Jean Martin v. United States, 566 F.2d 895, 4th Cir. (1977)

566 F.
2d 895
Jean MARTIN, Appellant,

v.
UNITED STATES of America, Appellee.
No. 76-2289.
United States Court of Appeals,

Fourth Circuit.
Argued Oct. 4, 1977.
Decided Dec. 22, 1977.
William W. Hodges, Columbia, S. C. (Richard C. Beerman, Columbia, S.

C., on brief), for appellant.
Wistar D. Stuckey, Asst. U. S. Atty., Columbia, S. C. (Thomas P.
Simpson, U. S. Atty., Columbia, S. C., on brief), for appellee.
Before BRYAN, Senior Circuit Judge, WINTER, Circuit Judge, and
THOMSEN,* Senior District Judge.
WINTER, Circuit Judge:
Injured when the automobile in which she was returning from lunch collided
with an army truck, Jean Martin, an employee of the Fort Jackson PX, brought
this damage action under the Federal Tort Claims Act, 28 U.S.C. 2674. If her
injuries arose out of and in the course of her employment, plaintiff's exclusive
remedy would be compensation under 5 U.S.C. 8171, since her salary was
paid from nonappropriated funds of the Army and Air Force Exchange Service.
See 5 U.S.C. 2105(c). Indeed, plaintiff accepted statutory compensation
payments, which had been paid voluntarily, even after she retained counsel and
filed suit. She claimed, however, that these payments were made erroneously,
and thus did not affect her right to bring a tort action, because she was not
injured within the scope of her employment.
The district court dismissed the action for failure to state a claim upon which
relief could be granted.1 It concluded that plaintiff had been injured in the
course of her employment, and therefore it ruled that 8171 provided her
exclusive remedy.
3
Plaintiff appeals from this dismissal, and we reverse. We disagree with the
district court's conclusion that, as a matter of law, the lunchbreak accident
occurred within the scope of plaintiff's employment. Furthermore we hold that
plaintiff's acceptance of compensation payments did not, as a matter of law,
preclude her from pursuing tort remedies. We remand the case for a trial on the
merits.
I.
4
The accident from which this action arose occurred at Fort Jackson, South
Carolina, on August 22, 1974. Plaintiff was apparently returning to work at the
time of the accident, for the collision took place approximately 300 feet from
her place of work and the hour allotted for her lunchbreak had nearly elapsed.2
Under the terms of 5 U.S.C. 8171, employees of nonappropriated fund

instrumentalities, including employees paid from nonappropriated funds of the
Army and Air Force Exchange Service (5 U.S.C. 2105(c)), qualify for
compensation provided by the Longshoremen's & Harbor Workers'
Compensation Act, 33 U.S.C. 901-950, when their injuries arise out of the
course of their employment. In addition, 5 U.S.C. 8173 states that the liability
of the United States under this scheme of compensation is exclusive;
nonappropriated fund employees whose injuries are covered have no other
remedies against the government. Since plaintiff is an employee of the Fort
Jackson PX, she cannot maintain this federal tort action unless it be determined
that the accident occurred outside the scope of her employment.
Whether a particular injury arises within the scope of employment is a question

that defies uniform solutions. Rather, each case turns on a close analysis of its
facts. Naturally, the focus is on those facts that bear on the relationship of the
injury to the victim's job; for the purpose of compensation statutes is to provide
quick, certain relief for work-related injuries. Furthermore, because
compensation statutes are given a liberal construction, uncertainties generally
are resolved in favor of coverage. Of course, this case presents the converse of
the typical situation in which scope of employment is an issue; here, plaintiff is
not arguing that her injury comes within the compensation statute, but, instead,
that her injury is not covered.
The district court ruled that "(i)njuries sustained while an employee is going to
or from lunch arise out of and in the course of employment." This unqualified
statement cannot withstand scrutiny. True, there are cases holding that an injury
sustained while at lunch occurred within the scope of the injured person's
employment. But in each instance there were significant facts that linked the
employee's lunchtime injury to the performance of his job. For example, in
London Guarantee & Accident Co. v. Britton, 78 U.S.App.D.C. 195, 138 F.2d
932 (1943), relied upon by both the defendant and the district court, the
employee, who was struck by a car while crossing a street, had been instructed
by his supervisor to obtain lunch for his fellow employees. And in Cardillo v.
Hartford Accident & Indemnity Co., 71 App.D.C. 330, 109 F.2d 674 (1940),
the employee was driving a company car when he was injured. By contrast, the
court, in Wetzel v. Britton, 83 U.S.App.D.C. 327, 170 F.2d 285 (1948), upheld
a finding that an employee who was struck by a bus on her way to lunch was
not injured within the scope of her employment where the facts showed that the
employer exercised no control over her activities during the lunchbreak. To the
same effect are Walker v. United States, 322 F.Supp. 769 (D.Alas.1971); and
Troutman v. Williams Furniture Corp., 224 S.C. 353, 79 S.E.2d 374, 376
(1953). Viewed together, these cases refute any suggestion that lunchtime
injuries receive uniform dispositions; the outcome in each case depends on its
facts.3
8
Turning to the instant case, we think that the facts fail to establish a sufficient
connection between plaintiff's injury and her job. Plaintiff's lunch hour was her
own time. She was unpaid, and there were apparently no restrictions on where
she went or what she did so long as she returned on time. She was not
performing any errands for her employer on the day of the accident, and she
was riding in a privately-owned automobile. Although the accident occurred
close to her place of employment and while she was apparently returning to
work, those facts are entitled to little weight in determining whether she was
injured within the scope of her employment. After all, commuters injured in
traveling to or from work are not considered to have been injured within the
scope of their employment unless there are special circumstances; that they
must travel to their job in order to perform it is not enough. See Bailey v.
United States, 451 F.2d 963, 967 (5 Cir. 1971).
II.
9
Because the district court determined that compensation under 5 U.S.C. 8171
was plaintiff's exclusive remedy, it did not consider the effect of her acceptance
of compensation payments on her right to proceed in tort. Defendant now
contends that receipt of these payments bars any tort recovery. Plaintiff
disagrees, arguing that there should be no estoppel because the defendant
voluntarily commenced the compensation payments. Principles of estoppel are
implicated by the apparent duplicity in plaintiff's claiming that compensation

