not

present such an established disparity as to permit or

. BY

oS tases

justify attempted departure from the controlling effect

of the acceptance of benefits under the Compensation:

Act.

View the ienartee Findings of Fact, the Court |

now ti the ee:

CONCLUSIONS OF LAW

1. The defendant was. negligent in that one of.

defendant’s employees while acting in the course and —

scope of his employment negligently and carelessly

operated a motor vehicle on the 15th day of January,

1965, and as a result of the negligence of said defend-

ant an oil tanker coupled with said automobile came

loose causing it to strike the automobile in which plain-

tiff Charles Cobia was a passenger.

2. That the negligence of the defendant was the —

sole and proximate cause of the injuries to the plaintiff.

Charles Cobia, and that there was and is no substantial

evidence that the injuries were sustained in the per-

formance of duty for the United States.

3. That:as a proximate result of the negligence

of the defendant and resulting accident, the plaintiff

Charles Cobia has been caused to suffer permanent

scarring of his face, pain, suffering and inconvenienée,

mental disability, some impairment of memory and‘other

injuries which it is unnécessary here to evaluate in view

of the awarded compensation. .

4. That plaintiff Charles Cobia by the acceptance

of benefits under the Compensation Act following his.

filing of an application before the Bureau of Em-

| B-10 1

er. |

ee Nee Pee Pe

- ¥

bd ~

I ananassae oe wnt Ron nib ete eam

ployee’s Compensation is estopped now to assert that

such award <and its:continued recognition is not his

_ exclusive remedy, and that the defendant having de-

-feated plaintiffs’ claims under the Tort Claims Act by

reason of such payment and acceptance of benefits, is

estopped from. gjuestioning plaintiff's entitlement to

compensation pursuant to the Federal Employees’

Compensation Act for the results of said injuries.

5. That plaintiff Evelyn Cobia has no claim under

the Federal Tort Claims Act against the United States,

e nor has the plaintiff Charles Cobia.

6. That the defendant-is entitled to a judgment

herein of no cause of action, no costs to be awar ‘ded,

without prejudice to the plaintiffs’ continuing rights

4 | under the Federal Employees’ Compensation Act. The

S. Glare will enter judgment accordingly.

Dated this 13th day of September, 1966.

mm ) /s/ A. Sherman Christensen

: UNITED STATES DISTRICT J UDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.