payments have been made erroneously while at the same time accepting the
payments. In essence, the issue is whether plaintiff's action constituted a
binding election of remedies.
10
We have found no cases that discuss the question of estoppel where, as here, a
plaintiff repudiates compensation payments that were made voluntarily and
seeks instead to recover in tort. One commentator has stated, however, that "
(m)ere acceptance of some compensation benefits, then, is not enough to
constitute an election. There must also be evidence of conscious intent to elect
the compensation remedy and to waive his other rights." 2A Larson,
Workmen's Compensation, 67.22, at 12-52 to 12-53. See Gahagan
Construction Corp. v. Armao, 165 F.2d 301, 307 (1 Cir. 1948); Smith v.
Service Contracting, Inc., 236 F.Supp. 492 (E.D.Va.1964).
11
The affidavit of Donald Link, the personnel manager for the PX where plaintiff
worked, discloses that compensation payments began after he filed the
necessary accident report. Plaintiff apparently has never filed a claim for
compensation nor sought an administrative determination of her eligibility for
statutory compensation.4 That the defendant's agents took the initiative in
making these payments argues against the element of conscious choice that
might give rise to an election on the part of the plaintiff. We would be reluctant
to allow the defendant's unilateral decision to pay compensation to estop
plaintiff from pursuing other remedies.
12
More troublesome is the fact that plaintiff has continued to accept

compensation despite the contradictory theory of her tort claim. But we cannot
draw from this fact a conscious intent on the part of the plaintiff to give up her
tort claim. It would be unreasonable to expect a plaintiff, to whom
compensation benefits were volunteered, to refuse them when she had no
recollection of how the accident occurred and she could not be certain of a
future recovery in tort. Any apparent inconsistency on the part of the plaintiff
will work no prejudice to the defendant. As plaintiff concedes, fairness would
require that any recovery by her in the tort case should be reduced by the
amount of compensation that she has already received. This reduction would
prevent any double recovery in this case. 5 The elimination of the possibility of
double recovery eliminates the justification for imposing an election. See Twin
City Federal Savings & Loan Ass'n v. Transamerica Ins. Co., 491 F.2d 1122,
1125 (8 Cir. 1974).
13
The concept of applying compensation payments to offset recovery in tort is not

novel. The Supreme Court has endorsed this practice in cases where
servicemen have been allowed to recover under the Federal Tort Claims Act for
non-service-related injuries after they have collected veteran's benefits. See
United States v. Brown, 348 U.S. 110, 111, 75 S.Ct. 141, 99 L.Ed. 139 (1954);
United States v. Brooks, 337 U.S. 49, 53-54, 69 S.Ct. 918, 93 L.Ed. 1200
(1949). We think that the offset of compensation payments avoids any unjust
enrichment of the plaintiff and renders inapplicable the doctrine of estoppel in
this case.
14
REVERSED AND REMANDED.
Senior United States District Judge, District of Maryland, sitting by designation
The dismissal was actually entry of summary judgment for defendant.

Defendant moved for dismissal under Rule 12(b)(6), F.R.Civ.P., or in the
alternative for summary judgment, supported by an affidavit of plaintiff's
supervisor. Plaintiff filed two counteraffidavits. The memorandum opinion of
the district court makes it clear that the district court considered the facts set
forth in the affidavits in formulating its ruling. See Rule 12(b)
Plaintiff suffered amnesia as a result of the accident and she cannot describe her
destination or the purpose of her travel at the time when the collision occurred
Moreover, Wetzel, Britton, and Cardillo were appeals from an administrative

determination of the employee's eligibility for compensation. The scope of
review was limited, and they were decided under the substantial evidence rule
Had plaintiff obtained an administrative determination of her eligibility, that

determination would have been res judicata of this proceeding; recovery under
the Federal Tort Claims Act would have been foreclosed
We intimate no opinion as to what would be the proper course of action with

respect to the compensation paid, if plaintiff in her tort action either was denied
recovery or recovered less than the amount of compensation benefits already
accepted by her

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566 F.

Jean MARTIN, Appellant,

United States Court of Appeals,

William W. Hodges, Columbia, S. C. (Richard C. Beerman, Columbia, S.

Under the terms of 5 U.S.C. 8171, employees of nonappropriated fund

Whether a particular injury arises within the scope of employment is a question

implicated by the apparent duplicity in plaintiff's claiming that compensation

More troublesome is the fact that plaintiff has continued to accept

The concept of applying compensation payments to offset recovery in tort is not

REVERSED AND REMANDED.

Senior United States District Judge, District of Maryland, sitting by designation

The dismissal was actually entry of summary judgment for defendant.

Moreover, Wetzel, Britton, and Cardillo were appeals from an administrative

Had plaintiff obtained an administrative determination of her eligibility, that

We intimate no opinion as to what would be the proper course of action with

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